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




 
H.R. 4315, ``21ST CENTURY ENDANGERED SPECIES TRANSPARENCY ACT''; H.R. 
  4316, ``ENDANGERED SPECIES RECOVERY TRANSPARENCY ACT''; H.R. 4317, 
 ``STATE, TRIBAL, AND LOCAL SPECIES TRANSPARENCY AND RECOVERY ACT''; 
  AND H.R. 4318, ``ENDANGERED SPECIES LITIGATION REASONABLENESS ACT''

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

                          LEGISLATIVE HEARING

                               before the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                         Tuesday, April 8, 2014

                               __________

                           Serial No. 113-69

                               __________

       Printed for the use of the Committee on Natural Resources

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

         Available via the World Wide Web: http://www.fdsys.gov
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          Committee address: http://naturalresources.house.gov
        
                                     ______

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                     COMMITTEE ON NATURAL RESOURCES

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

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

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



























                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Tuesday, April 8, 2014...........................     1

Statement of Members:
    Grijalva, Hon. Rauul, a Representative in Congress from the 
      State of Arizona...........................................     4
    Hastings, Hon. Doc, a Representative in Congress from the 
      State of Washington........................................     2
        Prepared statement of....................................     3

Statement of Witnesses:
    Bean, Michael, Counselor to the Assistant Secretary, Fish and 
      Wildlife and Parks, U.S. Department of the Interior, 
      Washington, DC.............................................    20
        Prepared statement of....................................    22
    Budd-Falen, Karen, Owner/Partner, Budd-Falen Law Offices, 
      Cheyenne, Wyoming..........................................    65
        Prepared statement of....................................    66
    Courtney, Steven P., Associate, National Center for 
      Ecological Analysis and Synthesis, Santa Barbara, 
      California.................................................    16
        Prepared statement of....................................    17
    Holsinger, Kent, Attorney, Holsinger Law, Denver, Colorado...    75
        Prepared statement of....................................    76
    Jankovsky, Hon. Tom, Commissioner, Garfield County, Colorado.    29
        Prepared statement of....................................    30
    Percival, Robert V., Robert F. Stanton Professor of Law, 
      Director, Environmental Law Program, University of Maryland 
      Francis King Carey School of Law, Baltimore, Maryland......    71
        Prepared statement of....................................    72
    Ramey, Rob Roy II, Ph.D., Wildlife Science International, 
      Nederland, Colorado........................................     6
        Prepared statement of....................................     8
    Rauch, Sam, Deputy Assistant Administrator for Regulatory 
      Programs, National Marine Fisheries Service, National 
      Oceanic and Atmospheric Administration, U.S. Department of 
      Commerce, Washington, DC...................................    25
        Prepared statement of....................................    26
    Seliger, Kel, a U.S. Senator from the State of Texas.........    14
        Prepared statement of....................................    15

Additional Material Submitted for the Record:
    American Loggers Council, prepared statement of..............    54
    Casperson, Hon. Tom, a U.S. Senator from the State of 
      Michigan, prepared statement of............................    56
                                     

LEGISLATIVE HEARING ON H.R. 4315, TO AMEND THE ENDANGERED 
    SPECIES ACT OF 1973 TO REQUIRE PUBLICATION ON THE INTERNET 
    OF THE BASIS FOR DETERMINATIONS THAT SPECIES ARE ENDANGERED 
    SPECIES OR THREATENED SPECIES, AND FOR OTHER PURPOSES, 
    ``21ST CENTURY ENDANGERED SPECIES TRANSPARENCY ACT''; H.R. 
    4316, TO AMEND THE ENDANGERED SPECIES ACT OF 1973 TO 
    IMPROVE THE DISCLOSURE OF CERTAIN EXPENDITURES UNDER THAT 
    ACT, AND FOR OTHER PURPOSES, ``ENDANGERED SPECIES RECOVERY 
    TRANSPARENCY ACT''; H.R. 4317, TO AMEND THE ENDANGERED 
    SPECIES ACT OF 1973 TO REQUIRE DISCLOSURE TO STATES OF THE 
    BASIS OF DETERMINATIONS UNDER SUCH ACT, TO ENSURE USE OF 
    INFORMATION PROVIDED BY STATE, TRIBAL, AND COUNTY 
    GOVERNMENTS IN DECISIONMAKING UNDER SUCH ACT, AND FOR OTHER 
    PURPOSES, ``STATE, TRIBAL, AND LOCAL SPECIES TRANSPARENCY 
    AND RECOVERY ACT''; AND H.R. 4318, TO AMEND THE ENDANGERED 
    SPECIES ACT OF 1973 TO CONFORM CITIZEN SUITS UNDER THAT ACT 
    WITH OTHER EXISTING LAW, AND FOR OTHER PURPOSES, 
    ``ENDANGERED SPECIES LITIGATION REASONABLENESS ACT''
                              ----------                              


                         Tuesday, April 8, 2014

                     U.S. House of Representatives

                     Committee on Natural Resources

                             Washington, DC

                              ----------                              

    The committee met, pursuant to notice, at 10:04 a.m., in 
room 1324, Longworth House Office Building, Hon. Doc Hastings 
[Chairman of the Committee] presiding.
    Present: Representatives Hastings, Bishop, Lummis, 
Benishek, Tipton, Gosar, Southerland, Flores, Mullin, Daines, 
Cramer, LaMalfa; Holt, Grijalva, Costa, Huffman, Shea-Porter, 
and Garcia.
    The Chairman. The committee will come to order. Today we 
are having a legislative hearing on H.R. 4315, the ``21st 
Century Endangered Species Transparency Act''; H.R. 2316, the 
``Endangered Species Recovery Transparency Act''; H.R. 2317, 
the ``State, Tribal, and Local Species Transparency Recovery 
Act''; and H.R. 4318, the ``Endangered Species Litigation and 
Reasonable Act.'' The Chair notes a presence of a quorum.
    I ask unanimous consent that Mr. Neugebauer from Texas be 
allowed to sit in the committee and participate in the hearing.
    [No response.]
    The Chairman. Without objection, so ordered. And the same 
courtesy would be applied to Mr. Huizenga, if he also wants to 
come and testify.
    We will begin now with opening statements, as confined to 
the Chairman and Ranking Member. However, I ask unanimous 
consent that any Member who wants to have a statement appear in 
the record have it to the committee before the close of 
business today. And, without objection, so ordered.
    I will now recognize myself for 5 minutes.

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

    The Chairman. Today marks the legislative phase of 
updating, improving, and modernizing the Endangered Species Act 
for the 21st century. It is a product of years of Committee 
oversight on this 40-year-old law, which was last reauthorized 
26 years ago, in 1988.
    Last year I, along with my colleague from Wyoming, Mrs. 
Lummis, created the Endangered Species Act Congress Working 
Group. It is comprised of Republican Members from affected 
States nationwide. This group held forums and received hundreds 
of public comments from all sides.
    In February the working group released its final report 
with more than 20 recommendations. The group found that while 
there is strong support for conserving endangered species, 
there are key areas where improvements could be made to make 
the law more effective for both species and for people. Today's 
bills reflect some of those recommended improvements.
    I have said it has never been my intent to introduce a 
sweeping overhaul of the Endangered Species Act. I don't 
believe that is the best way to go forward. Instead, the focus 
needs to be on thoughtful, sensible, and targeted proposals. We 
have those before us today.
    First is a bill I introduced, H.R. 4315, the ``21st Century 
Endangered Species Transparency Act.'' This legislation simply 
requires that data used by Federal agencies for ESA listing 
decisions be made publicly available and accessible through the 
Internet. The last significant update to ESA was when the 
Internet was in its infant stages. Posting data, supporting key 
ESA decisions online will greatly enhance transparency and is 
something, frankly, that should have been done a long time ago.
    In my own Central Washington district, the Fish and 
Wildlife Service, rather than using actual DNA data, based its 
decision to list a plant called a bladderpod largely on 
publicly inaccessible data from a 2006 unpublished manuscript. 
Other examples include the Federal Government's citation to 
taxpayer-funded studies that conclude without actual data that 
listing the greater sage-grouse across 11 Western States is 
warranted.
    Now, whether one agrees with the conclusions that I just 
cited or not, refusing to make tax-funded data available to the 
American public flies in the face of transparency and good 
science.
    H.R. 4317, the ``State, Tribal, and Local Species 
Transparency and Recovery Act,'' sponsored by our colleague 
from Texas, Mr. Neugebauer, would enhance State, local, and 
tribal involvement in ESA decisions. This bill would require 
that before any listing decision is made, the Federal 
Government must disclose all data used to States affected by 
such actions. This gives States the opportunity to verify, 
dispute, or complement such information, and encourages a 
stronger role for States and species conservation policies.
    The bill also ensures that data from local, State, and 
tribal entities--those are the governments closer to the 
ground--be included in ESA listing decisions.
    H.R. 4316, the ``Endangered Species Recovery Transparency 
Act,'' sponsored by Mrs. Lummis, would require the 
administration to track and make available online the millions 
of taxpayer dollars being spent on ESA-related litigation, to 
give American people clear information about the time and 
resources currently used to address ESA-related lawsuits.
    And the final bill, introduced by Mr. Huizenga from 
Michigan, would reduce taxpayer-financed attorney fees to help 
ensure that resources for species protection are focused more 
on species than on lucrative legal fees. It puts in place the 
same reasonable hour caps on attorney fees used in another 
Federal law, the ``Equal Access to Justice Act.'' This common-
sense bill would help reduce the often current exorbitant 
taxpayer-funded fees, often upwards of $500 an hour, and make 
them limited to the hourly rate for attorneys that prevail 
against the Federal Government at $125 an hour. This is in line 
with the Equal Access to Justice Act.
    And just last week, at the Appropriations Committee 
hearing, the Director of Fish and Wildlife acknowledged that 
there could be--and I will quote--``opportunities to make 
incremental improvements'' to the ESA. And that is exactly what 
we are doing here, in a manner that I hope will be bipartisan.
    These bills provide a starting point for this committee's 
legislative efforts on the Endangered Species Act. Moving 
forward with these simple, narrowly focused proposals would 
help bring needed transparency for significant Federal ESA 
decisions for both people and for species.
    [The prepared statement of Mr. Hastings follows:]
 Prepared Statement of The Honorable Doc Hastings, Chairman, Committee 
                          on Natural Resources
    Today marks the legislative phase of updating, improving, and 
modernizing the Endangered Species Act for the 21st century. It is the 
product of years of committee oversight on this 40-year-old law that 
was last reauthorized in 1988.
    Last year, I along with Rep. Cynthia Lummis, created the Endangered 
Species Act Congress Working Group. Comprised of Republican Members 
from affected districts nationwide, this group held forums and received 
hundreds of public comments from all sides.
    In February, the Working Group released its final report with more 
than 20 recommendations. The Group found that while there is strong 
support for conserving endangered species, there are key areas where 
improvements could be made to make the law more effective for both 
species and people. Today's bills reflect some of those recommended 
improvements.
    I've said it has never been my intent to introduce a sweeping 
overhaul of the ESA. I don't believe that's the best way forward. 
Instead, the focus needs to be on thoughtful, sensible, and targeted 
proposals. We have those before us today.
    First is a bill I introduced, the 21st Century Endangered Species 
Transparency Act. This legislation simply requires that data used by 
Federal agencies for ESA listing decisions be made publicly available 
and accessible through the Internet. The last significant update to the 
ESA was when the Internet was in its infant stages. Posting data 
supporting key ESA decisions online will greatly enhance transparency, 
and is something that should have been done long ago.
    In my own central Washington district, the Fish and Wildlife 
Service, rather than using actual DNA data, based its decision to list 
a plant called the bladderpod largely on publicly inaccessible data 
from a 2006 ``unpublished'' manuscript. Other examples include the 
Federal Government's citation to taxpayer-funded ``studies'' that 
conclude, without actual data, that listing the Greater Sage Grouse 
across 11 western States is warranted. Whether one agrees with the 
conclusion or not, refusing to make taxpayer-funded data available to 
the American public flies in the face of transparency and good science.
    H.R. 4317, the State, Tribal, and Local Species Transparency and 
Recovery Act, sponsored by Rep. Neugebauer, would enhance State, local 
and tribal involvement in ESA decisions. This bill would require that 
before any listing decision is made, the Federal Government must 
disclose all data used to States affected by such actions. This gives 
States the opportunity to verify, dispute, or complement such 
information and encourages a stronger role for States in species 
conservation policies. The bill also ensures that data from local, 
State and tribal entities--those closest to the ground--be included in 
ESA listing decisions.
    H.R. 4316, the Endangered Species Transparency Act, sponsored by 
Rep. Lummis, would require the administration to track and make 
available online the millions of taxpayer dollars being spent on ESA-
related litigation to give the American people clear information about 
the time and resources currently used to address ESA-related lawsuits.
    The final bill, introduced by Rep. Huizenga, would reduce taxpayer-
financed attorney fees to help ensure that resources for species 
protection are focused more on species than on lucrative legal fees. It 
puts in place the same reasonable hourly caps on attorney fees used in 
another Federal law, the Equal Access to Justice Act. This common sense 
bill would help reduce the often current exorbitant, taxpayer-funded 
fees--often upwards of $500 per hour--and make them limited to the 
hourly rate for attorneys that prevail against the Federal Government 
at $125 per hour. This is in line with the Equal Access to Justice Act.
    Last week, at an appropriations hearing, the Director of the Fish 
and Wildlife Service acknowledged that there could be ``opportunities 
to make incremental improvements'' to the ESA. That is exactly what 
we're doing here, and in a manner that, I hope will be bipartisan.
    These bills provide a starting point for this committee's 
legislative efforts on the ESA. Moving forward with these simple, 
narrowly focused proposals would help bring needed transparency for 
significant Federal ESA decisions for both species and people.

                                 ______
                                 

    The Chairman. And, with that, I will recognize the 
distinguished Ranking Member, Mr. Grijalva.
    Mr. Grijalva. Thank you very much, Mr. Chairman, and thank 
you for yielding.

   STATEMENT OF THE HON. RAUUL GRIJALVA, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF ARIZONA

    Mr. Grijalva. After numerous hearings and a partisan task 
force which concluded that the Endangered Species Act is a 
failure because it has not recovered enough species, we now 
have before us four bills that would create red tape, divert 
agency resources, and dictate what data constitutes the best 
available science, regardless of whether the data is, in fact, 
the best, or even scientific. None of these bills will actually 
lead to the recovery of more species.
    The pattern of this committee with respect to ESA has been 
all too familiar to other issues we have before us. Partisan 
hearings, excessive document demands from agencies that require 
thousands of man-hours to address, the all-Republican task 
force, and, yesterday, another subpoena for Fish and Wildlife 
Service, which, by now, must be feeling pretty popular with the 
Natural Resources Committee.
    Finally, today we consider four bills that have been 
before--that have been developed with no consultation with the 
Democrats. Ironically, a few of these bills have concepts 
that--some changes could probably be supported. But, as 
drafted, they have significant problems. If the past is a 
prologue, there will be no effort to try to make the changes 
that will garner bipartisan support, and the Majority will just 
move forward to mark up, because, as we all know, they have the 
votes.
    This, unfortunately, is not the way to successfully 
legislate. And unchanged, these bills will very likely go the 
way of the dodo bird. No real progress will be made to improve 
agency efficiency and increase recovery rates for species or to 
truly improve transparency in a way that benefits citizens, 
agencies, and the species. Perhaps that is what the other side 
wants: the ability to endlessly attack ESA and repeat 
accusations that have been around for decades, that 
environmentalists are getting rich off ESA lawsuits and species 
are not recovering.
    The fact is, like it or not, ESA is one of the most 
important environmental laws of our time, and protecting 
endangered species is broadly supported by the public. When the 
father of ESA, Congressman John Dingell, introduced his bill in 
1973, species were disappearing at an accelerated rate. As Mr. 
Dingell noted then, and is still true today, the protection of 
endangered species is far more than a matter of aesthetics. 
Once a species is gone, it is gone. When we fail to protect 
endangered species, as then-Committee Chairwoman Margaret 
Sullivan noted, we tinker with our own futures, and run risks 
whose magnitudes we barely understand, if at all.
    Does the recovery of species take time? Of course it does. 
Species that end up on the list are those that have been driven 
to the brink, but saved from extinction after decades of 
habitat loss and degradation or, in the case of the wolf, a 
concerted extermination effort. Were it not for ESA, however, 
scientists estimate that more than 200 species would have gone 
extinct in the time since the law's passage. Moreover, when 
comparing the actual recovery rate of listed species to the 
recovery plans that have been developed under the law, 90 
percent of the listed species are recovered at a rate that was 
expected in the plan.
    We have a duty and a responsibility to protect all 
creatures, great and small. And I cannot support legislative 
initiatives that will undermine that goal. If the Republicans 
want to improve recovery, increase transparency in a manner 
that truly benefits species, we are prepared to talk. If this 
effort is just another talking point on the too-much-regulation 
or sue-and-settle agenda, however, the discussion will be 
unproductive and short.
    With that, Mr. Chairman, thank you, and I yield back my 
time.
    The Chairman. I thank the gentleman for his opening 
statement, and I am very pleased to recognize our first panel. 
We have Dr. Rob Roy Ramey from Nederland, Colorado, who is with 
the Wildlife Science International. We have The Honorable Kel 
Seliger, State Senator from Amarillo, Texas; Dr. Steve 
Courtney, Associate for the National Center for Ecological 
Analysis and Synthesis, from Santa Barbara, California; Mr. 
Michael Bean, Counselor to the Assistant Secretary for Fish and 
Wildlife and Parks for the U.S. Department of the Interior, 
here, in Washington, DC; Mr. Sam Rauch, Deputy Assistant 
Administrator for Regulatory Programs for the National Marine 
Fisheries Service at the U.S. Department of Commerce, here, in 
Washington, DC; and The Honorable Tom Jankovsky, Commissioner 
of Garfield County, Colorado.
    For those of you who have not had the opportunity to 
testify in front of the committee, we ask all of you to submit 
a written statement, which you all did. And that will be part 
of the record. However, with your oral remarks, I would ask 
very much that you keep them within the 5-minute time period. 
And that timing light in front of you is how we kind of keep 
score here. When the green light is on, it means you are doing 
extremely well. When the yellow light comes on, it means that 
you are coming to the end of your 5 minutes. And then, when the 
red light comes on, that means that the 5 minutes are over. So, 
I would ask you to end your remarks before that red light comes 
on, if you can do that. And if we do that, we will have plenty 
of time, hopefully, for questions.
    So, with that, I want to introduce first Dr. Rob Roy Ramey, 
II, from Nederland, Colorado. And you are recognized for 5 
minutes, Dr. Ramey.
    Dr. Ramey. Thank you, Chairman.

    STATEMENT OF ROB ROY RAMEY II, PH.D., WILDLIFE SCIENCE 
               INTERNATIONAL, NEDERLAND, COLORADO

    Dr. Ramey. Thank you, Chairman. This hearing today 
considers modest bills that seek to correct several 
longstanding issues with transparency and prioritization of 
conservation effort in administration of the Endangered Species 
Act.
    The first bill, H.R. 4315 (Hastings), would restore the 
public's right to know by providing public access to the data 
that are the basis of ESA decisions. H.R. 4315 is also 
consistent with a long trend of legislation on the openness and 
transparency of government. In 1982, congressional amendments 
to the Endangered Species Act required that listing decisions 
be based upon data, rather than opinion or information.
    Subsequent legislative expansions of the public's right to 
know including the Shelby Amendments and circular A110, from 
the Office of Management and Budget, to require that all data 
produced under a Federal award be made public; the Freedom of 
Information Act in 2000; the Federal Advisory Committee Act, 
also in 2000; and the Data Quality Act in 2001, for which all 
the agencies have produced policies.
    This tradition of openness continued in 2009, with 
President Obama's executive order requiring greater openness 
under the Freedom of Information Act. ``The presumption of 
disclosure also means that agencies should take up affirmative 
steps to make information public. They should not wait for 
specific requests from the public. All agencies should use 
modern technology to inform citizens of what is known by their 
government, and disclosures should be timely.''
    Moreover, within the scientific community, an increasing 
number of scientific journals require that the data be archived 
and publicly available. The benefits of making data public and 
independent review are obvious. Here are a few of the benefits 
recognized by the National Institutes of Health and National 
Academy: reinforcing open scientific inquiry, encouraging a 
diversity of analysis and opinion, promoting new research, 
testing of new or alternative hypotheses, enabling exploration 
of topics not envisioned by the original investigators, 
permitting the creation of new data sets by combining data sets 
from multiple sources, and promoting new ways of looking at 
problems.
    Just as maintaining scientific progress to benefit human 
health, these same reasons apply to solving problems with 
ecosystem health facing endangered species. And withholding 
data does not further the goal of species recovery.
    Despite a trend toward openness in virtually all other 
areas of government, many far-reaching ESA listings and 
regulatory decisions are being made without the opportunity for 
independent analysis of the underlying data. The ESA is sorely 
in need of updating in this regard. And the services are 
working from an outdated model.
    Should the U.S. Fish and Wildlife Service and National 
Marine Fisheries Service be making far-reaching decisions based 
upon data that are not publicly available, and even data that 
they and peer reviewers retained by them have not seen? I don't 
think so.
    Now, what about the criticisms of this bill? In my 34 years 
of experience working with endangered species in the wild, the 
risks of data disclosure are overstated. Most of the data we 
are talking about reveals nothing about specific locations that 
would put plants and animals at risk. Measurements, genetic 
data, mortality data, disease data, behavioral data, 
experimental data, past locations recalling an animal's move 
from one place to another, their sex, age, and number. These 
don't put the animals at risk. And in cases where there are 
regularly used nest sites, water sources, and these are host to 
human activity, and a documented risk exists, seasonal closures 
are an effective tool for protection.
    The purported risk of poaching or harassment of wildlife is 
a red herring. It has been my direct experience that if the 
public knows where nests are, or the water sources are, it can 
be counted on to protect them from trespass and harm. It has 
also been my experience that poaching is a crime of opportunity 
and chance. It is not one facilitated by data mining. And there 
are severe penalties for poaching, and that includes felonies.
    Now, the privacy of land owners is something of concern to 
all of us. And that could be protected in the same way that 
privacy of individuals involved in clinical trials and medical 
research can be protected, through the use of legally binding, 
non-disclosure data-sharing agreements. And these are in wide 
use.
    In conclusion, I do see one grave risk to this openness and 
proposed data disclosure. It is to those who have sought to 
maintain their power, money, and authority by withholding 
scientific and financial data from the public, and this comes 
at the cost of recovering species.
    And just a few words on H.R. 4316 and 4318. I think in 
1978, when the Supreme Court interpreted the language of the 
ESA to conclude that listed species must be protected at 
whatever the cost, they weren't referring to paying out 
exorbitant lawyers' fees. Thank you very much.
    [The prepared statement of Mr. Ramey follows:]
    Prepared Statement of Rob Roy Ramey II, Ph.D., Wildlife Science 
International, Nederland, Colorado on H.R. 4315, H.R. 4316, H.R. 4317, 
                             and H.R. 4318
        ``There is, to begin with, the kind of secrecy that everyone 
        deplores but that is fostered by institutional cultures of 
        self-interest, both public and private--when scientific facts 
        that the public has a right to know are intentionally hidden 
        and knowingly withheld to preserve the economic or political 
        standing of powerful organizations.''

        Sheila Jasanoff, John F. Kennedy School of Government, Harvard 
                                                            University.

    The hearing today considers bills that seek to correct several 
long-standing issues with transparency and prioritization of 
conservation effort in administration of the Endangered Species Act 
(ESA). The bills would restore the public's right to know when it comes 
to ESA decisions; ensure cooperation with State, local, and tribal 
governments; and ensure that the public's funds go where they are 
needed most--to species conservation rather than into lawyers' pockets.
    As a biologist who has dedicated a 34-year career to the 
conservation of endangered species, and who has risked life and limb on 
countless occasions to save endangered species in the wild, I support 
these bills. While the details of these bills may be discussed and 
debated, the need for them is unquestionable.
H.R. 4315, (Hastings), ``21st Century Endangered Species Transparency 
        Act''
    The first bill, H.R. 4315, addresses a subject that I have written 
extensively about in scientific papers and in previous testimony before 
this committee, on August 1, 2013. I include a copy of that testimony 
as an attachment in support of my testimony today, however, let me 
reiterate several key issues and address several concerns raised by 
critics.
    First, the ESA requires that decisions to list species as 
threatened or endangered, and enact regulatory actions to aid their 
recovery, be made ``solely on the basis of the best available 
scientific and commercial data.'' However, Federal agencies actually 
rely on published and unpublished studies, and professional opinion, 
rather than the underlying data used in the studies. This means that 
many far-reaching ESA listing and regulatory decisions are being made 
without an opportunity for independent analysis and verification of the 
underlying data upon which the cited studies are based.
    Second, when data are not publicly accessible, legitimate 
scientific inquiry is effectively eliminated as no third party can 
independently reproduce the results. Such secrecy does not further the 
goal of species recovery. Such secrecy also puts the evidentiary basis 
of some resource agency decisions outside the realm of science and in 
clear violation of the Information Quality Act. And finally, it has the 
effect of concentrating power, money, and regulatory authority in the 
hands of those who control access to the data.
    Third, peer review is not a panacea. It is a useful but imperfect 
filter on information quality and not a substitute for public access to 
the underlying data that allows for an independent, third party review.
    Fourth, there are precedents that support the archiving of data 
that is being proposed in this bill. Several publicly accessible data 
repositories exist on the Internet, as well as traditional museum and 
library archives where data may be archived without charge. 
Additionally, a growing number of scientific journals require that the 
data be published with the paper or deposited in an online archive. As 
an example, data archiving and sharing policies that have been 
developed by the National Institutes of Health are straightforward and 
address many of the issues raised by critics for similarly requiring 
data archiving and sharing of data used as the basis of ESA decisions. 
(https://grants.nih.gov/grants/policy/data_sharing/
data_sharing_faqs.htm#902).
    And finally, as I was asked in previous testimony, ``Are there 
situations where public access to data should be limited, such as 
revealing the locations of endangered species?'' To that question I 
answered, ``In most cases, this threat is overstated. However, in those 
situations where there is a legitimate concern (i.e., where poaching 
has been clearly documented), the risk should be weighed against the 
potential benefits of more effective management aiding species 
recovery. If the risk of disclosure is real, then the solution is to 
allow only `narrowly drafted exceptions to the general rule of open 
access' as `broad exceptions tempt agencies and other decisionmakers to 
shield their programs from criticism' (Fischman and Meretsky 2001).'' 
One widely used mechanism that allows for data sharing when disclosure 
has risk or data are considered proprietary, is the use of legally 
binding, non-disclosure/data sharing agreements. These are in 
widespread use in the medical research fields and examples can be 
downloaded from the websites of major research universities (i.e. MIT, 
Cornell, Yale).
    As noted by Jasanoff (2006) ``Important legislative expansions of 
the public's right to know and assess information used by the 
government include: the Freedom of Information Act, 5 U.S.C. Sec. 552 
(2000), the Federal Advisory Committee Act, 5 U.S.C. app. Sec. Sec. 1-
15 (2000), and the Data Quality Act, a rider to the Treasury and 
General Appropriations Act for Fiscal Year 2001, Pub. L. No. 106-554, 
Sec. 515, 114 Stat. 2663 (2000).'' To this list, I add the Shelby 
Amendment to the Omnibus Appropriations Act for FY 1999, Pub. L. No. 
105-277, 64 FR 5684 (Feb. 4, 1999) which amended OMB Circular A-110 to 
require that Federal awarding agencies ensure that all data produced 
under an award are made available to the public through the procedures 
established under the Freedom of Information Act. H.R. 4315 is 
consistent with that legislative trend of openness and transparency.
H.R. 4317, (Neugebauer), ``State, Tribal, and Local Species 
        Transparency and Recovery Act''
    The next bill, H.R. 4317, addresses a long-standing frustration 
experienced by State, local, and tribal governments I have worked with, 
at having their data and plans effectively ignored by the Fish and 
Wildlife Service (USFWS) unless the agency was forced to do otherwise 
(i.e. through litigation). We are currently seeing this issue play out 
on the lesser prairie chicken, that was just listed by the USFWS, as 
well as Gunnison and greater sage grouse, whose decisions are pending. 
In all of these cases, the data and the plans were developed with 
substantial expenditures of earnest effort. However, there is no 
guarantee that superior local data will be considered by the USFWS as 
best available scientific and commercial data in its decisionmaking.
    A poignant example comes from Dolores County, Colorado. It is the 
poorest county in that State and facing devastating economic 
consequences with a potential listing of the Gunnison sage grouse. That 
proposed listing has crippling economic consequences because most of 
the county, including the town of Dove Creek and most of its 
agricultural land, was mapped and proposed as critical habitat by the 
USFWS. The county commissioned an independent GIS analysis of critical 
habitat, which found (using higher resolution data) large areas of non-
habitat mapped as critical habitat and submitted comments to the USFWS 
pointing out these problems. However, given the experience of other 
counties whose mapping efforts have been ignored, the County is not 
hopeful.
    Commissioner Tom Jankovsky of Garfield County, Colorado can 
describe a similar situation there, where their sage grouse habitat is 
naturally fragmented by topography and vegetation, but the agencies 
treat it as if it were contiguous habitat, and have ignored the 
County's superior mapping efforts.
    Perhaps even more disturbing is that fact that there is no 
mechanism for the USFWS to cooperate with State, local, and tribal 
governments in development of conservation plans and provide assurances 
that proposed conservation efforts will meet the standards of the 
Policy for the Evaluation of Conservation Efforts When Making Listing 
Decisions (PECE policy). Essentially, State, local, and tribal 
governments find out whether their hard work has paid off only at the 
time of a listing decision. That is a disincentive for investing 
conservation efforts. This bill could make a difference in providing a 
mechanism whereby greater assurance is provided in advance.
H.R. 4316, (Lummis), ``Endangered Species Recovery Transparency Act''
    I applaud the intent of H.R. 4316 to track the funds expended to 
respond to ESA lawsuits, including the number of employees dedicated to 
litigation, attorney's fees awarded in the course of ESA litigation and 
settlement agreements. To this I would add the requirement that these 
expenditures also be tracked by species, and that ESA expenditures at 
other Federal agencies be tracked as well, so that the public can 
determine the total Federal cost of implementing the ESA. Such data 
would go a long way toward setting priorities.
H.R. 4318, (Huizenga), ``Endangered Species Litigation Reasonableness 
        Act''
    And finally, I have a few words to say about H.R. 4318, (Huizenga). 
In 1978, the U.S. Supreme Court interpreted language of the ESA to 
conclude that listed species must be protected ``whatever the cost.'' 
However, I do not think the Supreme Court was referring to ``whatever 
the cost'' applying to exorbitant, run-away lawyer's fees. This bill 
will reprioritize expenditures so that they will do the most good for 
species recovery.
Literature Cited
    Fischman, R.L., and V.J. Meretsky. 2001. Endangered species 
information: access and control. Washburn Law Journal 41:90-113.

    Jasonoff, S. 2006. Transparency in public science: purposes, 
reasons, limits. Law and Contemporary Problems. Duke University.

    Ramey, R.R. 2013. U.S. House of Representatives, Committee on 
Resources. Oversight Hearing on: ``Transparency and Sound Science Gone 
Extinct?: The Impacts of the Obama Administration's Closed-Door 
Settlements on Endangered Species and People.'' (Provided oral and 
written testimony.) 1 August 2013.

                              Attachment A
                  Testimony of Rob Roy Ramey II, Ph.D.
    Before the Committee on Natural Resources, Oversight Hearing on 
  ``Transparency and Sound Science Gone Extinct?: The Impacts of the 
 Obama Administration's Closed-Door Settlements on Endangered Species 
                   and People,'' held August 1, 2013
        ``A democracy requires accountability, and accountability 
        requires transparency.''

  Barack Obama (from Memorandum for the Heads of Executive Departments 
        and Agencies, on the subject of the Freedom of Information Act)
My Qualifications
    I am an independent scientist with 33 years of experience in 
conservation, research and management of threatened and endangered 
wildlife. Having worked on many species, including peregrine falcons; 
California condors; desert, Sierra Nevada, and Rocky Mountain bighorn 
sheep; argali sheep of Asia; meadow jumping mice; sage grouse; delta 
smelt and African elephants, I am well aware of the scientific issues 
surrounding species listing and recovery. I earned a Ph.D. from Cornell 
University in Ecology and Evolutionary Biology; a master's degree from 
Yale University in Wildlife Ecology; and a bachelor's degree in Biology 
and Natural History from the University of California Santa Cruz, and 
postdoctoral experience included research at University of Colorado, 
Boulder and as a visiting scientist at the Center for Reproduction of 
Endangered Species at the San Diego Zoo. After 5 years as Curator of 
Vertebrate Zoology at the Denver Museum of Nature & Science, I served 
as a consulting Science Advisor to the Office of the Assistant 
Secretary of the Interior in Washington, DC. I am member of the 
Caprinae Specialist Group at the International Union for the 
Conservation of Nature (IUCN) and serve as a science advisor to the 
Council for Environmental Science, Accuracy, and Reliability (CESAR). I 
consult on endangered species scientific issues and conduct scientific 
research with Wildlife Science International, Inc.
    I bring to your attention two key transparency issues with the 
implementation of the U.S. Endangered Species Act. These are issues 
that undermine legitimate conservation efforts, waste scarce 
conservation dollars, and impose ineffective regulatory burdens on the 
public. In the worst cases, they can harm the very species they were 
intended to protect. I also provide potential solutions that I think 
both sides of the aisle may find agreement on.
 issue 1: most esa decisions are not based upon publicly available data
    The U.S. Endangered Species Act (US-ESA) requires the U.S. Fish and 
Wildlife Service (USFWS) make decisions to list species as threatened 
or endangered, and enact regulatory actions to aid the recovery of 
species, ``solely on the basis of the best scientific and commercial 
data available'' (16 U.S.C. 1531 et seq.). Although referred to as 
data, the USFWS actually relies on published and unpublished studies, 
and professional opinion, rather than the underlying data the cited 
studies are based upon (see http://www.fws.gov/informationquality/ and 
the Department of Interior's Scientific Integrity policies (DOI 2011)). 
Despite having adopted the Office and Management and Budget Information 
Quality Guidelines which require transparency in studies used in 
regulatory decisionmaking, currently, neither the USFW, nor the 
National Marine Fisheries Service have a requirement that data relied 
upon in decisionmaking be publicly available.
    Resource agency reliance on the papers and reports which summarize 
results and contain the opinions of scientists, rather than the 
underlying data, as specifically required by the ESA, has created an 
untenable situation where:

  1.  Far-reaching ESA listing and regulatory decisions are being made 
            without an opportunity to independently analyze the 
            underlying data and assumptions upon which the cited 
            studies are based.
  2.  Resource agencies have effectively replaced the scientific method 
            in implementation of the ESA (i.e., data, hypothesis 
            testing, and reproducible results) with the opinions 
            expressed by the authors of the cited studies, especially 
            when those opinions are erroneously represented as if they 
            were rigorously tested against the data.

    What are the effects of this lack of transparency on the public? 
When data are not publicly accessible, legitimate scientific inquiry is 
effectively eliminated as no third party can independently reproduce 
the results. This action puts the evidentiary basis of some resource 
agency decisions outside the realm of science and in clear violation of 
the Information Quality Act. Furthermore, it has the effect of 
concentrating power, money, and regulatory authority in the hands of 
those who control access to the data (Ramey 2012).
    That is neither transparent nor is it democratic; it relies on 
authority.
    There are sound reasons to question such authority. Key studies 
used in decisionmaking on the greater sage grouse, Gunnison sage 
grouse, boreal toad, Prebles meadow jumping mouse, coastal California 
gnatcatcher, delta smelt, desert bighorn sheep, and hookless cactus 
have one of more of the following: mathematical errors, missing data, 
errors of omission, biased sampling, undocumented methods, simulated 
data used when more accurate empirical data were available, 
discrepancies between reported results and data, misrepresentation of 
methods, arbitrarily shifting thresholds, inaccurate mapping, selective 
use of data, subjective interpretation of results, fabricated data 
substituted for missing data, or no data at all. Clearly, the agency's 
scientific peer review process that should have caught these errors is 
not as effective as it is portrayed to be.
    It has been my experience that when data has not been provided to 
the agencies, then obtaining access to data held by researchers, even 
after publication, can be difficult, if not impossible. As the 
following responses to data requests illustrate, seeking data can 
frequently resembles a shell game:

        ``It is very possible that this data set does not exist any 
        longer.''

        ``The USFWS data was deliberately provided in a format that 
        would not facilitate a detailed analysis by those unfamiliar 
        with the manner in which it was collected.''

        ``Unfortunately we cannot provide you with the raw data you 
        have requested at this time.''

        ``We categorically do not release this information to anyone 
        including the United States Fish & Wildlife Service and the 
        California Department of Fish and Game.''

    While some researchers have been responsive to data requests, 
others simply ignore our data requests altogether. Some researchers 
apparently feel a need to control access to the data, determining if, 
when, and to whom it will be released, sometimes years after the data 
were collected. However, many of these studies were permitted and/or 
funded by the USFWS (or other source of Federal funding) through 
grants, contracts, or cooperative agreements. Therefore, it follows 
that the data should be public, yet there is no consistent requirement 
from the USFWS that the data be public or provided to the agency.
    This problem is more widespread than one might initially think. In 
a notable case, colleagues at the California Fish and Game (CDFG) had 
to track down and net-gun endangered desert bighorn sheep from a 
helicopter so they could manually download data from the GPS radio 
collars (that provide precise locations at regular time intervals). 
They were forced into this extreme course of action because a 
researcher had reset the access codes on the collars so only he could 
download the data remotely, and the researcher refused to share the 
data with the CDFG who needed it for management of the population (Dr. 
V. Bleich, CDFG retired and K. Brennen, pers. comm). Funding for 
purchase of the GPS radio collars was provided by the USFWS for use by 
the researcher.
    In two other cases (coastal California gnatcatcher and desert 
bighorn sheep in the Peninsular Ranges) a court order was required to 
obtain the data.
    Clearly, the public interest in having timely access to data 
overrides perceived ownership of data by some researchers. As noted by 
ESA scholars, Fischman and Meretsky (2001):

        ``In addition to the rapid responses often needed to recover 
        endangered species, most research in conservation biology is 
        also distinguished by a dependence on government resources. The 
        funding for research; the scientific permits allowing 
        researchers to collect, harass, or harm animals; the permission 
        for access to public lands; and the regulation controlling 
        activities to ensure continued existence of imperiled species 
        all point to the pervasive public interest in the resulting 
        information. This public claim for access countervails the 
        customary control researchers exert over data they collect.''

    In my experience, recovery of threatened and endangered species is 
most effective when there is active scientific debate and discussion 
about the best courses of action to identify and ameliorate threats, 
and how to devise more effective conservation measures. Such urgency 
requires open and timely access to data.
    A solution to this issue is neither difficult, nor costly. There 
are publicly accessible data repositories (i.e. GenBank for DNA 
sequences and Dryad for general purpose data archiving http://
datadryad.org/), as well as traditional museum and library archives 
where data may be archived without charge. All that is needed is a 
requirement the data be archived prior to the agency relying on the 
report or paper in its decisionmaking, and that the data (both raw and 
final data sets) and methods are provided in sufficient detail to allow 
third party reproduction.
    Are there situations where public access to data should be limited, 
such as revealing the locations of endangered species? In most cases, 
this threat is overstated. However, in those situations where there is 
a legitimate concern (i.e., where poaching has been clearly 
documented), the risk should be weighed against the potential benefits 
of more effective management aiding species recovery. If the risk of 
disclosure is real, then the solution is to allow only ``narrowly 
drafted exceptions to the general rule of open access'' as ``broad 
exceptions tempt agencies and other decisionmakers to shield their 
programs from criticism'' (Fischman and Meretsky 2001).
                 issue #2: peer review is not a panacea
    Peer review is a useful but imperfect filter on information 
quality. However, it is not a substitute for public access to the 
underlying data that allows for an independent, third party review.
    Despite the best of intentions, there are no guarantees that peer 
reviewers will be provided access to data, or that if data is provided, 
it will be used in developing their review. As previously noted, peer 
reviewers do not always catch errors of significance. Moreover, as 
detailed in my previous testimony to the committee (Ramey 2007), if 
there was a bias or selective presentation of information by the USFWS 
to peer reviewers, the outcome of the peer review can be less than 
objective. And finally, despite agency assurances, there is no 
guarantee that reviewers will be free of conflict of interest or will 
deliver an impartial assessment. The reasons for this are summarized in 
the following excerpt from my recent paper, On The Origin of Specious 
Species (Ramey 2012):

        ``The problems that lead to these issues [with peer review] are 
        three fold. First, the number of experts involved with a 
        particular species is often limited. Whole careers are 
        sometimes dedicated to the study of a species (or subspecies or 
        population), and a listing can produce what is perceived as 
        needed ``protection'' for that species under the ESA. 
        Additionally, ESA listings can have the effect of putting these 
        experts into positions of power, money, and authority, through 
        their roles on Recovery Teams, Habitat Conservation Plans, and 
        consulting as USFWS ``approved biologists.'' Because few ESA-
        listed species are ever delisted, this guarantees a virtual 
        lifetime of employment on one's favorite species. Thus, experts 
        used in peer review may also be advocates, or have an 
        emotional, ideological, or financial stake in the proposed 
        listing.''

        ``Second, a network of individuals who work on a particular 
        species (or issues common to several species) can form powerful 
        ``species cartels.'' These social networks can influence the 
        peer review process, provide a united front to advocate for 
        particular decisions, and repress the publication of 
        information that does not agree with their positions.'' It has 
        been my experience that the FWS and NMFS typically rely on 
        species specialists, which exacerbates this problem.

        ``And third, the use of other Federal biologists in peer 
        review, especially those from the USFWS and the USGS-Biological 
        Resources Division (USGS-BRD), cannot be viewed as conflict 
        free. The increasing codependency of the USFWS and USGS-BRD, 
        results in a growing and previously unrecognized conflict of 
        interest in science used in support of ESA decisions and the 
        use of USGS biologists as peer reviewers on information used in 
        ESA decisions. This extends to the role of USGS biologists who 
        serve as editors and reviewers for scientific journals, and who 
        peer review highly influential scientific information used in 
        ESA decisions.''

    To avoid the pitfalls of peer review described above, the solutions 
are relatively straightforward:

  1.  To ensure that peer reviews are transparent, conducted in an 
            objective and consistent manner, that the underlying data 
            are both available and analyzed by reviewers, and that 
            potential conflicts of interest are clearly identified, 
            accountability is required: make failure to comply with 
            Information Quality Act an arbitrary and capricious action 
            on the part of the agency.
  2.  Ensure that that all agency sponsored and administered peer 
            reviews, including those conducted internally by biologists 
            at the USGS, be public information if they are relied upon 
            by the USFWS or NMFS.
  3.  Require that the USFWS and NMFS identify and make available 
            online all information including contrary information that 
            it has received.

                              conclusions
    The American people pay for data collection and research on 
threatened and endangered species through grants, contracts, 
cooperative agreements, and administration of research permits. They 
pay the salaries of agency staff who collect data, author, edit, and 
publish papers based upon those data. They, for the most part, are 
willingly regulated based on those data. It is essential that the 
American people have the right to full access to those data in a timely 
manner, as it is in the public interest. A requirement that data and 
methods be provided in sufficient detail to allow third party 
reproduction would raise the bar on the quality and reproducibility of 
the science used in ESA decisions and benefit species recovery. Failure 
to ensure this level of transparency will undermine the effectiveness 
of the very programs that the data were gathered for in the first 
place.
    It should not take a subpoena (or intrepid, net-gun toting State 
biologists leaping from helicopters) to obtain data that should be 
public under the ESA.
    Accountability is needed in the implementation of Information 
Quality Act, particularly in regard to public access to data and the 
peer review process.
    Qualified third party reviews have the potential to reduce the 
workload of agencies, and improve the caliber of regulatory actions.
    The ongoing ``bio-blitzkrieg'' of ESA listing petitions, lawsuits, 
and settlement agreements does a disservice to bona-fide conservation 
efforts. Every time another species is added to the list of threatened 
and endangered species, or a new deadline is imposed by litigants, the 
resources to recover species becomes more thinly spread. Throwing more 
money at the problem is not the solution, nor is allowing 
decisionmaking by fiat. The solution is to ensure that the scientific 
evaluations are done properly the first time, and that means relying 
upon data and objective application of the scientific method, as 
required by the ESA.
Literature Cited
    DOI. 2011. Integrity of Scientific and Scholarly Activities. 
Department Manual. Part 305, DM, Chapter 3:1-38. Office of the Deputy 
Secretary, Department of Interior. available at http://www.doi.gov/
scientificintegrity/index.cfm. Accessed October 2, 2012.

    Fischman, R.L., and V.J. Meretsky. 2001. Endangered species 
information: access and control. Washburn Law Journal 41:90-113.

    Ramey, R.R. 2007. Written testimony submitted to the U.S. House of 
Representatives, Committee on Natural Resources, for the Legislative 
Hearing on: ``Crisis of Confidence: The Political Influence on Agency 
Science and Decision-Making.'' July 31, 2007.

    Ramey, R.R. 2012. On the Origin of Specious Species. Chapter 4, In: 
Institutions and Incentives in Regulatory Science. J. Johnston (ed.), 
Lexington Books. Pp. 77-97.

                                 ______
                                 

    The Chairman. Thank you very much, Dr. Ramey, for your 
testimony. I will now recognize the gentleman from Texas, Mr. 
Neugebauer, for purposes of introduction.
    Mr. Neugebauer. Thank you, Chairman Hastings, and thank you 
for your--and I appreciate you allowing me at this hearing 
today to consider--take the opportunity--H.R. 4317, which is 
the ``State, Tribal, and Local Species Transparency and 
Recovery Act.'' We know better decisions are made when you have 
the best facts. One of the things--Fish and Wildlife--the 
States and the stakeholders the data--to make those 
determinations. At the same time, give States the opportunity 
to furnish data to Fish and Wildlife--decisions.
    And so, I think this is a proactive approach, and I 
appreciate--hearing today--want to make sure that we are--
working toward the--of the species, as well at the same time 
acting--and so, I think this is a--, and I think--
    It is my honor to welcome not only a friend, but--from 
Texas. Kel represents 37 counties, and there are only 254 
counties in Texas. And so, when I say that Seliger represents 
Texas, I mean he represents Texas. He is a former mayor of 
Amarillo, Texas. But, more importantly, while he has been in 
the Senate he has been very involved in the Endangered Species, 
its impact on Texas, its impact on--So, it is my privilege to 
recognize Mr. Seliger, Senator Seliger.
    The Chairman. Senator Seliger, you are recognized for 5 
minutes.

  STATEMENT OF THE HON. KEL SELIGER, A U.S. SENATOR FROM THE 
                         STATE OF TEXAS

    Mr. Seliger. Mr. Chairman, ladies and gentlemen, thank you 
very much for the opportunity to talk to you today about the 
State's role in the process of endangered species. I 
particularly appreciate Congressman Neugebauer's interest and 
work in this area, because it is very important. The district 
that I represent produces 20 to 25 percent of the Nation's oil 
and gas, and a substantial amount of the Nation's cotton, grain 
sorghum, wheat, corn, beef, milk, and pork.
    Two years ago I chaired an Odessa, Texas, hearing of our 
Natural Resources Committee to deal with the dune sage brush 
lizard. And there were two overarching, I think, fundamental 
principles that came out of the hearing. One, any 
determinations under the Endangered Species Act should be based 
upon good science, scientifically reliable science that 
provides clear measures of what the problem is, what the 
potential solution is, and what the effects of the remedies 
are.
    The other thing that we found out--and some of the largest 
independent producers of oil and gas in the country were there, 
all people who own or have rights on substantial acreages in 
West Texas and New Mexico--was that nobody wanted to be 
responsible for the extinction of any species, however 
physically small and insignificant that they may be. And I 
think that is particularly important because, at the end of the 
day, the way I understand the Endangered Species Act, it is 
about the protection or restoration of the species, not just a 
settlement of litigation.
    The States' engagement, I think, is critical, because that 
is where so much of the science is generated that will be used. 
In the case of the dune sage brush lizard, which we believe is 
in a unique habitat in West Texas and Southern New Mexico, 
there may be more than one, but the primary authority is a 
State employee, a Professor Lee Fitzgerald at Texas A&M 
University, whose research has been very transparent and peer 
reviewed.
    And the pathways to success vary by States. And I think 
that is particularly important. In the case of the dune sage 
brush lizard there are mitigation credits by land set-asides. 
When it comes to the lesser prairie chicken, there are five 
States involved in that habitat: Texas, New Mexico, Oklahoma, 
Kansas, and Colorado. And they have set aside large amounts of 
property. And it is just a different way to do it. But each 
species may require a different solution, and those solutions 
may be specific and characterized by the presence in those 
States.
    There are 168 million acres in Texas, 95 percent of which 
is privately held. In the United States as a whole, only 30 
percent of the land is owned by the Federal Government. The 
rest in those States is privately held. Largely in the West, we 
look at areas that have large land areas, be it the Permian 
Basin or the Great Plains, or whatever.
    Most of the States--certainly in the case of Texas, 
Colorado, and Oklahoma--there are parks, wildlife, wildlife 
fishery organizations, that have tremendous scientific assets 
in which to do the research to make sure that it is 
transparent, as it must be, as State agencies, and to see to it 
that the remedies work, because they are the ones who will 
provide the empirical measures to show us what the effects are 
of those measures used.
    In the case of the lesser prairie chicken, 35 companies 
enrolled over 4 million acres. In the case of the dune sage 
brush lizard, private companies put up about $2 million to pay 
for the research that would be done in the State of Texas, 
under the auspices of Fish and Wildlife Service, to see to it 
that the research was good, effective, and transparent.
    But the overall point of the whole thing is endangered 
species is meant to serve a specific purpose: the protection, 
restoration, if necessary, of species, and the restoration and 
maintenance of habitat.
    The end goal is not simply the settlement of litigation, 
but to have a positive effect on species possibly affected. 
Thank you very much.
    [The prepared statement of Mr. Seliger follows:]
  Prepared Statement of The Hon. Kel Seliger, a U.S. Senator from the 
                      State of Texas on H.R. 4317
    Thank you for the opportunity to address the Committee on Natural 
Resources. I am pleased to support the ``State, Tribal, and Local 
Species Transparency and Recovery Act,'' H.R. 4317 by Congressman Randy 
Neugebauer. Current law clearly directs the Secretary of the Interior 
to ``cooperate to the maximum extent practicable with the states'' when 
carrying out the Endangered Species Act, and for good reason (16 U.S.C. 
1535(a)). State fish and wildlife agencies have the necessary 
jurisdiction, resources, and imperative relationships with businesses 
and landowners to create comprehensive wildlife action plans that can 
preclude the listing of a species. No one wants a species to be listed; 
the method for preservation of the species is at the center of the 
debate. The entities that are best suited to take on this role are the 
States themselves. Timely and meaningful coordination between State and 
Federal agencies is imperative in order to preserve potentially 
endangered species.
    Second, a definition of ``best scientific and commercial data 
available'' that includes information obtained by the States is 
essential. It is the essence of local control to not only allow, but 
also to empower and rely on the local jurisdiction to have the most 
current data and best understanding of the issue at hand. To forgo 
information from State fish and wildlife agencies, who are in the field 
each and every day, simply does not make sense. The U.S. Fish and 
Wildlife Service should engage State agencies early and communicate 
efficiently and effectively throughout the entire review of a species.

                                 ______
                                 

    The Chairman. Thank you very much, Senator Seliger. I will 
now recognize Dr. Steven Courtney, Associate for the National 
Center for Ecological Analysis and Synthesis from Santa 
Barbara, California.
    That is a long title, I might say. Don't say it quickly, 
but you are recognized for 5 minutes.

STATEMENT OF STEVEN P. COURTNEY, ASSOCIATE, NATIONAL CENTER FOR 
  ECOLOGICAL ANALYSIS AND SYNTHESIS, SANTA BARBARA, CALIFORNIA

    Dr. Courtney. Thank you. Thank you, Mr. Chairman. I am 
Steven Courtney, I am a principal scientist at Western 
EcoSystems Technology, Inc. (WEST)--based in Cheyenne, Wyoming, 
and an associate at NCEAS, based in Santa Barbara. I am a 
biologist with 22 years working with ESA on behalf of private, 
tribal, State, and Federal clients. My particular expertise is 
in designing and implementing peer review, fact finding, other 
processes for difficult or controversial situations. That 
includes, a few years ago, leading a synthesis on a little 
critter called the Northern Spotted Owl, which I think the 
Chairman may have heard of. I also worked on a science process 
that helped to diffuse the headwaters controversy in northern 
California, the Columbia, the Missouri, the Rio Grande, the 
Klamath, Sacramento, and a few other places. And most recently, 
I led the review on Fish and Wildlife Services' proposal to 
delist the gray wolf. For my day job I work on greater sage-
grouse and advise both private and State clients.
    So, you can see that I am not an expert on any one issue or 
any region. Instead, I help those who are trying to develop 
efficient and science-based solutions, and to design 
transparent processes that are aimed at determining best 
available science. So my comments here are really on those two 
issues, on the role and value of transparency, and how we can 
ensure that the decisions of Federal agencies are based on best 
science.
    While we all agree that transparency is pretty much a good 
thing, and it increases the likelihood that we will get new 
ideas, it increases the likelihood that any mistakes can be 
found and corrected, and, most importantly perhaps, it 
increases the likelihood that stakeholders will be able to 
understand the reasons for agency decisions. But it is 
important to distinguish between scientific information and use 
of that information in a deliberative process.
    I would argue that attempts to improve ESA decisionmaking 
for increased transparency could more usefully be targeted. For 
instance, when setting up an evaluation process to understand 
the status of the spotted owl, I was very careful, given the 
history of that controversy, to be as transparent as possible. 
The science groups met in public, stakeholders were invited to 
attend those meetings and to present information. And, 
ultimately, the process led to a change in Federal management 
of the Northwest forests, as our work showed that major threats 
were not just in the harvest, but invasion of--by barred owls 
and catastrophic wildfires.
    Essentially, the same process has been followed in many 
other situations. And the processes that I run, reviewers are 
not anonymous, there is a record of how information is used and 
weighed and evaluated, and then of how decisions are reached.
    So, when science-based decisions are discussed openly and 
fairly, there is a greater engagement by all sectors, enhanced 
cooperation, less litigation, and, I believe, better 
decisionmaking. So, transparency of process is very important, 
and fair and open explanations of decisions can also be quite 
valuable.
    But complete transparency could be detrimental. I represent 
private clients whose information on timber inventory or 
mineral deposits--they would be very upset if that information 
became public, and if their ability to access those resources 
due to endangered species constraints also became public.
    So, I encourage and recommend that the committee consider 
how to encourage transparency when it would be helpful, 
primarily in ensuring the process is open and fair and as clear 
as possible; and second, in encouraging decisionmakers to set 
forth the rationale for their decisions.
    Turning now to H.R. 4317 regarding best available science, 
I will only state that I believe that it is always important to 
reach best available science, and that there are techniques in 
place to do that, including peer review, joint fact finding, 
other things like that. And we do catch and--advise Federal 
scientists on the need for change. And most recently on the 
gray wolf, perhaps. And I would argue that legally defining 
best available science cannot be effective in swaying the minds 
of scientists themselves, who will continue to evaluate science 
based upon tried and trusted criteria, such as falsifiability, 
replicability, and the weight of evidence. And I would 
encourage you to make use of existing techniques. Thank you.
    [The prepared statement of Dr. Courtney follows:]
   Prepared Statement of Dr. Steven P. Courtney, Associate, National 
 Center for Ecological Analysis and Synthesis (NCEAS), Santa Barbara, 
                 California on H.R. 4315 and H.R. 4317
    I am Steven Courtney, Principal Scientist at Western EcoSystems 
Technology, Inc. (WEST) and Associate at the National Center for 
Ecological Analysis and Synthesis (NCEAS). For the past 40 years, I 
have been a biologist, with 22 years of working with the Endangered 
Species Act. This experience has included work on behalf of private, 
tribal, State, and Federal clients, on many different species and 
ecosystems. My particular expertise is in designing and implementing 
peer review, fact-finding, and other processes to enhance understanding 
of science and related issues within the context of difficult or 
controversial situations. A sampling of this work includes:

     Leading a synthesis of Spotted Owl biology that identified 
            current threats to that species;
     The science process that helped resolve and defuse the 
            Headwaters controversy in northern California;
     Reviews of water management on the Missouri, Columbia, and 
            Rio Grande Rivers, and in the Everglades and the Edwards 
            Aquifer;
     Investigations of allegations of scientific malpractice 
            against Federal scientists in the Sacramento delta and the 
            Klamath Basin; and
     Most recently, leading a review of the use of science by 
            the U.S. Fish and Wildlife Service (USFWS) regarding de-
            listing the wolf.

    Currently, most of my work concerns range management and 
conservation of sage-grouse, advising private and State clients, as 
well as the USFWS.
    I have been privileged to work on many systems. Without being an 
expert on any one species or region, I have, instead, been engaged 
first hand on a wide variety of the issues faced around the country 
regarding management of wildlife and natural resources. I have strived 
to help those looking for efficient and science-based solutions under 
the Endangered Species Act (ESA), in particular, by designing 
transparent processes aimed at determining the `best available 
science'. My comments on the four bills before you are focused on those 
two issues: what is the role and value of transparency; and how can we 
ensure that the decisions of Federal agencies are based on the best 
science?
                              transparency
    Science depends on the clear and fair evaluation of information. In 
the context of the ESA, decisions made by regulatory agencies, (USFWS 
and NOAA-Fisheries), as well as other parallel decisions taken by 
action agencies (such as the U.S. Army Corps of Engineers (USACE), the 
U.S. Forest Service (USDA-FS), and the bureaus within the Department of 
the Interior) depend critically on the quality of the scientific 
evaluations they carry out. Increasing the transparency of such 
scientific assessments has the potential to increase their quality. 
Transparency encourages the consideration of new or alternative ideas, 
and it increases the likelihood that mistakes will be corrected. Of 
course, one of the key advantages of increasing transparency is that 
stakeholders can see the basis for agency decisions.
    On the face of it, transparency would appear to be straightforward 
and a positive attribute. However, my experience with diverse systems 
suggests a need for caution and careful application and design of 
transparent disclosure of information. In particular, it is useful to 
distinguish between scientific information itself, and the use of that 
information in a deliberative process. Attempts to improve ESA 
decisionmaking through increased transparency need to be targeted and 
carefully designed in order to avoid negative effects on commercial 
activity and on conservation.
    When setting up an evaluation process to understand the status of 
the Spotted Owl, I was careful, given the history of that controversy, 
to be as transparent as possible. The science group met in public, and 
stakeholders were invited to attend these meetings and to present 
information. All meetings were recorded, and the technical 
deliberations among the scientists became part of the administrative 
record. In this way, we ensured that any party could understand our 
reasoning, and see how we reached our conclusions. Ultimately, that 
process led to a change in Federal management of northwest forests, as 
our work showed that loss of habitat to invasive Barred Owls and to 
wildfire were major threats comparable to the impacts of timber 
harvest.
    Essentially the same process has been followed in many other 
situations. For reviews on the Everglades, the Missouri, or wolf-
delisting, there is no secrecy regarding the process. Reviewers are not 
anonymous, and there is a record of how information is weighed and 
evaluated, and then participants provide a record of how decisions are 
reached. We make an effort to ensure that stakeholders understand the 
evaluation process, and how to contribute to these processes, and, 
likewise, we explain our reasoning and the rationale for final 
assessments. This openness has proven to be both popular and effective. 
When science-based decisions are discussed openly and fairly, there is 
greater engagement by all sectors; enhanced cooperation; less impetus 
for litigation; and (I believe) better decisionmaking.
    By contrast, a lack of clarity can cause problems. In 2011, I was 
asked to evaluate allegations of scientific misconduct against Interior 
employees on the Sacramento Delta. While the investigative panel found 
no evidence of misconduct (and found that the employees had followed 
good scientific procedure), we did determine that they had not 
explained clearly the rationale for their decisions. That lack of an 
open explanation and of how they reached their evaluations led to 
significant misunderstandings and frustrations.
    In short, transparency of process is important, and fair and open 
explanations of decisions can be valuable. I commend the interest in 
transparency by this committee. However, in some situations, complete 
transparency can be detrimental. Many landowners, for instance, regard 
information about wildlife on their lands to be proprietary. Full and 
transparent disclosure of such information could have significant 
financial impacts. For instance, information on the presence of Spotted 
Owls and of the quality of their forest habitat can readily be used by 
outsiders to predict a company's timber inventory and the likelihood of 
the company being able to harvest that resource. Similarly, a company 
with significant populations of a listed species might be unable to 
access mineral resources. If such detailed information on a species' 
distribution were to be made generally available, it could impact the 
company significantly, creating an advantage to competitors, 
potentially decreasing shareholder confidence, and so on. In short, 
release of such proprietary information is often opposed by such 
landowners, for good reason. Requiring full transparency in such 
situations can also deter landowners from participating in constructive 
conservation agreements with the USFWS or other agencies.
    The possibility of complete transparency of data is a potential 
threat to conservation planning. Many landowners may be unwilling to 
even enter into discussion with USFWS regarding Conservation Banks, or 
Conservation Credit systems, if there is a belief that all information 
will become public. The innovative conservation exchange system for the 
Lesser Prairie Chicken acknowledges this wariness on the part of 
landowners and allows habitat evaluations to be carried out by 
independent third parties, precisely to assure landowners that their 
private information will remain private. Many species listed under the 
ESA, and many others that may be considered for listing, occur 
predominantly on private lands. For such species, the goodwill of 
landowners is imperative, and their concerns for privacy of information 
cannot be ignored.
    Two of the bills before this committee, H.R. 4315, and H.R. 4317, 
discuss the importance of transparency. I recommend that the committee 
consider how to ensure that transparency is encouraged in those areas 
where it would be helpful. This is primarily in two realms--first, in 
ensuring that the process used in scientific assessments is as open, 
fair, and clear as possible; second, in encouraging decisionmakers 
clearly to set forth the rationale for their decisions, including the 
information on which the decision was based and why that information is 
relevant and deemed to be the best available information.
                         best available science
    Let me now turn to the matter of best available science. H.R. 4317 
specifically addresses one of the lynchpins of ESA--that actions by 
NOAA-Fisheries and USFWS must be based on the `best scientific and 
commercial data available.' Many existing policies and management 
programs of the two regulatory agencies are aimed at ensuring that the 
statute is followed and that `best available science' is identified and 
used. Hence, internal and external reviews, consultations with affected 
parties (including Tribal Nations, States, and other Federal agencies), 
collaborative conservation efforts, and other policies all aim to 
improve the use by USFWS and NOAA-Fisheries of good science. Specific 
tools and programs, such as peer review and Structured Decision Making, 
are similarly designed to identify and use best science.
    To the extent that H.R. 4317 would codify consultation with States 
and tribes, it appears duplicative of existing programs and efforts; 
however, if H.R. 4317 results in the data from States and tribes being 
defined as either the `best available' or equal in quality to other 
`best available' information, it would undermine the existing intent 
under ESA that science (whatever its source) be fairly evaluated in an 
impartial manner, and only then that the `best available science' be 
employed in decisionmaking.
    Generally, Federal agencies receive judicial deference on 
scientific and technical issues. This deference reflects the expertise 
of the agencies on such matters. Nevertheless, Federal scientists are 
not infallible; there exist numerous programs to take corrective 
actions, or to use `adaptive management' to improve the quality and use 
of science. While stakeholders (including States and tribes) may be 
dissatisfied with individual agency actions, there are already 
mechanisms available for review and consultation and techniques and 
tools by which the decisions of Federal agencies can be examined and 
amended by the agency concerned. Encouraging the wider use of such 
cooperative and engaged approaches would likely meet the objectives of 
stakeholders and enhance both transparency and the application of best 
available science.
    In 2000, I led a program designed to address a seemingly 
intractable debate--whether deepening the shipping channel of the 
Columbia River would harm endangered fish. The opinions of three 
regulatory agencies (NOAA, USFWS, and EPA), of the action agency 
(USACE), and of numerous stakeholders (including States and tribes) 
were in conflict. The parties agreed to a neutral and impartial 
process, in an attempt to resolve their differences over interpretation 
of the science. Over the course of 7 months, the parties met and 
debated the science in public, with the guidance of a team of nine 
eminent scientists. New science was commissioned. At the end of the 
process, there was an unequivocal result and finding: deepening of the 
channel would not harm the fish. In this case, entrenched positions 
were abandoned, a cooperative program was adopted, and Federal 
scientists were willing to change their opinions.
    Late last year, I helped carry out an independent peer review of 
some of the science underlying the USFWS's proposal to de-list the Gray 
Wolf under the ESA. A panel of independent scientists was convened by 
NCEAS at the request of the USFWS. In the course of their review, the 
panelists unanimously concluded that the USFWS's position on the 
taxonomy and genetics of wolves was not rooted in the `best available 
science'. Note that the USFWS has not yet made a final determination on 
its proposal, and, thus, it is not yet clear how this scientific 
finding will be used. Nevertheless, the fact that the USFWS sought and 
received truly independent review, which did then not concur with the 
agency's position, is indicative that we already have processes in 
place that can identify situations when corrective action may be 
warranted.
    There are many other examples where stakeholder input can help 
improve decisionmaking by Federal agencies. To name just one, the wind 
energy/wildlife guidelines, developed with the aid of a Federal 
Advisory Committee, are widely acknowledged to be a good, 
scientifically based program.
    Legislation that re-defines what constitutes `best available 
science' cannot be effective in swaying the minds of scientists 
themselves, who will continue to evaluate science based upon tried and 
trusted criteria such as logical consistency, replicability and the 
weight of evidence. Efforts to improve Federal decisionmaking under ESA 
may instead be best served by programs that provide opportunity and 
resources for increased consultation and collaborative assessments. The 
Columbia River program in 2000 cost some $500,000; the recent wolf peer 
review, much less. There are many options for improving the 
availability of programs to improve scientific evaluations, scaling 
from standing FACA committees, to once-off public meetings, to small 
scale document reviews. All of these may have value when used 
appropriately, and all are currently available to the agencies 
concerned.
                               literature
Review of Proposed Rule Regarding Status of the Wolf Under the 
Endangered Species Act. 2014. National Center for Ecological Analysis 
and Synthesis.

Science Review of Testimony in the Delta Cases; Summary Report 2013 
Atkins and RESOLVE.

Evaluation of Scientific Information regarding Preble's Meadow Jumping 
Mouse 2007 SEI.

Scientific evaluation of the status of the Northern Spotted Owl 2004 
SEI.

Reducing Uncertainty and Risk: Peer Review of the Potential Impact of 
Dredging and Disposal on At-Risk Salmonids in the Lower Columbia River 
Estuary, 2001 SEI.

Comprehensive Guide to Studying Wind-energy Wildlife Interactions. 
National Wind Coordinating Collaborative 2011.

Lesser Prairie Habitat Exchange (documents at http://
www.thehabitatexchange.org/species/lesser-prairie-chicken/).

                                 ______
                                 

    The Chairman. Thank you very much, Dr. Courtney. I will 
next recognize Mr. Michael Bean, Counselor to the Assistant 
Secretary for Fish and Wildlife and Parks at the U.S. 
Department of the Interior, here, in Washington, DC.
    And, Mr. Bean, you are recognized for 5 minutes.

     STATEMENT OF MICHAEL BEAN, COUNSELOR TO THE ASSISTANT 
SECRETARY, FISH AND WILDLIFE AND PARKS, U.S. DEPARTMENT OF THE 
                    INTERIOR, WASHINGTON, DC

    Mr. Bean. Thank you, sir. Chairman Hastings, Representative 
Grijalva, members of the committee, I am Michael Bean, 
Counselor for Fish, Wildlife, and Parks at the Interior 
Department.
    I want to begin by noting that the Fish and Wildlife 
Service is committed to the use of the best science available 
in its ESA listing decisions, as the law requires it to do. The 
Service is also committed to transparency in its decisionmaking 
processes.
    In furtherance of that goal of transparency, it is the 
established practice of the Fish and Wildlife Service to make 
available the relevant scientific and commercial data on which 
it relies when making listing decisions. That data is generally 
maintained in the field offices that have the lead for those 
listing decisions. In addition, a list of literature, studies, 
and other relevant data, and copies of pivotal documents are 
posted on regulations.gov.
    Service listing decisions are carefully crafted, fully 
explained, and copiously documented, addressing each of the 
factors that Congress has specified as relevant to those 
listing decisions.
    We are pleased that the bills under consideration today 
seek to further the goals of science-based decisionmaking and 
transparency. We do not, however, support them in their current 
form, for reasons that I will explain.
    Let me begin by noting that we strongly agree that States, 
the data from States, is often the best available data for us. 
Because of the extensive experience and responsibilities of the 
States, the ESA already directs the Service to carefully 
consider the information that States provide. The Service must 
take into account the work of the States in its listing 
decisions. And the Service must provide the States with a 
written explanation whenever it makes a listing decision at 
odds with the recommendations of a State.
    However, not all States have responsibilities or programs 
for all the types of species eligible for ESA listing: in 
particular, plants and invertebrates. For species such as 
these, for example, the best available data may come from 
universities, museums, conservation organizations, and 
industry. For counties and tribes, the situation is more 
varied. In most States, the jurisdiction and responsibility for 
wildlife rests with the State, not with the counties, which 
generally have no research programs related to ESA listing 
decisions.
    Given these facts, it is apparent that the question of what 
constitutes the best available data should turn on an 
evaluation of the data itself, and not who provided it. To 
presume at the outset that the data from a particular source 
will always constitute the best available data would negate the 
very purpose of requiring the use of the best available data. 
Moreover, it is clear that data from States, counties, and 
tribes cannot all constitute the best available data when the 
data from these sources are in conflict, as they sometimes are.
    Frequently the publications, studies, and reports on which 
the Service relies are based upon underlying data collected and 
maintained by the States, who control access to it. State law 
sometimes stringently restricts the release of certain wildlife 
data, as does the State of Texas, for example. There are a 
variety of reasons why the States choose to limit access to 
wildlife data: either it reveals the location of sensitive 
species, could expose those species to collecting, disturbance, 
or vandalism. In addition, States often depend upon private 
land owners who give them access to their lands to gather 
wildlife data. Maintaining that access may mean respecting the 
land owner's desire to avoid unwanted trespassers, poachers, or 
simple curiosity-seekers.
    The bottom line, however, is that the raw data underlying 
the publications, reports, and studies on which the Service 
routinely relies may not ever be in the possession or control 
of the Service. Thus, to the extent that H.R. 4315 is intended 
to require the Service to post such data on the Internet, it 
may create an obligation impossible to fulfill, and provide yet 
a new basis for challenging the validity of listing or de-
listing decisions.
    Finally, with respect to the two bills concerning 
litigation costs, it is not clear that they would have the 
effect of allowing more resources to be devoted to 
conservation, but may instead have the opposite effect. With 
respect to all four bills, we would be pleased to work with the 
committee to find effective ways of addressing the issues 
raised by those bills. Thank you, Mr. Chairman.
    [The prepared statement of Mr. Bean follows:]
   Prepared Statement of Michael J. Bean, Counselor to the Assistant 
 Secretary, Fish and Wildlife and Parks, Department of the Interior on 
             H.R. 4315, H.R. 4316, H.R. 4317, and H.R. 4318
    Chairman Hastings, Ranking Member DeFazio, and members of the 
committee, I am Michael J. Bean, Counselor to the Assistant Secretary 
for Fish and Wildlife and Parks at the Department of the Interior 
(Department). I appreciate the opportunity to testify before you today 
regarding four bills to amend the Endangered Species Act of 1973 (ESA). 
Although the Department cannot support these four bills in their 
current form, the Service recognizes the importance of data 
transparency and availability and is willing to work with the committee 
to address the issues that the bills raise.
                 overview of the endangered species act
    The ESA provides a critical safety net for America's native fish, 
wildlife, and plants. And we know it can deliver remarkable successes. 
Since Congress passed this landmark conservation law in 1973, the ESA 
has prevented the extinction of hundreds of imperiled species across 
the Nation and has promoted the recovery of many others--like the bald 
eagle, the very symbol of our Nation's strength.
    Earlier this year, the Service published a proposal to recognize 
the recovery of, and to remove from the protection of the ESA, the 
Oregon chub, a fish native to rivers and streams in the State of 
Oregon. The recovery of the Oregon chub is noteworthy because it is 
attributable in significant part to the cooperation of private 
landowners who entered into voluntary conservation agreements to manage 
their lands in ways that would be helpful to this rare fish. In some 
cases, landowners agreed to cooperate in reintroducing the fish into 
suitable waters on their property. The help of private landowners and 
the cooperation of State and Federal partners were critical to the 
success in bringing this fish to the point at which it is no longer 
endangered and no longer in need of the protection of the ESA.
    The recovery of the Oregon chub has taken a little more than 20 
years of sustained effort. That is a relatively speedy timeframe within 
which to undo the effects of what are often many decades of habitat 
loss and degradation and the other threats that are responsible for the 
endangerment of many species. For example, the recovery and delisting 
of the bald eagle was the culmination of a 40-year conservation effort. 
The Aleutian Canada goose recovery took 34 years. Efforts to recover 
the whooping crane have been under way since the 1940s when fewer than 
20 cranes remained. Those efforts have been dramatically successful, 
with a wild population today of several hundred birds. Likewise, the 
California condor and black-footed ferret, both of which were so 
perilously close to extinction that no individuals of either species 
survived in the wild, have made extraordinary progress. Today condors 
and ferrets have been successfully bred in captivity and reintroduced 
to the wild, where they have successfully produced wild-born offspring. 
Despite the dramatic progress toward recovery that each of these 
species has made, the whooping crane, California condor and black-
footed ferret are still endangered species and will likely remain so 
for many more years. That is the virtually inevitable consequence of 
waiting until a species has been greatly depleted before beginning 
efforts to recover it, as is the case for most species protected under 
the Endangered Species Act.
    As the Oregon chub example makes clear, private landowners can 
hasten the recovery of endangered species through their cooperative 
efforts. The Oregon chub is just one of many endangered species that 
landowners are helping recover through voluntary agreements with the 
Service known as ``safe harbor agreements.'' These agreements provide 
participating private property owners with land-use certainty in 
exchange for actions that contribute to the recovery of listed species 
on non-Federal lands. Safe harbor agreements with Texas ranch owners 
have helped restore the northern aplomado falcon to the United States, 
from which it had been absent for roughly a half century. In the 
southeastern United States, more than 400 landowners have enrolled 
nearly 2.5 million acres of their land in safe harbor agreements for 
the endangered red-cockaded woodpecker. These landowners have 
effectively laid out the welcome mat for this endangered bird on their 
land, as a result of which populations of this endangered bird are 
growing on many of these properties. Many others are doing similarly 
for other endangered species.
    Thus, the Endangered Species Act provides great flexibility for 
landowners, States and counties to work with the Fish and Wildlife 
Service on voluntary agreements to protect habitat and conserve 
imperiled species. Through Safe Harbor Agreements, Candidate 
Conservation Agreements, Habitat Conservation Plans, Experimental 
Population authority, and the ability to modify the prohibitions on 
take of endangered species in Section 9 by crafting special rules for 
threatened species under Section 4(d), the Act allows and encourages 
creative, collaborative, voluntary practices that can align landowner 
objectives with conservation goals.
        h.r. 4315 and h.r. 4317: data quality and accessibility
    If enacted, H.R. 4315, the 21st Century Endangered Species 
Transparency Act, would establish a requirement to make publically 
available on the Internet the best scientific and commercial data that 
are the basis for each listing determination. If H.R. 4317 were 
enacted, the State, Tribal, and Local Species Transparency and Recovery 
Act would amend the ESA to require FWS provide States with all data 
used in ESA Section 4(a) determinations prior to making its 
determination, and define ``best available scientific and commercial 
data'' to include all data submitted by a State, or tribal or county 
government.
``Best Available'' Data
    The decisions that the Fish and Wildlife Service makes with respect 
to listing or delisting of species must be made ``solely on the basis 
of the best scientific and commercial data available.'' Congress added 
this explicit directive in 1982, in response to the perception that 
some listing decisions then were being influenced by non-scientific 
considerations. Congress made clear then that the threshold decision of 
whether a species is endangered or threatened is a scientific judgment 
to be informed by the best available information alone.
    Often, the States are among the best sources of such information, 
particularly with respect to game and other actively managed species. 
However, some States lack authority or programs to conserve certain 
species that are eligible for protection under the Endangered Species 
Act, such as invertebrates and plants, and therefore collect 
insufficient data. Counties and other units of local government 
generally have neither jurisdiction nor programs to manage wildlife. 
For all of these reasons, the best available scientific information may 
come from such sources as universities, museums, conservation 
organizations, and industry. Thus, to define ``best scientific and 
commercial data available'' as always including data submitted by a 
State, tribal or county government--as H.R. 4317 does--may not always 
be accurate. Section 4(b)(1) of the Act already requires the Service to 
take into account the efforts and views of States and their political 
subdivisions when making listing decisions, and Section 4(i) requires 
the Service, if it makes a listing determination at odds with the 
recommendations of a State, to provide that State with a written 
explanation of the reasons for doing so. Finally, it should be noted 
that defining all data submitted by States or counties as the ``best 
available,'' would create a quandary if there were conflicting data 
from such sources. A concrete recent example concerned several counties 
in Kansas who took strong exception to the conservation plan for the 
lesser prairie-chicken that the State proposed. The counties and the 
State took diametrically opposed positions based on conflicting data. 
In this example, both cannot be the ``best available.''
    As noted, the studies, reports, and research publications by State 
agencies or their employees are often the best studies and analyses 
available to the Service. A broad-ranging requirement to post on the 
Internet this State data--particularly if that requirement extends to 
the raw data underlying such studies and analyses--would almost 
certainly elicit a number of well-considered concerns from the States 
themselves. Those concerns would start with the fact that in some 
instances State law prohibits the release of certain wildlife data. For 
example, Texas Government Code Section 403.454 prohibits the disclosure 
of information that ``relates to the specific location, species 
identification, or quantity of any animal or plant life'' for which a 
conservation plan is in place or even under consideration.
    Even where there is no State law barrier to releasing the raw data 
underlying State studies, there are many reasons why States would be 
reluctant to have that data widely disseminated via the Internet. To 
the extent that such data reveals the location of rare or sensitive 
species, its disclosure would put such species at added risk, both from 
collectors or vandals as well as from people with entirely innocent 
motives, such as the desire to get an up-close photo of an eagle and 
its young in their nest, or of prairie-chickens displaying on their 
mating grounds.
    The ability of States, and of scientific researchers generally, to 
gather wildlife data often depends upon the willingness of private 
landowners to grant them access to their lands. Many landowners can 
reasonably be expected to be less likely to grant such access if they 
know that the data collected on their land would be posted on the 
Internet. Their concerns might include the well-being of the wildlife 
on their land as well as their own sense of privacy and desire not to 
have to contend with trespassers, vandals, and simple curiosity 
seekers. The disclosure requirement that the sponsors of H.R. 4315 
intend to produce better scientific data could have the unintended 
consequence of reducing the amount and quality of such data. While the 
Service is willing to explore other approaches, it has generally found 
satisfactory to most States and researchers its current records 
management process. As part of that process, the Service makes 
available all of the relevant scientific and commercial data that it 
has and on which it relies in making a listing determination under 
Section 4(a)(1) of the ESA. The data is generally maintained at the 
field office that is the lead for making the listing determination. 
Additionally, a list of literature, studies, and other relevant data 
used in making the determination and copies of pivotal documents are 
posted on Regulations.Gov, the government Web site for electronic 
records and public comments. These documents are generally made 
available to the public electronically upon request. However, there may 
be limitations to the release of certain data if it falls within one of 
the exceptions to disclosure under the Freedom of Information Act (for 
example, the Service sometimes obtains from the Defense Department 
certain high resolution photographs that the Department requests not be 
released to the public because of national defense considerations). In 
these cases, the Service refers the requester to the party from which 
the data originated. Further, in many circumstances, such as peer-
review published literature, FWS relies on a synthesis or analysis of 
data that is summarized by the prevailing scientific expert or author 
of the paper. In such circumstances, FWS relies on the expert 
evaluation and analysis of the data and may not have in its possession 
or be able to obtain the underlying data.
               h.r. 4316 and h.r. 4318: litigation reform
    The Endangered Species Recovery Transparency Act, H.R. 4316, would 
require the Secretaries of the Interior and Commerce to provide an 
annual report to Congress detailing litigation expenditures from 
agencies within their respective Departments within 90 days of fiscal 
yearend. Agencies would need to provide the Secretary with detailed 
information, including a description of the claims; the amounts of 
resources expended responding to notices of intent to sue letters and 
all other actions in preparation of or related to litigation, as well 
as attorney's fees awarded and the basis for such awards. H.R. 4318, 
the Endangered Species Litigation Reasonableness Act would limit the 
hourly rate for prevailing attorney fees to $125 per hour, thereby 
focusing resources on conservation and recovery rather than litigation. 
In consultation with Department of Interior's Solicitor's Office, we 
find it is unclear whether the amendment as drafted would actually 
amend the ESA to place a cap on fees and awards and, even if it did, 
considering the complex interplay between the provisions of the Equal 
Access to Justice Act and the Endangered Species, whether doing so 
would have the intended effect.
    The Service would like to explore with the committee whether there 
are administratively easier means of tracking and reporting fee awards 
than what has been proposed.
                               conclusion
    In closing, Mr. Chairman, America's fish, wildlife, and plant 
resources belong to all Americans, and ensuring the health of imperiled 
species is a shared responsibility for all of us. In implementing the 
ESA, the Service endeavors to adhere rigorously to the congressional 
requirement that implementation of the law be based strictly on 
science. At the same time, the Service has been responsive to the need 
to develop flexible, innovative mechanisms to engage the cooperation of 
private landowners and others under the Endangered Species Act and 
other laws, both to preclude the need to list species where possible, 
and to speed the recovery of those species that are listed. The Service 
remains committed to conserving America's fish and wildlife by relying 
upon the best available science and working in partnership to achieve 
recovery. Thank you for your interest in endangered species 
conservation and ESA implementation, and for the opportunity to 
testify.

                                 ______
                                 

    The Chairman. Thank you very much, Mr. Bean, for your 
testimony. Next I will recognize Mr. Sam Rauch, Deputy 
Assistant Administrator for Regulatory Programs for the 
National Marine Fisheries Service, Department of Commerce, 
here, in Washington, DC. Recognized for 5 minutes.

  STATEMENT OF SAM RAUCH, DEPUTY ASSISTANT ADMINISTRATOR FOR 
    REGULATORY PROGRAMS, NATIONAL MARINE FISHERIES SERVICE, 
     NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, U.S. 
             DEPARTMENT OF COMMERCE, WASHINGTON, DC

    Mr. Rauch. Good morning, Mr. Chairman, members of the 
committee. Thank you for the opportunity to testify before you 
today. My name is Sam Rauch, and I am the Deputy Assistant 
Administrator for Regulatory Programs at the National Marine 
Fisheries Service. We jointly administer the Endangered Species 
Act with the Fish and Wildlife Service, and our focus is mainly 
on ocean species and Pacific salmoides, as they go inland.
    The purpose of the Endangered Species Act is to conserve 
threatened and endangered species and their ecosystems. 
Congress passed the law on December 28, 1973, recognizing that 
the natural heritage of the United States was of aesthetic, 
ecological, educational, recreational, and scientific value to 
our Nation and its people.
    It was understood that, without protection, many of our 
Nation's living resources would become extinct. The Endangered 
Species Act has been successful in preventing species 
extinction. Less than 1 percent of the species listed under the 
law have gone extinct, and over 30 species have recovered.
    The National Marine Fisheries Service has recently de-
listed the eastern population of Steller sea lions. This is the 
first de-listing for our agency that has occurred because of 
recovery since 1994, when we de-listed the now-thriving eastern 
population of Pacific gray whales.
    Actions taken under the Endangered Species Act have also 
stabilized or improved the downward population trend of many 
marine species. For example, in 2013 we saw record returns of 
nearly 820,000 adult fall Chinook salmon passing the Bonneville 
Dam on their way up the Columbia River to spawn. This is the 
most fall Chinook salmon to pass the dam in a single year, 
since the dam was completed in 1938, and more than twice the 
10-year average.
    Recovery of threatened and endangered species is a complex 
and challenging process. We are engaged in a range of 
activities under the Endangered Species Act that include 
listing species and designating critical habitat, consulting on 
Federal actions that may affect a listed species or its 
designated critical habitat, and authorizing research to learn 
more about protected species.
    We also partner with a variety of stakeholders, including 
private citizens, Federal, State, and local agencies and 
tribes, and interested organizations and industry that have 
been critical to implementing recovery actions and achieving 
species recovery goals.
    For example, several NMFS programs provide support to our 
partners to assist with achieving recovery goals. From 2000 to 
2012, the Pacific Coastal Salmon Recovery Fund provided almost 
$1 billion in funding to support partnerships in the recovery 
of listed salmon and steelhead.
    From 2003 to 2013, the Species Recovery Grants to States 
awarded 37 million to support State recovery and research 
projects for other listed species. And from 2001 to 2013, the 
Prescott Program awarded over $44.8 million in funding through 
483 grants to Stranding Network members to respond and care for 
stranded marine mammals.
    The National Marine Fisheries Service is dedicated to the 
stewardship of living marine resources through science-based 
conservation and management. The Endangered Species Act is a 
mechanism that helps guide our conservation efforts, and 
reminds us that our children deserve the opportunity to enjoy 
the same natural world we experience.
    We are currently analyzing the four legislative proposals 
that were recently introduced into the House of Representatives 
regarding the Endangered Species Act, and we would be happy to 
work cooperatively with you on these draft bills.
    Thank you again for the opportunity to discuss the 
implementation of the Endangered Species Act, and I am 
available to answer any questions you may have.
    [The prepared statement of Mr. Rauch follows:]
  Prepared Statement of Sam Rauch, Deputy Assistant Administrator for 
   Regulatory Programs, National Marine Fisheries Service, National 
Oceanic and Atmospheric Administration, U.S. Department of Commerce on 
             H.R. 4315, H.R. 4316, H.R. 4317, and H.R. 4318
                              introduction
    Good morning, Mr. Chairman and members of the committee. Thank you 
for the opportunity to testify before you today. My name is Sam Rauch 
and I am the Deputy Assistant Administrator for Regulatory Programs for 
the National Oceanic and Atmospheric Administration's (NOAA) National 
Marine Fisheries Service (NMFS) in the Department of Commerce. NMFS is 
dedicated to the stewardship of living marine resources through 
science-based conservation and management.
    This year we celebrate the 40th Anniversary of the Endangered 
Species Act (ESA). The purpose of the ESA is to conserve threatened and 
endangered species and their ecosystems. Congress passed the ESA on 
December 28, 1973, recognizing that the natural heritage of the United 
States was of ``esthetic, ecological, educational, recreational, and 
scientific value to our Nation and its people.'' It was understood 
that, without protection, many of our Nation's living resources would 
become extinct. There are more than 2,140 species listed 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 
considered threatened if it is likely to become endangered in the 
foreseeable future. The U.S. Fish and Wildlife Service (USFWS) within 
the Department of the Interior and NMFS share responsibility for 
implementing the ESA. NMFS is responsible for 93 marine species, from 
whales to sea turtles and salmon to Johnson's sea grass.
                     nmfs implementation of the esa
    NMFS conserves and recovers marine resources by doing the 
following: listing species under the ESA and designating critical 
habitat (section 4); developing and implementing recovery plans for 
listed species (section 4); developing cooperative agreements with and 
providing grants to States for species conservation (section 6); 
consulting on any Federal agency actions where the agency determines 
that the action may affect a listed species or its designated critical 
habitat and to minimize the impacts of incidental take (section 7); 
partnering with other Nations to ensure that international trade does 
not threaten species (section 8); enforcing against violations of the 
ESA (sections 9 and 11); cooperating with non-Federal partners to 
develop conservation plans for the long-term conservation of species 
(section 10); and authorizing research to learn more about protected 
species (section 10).
How Species are Listed or Delisted
    Any individual or organization may petition NMFS or USFWS to 
``list'' a species under the ESA. If a petition is received, NMFS or 
USFWS must determine within 90 days if the petition presents enough 
information indicating that the listing of the species may be 
warranted. If the agency finds that the listing of the species may be 
warranted, it will begin a status review of the species. The agency 
must, within 1 year of receiving the petition, decide whether to 
propose the species for listing under the ESA. NMFS may, on its own 
accord, also initiate a status review to determine whether to list a 
species. In that instance, the statutory timeframes described above do 
not apply. The same process applies for delisting species.
    NMFS or the USFWS, for their respective species, determine if a 
species should be listed as endangered or threatened because of any of 
the following five factors: (1) present or threatened destruction, 
modification, or curtailment of its habitat or range; (2) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (3) disease or predation; (4) inadequacy of 
existing regulatory mechanisms; and (5) other natural or manmade 
factors affecting its continued existence. The ESA requires that 
listing and delisting decisions be based solely on the best scientific 
and commercial data available. The Act prohibits the consideration of 
economic impacts in making species listing decisions. The ESA also 
requires designation of critical habitat necessary for the conservation 
of the species; this decision does consider economic impacts.
    The listing of a species as endangered makes it illegal to ``take'' 
(harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, 
collect, or attempt to do these things) that species. Similar 
prohibitions usually extend to threatened species. Federal agencies may 
be allowed limited take of species through interagency consultations 
with NMFS or USFWS. Non-Federal individuals, agencies, or organizations 
may have limited take through special permits with conservation plans. 
Effects to the listed species must be minimized and in some cases 
conservation efforts are required to offset the take. NMFS' Office of 
Law Enforcement works with the U.S. Coast Guard and other partners to 
enforce and prosecute ESA violations.
Interagency Consultation and Cooperation
    All Federal agencies are directed, under section 7 of the ESA to 
utilize their authorities to carry out programs for the conservation of 
threatened and endangered species. Federal agencies must also consult 
with NMFS on activities that may affect a listed species or its 
designated critical habitat. These interagency consultations are 
designed to assist Federal agencies in fulfilling their duty to ensure 
Federal actions do not jeopardize the continued existence of a listed 
species or destroy or adversely modify designated critical habitat. 
Biological opinions document NMFS' opinion as to whether the Federal 
action is likely to jeopardize the continued existence of listed 
species or adversely modify their designated critical habitat. Where 
appropriate, biological opinions provide an exemption for the ``take'' 
of listed species while specifying the extent of take allowed, the 
Reasonable and Prudent Measures necessary to minimize impacts from the 
Federal action, and the Terms and Conditions with which the action 
agency must comply. Should an action be determined to jeopardize a 
species or adversely modify critical habitat, NMFS will suggest 
Reasonable and Prudent Alternatives, which are alternative methods of 
project implementation that would avoid the likelihood of jeopardy to 
the species or adverse modification of critical habitat. Nationally, 
NMFS conducts approximately 1,200 ESA consultations per year.
                            species recovery
    Recovery of threatened and endangered species is a complex and 
challenging process, but one which also offers long-term benefits to 
the health of our environment and our communities. Actions to achieve a 
species' recovery may require restoring or preserving habitat, 
minimizing or offsetting effects of actions that harm species, 
enhancing population numbers, or a combination of all of these actions. 
Many of these actions also help to provide communities with healthier 
ecosystems, cleaner water, and greater opportunities for recreation, 
both now and in future generations.
    Partnerships with a variety of stakeholders, including private 
citizens, Federal, State and local agencies, tribes, interested 
organizations, and industry, are critical to implementing recovery 
actions and achieving species recovery goals. Several NMFS programs, 
including the Species Recovery Grants to States and Tribes and the 
Pacific Coastal Salmon Recovery Fund, and the Prescott Marine Mammal 
Rescue Assistance Grant Program provide support to our partners to 
assist with achieving recovery goals. From 2000-2012 the Pacific 
Coastal Salmon Recovery Fund has provided $1.03 billion in funding to 
support partnerships in the recovery of listed salmon and steelhead. 
From 2003-2013 the Species Recovery Grants to States has awarded $37 
million to support State recovery and research projects for other 
listed species. From 2001-2013 the Prescott Program awarded over $44.8 
million in funding through 483 grants to Stranding Network members to 
respond and care for stranded marine mammals.
                    endangered species act successes
    The ESA has been successful in preventing species extinction--less 
than 1 percent of the species listed have gone extinct. Despite the 
fact that species reductions occurred over often very long time 
periods, in its 40 year existence, the ESA has helped recover over 30 
species. NMFS has recently delisted the Eastern population of Steller 
sea lion, our first delisting since 1994 when NMFS delisted the now 
thriving eastern population of Pacific gray whales. Between October 1, 
2010, and September 30, 2012, of the 70 domestic endangered or 
threatened marine species listed under the ESA, 27 (39 percent) were 
stabilized or improving, 16 (23 percent) were known to be declining, 6 
(8 percent) were mixed, with their status varying by population 
location, and 21 (30 percent) were unknown, because we lacked 
sufficient data to make a determination.
    In addition to Pacific gray whales and Eastern Steller sea lions, 
ESA recovery actions have stabilized or improved the downward 
population trend of many marine species. For example, listed humpback 
populations are currently growing by 3-7 percent annually. In 2013, we 
saw record returns of nearly 820,000 adult fall Chinook salmon passing 
the Bonneville Dam on their way up the Columbia River to spawn. This is 
the most fall Chinook salmon to pass the dam in a single year since the 
dam was completed in 1938, and more than twice the 10-year average of 
approximately 390,000. A substantial number of Hawaiian monk seals are 
alive today because of direct interventions by the NMFS Recovery 
Program. Because of these efforts directed at monk seals, the 
population is 30 percent larger than if we had not acted, offering hope 
for future recovery and assurance our actions are making a difference. 
We face continuing challenges in recovering numerous other species. 
Declines in habitat in coastal areas from wetlands to coral reefs is 
often a major causative factor. As stresses on coastal ecosystems 
increase, it is important to place a priority on habitat protection and 
restoration in order to prevent listings and facilitate recovery and 
delisting.
                     pending legislative proposals
    NMFS is currently analyzing the four legislative proposals that 
were recently introduced into the House of Representatives: H.R. 4315, 
the ``21st Century Endangered Species Transparency Act,'' H.R. 4316, 
the ``Endangered Species Recovery Transparency Act,'' H.R. 4317, the 
``State, Tribal, and Local Species Transparency and Recovery Act,'' and 
H.R. 4318, the ``Endangered Species Litigation Reasonableness Act.''
                               conclusion
    Extinctions are currently occurring at a rate that is unprecedented 
in human history. Each plant, animal, and their physical environment is 
part of a much more complex web of life. Because of this, the 
extinction of a single species can cause a series of negative events to 
occur that affect many other species. Endangered species also serve as 
``sentinel'' species to indicate larger ecological problems that could 
affect the functioning of the ecosystem and likely humans as well. As 
importantly, species diversity is part of the natural legacy we leave 
for future generations. The wide variety of species on land and in our 
ocean has provided inspiration, beauty, solace, food, livelihood and 
economic benefit, medicines and other products for previous 
generations. The ESA is a mechanism to help guide conservation efforts, 
and to remind us that our children deserve the opportunity to enjoy the 
same natural world we experience.
    Thank you again for the opportunity to discuss implementation of 
the Endangered Species Act. We would be happy to work cooperatively 
with the committee on these draft bills and would welcome the 
opportunity to discuss the legislation in more detail. I am available 
to answer any questions you may have.

                                 ______
                                 

    The Chairman. Thank you very much, Mr. Rauch. And our last 
witnesses--for purposes of introduction, I will recognize my 
colleague from Colorado, Mr. Tipton.
    Mr. Tipton. Thank you, Mr. Chairman, and I would certainly 
like to welcome today a friend of mine from my home area in my 
district in Colorado, Tom Jankovsky. He is a County 
Commissioner in Garfield County in Colorado, a third-generation 
native Coloradan who is serving his first term as the Garfield 
County Commissioner.
    Commissioner Jankovsky serves on the public lands lead for 
the Board of County Commissioners. During his tenure he has 
also served on the Garfield County Human Services Commission, 
the Garfield County Clean Energy Board, the county's Investment 
Advisory Board, and as a member of the Compressed Natural Gas 
Collaborative in Western Colorado.
    The commissioner is currently working as a General Manager 
for Sunlight Mountain Resort in Glenwood Springs, Colorado. He 
has held that position at the ski area since 1985. And Tom was 
inducted into the Colorado Ski and Snowboard Hall of Fame in 
2012. I am still trying to secure a picture of Tom on a 
snowboard. He is currently on the board, and is past Chair for 
Colorado Ski Country USA.
    I certainly appreciate him, Mr. Chairman, taking the trip, 
and look forward to his testimony. And, with that, I yield 
back.
    The Chairman. Mr. Jankovsky, you are recognized for 5 
minutes.

  STATEMENT OF THE HON. TOM JANKOVSKY, COMMISSIONER, GARFIELD 
                        COUNTY, COLORADO

    Mr. Jankovsky. Thank you, Mr. Chairman and honorable 
members of the committee. I am here to speak in favor of H.R. 
4315 and H.R. 4317 about the issues of transparency between 
local, State, and Federal Governments regarding the Endangered 
Species Act, as it relates to the potential listing of the 
greater sage-grouse.
    The underpinning message to be conveyed is there is a 
serious lack of openness and fairness, transparency, in 
decisions being made by State and Federal agencies that are 
hidden behind the cloak of the ESA that have serious impacts on 
local communities. Information used by these agencies to make 
extraordinary decisions with enormous impacts on local 
communities, such is done with ESA, should be available for 
review and verification by those it impacts. To operate 
otherwise furthers the appearance--and perhaps the fact--that 
the information is inaccurate, misleading, has no scientific 
basis, and is agenda-driven by special interests. Therefore, by 
design, it is meant to be hidden from objective review. And, 
ironically, the ultimate casualty is the ESA and the species it 
is meant to protect.
    At the local level, Garfield County has experienced this 
lack of transparency and freedom of information, as a 
cooperating agency with the BLM in the greater sage-grouse EIS. 
From the start, as a cooperating agency, we questioned the 
accuracy of habitat maps produced by the Colorado Department of 
Parks and Wildlife and used by the BLM in the development of 
the alternatives.
    The greater sage-grouse habitat in Garfield County is 
unique. It is fragmented, located on ridgetops, with 
significant drops into valley floors. In our research and 
discussions with CPW it was discovered that the mapping was 
prepared at a 50,000-foot view, based on very coarse vegetation 
data, a subjective occupied range map, and a 4-mile lek buffer 
that assumes large expanses of intact habitat. Ultimately, 
contrary to Federal requirements, the map is not reproducible, 
and is based on data that the agency used--refuses to release 
to the public, despite a Colorado open records request. As a 
result, we were left to create our own habitat maps at 
considerable expense. The map developed by Garfield County 
shows a 70 percent reduction in habitat.
    I have questioned how the greater sage-grouse could ever be 
listed as an endangered or threatened species. The current 
estimated population numbers for the greater sage-grouse are 
reported to be between 350,000 and 535,000 birds, which is 70 
to 107 times greater than the minimum effective population. At 
the reported current rate of decline of 1.4 percent per year, 
it would take 300 years for the population to dwindle to the 
minimum effective population.
    In our view, there remains the fundamental breakdown in the 
types of information used to make decisions. For example, it 
has been reported that between 2001 and 2007, hunters bagged 
207,000 birds. Additionally, 9,000 birds were harvested in 
Nevada alone in 2009 and 2010, which is just shy of the total 
number of birds currently estimated for the State of Colorado.
    As a cooperating agency, we also question the science used 
in the EIS, which has adopted policies contained in the 
national technical team report. We question the science behind 
the 3 percent disturbance cap on development and habitat. This 
winter our own Governor Hickenlooper wrote to the U.S. Fish and 
Wildlife Service and Colorado's formal comments, ``It is our 
understanding that there is limited scientific evidence that 
supports either of the two numbers currently in play for 
anthropogenic disturbance. Imposing an arbitrary cap on the 
landscape could have catastrophic impacts on resource use.''
    Garfield County requests for data use by State and Federal 
agencies concerning the greater sage-grouse EIS has been denied 
or not responded to. Through our biologist, Dr. Rob Ramey, we 
have requested population and population count data from the 
U.S. Fish and Wildlife Service to no avail. We would appreciate 
this committee's interceding on our behalf to obtain this data 
as soon as possible.
    I support H.R. 4315 and H.R. 4317. Greater transparency and 
sharing of data will help local governments affected by ESA 
decisions that will have lasting social economic impacts on our 
communities.
    Thank you for your time and assistance in this matter.
    [The prepared statement of Mr. Jankovsky follows:]
 Prepared Statement of the Hon. Tom Jankovsky, Commissioner, Garfield 
              County, Colorado on H.R. 4315 and H.R. 4317
    Thank you Mr. Chairman and members of the committee.
    My name is Tom Jankovsky, County Commissioner from Garfield County, 
Colorado.
    I am here to speak in favor of H.R. 4315 and H.R. 4317 about the 
issue of transparency between local, State and Federal governments 
regarding the Endangered Species Act as it relates to the potential 
listing of the Greater Sage Grouse. The underpinning message to be 
conveyed is there is a serious lack of openness and fairness 
(transparency) in decisions being made by State and Federal agencies 
that are hidden behind the cloak of the ESA that have serious impacts 
on local communities.
    Information used by these agencies to make extraordinary decisions 
with enormous impacts on local communities such as is done with the ESA 
should be available for review and verification by those it impacts. To 
operate otherwise, furthers the appearance and perhaps the fact that 
the information is inaccurate, misleading, and erroneous, has no 
scientific basis, and is agenda driven by special interests. Therefore 
by design is meant to remain hidden from objective review and 
ironically, the ultimate casualty is the ESA and the species it is 
meant to protect.
    At the local level, Garfield County experienced this lack of 
transparency and freedom of information, as a Cooperating Agency with 
the Bureau of Land Management (BLM) in the Greater Sage Grouse 
Environmental Impact Statement (EIS). From the start, as a Cooperating 
Agency we questioned the accuracy of habitat maps produced by the 
Colorado Department of Parks and Wildlife (CPW) and used by BLM in the 
development of the alternatives in the Greater Sage Grouse EIS.
    The Greater Sage Grouse habitat in Garfield County is unique, it is 
fragmented, located on ridge tops with significant drops into valley 
floors. In our research and discussions with CPW, it was discovered 
that the mapping was prepared at a 50,000 ft. view; based on very 
coarse vegetation data, a subjective occupied range map, and a 4-mile 
lek buffer that assumes large expanses of intact habitat. Ultimately, 
contrary to Federal requirements, the map is not reproducible and is 
based on data that the agency refuses to release to the public, despite 
a Colorado Open Records Act request and offers for data sharing 
agreement protections. As a result, we were left to create our own 
habitat maps at considerable expense. The map developed by Garfield 
County shows a 70 percent reduction in habitat.
    A transparent review and validation of CPW data could have resulted 
in a habitat map that is effective for proper bird management in 
Garfield County's highly unique habitat; instead, we have two radically 
different habitat maps, where CPW's inaccurate map will produce lasting 
and extraordinary socio-economic impacts to our region.
    I have questioned how the Greater Sage Grouse could ever be listed 
as an endangered or threatened species. The current estimated 
population numbers for the Greater Sage Grouse are reported to be 
between 350,000 and 535,000 birds which is 70 to 107 times greater than 
the ``minimum effective population.'' At the reported current rate of 
decline of 1.4 percent per year (nationally assumed), it would take 300 
years for the population to dwindle to the minimum effective 
population. How can the current status warrant inclusion on the 
endangered species list?
    In our view, there remains a fundamental breakdown in the types of 
information used to make decisions. For example, it has been reported 
that between 2001-2007 hunters bagged 207,000 birds. Additionally, 
9,000 birds were harvested in Nevada alone in 2009 and 2010 which is 
just shy of the total number of birds currently estimated for the 
entire State of Colorado.
    As a Cooperating agency we also question the science used in the 
EIS, which has adopted policies contained in the National Technical 
Team (NTT) Report. We question the science behind the 3 percent 
disturbance cap on development in habitat. This winter, our own 
Governor Hickenlooper wrote to the U.S. Fish & Wildlife Service in the 
Colorado's formal comments, ``It is our understanding that there is 
limited scientific evidence that supports either of the two numbers 
currently in play for anthropogenic disturbance (3 percent and 5 
percent) . . . Imposing an arbitrary cap on the landscape could have 
catastrophic impacts on resource use.''
    In addition, in our County we question the science behind the 4-
mile buffer from a lek (mating area of the Greater Sage Grouse). The 4-
mile radius from a lek in Garfield County will start in sage brush 
habitat on the top of a ridge, go down a slope into an Aspen forest to 
the valley floor, go back up through a conifer forest, to the top of 
the next ridge and again start back down the next ridge. This shows the 
fragmentation of the habitat and why a 4-mile buffer does not work in 
our County.
    Garfield County requests for data used by State and Federal 
agencies concerning the Greater Sage Grouse EIS, have been denied or 
not responded too. Through our biologist, Dr. Rob Ramey we have 
requested population and population count data from the U.S. Fish & 
Wildlife Service. We wish to verify this data as requested under the 
Information Quality Act. We would appreciate this committee's 
interceding on our behalf to obtain this data as soon as possible.
    I support H.R. 4315 and H.R. 4317, greater transparency and sharing 
of data will help local governments, affected by ESA decisions that 
will have lasting socioeconomic impacts on our communities.
    Thank you for your time and assistance in this matter. We 
appreciate this opportunity and would be more than happy to answer any 
questions this committee may have.

Attachment 1: Topography Differences

Attachment 2: Suitable Habitat Mapping Differences

Attachment 3: Coordination Diagram

Attachment 4: BLM Instructional Memorandum 2012-044

Attachment 5: Key Differences That Make the Garfield County Greater 
Sage Grouse Plan a More Effective Conservation Tool Than Those Proposed 
by Federal Agencies

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    The Chairman. Thank you very much, Commissioner Jankovsky, 
and I want to thank the panel for your statement. I will now 
recognize myself for 5 minutes for questioning.
    The common thread in all of these four bills, particularly 
two of them, is transparency so that people know why decisions 
are being made. And, frankly, on a larger scale, unless you 
have transparency in the form of government that we have, we 
don't have a government of the people. I mean that is just 
common sense, to me.
    So, with that in mind--and I suppose that cuts both ways--
but, Mr. Bean, let me ask you a question, or for a comment. 
When I introduced H.R. 4315 several weeks ago, the Center for 
Biological Diversity characterized it as a weakening of the 
Endangered Species Act. Now, I found that a bit puzzling. And 
the reason I found that puzzling, because on December 19 the 
Center for Biological Diversity, along with the Natural 
Resources Defense Council and the Sierra Club sent a letter to 
you when you were looking at removing the grizzly bear from the 
list. And this is what they said in their letter, toward the 
end of the letter: ``Yellowstone grizzly bear data have been 
collected nearly exclusively under the authority of the Federal 
Government and funded by taxpayers. Release of this data will 
promote efficiency and effectiveness in government. Simply put, 
release of this data is consistent with the principles of good 
governance, transparency, and good science.'' Now, that is from 
the Center of Biological Diversity, which was part of the mega-
settlement that was done behind closed doors that has affected 
a lot of people, potentially, throughout the country.
    Two questions. Have you responded to that letter, do you 
know?
    Mr. Bean. Not to my knowledge.
    The Chairman. You have not responded to that. Yes, you have 
not responded to that letter.
    Mr. Bean. Not to my knowledge.
    The Chairman. OK. If you have, would you provide to the 
committee your response to that letter?
    Mr. Bean. Yes, of course.
    The Chairman. OK. And the last part--and I understand that 
you did not say transparency was not a good idea, but you had 
some conditions of that transparency. So, I just wonder if this 
is, I guess, part of examples where transparency is good.
    Mr. Bean. What I believe I said was that the Fish and 
Wildlife Service is committed to transparency in its 
decisionmaking, and its regular processes are ones that 
disclose the data upon which it relies, as well as the Service 
does make available the data that it has in its possession or 
control.
    I tried to make the point that often what the Fish and 
Wildlife Service utilizes are published studies, reports, 
analyses, and so forth, and those published reports, analyses, 
and studies are often based on State data that the Fish and 
Wildlife Service neither has nor has the right to give to 
others.
    But, to the extent the Service has that data in its own 
possession, unless there is some compelling reason under FOIA 
to withhold it--I would give us one example. Sometimes the Fish 
and Wildlife Service gets from the Defense Department certain 
high-resolution photographs about species locations, and the 
Defense Department asks that that data not be released to the 
public for security-related purposes. Unless there is a reason 
like that, the Service, as a general matter and a routine 
matter, makes available the data that it has.
    The Chairman. But the principle of the data being made on 
listings is good policy.
    Mr. Bean. Yes.
    The Chairman. Yes. OK. Dr. Ramey, would you--in your ending 
oral remarks you kind of alluded to potentially this sort of 
contingency, I guess, with some of the groups that are 
involved. Would you care to comment on that?
    Dr. Ramey. Information is power. Data is power. And if data 
are withheld, then the group or the agency that hold that data 
can maintain their power. And it has been my experience in 
trying to obtain data from individuals, researchers that are 
permitted by the Federal agencies--and it is not really very 
much State data, Michael, it tends to be more independent 
researchers--it can be like pulling teeth to try and obtain 
that data. You write a polite letter, you get a refusal, the 
questions come back, ``What are you going to do with this?''
    ``Well, I would like to actually look at your study.'' It 
is not just me; other colleagues of mine have had the same 
issue, over and over again. There are times that you can submit 
a FOIA to obtain data. But, ultimately, some data sets have 
been obtained under subpoena, like the Coastal California 
gnatcatcher data. And then--it shouldn't come to that.
    Here, we are facing a situation with a listing of greater 
sage-grouse, where some of the data is maintained by States, 
but that data set is now 7 years old. There have been numerous 
papers published on this. The data set is shared among a good 
old boys club of people, and yet the data is not public, and we 
are about to spend billions, if not trillions, of dollars on 
this listing.
    The Chairman. All right. My time is expired, but I just 
wanted to make the point it comes both ways. This letter that I 
referenced was for de-listing. Should not the same principle 
apply for listing? That is what the issue is.
    With that, I will recognize the distinguished Ranking 
Member, Mr. Grijalva.
    Mr. Grijalva. Thank you very much, Mr. Chairman. Mr. Bean, 
let me just get an answer and you can amplify that answer. Is 
it true that the only way to get data from Fish and Wildlife 
that you use in listing the decision is through a FOIA request?
    Mr. Bean. No, I don't believe that is true. I think the 
Fish and Wildlife Service commonly makes available data that it 
has by publishing the reports and studies, or certainly a list 
of reports and studies on which it relies with the proposed and 
final listing decisions. That data is published on the 
regulations.gov Web site for anybody to access who cares to see 
it.
    Mr. Grijalva. And I appreciate that, because that is the 
question that we are going to hear over and over again today.
    Dr. Courtney, do you think there is any sound scientific 
basis for pre-determining that certain sources of data are 
always going to be the best scientific and commercial data 
available?
    Dr. Courtney. Congressman, science is a process. And so it 
is an ongoing process, and it is always a work in progress. And 
there is no reason to assume that your science is better than 
mine, just because you are sitting up there and I am down here.
    The processes of science are self-correcting, and we figure 
things out, and ultimately the truth is out.
    Mr. Grijalva. Dr. Courtney, you noted that the peer review 
you led regarding the Fish and Wildlife's proposal to de-list 
the gray wolf unanimously found that the proposal was not based 
on the best scientific and commercial information available, 
and that is an indication of a situation where, as you 
mentioned, it is an ongoing process, so corrective action is 
warranted. In your opinion, is that corrective action in this 
case of withdrawal of de-listing--is the withdrawal of that de-
listing decision----
    Dr. Courtney. I have no opinion on what the Service should 
do, Congressman. My task was very simple, which was to guide a 
process to look at what the science said and a panel 
unanimously found that the science in that case did not support 
one part of the agency's proposed de-listing. We didn't 
consider all aspects of the proposal. And, of course, the use 
of science is a totally different thing from creating science.
    Mr. Grijalva. Appreciate that. Commissioner Jankovsky, in 
your testimony you say that with respect to the greater sage-
grouse EIS that was developed by the Bureau of Land Management, 
that, ``From the start we questioned the accuracy of habitat 
maps produced by the Colorado Department of Parks and 
Wildlife,'' and that the maps produced by your county were much 
different. Let me try to understand this. So are you saying 
there was a conflict, fundamental conflict, between the data in 
the maps that the State and county were providing the Bureau of 
Land Management?
    Mr. Jankovsky. I was saying that the maps provided by the 
State of Colorado to the Bureau of Land Management that were 
used in the greater sage-grouse EIS for northwest Colorado were 
considerably different from our maps. Garfield County, 
Colorado, is very unique in its habitat. It is fragmented----
    Mr. Grijalva. OK.
    Mr. Jankovsky [continuing]. And we found a 70 percent 
reduction in the amount of habitat in Garfield County.
    Dr. Ramey. Could I jump in?
    Mr. Grijalva. So they were different.
    Dr. Ramey. That mapping was done at a 2-meter resolution--
--
    Mr. Grijalva. Excuse me, I have a question over here, thank 
you. I really don't have any questions for you, so I want to 
concentrate here.
    What would happen, Commissioner, again, if Fish and 
Wildlife were required to consider the county data and the 
State data to be the best information available? How would--if 
you have them in conflict?
    Mr. Jankovsky. They are in conflict. And we did use 2-meter 
resolution, where the State used a much broader--actually, 
State Fish and Wildlife people stated that it was a 50,000-foot 
view----
    Mr. Grijalva. So----
    Mr. Jankovsky [continuing]. They used on the mapping, where 
we went down----
    Mr. Grijalva. With regard to the legislation, then, the 
county data, which you feel--you support, is, in your estimate, 
the best available data, and not the State's.
    Mr. Jankovsky. That is correct. And we feel----
    Mr. Grijalva. So that would hold precedent in any decision.
    Mr. Jankovsky. I don't know if it would hold precedent in 
any decision----
    Mr. Grijalva. That is fine.
    Mr. Jankovsky [continuing]. But we feel that we have the 
best available----
    Mr. Grijalva. OK, thank you.
    Mr. Jankovsky [continuing]. Data, and the best science----
    Mr. Grijalva. Yield back.
    The Chairman. I thank the gentleman. I will recognize the 
gentleman from Colorado, Mr. Tipton.
    Mr. Tipton. Thank you, Mr. Chairman. And, Mr. Ramey, I 
would like to be able to hear your answer. If you can keep it 
brief, we have a limited amount of time. We are talking about 
best available science. What was the discrepancy between the 
State of Colorado and the map produced by Garfield County?
    Dr. Ramey. It is a question of the resolution of the data. 
Much higher resolution in the vegetation mapping provided--done 
by the county and their GIS group, as opposed to that being 
proposed by the Federal agencies. The same situation has been 
found in the Gunnison sage-grouse, as well, where large parts 
of non-habitat, including the Town of Doat Creek and Gunnison 
Gorge, were declared as critical habitat.
    And so, if one has the chance to obtain the data and do a 
superior analysis, it benefits species protection, because you 
can put the----
    Mr. Tipton. So it goes to the Commissioner's statement it 
was a 50,000-foot view, you narrowed this down to actually look 
at something that--you noted in your testimony you need a 
certain amount of ground cover, you need a certain amount of 
water to be available if you really want to be able to recover 
the species. The broad brush stroke simply doesn't work. Is 
that accurate?
    Dr. Ramey. That is very accurate. There is a lot of 
collateral damage, in terms of public support, when critical 
habitats are over-extended.
    Mr. Tipton. Great. Commissioner, let's talk about real 
acres. I think in the West it is so expansive. You said a 70 
percent reduction. How many acres did they want to include in 
Garfield County, and what did you reduce it to with good 
science?
    Mr. Jankovsky. Garfield County has 220,000 acres of 
priority habitat, and with good science that was reduced to 
about 70,000 acres.
    Mr. Tipton. About 70,000 acres, a huge reduction in that.
    You know, Mr. Bean, I would like to be able to find out--
you talked about transparency, and wanting to be able to open 
the door on that. And why are we not releasing the NTT Report?
    Mr. Bean. The NTT Report was published a couple years ago. 
It has been released.
    Mr. Tipton. We don't have the information. Have you 
received the information, Mr. Ramey?
    Dr. Ramey. I think you are mistaken on that. I think that 
what you might be referring to is the sage-grouse lek count 
data that are the basis, the fundamental basis, of the 2010 
listing decision on the greater sage-grouse. And that data was 
analyzed under this Federal cooperative agreement from the Fish 
and Wildlife Service, and yet 6 years later the data are still 
not public.
    Mr. Tipton. Why is that not public, Mr. Bean?
    Mr. Bean. The data--well, first of all, the study is a 
study by Dr. Garten and others that--the authors of the study 
are employed by the Idaho Department of Fish and Game, the 
Oregon Department of Fish and Wildlife, and the Washington 
Department of Fish and Wildlife, and the University of Idaho. 
The data they used to compile their report is State-maintained 
data. That data has never been made available to the Fish and--
--
    Mr. Tipton. Are you making decisions off that data?
    Mr. Bean. We are not making decisions off of that----
    Mr. Tipton. Are you using that data?
    Mr. Bean. We will be using the report and other information 
to make a decision----
    Mr. Tipton. Don't you think that ought to be public, if we 
are talking about transparency?
    Mr. Bean. I think that if the States decide to release that 
data, it would be a good thing.
    Mr. Tipton. You are an advisor to Fish and Wildlife and the 
Department of the Interior. Are you giving them advice, ``We 
need to be able to have transparency so we can make good, sound 
judgments''?
    Mr. Bean. I have advocated in my testimony and elsewhere, 
transparency. I have also made clear that we cannot withhold 
what we do not have. And, in this instance, the information 
involved is maintained and controlled by the States.
    Mr. Tipton. Let's talk a little bit about population count. 
Commissioner, have you been given a goal to be able to reach, 
how many birds? And we have achieved a recovery?
    Mr. Jankovsky. No, I think that is one of the difficulties 
that Dr. Ramey was talking about, is that even in our small 
area, there is no set population. It is an estimate, and we 
actually have a biologist from CPW working there, but we don't 
have a number that is specific to our area.
    Mr. Tipton. Mr. Bean, how do we get recovery if we don't 
know what the numbers are?
    Mr. Bean. Numbers are a part of the equation. The main 
focus is threats, identifying and addressing threats. The Fish 
and Wildlife Service is required by Congress's law, the 
Endangered Species Act, to consider five factors in deciding 
whether or not a species is to be listed.
    Mr. Tipton. You know, the Commissioner just gave us some 
pretty big numbers, in terms of the population of the bird. How 
do we know, when we have an 11-State recovery program, if we 
have had success in Colorado--it is still going to be listed if 
it is not achieved by some ambiguous number that you won't give 
us in Wyoming--that we have achieved recovery? How do we 
actually win, given what you are actually laying out, without 
transparency?
    Mr. Bean. Well, what the Fish and Wildlife Service is doing 
at present is working closely with Colorado and the other 10 
States that have----
    Mr. Tipton. Our Governor pointed out that we have the best 
science on the ground in the State of Colorado, and are 
achieving recovery----
    Mr. Bean. I am aware of the Governor's letter. With respect 
to the matter that Mr. Jankovsky raised, the Bureau of Land 
Management's EIS is a draft EIS. They have made no final 
decision. They have made no final EIS. They are in the process 
of incorporating data from the county and others in a revised 
EIS. It is a testament to the strength of the process that the 
information available to the Bureau can improve through the 
input from the counties and others. And, as the Bureau makes a 
decision on its land use plan, it will have the benefit of the 
counties' input, and will have the ability to make a well-
informed decision.
    The Chairman. The time of the gentleman has expired. The 
Chair recognizes the gentleman from California, Mr. Huffman.
    Mr. Huffman. Mr. Chair, thanks very much. I appreciate that 
the stated concern, stated purpose of this hearing and this 
legislation we are talking about today is over species recovery 
and de-listing. On at least that much I think both parties can 
agree. We want to see species recover, we want to see them de-
listed.
    That is about where it ends, though, because the premise of 
the bills we are considering and a lot of the debate is that 
the problem is that we are not recovering more species because 
we are somehow listing too many, or that we are somehow 
spending too much time on lawsuits that seek listing. And I 
find that a bit too far. We are not going to help the 
Endangered Species Act with the conservation and de-listing of 
species by making it harder to list them, or by making it 
harder to enforce the Act.
    But it does appear to me that there is something we can do 
to help species recovery and de-listing, and that is to 
actually invest in species recovery and de-listing. So I have a 
question for our witnesses from NMFS and the Fish and Wildlife 
Service. I would like to ask you how much you have requested 
for your various efforts to recover species in the last fiscal 
year, and then tell us how much was appropriated in response to 
those requests.
    Mr. Rauch. Thank you for the question. I don't have those 
exact numbers. We will get them to you from the National Marine 
Fisheries Service.
    Mr. Huffman. All right. Is it fair to say that your 
requests have not been matched in the appropriations, that 
there is a shortfall?
    Mr. Rauch. I do not know the specific numbers. I know that 
since 2010 Congress has not appropriated the full amount we 
have requested for at least Pacific salmon. There has been a 
shortfall there, where the President has requested more than we 
have received. In 2014 we received some of those numbers back, 
so I don't know if that trend continues.
    Mr. Huffman. All right. Mr. Bean, can I ask you? I know you 
have requested millions in cooperative recovery and de-listing 
efforts. Tell us about how the appropriations have matched 
that.
    Mr. Bean. I only know part of the answer to your question, 
which is for the FY 2015 budget request the Service has 
requested an $18 million increase for recovery-related 
purposes.
    Mr. Huffman. How many species are currently listed as 
warranted but precluded because your agencies lack resources to 
implement adequate protections? Do either of you know, off 
the----
    Mr. Rauch. I do not believe that NMFS has any listed as 
warranted but precluded.
    Mr. Bean. I don't know the precise number. My guess is it 
is in the ballpark of 150 or so for the Fish and Wildlife 
Service. That may give or take 20.
    Mr. Huffman. My information is that you have 145 candidate 
species, according to the Fish and Wildlife Service Web site, 
51 species currently proposed for listing, according to your 
Web site. Can either of you identify any currently protected or 
listed species whose recovery you think would benefit from the 
passage of any of these four bills?
    Mr. Bean. I cannot. I think the concern that I expressed 
was that these bills, although they are directed at the purpose 
that we share of improving transparency and improving reliance 
upon good science, I do not see how these bills will increase 
the resources, or increase the effectiveness of the tools we 
now have to recover species.
    If I can say a word just about recovering species, so far 
in this administration some 11 species have been recovered and 
de-listed due to recovery, which is more than in any prior 
administration. There are, indeed, nine others proposed for de-
listing because of recovery. So we are making good progress in 
recovering and de-listing species, but there are a lot of 
species that are still a long ways from recovery that are 
clearly doing very well, compared to their historical numbers. 
And among them, California condors, black-footed ferrets, 
Florida manatees, and whooping cranes, all of which are at or 
near their historic highs over the last half-century or more, 
all of which will remain endangered species for many more 
years, because they were reduced to very low numbers, but all 
of which are clearly major successes for the Endangered Species 
Act, even though they are still endangered species not yet 
recovered.
    Mr. Huffman. All right. Mr. Rauch?
    Mr. Rauch. I concur with Mr. Bean's statements regarding 
the effects of these bills on recovery. I do not see a direct 
link between these bills and efforts to recover the species. 
And I would also echo his comments about the success on 
recovery that this administration has had. There are large 
efforts that have been made, and I think we can all be proud of 
those.
    Mr. Huffman. All right, thank you.
    The Chairman. The time of the gentleman has expired. I 
recognize the gentleman from Texas, Mr. Flores.
    Mr. Flores. Thank you, Mr. Chairman. Senator Seliger, let's 
start with you for a minute. Can you cite any examples of how 
better cooperation or better, actually, data communication 
regarding ESA matters would have better facilitated the Federal 
Government implementing ESA, and resulted in a better outcome 
for Texas?
    Mr. Seliger. I think I can, Congressman Flores, in that the 
process we believe, should be data-driven.
    Mr. Flores. Right.
    Mr. Seliger. There clearly is an empirical measure of 
species population to determine whether they are increasing or 
declining. And then, where the science comes in is to analyze 
the problems, the threats, and the possible solutions. And 
then, very importantly, to measure the progress made to 
consider de-listing.
    And I find it interesting, reflecting on Congressman 
Huffman's questions just last week, Director Ashe suggested a 
$9 million decrease in grants to States to be used in the 
scientific inquiry around endangered species. It is a big help 
to States.
    Mr. Flores. Thank you, Senator Seliger. Commissioner 
Jankovsky, how has your interaction with the Bureau of Land 
Management and Fish and Wildlife Service on the sage-grouse 
impacted your county, and what have your county's own efforts 
produced in the way of sage-grouse needs and management? I 
think you drilled into that a little bit----
    Mr. Jankovsky. OK. We are definitely at the local level. I 
mean, you know, we are the ones that make local land use 
decisions that affect the bird, at least in our county, and we 
have coordinated with the Bureau of Land Management, and they 
have come to meetings, and we have talked about issues, and we 
have had direct, face-to-face discussions. We have sent letters 
to--at least to Denver, to Fish and Wildlife Service, and those 
letters have not even been responded to.
    And we do have questions about the science, especially in 
our county. And we look at it at the local level, and we have 
control at the local level, and that is what is missing, in my 
opinion.
    Mr. Flores. OK, thank you. Dr. Ramey, Mr. Courtney has 
suggested that data transparency could threaten conservation 
planning, and he cited as an example the lesser prairie 
chicken, which, despite extensive State, local, and private 
efforts to keep it off the list, was listed by FWS 2 weeks ago.
    A report by the Center for Environmental Science, Accuracy, 
and Reliability concluded that the FWS listing rule for the 
prairie chicken failed to consider data and analysis 
demonstrated in the lesser prairie chicken populations were 
increasing, and that genetic isolation has not occurred. So, in 
this regard I have two questions.
    First of all, do you agree with Mr. Courtney, that data 
transparency could threaten conservation planning?
    Dr. Ramey. Briefly, just a correction. That report, I 
believe, refers to the greater sage-grouse and the genetic 
diversity in that----
    Mr. Flores. I am sorry----
    Dr. Ramey [continuing]. Numbers.
    Mr. Flores. That is right.
    Dr. Ramey. Yes. In my direct experience, having worked on 
endangered species in the field, including California condors 
and peregrine falcons, peninsular bighorn sheep, Sierra bighorn 
sheep, and on and on, openness and transparency and having the 
data allows you to have a re-examination of the threats to the 
species, and you can have a discussion and debate about those 
and prioritize. If data are withheld, there is no opportunity 
for that.
    You can have all the studies you want, you can have all the 
peer reviews you want. But unless the peer reviewers and the 
public have access to the data, there is no way that this is 
truly an effective scientific decision. And the statute 
requires that these decisions be based on data, not opinions, 
not speculation in papers. The Office of Management and Budget, 
with the Data Quality Act, require that these be based on data.
    Mr. Flores. Well, that brings us to my next question, and 
that is, you know, this data discrepancy that is described in 
this report, is that another example of how important State and 
local data is for the Federal Government to use before the ESA 
listing?
    Dr. Ramey. Well, State and local data are essential to 
having an effective recovery, because local data, local 
knowledge, certainly like in Garfield County, is essential. You 
can't have one-size-fits-all solutions to endangered species. 
It has to be tailored to the problems, and you need to 
prioritize your effort on addressing the threats.
    Mr. Flores. Mr. Courtney, I have a question for you, but, 
given my time, you will have to answer following this report. 
Maybe you can do that in writing for us.
    I have some conflicts among the answers that you gave. 
First of all, in your testimony you said that you recommend 
making use of existing technologies. But in your answers you 
said sciences work in progress and science is self-correcting. 
So I think there is a conflict between using things that are 
existing, but still trying to always use the best-available 
science. So if you would submit an answer following this 
hearing, I would appreciate it.
    Dr. Courtney. Of course.
    Mr. Flores. Thank you.
    The Chairman. The time of the gentleman has expired. The 
Chair recognizes the gentleman from California, Mr. Costa.
    Mr. Costa. Thank you very much, Mr. Chairman. To the 
scientists that are here, and some of the other folks that are 
dealing with these issues on an ongoing basis, I kind of have a 
statement that I want to make, because I think the notion of 
trying to create further transparency is meritorious, I think, 
when we are dealing with the challenges facing the Endangered 
Species Act. I think many of us who feel that there ought to be 
changes or modifications to reflect the reality of the 
challenges we face today in species recovery often times get 
drowned out.
    When we talk about best science available, we know that 
the--to take a follow-up on the comment from the gentleman who 
just spoke, Mr. Flores--the science is changing, so we learn 
more. And so, the best science available is never a stationary 
place. And I think that, you know, we can look to all the 
experts, and we do--National Academy of Sciences and others--
who opine and write opinions on changing developments. But our 
credibility is always lacking when we have difficulty in 
species recovery.
    And, of course, with changes in climate, we have a lot of 
noted biologists, scientists, and others that say that it may 
be literally an impossible feat to accomplish to recovery 
species in which water temperatures are changing over a period 
of time, and other factors. And we don't take that into 
account.
    So, I guess, in terms of our credibility, how do we define 
success? How do we define success in species recovery? And 
often times, I mean, you talk about the California condor, we 
talk about salmonid recovery. I mean there is a whole host of 
issues that I am familiar with on the West Coast. The fact is 
that, often times, there are multiple factors that cause the 
decline in these species.
    And so, when we deal with--most of the time, from a 
regulatory standpoint, we don't have the ability to deal with 
multiple factors, and it is like trying to fly an airplane when 
you have only one control, and that is over power, and you 
don't have control over the airlines or other elements that 
would factor in.
    So, who wants to try to take this on, when we talk about 
changes that are necessary in the law?
    Dr. Ramey. I will be glad to jump in. And, as you know, the 
delta smelt is a case where, because the data are public and 
available, there have been, over the last 2 years, 3 years, six 
papers, including a paper by scientists at NCEAS, to re-examine 
all the data set and look at it in new ways, in trying to 
figure out what are the current problems for the delta smelt. 
Not the past problems, but the current problems. And one of 
those they identified is the ammonia deposition caused by the 
Sacramento waste water treatment plant, something that people 
hadn't considered before. But because the data are public, it 
is possible to have that kind of----
    Mr. Costa. Are predator bass----
    Dr. Ramey. And predator bass.
    Mr. Costa [continuing]. That consume a lot of the smelt. So 
how do we get there?
    And then you have the gentleman from Davis, noted fish 
biologist, who indicates that as water temperatures continue to 
increase over the next four, five, six decades, that it may be 
impossible to recover some of these species.
    Dr. Ramey. In that one you are facing an ecosystem 
collapse.
    Mr. Costa. Yes.
    Mr. Bean. Sir, if I can answer your----
    Mr. Costa. Well, change. But, I mean, millions of years 
before--we obviously are impacting all of it, that's given. But 
the fact is that species have declined and become extinct as a 
result of a meteor hitting in the Yucatan Peninsula. I mean 
there are a lot of things that cause factors, right?
    Mr. Bean. Mr. Costa, if I can address your earlier question 
of how do we define success in this area, I think we can define 
it in a number of ways. We start with avoiding extinction of 
species we have identified as endangered. We have done a good 
job of avoiding extinction.
    Second, and perhaps most importantly, measuring our ability 
to make a more secure future for these species. As I indicated, 
many species, although still endangered, have a clearly more 
secure future ahead of them because of----
    Mr. Costa. But is it fair, when we have multiple factors 
that are causing the decline of a species, to only use one?
    Mr. Bean. We have to address all the factors, sir. You are 
correct about that.
    Mr. Costa. But we don't do that.
    Mr. Bean. We try our best to do that.
    Mr. Costa. I can cite many examples where we are not.
    Mr. Bean. There are certainly many examples where it is 
very difficult to do that, and we have more or less success 
doing that. But in every instance we try to address every 
threat that we can.
    Mr. Costa. All right.
    The Chairman. The time of the gentleman has expired.
    Mr. Costa. All right. Thank you very much, Mr. Chairman. 
Discussion to be continued.
    The Chairman. It will, I know that. The Chair recognizes 
the gentleman from California, Mr. LaMalfa.
    Mr. LaMalfa. Thank you, Mr. Chairman. As the discussion 
goes back and forth here today, we hear different ideas about 
the legitimacy of these bills being helpful. I mean I think 
what is important, how they are helpful isn't maybe necessarily 
with however recovery of species works now, but with people's 
ability to have transparency with it, to know what actually the 
data is, and if it is being applied correctly, and if you have 
a complete set of data.
    So, I think, whether this is a dollar toward recovery, I 
think it can actually be helpful in that, because you have a 
broader range of data to work from, using local government, 
using local people's input on it.
    You know, I have a situation up in Siskiyou County that has 
to do with water usage and water rights up in northern 
California, where they were bringing some group from 
Massachusetts in to help conduct the surveys and design a 
model, and they didn't really seem too interested in hearing 
from the locals, the farmers and ranchers, on that. Yet this is 
what is being imposed on people.
    Now, when you hear that there are ideas for listing 145 or, 
by some other counts, maybe 374 new species--or considered for 
threatened or endangered status, I wonder if--the ultimate goal 
seems to tying up every single acre west of the Mississippi 
from usage by humankind for--whether it is very needed timber 
thinning and management, being able to access water supplies 
that are desperately needed for California's drought, a 
multitude of things that are being contemplated for people in 
these--the wise use of resources. Every one of these listings 
means much more time spent fighting with government agencies to 
try and have access to the resources. Every listing.
    Now, in California, for example, we have the longhorn 
elderberry beetle--don't even get me started on the smelt--
which was listed some years ago and has been in a de-listing 
process for about 8 years, and actually reached to the point 
where they have had the data brought to them, the 
recommendation by the Wildlife Service board that the de-
listing move forward. Yet, for 2 years, they have been sitting 
on it. The answer I hear on that is they are not happy with one 
of the peer review--one member of a peer review board has 
issues with some of the way the data is collected.
    Well, how are we supposed to--out here, whether it is the 
general public or us in this representation position--be able 
to have any kind of input whether the data, the collection 
process, is even working when they are counting burros for 
beetles? And yet we have very important flood control projects 
in northern California and probably across all the West, 
similarly, that are being held up because the agencies can't 
get off the dime and respond to a possible de-listing.
    So, with that, I had a comment or a question I am seeking 
for you on that, Dr. Ramey. You have mentioned that lack of 
available data is hurting the process. We also have in northern 
California the Sierra Nevada yellow-legged frog habitat 
designated, or a designation being contemplated. Yet the people 
involved doing the economic analysis have never visited the 
area, and are considering only the impact on Federal agencies, 
and maybe a little bit on utilities. Please expound on how the 
transparency would help our local governments to have a better 
input than just somebody that hasn't even visited the site.
    Dr. Ramey. I don't do economic analysis. But if I was to do 
something like that, I would certainly want to know where the 
species occurred, and then go from there to figure out, from 
higher-resolution mapping, where the potential economic costs 
would be.
    Mr. LaMalfa. Who would best know what those economic costs 
would be?
    Dr. Ramey. Well, I would leave that to the economists to 
figure out. But obviously, local people have some knowledge 
there.
    Mr. LaMalfa. Some or a lot?
    Dr. Ramey. Well, I was being--that's an understatement 
there. The problem there is that, whether it is scientific data 
or economic data, local data is going to be very, very 
valuable, and, in some cases, absolutely essential, especially 
when a species is occupying a very, very small area.
    And speaking about economic analyses involving critical 
habitat, a number of those have been overturned, due to 
inadequate economic analysis. The coastal California 
gnatcatcher is one, for example. So, this is a relevant issue. 
It does spill over into economics.
    The Chairman. The time of----
    Mr. LaMalfa. And I think on the biological side, as well, 
at least seeking some input from local people on how things 
work, you know, maybe not the final word, but might be helpful 
to design a model.
    So, thank you, Mr. Chairman. I yield back.
    The Chairman. The time of the gentleman has expired. The 
Chair recognizes the gentleman from New Jersey, Mr. Holt.
    Dr. Holt. Thank you. Let me begin by pursuing that line of 
questioning that we were just hearing. Let me address this, I 
suppose, to Mr. Bean and Mr. Rauch each. In what sense, in what 
circumstances, does best equal all?
    The ESA says we should be using the best scientific and 
commercial data available. Certainly linguistically best does 
not equal all. In an evaluation situation, in actual practice, 
does best equal all? If you were trying to make a decision 
based on scientific evidence, do you want a data dump, or do 
you want some discrimination in what is best and relevant?
    Let me ask Mr. Bean first, and then Mr. Rauch.
    Mr. Bean. Thank you, sir. I think that the Fish and 
Wildlife Service, when it makes its listing decisions, goes 
through a rulemaking process in which anybody who cares to 
provide any data that they----
    Dr. Holt. Could you speak into the microphone more, please?
    Mr. Bean. Sure.
    Dr. Holt. Thank you.
    Mr. Bean. When the Fish and Wildlife Service proposes to 
list a species, it goes through a rulemaking process in which 
anybody who wants to comment and provide any data at all can do 
so. The Service must take all that into account. However, 
Congress has been clear that the decision to list or not list 
is to be based solely on the best available scientific and 
commercial data. And that does require the Service to make some 
informed judgment of which of the data at its disposal is most 
reliable, most scientifically defensible, most useful. So, yes, 
best does not equal all.
    Dr. Holt. Mr. Rauch?
    Mr. Rauch. Thank you. I do agree that best does not equal 
all. We do, as does Fish and Wildlife Service, accept all the 
data, and we actively seek out data, including data from States 
and others. Anybody who will give us data, we will accept it.
    We have a 1994 policy between us and the Fish and Wildlife 
Service which talks about how we weight those data differently. 
Just because we accept it doesn't mean they are all of the same 
caliber. We will weight things more highly, for instance, if 
they are peer-reviewed, if they are public, they get much 
greater weight in our analysis. So we look at those factors, 
and that is spelled out in this 1994 policy in which we do 
grade the data. And we try to determine what is the best, and 
then rely on that.
    Dr. Holt. Thank you. Senator Seliger, you said that no one 
wants a species to be listed. I think those were your words----
    Mr. Seliger. Nobody wants species to be extinct.
    Dr. Holt. Well, in your prepared testimony I think you said 
``listed.'' No?
    Mr. Seliger. I am sorry, I don't recall.
    Dr. Holt. I will take a look again. But species listed--
listing, of course, is the first step under the Endangered 
Species Act. With regard to some of the demonstrable successes 
of the Endangered Species Act--the iconic bald eagle or the 
American alligator or the great whale--are you arguing that 
listing in the ESA was not responsible for their revival, or 
that the revival no one wanted?
    Mr. Seliger. No, sir. I am certainly not, and I apologize, 
because the intention was to say no one wants to see a species 
extinct. Clearly, there can be situations--and there have 
been--where populations are so threatened that a listing is 
necessary, as long as it is based upon good science.
    Dr. Holt. Well, actually, I do have this letter from April 
4 on your stationery, ``No one wants a species to be listed. 
The method of preservation of a species is at the center of the 
debate.''
    Well, I am running out of time, so I will just finish with 
a statement, which is the ESA is an unusual law. It is one of 
the strongest environmental laws. It is based on a zero 
tolerance approach, which gives a lot of people heartburn. But 
it is demonstrably successful. There are many species that I 
think are vibrant populations now that would not be, but for 
the ESA. And so that listing, I think, has been critical to the 
prospering of the bald eagle, and the American alligator, the 
gray whale, and others.
    So, I would ask you to think carefully about your words 
there, and consider the successes we have had. Thank you.
    The Chairman. The time of the gentleman has expired. The 
Chair recognizes the gentleman from Montana, Mr. Daines.
    Mr. Daines. Thank you, Mr. Chairman. I want to thank you, 
too, for your leadership on this important topic. The Chairman 
had field hearings in both Montana and Wyoming this past fall. 
I think it is always helpful to get out of the world of 
academia in Washington, and out into the field, where reality 
exists.
    It was summed up out in Montana at the hearing, that the 
ESA is like a 40-year-old ranch pick-up. It once served a 
useful purpose, but is in bad need of repair. And I think we 
sit here today, seeking to make this better, and to repair 
something that is now 40 years old.
    And I can tell you, as I travel around the State of 
Montana, the threat of the listing of the greater sage-grouse 
is a major threat to our local economies and our everyday 
lives. Talking to the ranchers out there in eastern Montana, 
sometimes it is just refreshing to get to their perspective, as 
we hear all views on this around the impact of predators and 
coyotes, of ravens, eagles, hawks, and so forth, as it relates 
to--as well as habitat, and everything else. But you talk to 
multi-generational families out there on the ranches, they can 
tell you pretty quickly what causes sage-grouse populations to 
go up, and what causes them to go down.
    I understand that in Texas the information provided by 
States, local governments, and other affected stakeholders 
informed the Fish and Wildlife Service enough to reverse its 
decision on the dune sage brush lizard as endangered. But, 
however, last week it has been discussed in this hearing the 
Fish and Wildlife Service listed the lesser prairie chicken, 
despite the State efforts. And I can tell you Montanans are 
very concerned that this decision that we saw happen in the 
last couple weeks is an indication of the decision that awaits 
us on the greater sage-grouse coming September, 2015. And I 
surely hope the intent is not to dismiss the recommendation 
from the respective 11 States that have prepared sage-grouse 
conservation plans.
    In fact, Montana and Wyoming have the largest populations 
of sage-grouse, and are putting a lot of effort into conserving 
habitat and bird population numbers which we still hunt today 
in Montana. And as someone who strongly believes that this 
country would be a whole lot better if DC looked more like 
Montana and not the other way around, let me ask you, do you 
have any recommendations--maybe I could direct this to Dr. 
Ramey.
    Any recommendations for the States of Wyoming and Montana 
in working with the Fish and Wildlife Service to provide the 
data that could have been missing in the lesser prairie chicken 
case, but was provided by the State and local governments in 
the lizards case? We are trying to maybe get an answer here 
before we take the test here in September of 2015.
    Dr. Ramey. The State of Wyoming makes all of its sage-
grouse data public, and that is a great start. I don't know 
about Montana, but if it hadn't been for the fact that the 
State of Wyoming had made their data public, a number of 
analyses, including one we are to be publishing soon, wouldn't 
have been possible. So making the data public is very 
commendable, and it is a great way to lead.
    Mr. Daines. Any other comments, what we could learn from 
what happened just in the last month? Any of the panelists? 
Ideas that we don't fall into the same trap that happened?
    Mr. Bean. Sir, if I may, I would just respond to your 
concern that the decision on the lesser prairie chicken is 
somehow a foretelling of the future decision on the greater 
sage-grouse, I would caution not to make that connection, 
because the circumstances are quite different. The lesser 
prairie chicken suffered a fairly dramatic population collapse. 
Its numbers are a small fraction of sage-grouse numbers.
    Perhaps most importantly, the 11 States with sage-grouse 
have been working for the last 4 years cooperatively with the 
Fish and Wildlife Service, with BLM, with Natural Resources 
Conservation Service, to put together programs and plans to 
address the threats to that species. They are making real 
progress in that. So I think that will be decided on its 
merits, independent of the decision for the lesser prairie 
chicken.
    Mr. Daines. I sure hope so, because I think you have some 
important stakeholders there in Montana that--we desire, I 
think, the same outcome here, of protecting the species. But 
I--we really do believe that the folks back home oftentimes are 
closer to the issues than the folks who are thousands of miles 
away, here in Washington.
    Is there something--moving back to Dr. Ramey, is there 
something Congress can do? You mentioned the transparency with 
Wyoming data. Anything else that States and local governments 
could do--to have a stronger voice in this process? Would H.R. 
4317 help in that regard?
    Dr. Ramey. Well, let me say I do concur with Rauch and Bean 
here, that best does not equal all. However, I am going to add 
to that, that you only get to best available by considering all 
the data. And I think that that is the frustration that local 
governments, tribes, and States have, is that their data are 
frequently not considered in a decision. And it is extremely 
frustrating.
    And just to use the example of the Agua Caliente v. 
Scarlett case on critical habitat and peninsular bighorn sheep, 
that particular case resulted because the tribes and others had 
better data, and they had to go to court in order to force the 
decision on a critical habitat, which resulted in about a 50 
percent reduction. But that allowed the conservation effort to 
be more focused on what is most important for the animals and 
aid their recovery. And they are almost recovered.
    Mr. Daines. Thank you.
    The Chairman. The time of the gentleman has expired. The 
Chair recognizes the gentleman from Michigan, Dr. Benishek.
    Dr. Benishek. Thank you, Mr. Chairman. I would like to 
thank you for holding this hearing today, and I would also like 
to take this opportunity to enter additional testimony from 
both the American Loggers Council and Senator Tom Casperson, 
who represents the 38th District of Michigan into the record.
    These folks couldn't be here in person with us today, but 
they strongly support these bills that work to reform the 
Endangered Species Act. I appreciate their support and work to 
conserve species that are important to Michigan.
    [The information submitted by Dr. Benishek for the record 
follows:]
    Prepared Statement of the American Loggers Council by Daniel J. 
 Dructor, Executive Vice President on H.R. 4315, H.R. 4316, H.R. 4317, 
                             and H.R. 4318
    The American Loggers Council (ALC) appreciates the opportunity to 
submit written comments in support of four recently introduced bills 
that would make significant changes in the administration of the 
Endangered Species Act. These four bills, H.R. 4315; H.R. 4316; H.R. 
4317 and H.R. 4318, all suggest improved procedures and accountability 
for decisions to list species as threatened or endangered under the 
act. We would like to thank Representatives Hastings, Lummis, 
Neugebauer and Huizenga, respectively, for introducing these bills.
    ALC is a coalition of some 30 State logging associations from 
throughout the country. Our members collectively represent over 10,000 
family owned businesses that employ over 50,000 workers. Our members 
are largely located in rural communities and support an industry that 
typically is the mainstay of the local economy. Each and every one of 
our members can tell a convincing story about how the Endangered 
Species Act has affected their operations and personal lives whether 
they be on Federal, State, private or tribal lands and they understand 
the need for the reforms embodied in these proposals. Transparency in 
decisionmaking; public access to data, research and assumptions 
regarding listing decisions; and modernizing the process for legal 
challenges of the act's administration are all reforms that we strongly 
support.
    Often, the data, research and assumptions that lead to a decision 
to list a species is a mystery to the public. In our experience, the 
U.S. Fish and Wildlife Service relies heavily on internal research and 
scientific expertise and to academia for information about candidate 
species. It is our opinion that scientists who are invited to provide 
input to the agency and provide the scientific basis for making a 
listing decision is often an exclusive club of hand-picked individuals. 
In the current process, it is not unusual for outside information and 
research to be ignored because it does not support preconceived 
positions of the agency or it may originate from sources the agency 
believes has an economic interest in the decision. There is plenty of 
evidence that the agency excludes valid and credible information in its 
quest for ``the best scientific information available.'' There is no 
better example than the northern spotted owl. Listed in 1990, credible 
evidence was provided to the U.S. Fish and Wildlife Service that 
questioned the dependency of the owl on old growth habitat. Information 
was also provided that suggested the barred owl was a significant 
factor contributing to the decline of spotted owl numbers. Both of 
these assertions were ignored by the agency as its selected group of 
scientists (a cartel is an appropriate description) who did not want to 
believe these suggestions to be credible. Twenty-four years later, the 
agency is now advocating for the management of second growth forests 
for habitat recruitment and has determined that more habitat exists 
today than when the owl was listed as a threatened species. Also, the 
agency recently completed an environmental impact statement that 
authorized the killing of barred owls to reduce competition with its 
close cousin, the northern spotted owl. You can imagine the chagrin of 
the tens of thousands of forest industry workers who lost their jobs as 
a result of the listing of the northern spotted owl.
    Another example of the need for transparency is in the agency's 
reliance on computer models for predicting a species reaction to 
management alternatives. Population data is often lacking and when it 
is available it is often discounted in deference to the attitude that 
``the amount and quality of habitat is more important than the 
population of the species.'' So, the agency will use a computer model 
to predict the amount of a species' habitat that will be available over 
time and under different management options. The problem with this 
approach is that the prediction the model makes is entirely dependent 
on the quality of the data and assumptions that go into it. These 
inputs into the model should be fully disclosed and explained to the 
public. Also, the certainty associated with these inputs should be 
disclosed. Are they best guesses? Do they represent a consensus of the 
scientific community? Do they consider alternative views, opinions or 
research? Or is it all hardwired to predict a preconceived outcome? 
These are questions the public deserves an answer to.
    Finally, H.R. 4318 would impose a $125 per hour limit on attorney's 
fees for suits filed under the Endangered Species Act. This limit is 
currently included in the Equal Access to Justice Act and we support 
including it in ESA litigation, as well. There is no question that 
certain special interest groups have exploited ESA litigation as a 
means to finance their existence and sustain their litigious 
activities. Just this year, the State of Oregon settled a lawsuit 
brought by an environmental organization involving the marbled 
murrelet. The suit alleged that the management of State forest lands in 
Oregon was resulting in the ``take'' of marbled murrelets. The marbled 
murrelet is a seabird that spends 90 percent of its life in the ocean 
to feed. It spends 10 percent of its life inland nesting in coastal 
forests. The suit was based entirely on habitat modification and a dead 
or injured murrelet was never produced. The State agreed to reduce 
timber harvest levels on the subject forest lands by over 80 percent to 
settle the case even though the land in question is required by the 
State's constitution to generate financial resources for public 
education. But to avoid going to court, the State agreed to a huge 
reduction in timber harvest levels and paid the environmental 
organization's attorney $391,000 of taxpayer's money to settle the 
suit. The attorney never stepped foot into the court room. This is but 
one example of the kind environmental extortion that currently occurs 
under the existing litigation process.
    In summary, the American Loggers Council urges the committee to 
pass these bills and send them to the Floor of the House of 
Representatives for consideration.
    We appreciate the opportunity to provide these comments.

                                 ______
                                 

 Prepared Statement of Tom Casperson, a U.S. Senator from the State of 
                                Michigan
    Legislation before the Natural Resources Committee to amend the 
Endangered Species Act (ESA), H.R. 4315-H.R. 4318, offers much needed 
reforms that should be approved by the committee as it will help 
address concerns I hear about routinely from my constituents and 
residents of Michigan.
    As the State Senator for most of Michigan's Upper Peninsula (UP), 
my district covers an area that is bigger in size than nine other 
States, yet has a mere 270,000 people. Given the make-up of my district 
and the land-based economic activities that most residents depend upon 
to make a living and support our communities, which are historically 
based and culturally centered, we have been significantly and adversely 
impacted by various environmental laws and regulations including the 
ESA. It is common to hear from constituents who strongly believe that 
changes are needed to environmental laws and regulations, with the ESA 
being one of the laws most in need of changing.
    That is why I appreciate the work of the ESA Working Group and the 
introduction of legislation to reform the ESA including H.R. 4318 by 
Congressman Bill Huizenga of my home State. The purpose of H.R. 4318 is 
to help make ESA decisions less susceptible to litigation which would 
be a significant and valuable victory for taxpayers and those who 
repeatedly see the ESA used to stifle reasonable use, conservation, and 
enjoyment of the natural resources.
    As we have seen in Michigan, environmental groups and so-called 
animal welfare groups are repeatedly using litigation to impact 
decisions made under the ESA. And, in some cases their attorneys are 
being awarded huge sums of money ranging from $300-$500 per hour with 
taxpayers covering that cost when they prevail in ESA cases.
    It is frustrating enough for residents of Michigan to have to 
continue to endure the impacts of those decisions on their lives, but 
it adds insult to injury to have attorneys profiting with their hard-
earned dollars when the tax money could instead go to something much 
more important such as transportation or education needs. To address 
this, H.R. 4318 is a common sense measure to place the same $125 per 
hour cap on ESA cases that applies to other government litigation 
cases.
    A few examples in Michigan will help to portray why reform is 
needed to the ESA. Most recently, the wolf population has been a hot 
topic in the UP and across Michigan as most UP residents call for more 
management and control to curb the negative impacts that a growing wolf 
population has had on residents, pets, livestock, wildlife and 
visitors.
    Wolves were recently delisted from the endangered species list in 
January 2012, but the delisting was long overdue. When wolves were 
listed as an endangered species more than three decades ago, a recovery 
goal of 200 animals was set which was the target number at which time 
the animals would be delisted. However, delisting didn't happen for 
years after that goal was attained with at least part of the delay 
brought on by certain animal welfare groups challenging the process and 
bringing litigation.
    During that time, the wolf population in Michigan expanded to 
approximately 700 wolves, well above the recovery goal of 200 in 
Michigan alone. Our neighboring States of Wisconsin and Minnesota have 
approximately 800 and 2,200 wolves respectively. This has led to many 
negative impacts on UP residents where the wolves are concentrated in 
Michigan. Farmers are losing livestock to wolves, family pets and 
hunting dogs have been killed, other wildlife are being impacted, and 
wolves are even entering communities such as the city of Ironwood where 
eight had to be killed within the city itself to address residents' 
fears that they were becoming too habituated to humans. A wolf was also 
hit by a car in Escanaba in December.
    Delisting has allowed us to move forward as a State to enact some 
management tools, but had we been able to address the situation 
earlier, UP residents would not be enduring the impacts they see from 
the wolf population today.
    In addition, most economic activity in the UP is dependent on land-
based economic sectors including forestry and mining. The ESA has 
unreasonably and negatively affected those sectors with environmental 
groups and bureaucrats successfully using the laws and regulations to 
slow down sustainable use of the land.
    For example, there are three Federal forests in Michigan, with two 
of them being in the UP. Each Federal forest has a forest service 
management plan in which an ``allowable sales quantity (ASQ)'' is 
established. This is essentially a timber harvest plan. Since 1986 when 
the first plans were written, the U.S. Forest Service has never sold 
the ASQ of timber in the forest plans for the Ottawa and Hiawatha 
National Forests in the UP. Specifically, over the last several years, 
less than half of the timber required to maintain forest health was 
harvested with the amount ranging from 38 to 45 percent of ASQ.
    Many believe, myself included, the lack of management on forestland 
is directly attributable to environmental laws, including the ESA, 
which has been used to stall or prohibit management efforts.
    This has left our forests in poor health, which is in part 
responsible for the natural disasters that have befallen them, and it 
also equates to loss of jobs and economic activity in rural areas that 
depend on the land-based industries to survive. For example, in 2010, 
the Ottawa and Hiawatha National Forests cumulatively fell short of 
annual ASQ by more than 115 million board feet. This equates to a loss 
of 1,265 jobs using a calculation based on 1 million board feet of 
harvested timber providing enough raw materials to sustain 11 direct 
jobs and multiple other indirect jobs.
    In addition, the ESA was recently cited by the Environmental 
Protection Agency (EPA) in its many objections to the development of 
County Road 595 in Marquette County. The road would have addressed 
public safety concerns and aided in economic development opportunities 
related to forestry and mining. However, after much local and State 
support and hundreds of hours of negotiation by the Marquette Road 
Commission to try to address concerns, the road project was not 
advanced due to concerns from Federal agencies including the EPA, U.S. 
Army Corps of Engineers and the U.S. Fish and Wildlife Service.
    For example, in a 44-page EPA document titled ``Responsiveness 
Summary EPA Objection to the Issuance of a Clean Water Act Section 404 
permit to construct County Road 595'' from December 2, 2012, the 
following statement was made: ``The project could cause impacts to 
Kirtland's warbler (Setophaga kirtlandii) and Canada lynx (Lynx 
candaensis) which are protected under the Endangered Species Act and 
which have the potential to be present within the proposed CR 595 
corridor.''
    The document also points to concerns about impacts on wetlands and 
references various threatened and endangered species that could be 
located in those areas which would have been impacted. It is 
significant to note, however, that the applicant was willing to 
mitigate any impacts on wetlands to a much higher degree than any 
impact they would have caused--and at one point offered to mitigate 22 
acres of wetlands with an astounding offer of 1,600 acres of wetlands.
    In short, it was a tremendous loss for the UP when the Federal 
agencies used various environmental regulations and hoops to reject the 
united local and State efforts to build County Road 595.
    While the ESA has served a purpose, it has been abused and used as 
a tool by those who do not want to see human activity on natural 
resources. There must be more balance between environmental regulations 
to protect truly sensitive areas while allowing sensible activity as 
well, including economic development and recreational uses.
    Today's law does not provide that balance to ensure property rights 
and use are maintained and promoted where appropriate, and that is why 
the committee should vote to approve H.R. 4315-H.R. 4318 to help 
provide residents of Michigan and its sister States some relief from 
those who take advantage of originally well-intended laws that now are 
in need of reform to allow States to respond appropriately to local 
needs, provide transparency and allow better use of tax-payer dollars.

                                 ______
                                 

    Dr. Benishek. I represent the northern half of the State of 
Michigan, and have seen firsthand how the ESA impacts my 
district. For example, when a county wanted to build a road, 
the ESA said the project could cause impact to Kirtland's 
Warbler and Canada Lynx, which are protected under the 
Endangered Species Act, and which have the potential to be 
present with the proposed county road corridor. Despite offers 
by the county to include thousands of acres of offsets for the 
potentially impacted area, the road was unable to be built. The 
regulators could not be satisfied.
    Commissioner Jankovsky and Dr. Ramey, do you think that the 
ESA adequately takes into account State and local actions for 
conservation that may already be under way?
    Dr. Ramey. I think one of the issues here is that the State 
and local governments, and tribes, may produce conservation 
plans and invest heavily, as Huffman had mentioned, in 
conservation efforts, but not find out whether they receive any 
credit for that until the time of a listing decision, for 
example. And that, I think, is a strong disincentive for 
conservation efforts for State and local governments to invest 
in those.
    And it would be best if, under the PECE policy, the Policy 
on Effectiveness of Conservation Efforts, if the services 
worked more cooperatively with these State, tribal, and local 
governments, and gave them some assurances in advance that 
their efforts are not going to be, essentially, in vain.
    Dr. Benishek. Mr. Jankovsky?
    Mr. Jankovsky. Yes, and I would just add to that. I think 
at the local level, and especially with local land owners, we 
almost feel as though we are not being heard. And we look at 
these issues and how important they are to our economies, and 
also the conservation of the species, and it is--we are not 
being heard, and that is our concern.
    Dr. Benishek. A couple more questions for you two. If you 
listen to those folks that have been opposed to 4315, the 
status quo is apparently working just fine when it comes to 
scientific transparency. To them, the legislation is not 
necessary to publish the data on the Internet.
    Can you, from your perspective, tell us why we need this 
legislation?
    Mr. Jankovsky. First of all, I don't think the transparency 
is there. I don't think you can get to the data. I think that 
local governments are now--especially after the spotted owl--
are looking at what the impacts are. The impacts are immense to 
our economies and to our citizens and to how we operate--and to 
the ability to be able to continue into the future as 
productive economies. So that is the concern.
    That is why, if you can have this data transparent, so we 
can be at the table, and we can look at it, and we can dissect 
it, and we can respond back and have a dialog, it is going to 
make a big difference for the local governments.
    Dr. Benishek. Any further comment, Dr. Ramey? I just point 
this out because, you know, here we had, in my district a 
potential for huge economic development with the construction 
of a road that every single elected official in the State was 
in favor of, which the Michigan Department of DNR was going to 
oversee the wetlands, and that.
    But when the answer that you get from the Environmental 
Protection Agency is that there is a species that has the 
potential to be present as a reason for stopping an effort for 
a local economic activity, it is a very bad answer for the 
hundreds and maybe thousands of people that don't have a job. 
There are no data to support the fact that these endangered 
species, animals, were even there. It is just that they had the 
potential to be there. It is very difficult for people in the 
local community to trust the bureaucrats in Washington when 
they give an answer like that that affects hundreds of people.
    Well, I am out of time, but thank you so much.
    Mrs. Lummis [presiding]. I thank the gentleman. The Chair 
recognizes herself for 5 minutes.
    Mr. Bean, Fish and Wildlife Service recently requested 
nearly 40 new employees for ecological services as part of the 
sage-grouse initiative. How many of those employees will be on 
the ground, implementing conservation plans like Wyoming's 
plan, which is, by the way, Fish and Wildlife Service-approved?
    I would be delighted to have that information. What I 
understand is most of them will be desk jobs here in 
Washington, but I would love to see a breakdown of that.
    Mr. Seliger--is it Selinger?
    Mr. Seliger. It is Seliger.
    Mrs. Lummis. Seliger.
    Mr. Seliger. Yes, ma'am.
    Mrs. Lummis. OK. Mr. Seliger and Mr. Jankovsky--now, did I 
get that right? Thanks. Could you each think of specific 
examples where better cooperation with the Federal Government 
on data would result in better outcomes, both for species and 
for the State and local governments that you represent that are 
trying to recover species before they are listed?
    Mr. Jankovsky. Well, we are definitely the individuals on 
the ground and we work with the private land owners. We 
actually have a good rapport with the State governments and, to 
some extent, for the Federal employees that are working at a 
local level.
    And so, we really can see what the impacts are. And through 
voluntary basis, and also by working with the Federal 
Government, we can make things happen at the local level. And 
if we don't have the cooperation from Washington, DC, if we are 
not being heard, then land owners and local governments are 
just going to--we are not going to work with the Federal 
Government, because there is just an impasse.
    Mrs. Lummis. Mr. Seliger?
    Mr. Seliger. Yes, ma'am. The local--I say local--State, in 
this case, scientists and biologists are as much an asset to 
Fish and Wildlife Service as they are to the individual States, 
I believe.
    It was interesting recently that the lesser prairie 
chicken's threat level, if you will, or its priority status was 
eight, which is relatively low, and then was moved to two. And 
I am not aware of the sort of definitive evidence that was 
presented for a serious move like that, but it appeared to be 
motivated somewhat more by settlement deadlines with litigants 
than based upon any change or information, scientific 
information, generated that most likely would have been 
generated in those State Fish and Wildlife Services.
    Mrs. Lummis. Thank you. Mr. Bean, the Fish and Wildlife 
Service has a peer review process, correct?
    Mr. Bean. Yes, that is correct.
    Mrs. Lummis. Dr. Ramey, can the Service guarantee 
scientific integrity while scientists are denied the underlying 
data and methodologies?
    Dr. Ramey. I think one can go and look at the Office of 
Management and Budget discussions concerning the Information 
Quality Act, and that provides for a rebuttable presumption 
that peer review is adequate, and that it requires that there 
be reproducibility in data and methods and analysis by an 
informed member of the public.
    So, there are plenty of examples across the field of 
science where peer review has been inadequate. It is a useful 
tool. It is an imperfect tool.
    Mrs. Lummis. Following up, Dr. Ramey, should the Fish and 
Wildlife Service and the National Marine Fisheries Service be 
basing listings and other important decisions on studies and 
opinions that cannot be accessed or verified?
    Dr. Ramey. That is a great question for the people of this 
country. It is clearly in violation of the Information Quality 
Act, that if you can't obtain the underlying data, there is no 
reproducibility. You can't ask any questions. Again, you can 
have all the peer reviews you want, but unless you have the 
access to that, it is different.
    And peer reviews are sometimes incredibly conflicted. On 
the hookless cactus, one of the peer reviewers was actually on 
the board of directors of the NGO that litigated to list the 
species. Another one was one of the original authors of the 
taxonomy of the species. I mean that is not an independent 
review.
    So these things have an opportunity to go--I know that Dr. 
Courtney has worked to try and prevent that, but it is--the 
problem is that science is a human process. It has its faults, 
as well. But it----
    Mrs. Lummis. We are----
    Dr. Ramey [continuing]. Fundamentally goes back to the 
data.
    Mrs. Lummis. We are indeed fallible people. I thank the 
panel. And my time has expired. I yield to the gentleman from 
Arizona, Mr. Gosar.
    Dr. Gosar. Thank you, Chairman--Chairwoman. Mr. Bean and 
Mr. Rauch, you just talked a minute ago about a lot of your 
data coming from the Department of Defense, and that that data 
is restrictive on their direction.
    So, my question is, as any NGO, environmental, or 
conservation group who has initiated sue-and-settle been privy 
to that information that would otherwise not be disclosed to 
anybody else?
    Mr. Bean. Not to my knowledge, sir, no.
    Dr. Gosar. Mr. Rauch?
    Mr. Rauch. No, not to my knowledge.
    Dr. Gosar. Mr. Ramey, are you familiar with anything?
    Dr. Ramey. No, I am not.
    Dr. Gosar. Would you go back and--I would like all the 
members of this panel to come back and answer that, post-
operatively. I am a dentist, so if I speak in medical terms--I 
would like to have a conversation in regards to that, because I 
actually think there is.
    So, Mr. Bean, last month Fish and Wildlife Service 
designated over 700,000 acres of land in southern Arizona as 
critical habitat--now you are going to see where this question 
came about--in regards to the rarely present jaguar. I think 
DoD has a big overlap with that aspect.
    Game and Fish Assistant Director for Wildlife Management, 
Jim deVos, stated at the time, ``I find it difficult to justify 
designating critical habitat for a species that is so rarely 
found in Arizona. And looking at the available data on the 
presence of jaguars, there has been no documentation of a 
female jaguar in Arizona for nearly a century.'' You would 
agree?
    Mr. Bean. I don't have any independent knowledge, sir, I am 
sorry.
    Dr. Gosar. OK. Such designations should be based on good 
science and effective conservations, which are both lacking 
with this designation. This designation does nothing to further 
the conservation act on the jaguar. What best available 
scientific and commercial data was used to justify this 
listing?
    Mr. Bean. I don't know the details, I am going to have to 
supply that to you post-operatively, as you say.
    Dr. Gosar. OK, I would expect that. Mr. Bean, last night 
the Fish and Wildlife Service announced that they were 
reopening the comment period going to designating a critical 
habitat for the New Mexico meadow jumping mouse, commonly known 
as Rip Van Winkle, the sleeping mouse. This proposed rule seeks 
to stifle economic development, harm grazing on over 15,000 
acres in New Mexico, Colorado, and my home State of Arizona. 
Wild Earth Guardians report that this rodent typically 
hibernates for 10 months out of the year. Environmental groups 
have been pushing for this designation since 2007.
    Is your agency pushing for the designation of critical 
habitat for the sleeping mouse, based on actual science, or to 
appease extremist groups that are threatening lawsuits?
    Mr. Bean. Let me answer that this way, sir. I don't know 
the facts of this particular instance. But I can assure you 
that in no instance is the Fish and Wildlife Service proposing 
critical habitat to appease the interests of extremist groups. 
I can assure you of that.
    Dr. Gosar. So we would like to have a review on sue-and-
settle. So we would like, once again, going back to the sue-
and-settle aspect, and privy documentation.
    Dr. Ramey, can you provide examples of where data sharing 
has been beneficial for species conservation, and examples of 
where it is needed?
    Dr. Ramey. Certainly the delta smelt case is probably the 
first and foremost in my mind, because we just published on 
that about a year ago. Identifying the threats is extremely 
important to allocating conservation efforts.
    On the boreal toad, we were able to obtain data on the 
genetics and the distinctiveness of the various groups, and we 
found large amounts of missing data in the data sets, and the 
lines were basically arbitrarily drawn around those groups. And 
so, that independent re-evaluation allows for a refocusing of 
research needs and conservation effort.
    In terms of the California condor, peregrine falcons, there 
had been previously thought to be human disturbance of nest 
sites as being a problem. However, when the data were in, that 
was not the issue; DDT and predation were. And so, having open 
access to data allowed for that kind of re-analysis.
    Like I said, the greater sage-grouse is an example where it 
is sorely needed. I mean we don't have the basis of the data 
that was cited 64 times in the 2010 listing decision. On the 
Gunnison sage-grouse, there is no measurement data, there is no 
color data. The supposed historic range is entirely based upon 
speculation, no data. So, those are two very relevant recent 
cases where that is needed.
    Dr. Gosar. So, Mr. Bean, is there a case that we have made 
mistakes in regards to restrictive habitat? I can think of one 
that I kind of want to hedge my bet on this, and that would be 
the spotted owl, Mexican spotted owl.
    Mr. Bean. I am sorry, sir, I didn't hear your question.
    Dr. Gosar. Have we made any mistakes in regards to habitat 
restrictions in regards to endangered species?
    Mr. Bean. The Fish and Wildlife Service has, on occasion, 
de-listed species that it originally listed on the basis of 
error, taxonomic error or other informational defects. There 
are relatively few of those, but, yes, there have been some of 
those.
    Dr. Gosar. Mexican spotted owl would actually be one of 
those, wouldn't it be, because we have an overgrowth of timber, 
and Mexican spotted owls really don't like that, do they?
    Mr. Bean. I am sorry, sir, I don't have the facts----
    Dr. Gosar. I think it proliferates the common barn owl. And 
what we have done in Arizona and a lot across the West is we 
have actually allowed these forests to be over-occupied. And we 
in Arizona have become victims of these catastrophic fires 
because of this.
    I hope that you would really reconsider yourself, and look 
at some of this critical habitat in a conscientious way, and 
utilize State and local maps. Thank you.
    Mrs. Lummis. The gentleman's time is expired. The Ranking 
Member has one follow-up question, after which we will excuse 
this panel.
    Mr. Grijalva. Yes, Dr. Courtney, in the testimony today--
follow up on something that was said. If peer reviews in and of 
themselves are imperfect tools, what would be the alternative, 
number one?
    And, number two, in the many peer reviews that you 
conducted, there is publicity attached and there is full 
transparency? And that is the question.
    Dr. Courtney. Well, thank you, first, for giving me the 
last word.
    [Laughter.]
    Dr. Courtney. Peer review is--it is the best tool we have. 
Like democracy, right? It is the best tool we have. If it is 
carried out transparently, if the process is carefully 
designed, if all records are kept, then it gives you a clear 
record of how evaluations are made, and that then becomes 
useful for a decisionmaker. Is it always going to give us the 
best result? No, I think it should be an ongoing process.
    And to answer Mr. Flores' question from a little bit 
earlier, the tools that we have, like peer review and like some 
of the processes that are in place within the two agencies, 
they are good tools. Whether they are used as openly and as 
commonly as we might like, that probably can be improved, and--
--
    Mr. Grijalva. OK.
    Dr. Courtney [continuing]. I am very much in favor of 
things being done in public.
    Mr. Grijalva. Thank you very much, Madam Chair. And in 
closing, I just want to--for the record--that we did have a 
jaguar in Arizona, Macho B. Unfortunately, that jaguar met its 
demise at the hands of Arizona Fish and Wildlife in a capture.
    With that, I yield back.
    Dr. Gosar. Madam Chairwoman? To correct the record, it was 
a male jaguar, not a female.
    Mrs. Lummis. I thank the gentlemen. We have had one of our 
members return. The gentleman from Florida, Mr. Southerland, is 
recognized for 5 minutes.
    Mr. Southerland. Thank you, Madam Chair. My questions will 
be brief. I am curious, as I am looking through this data, Mr. 
Rauch, I want to ask you a question.
    I am looking at the FWS 2011 90-day finding that the Center 
for Biological Diversity has petitioned to list the 374 aquatic 
species in several Southeastern and Gulf States. The listing 
may be warranted, is their finding.
    I am just curious. I am on the Fisheries Subcommittee. I 
know that the red snapper is clearly an irritating fish to you 
guys. I am just curious. How can we do 90-day findings for 374, 
and yet we can't get good findings for one fish in the South 
Atlantic for over 3,000 days?
    Mr. Rauch. Thank you for the question.
    Mr. Southerland. I am sure you appreciate that question.
    Mr. Rauch. I do appreciate the question.
    [Laughter.]
    Mr. Rauch. We have had many discussions, I think, in this 
very chair on this topic. I can't speak to Fish and Wildlife 
Service's petition. I do know that it is sometimes difficult 
for us to make 90-day findings on very large numbers of species 
when we have similar 90-day findings. The standard for a 90-day 
finding is much lower than the standard for an ultimate 
listing. That is based on substantial information from the 
petitioner that indicate it may be warranted, which is a 
particularly low standard. We then would engage in the kinds 
of--the status review process, which is more akin to the stock 
assessment process that you are familiar with with the red 
snapper. That would only occur after that 90-day finding is 
met. So there is a much lengthier process after the 90-day 
finding is met.
    I will say that, in terms of the South Atlantic red 
snapper, as I think I----
    Mr. Southerland. How lengthy? I am just curious. How 
lengthy should that process be?
    Mr. Rauch. Under the Endangered Species Act? We have up 
to--by statute, we have up to a year.
    Mr. Southerland. OK.
    Mr. Rauch. To finalize that process. That includes the 90 
days.
    Mr. Southerland. So, therefore--and I know we are jumping 
tracks, but this is the same, the same Department, OK, same 
agency. So, when you mention those--you know, the timeframe 
there, the expectation that the people that live in the South 
Atlantic, the Gulf of Mexico, regarding one fishery, one, and 
then it has taken over 3,000 days certainly seems to be an 
inconsistency of thought for the Department.
    Mr. Rauch. So I will say that we have scheduled that stock 
assessment.
    Mr. Southerland. Well, that is wonderful.
    Mr. Rauch. For the end of this year, yes. At the end of 
2014 we are--we are concerned, as well, that that stock 
assessment has lagged behind for the South Atlantic red 
snapper.
    Mr. Southerland. OK. So that is really just my--I mean I am 
just amazed, as I heard--as I read the data for today, to know 
that the inconsistency by the Department on this particular 
fish that--Magnuson clearly, clearly outlines the economic 
value of the fish--is a determinant factor. It must be, 
according to law. That is not interpretation; it is clear that 
that fish must be--must have the surveys in a timely manner. I 
just find that inconsistency to be glaring, and so I am 
thrilled to hear you state that that is scheduled for the next 
year.
    So, really, that is just--that is my only point. And, Madam 
Chair, I yield back.
    Mrs. Lummis. I thank the gentleman, and I very much want to 
thank this panel of witnesses for their valuable testimony.
    Members of the committee may have additional questions for 
you, and we would ask that you respond to these in writing. The 
hearing record will be open for 10 business days to receive 
these responses. And, again, with our tremendous gratitude, we 
excuse this panel, and will now hear from our second panel of 
witnesses.
    We are pleased to be joined by Ms. Karen Budd-Falen, of 
Cheyenne, Wyoming; Mr. Robert Percival, of Baltimore, Maryland; 
Mr. Michael Bean, and Mr. Sam Rauch, who were with us on our 
last panel, will continue and join us on our second panel, as 
will Mr. Kent Holsinger, from Denver, Colorado.
    To the gentlemen who so patiently sat through the first 
panel and now have the pleasure of doing so again, if you wish 
to get up and stretch your legs during the testimony of the 
three new witnesses we have, feel free to do so, and then come 
back and join us, as we may have additional questions for you. 
You will not be asked for prepared testimony for this panel, 
since we had the pleasure of hearing from you during the first 
panel.
    So, now, I would like to thank and welcome our current 
panelists. And the Chair recognizes herself to introduce the 
first witness on this panel.
    Ms. Budd-Falen is from my home State of Wyoming. She has 
been a tireless researcher on the subject of agency funds that 
have been used for payments to attorneys who sue the Federal 
Government and either receive payment for their legal fees and 
costs in settlements, or in the court, and how this has 
affected the budgets of Federal agencies.
    Most of the information she has assembled has been 
anecdotal, as we don't have, currently, a formal system of 
reporting those dollars that are paid out of agency budgets for 
attorney's fees, which is the subject of one of the bills 
before us today. I deeply want to thank Ms. Budd-Falen for her 
work in bringing this issue to our attention. And I welcome her 
to present for 5 minutes.
    As Chairman Hastings would say, if he was here, the green 
light indicates you are good to go. The yellow light asks you 
either to talk faster, or summarize more quickly. The red light 
truly is the conclusion of your spoken testimony. And we do 
have the advantage of your written testimony, so don't feel 
that, just because you didn't get to say it all, that it has 
not been called to our attention.
    Again, gratefully, for the second panel the Chair 
recognizes Ms. Budd-Falen for 5 minutes.

 STATEMENT OF KAREN BUDD-FALEN, OWNER/PARTNER, BUDD-FALEN LAW 
                   OFFICES, CHEYENNE, WYOMING

    Ms. Budd-Falen. Thank you, Congressman Lummis and members 
of the committee. My name is Karen Budd-Falen, and I am a 
rancher and attorney in Wyoming. I represent many ranchers, 
land owners, and local governments who feel the direct impacts 
of the Endangered Species Act and critical habitat 
designations.
    There has long been a concern that litigation, rather than 
science, is overtaking decisions under the ESA. Although there 
has been a great deal of discussion and consternation, large 
settlement agreements are happening right now, dealing with 
multiple species. But that has actually always been the case. 
It was very interesting.
    In preparing for this testimony, I located a settlement 
agreement that was agreed to in the Clinton administration, 
where the Clinton administration agreed with Defenders of 
Wildlife and Fund for Animals that it needed to review the 
candidate list for 443 species in a period of 5 years. Under 
that settlement agreement you had species that the 
environmental groups that sued believed were languishing on the 
candidate list, and that needed review. So they created a time 
deadline to deal with that.
    At the end of the 5-year time deadline, the Clinton 
administration determined that it simply could not comply. Now, 
certainly at the end of that timeline you had some issues with 
appropriations, but there were 4 years in which the Clinton 
administration could comply, and it simply could not. The Fish 
and Wildlife Service then issued a listing final priority 
guidance, and I think the language of that guidance, was 
important as it was to President Clinton as it is today.
    The guidance strongly stated that good science, rather than 
litigation, should drive the listing of species under the 
Endangered Species Act. The decision also said that to continue 
to deal with these species would result in increasing backlogs 
as species are currently being petitioned. So, you have the 
mega-settlements of today, in which the Fish and Wildlife 
Service has agreed to take 1,053 actions over the course of 5 
years.
    The settlement agreements did not stop the Center for 
Biological Diversity from filing additional petitions. And, as 
you heard the gentleman speak of earlier, Center for Biological 
Diversity has filed a petition for hundreds of mussels and fish 
and other species in the South Atlantic, as well as species in 
every other State. So, it begs the question: How is the Fish 
and Wildlife Service going to continue to deal with this? And 
the reality is they don't have the money to do it.
    Now, although the Fish and Wildlife Service and the 
National Marine Fisheries Service can continue to blame 
Congress for its problems, in my opinion sue-and-settle 
actually does make a difference. And what I would cite to this 
committee is the run sheets the Department of Justice recently 
released. Those run sheets listed what the Department of 
Justice believed was its litigation for approximately 3 years 
and 3 months. Only dealing with Endangered Species Act, only 
relating to the wildlife section in the Energy and Resources 
Department.
    Now, the run sheets didn't total the attorney's fees paid, 
so I did. We just simply did the math with a large calculator. 
We figured out that, in those 3 years and 3 months, 573 cases 
had been filed; 489 of those were filed by environmental 
groups. Only 19 of those cases were filed by what you would 
call industry groups or water districts; 65 cases were filed by 
individuals, so we couldn't tell their affiliation. And in that 
time period, $52,518,628.93 had been expended in attorney's 
fees.
    I think that that does speak to the issue regarding 
litigation and attorney's fees. I think that the Justice 
Department numbers are wrong, because GAO report after GAO 
report has reported that they do not have a good method of 
tracking. I think that we need to look at the priorities. 
Although the Center for Biological Diversity will tell you that 
I am simply willing to kill every endangered species on the 
planet, that is absolutely not true. But we have to look at 
priorities, and we have to look at our citizens as we are doing 
it. That is who you represent.
    With that, I would stand for any questions. Thank you.
    [The prepared statement of Ms. Budd-Falen follows:]
 Prepared Statement of Karen Budd-Falen, Owner/Partner, Budd-Falen Law 
       Offices LLC, Cheyenne, Wyoming on H.R. 4316 and H.R. 4318
    My name is Karen Budd-Falen. I grew up as a fifth generation 
rancher and have an ownership interest in a family owned ranch west of 
Big Piney, Wyoming. I am also an attorney specializing in environmental 
litigation (including the Endangered Species Act). I represent the 
citizens, local businesses, and rural counties and communities who may 
not necessarily be the defendants in litigation under the Endangered 
Species Act (``ESA'') but who absolutely feel the consequences that are 
the results of endless ESA litigation. My clients, friends and family 
have to live with the results of the species' listings and critical 
habitat determinations; my clients, friends and family also pay the 
litigation fees to feed the litigation machine.
    If I had to select one word to describe the bills before you today, 
it would be honesty. As it currently stands, there are only two ways 
for the general public to get information related to why a species was 
listed or critical habitat was designated under the ESA, or whether 
attorney's fees were paid related to ESA litigation. With regard to the 
basis for listing or critical habitat determinations, the only 
publically available source of information is through filing a Freedom 
of Information Act (``FOIA'') with the U.S. Fish and Wildlife Service 
(``FWS'') or the National Marine Fisheries Service (``NMFS'') asking 
for the data. While a listing or critical habitat rulemaking published 
in the Federal Register may describe ``why'' the FWS or NMFS believed 
that listing or critical habitat designation was appropriate or 
prudent, the agencies do not have to publish sources of the ``best 
scientific and commercial data'' used to make their decisions. Unless 
Federal court litigation is filed and an administrative record is 
produced, the ``best scientific and commercial data'' is only available 
through FOIA, at a cost of $24, $42; and $61 per hour for search and 
managerial review time, $.15 per page for black and white copies and 
$.90 per page for color copies. Maps and odd size reproductions cost 
more. See 43 C.F.R. Part 2, Subpart G.
    Public information regarding payment of attorneys' fees for ESA 
litigation is equally difficult to access. Although it is possible to 
publically search Federal court databases through PACER [Public Access 
to Court Electronic Records], those searches are based upon individual 
Federal courts and only by party name. The public then has to research 
the docket sheet for each case to determine if attorney's fees were 
paid and why. There is a service charge that has to be paid to be able 
to search PACER and downloading any document bears an additional cost. 
This is very difficult and expensive for taxpayers who are footing the 
bill for the attorneys' fees payments.
    In reviewing these four bills and moving away from the hype that 
even the subject of the ESA seems to provoke, there is nothing evil or 
right-wing about this legislation. These bills change nothing of 
substance to the requirement that Congress commanded the Federal 
agencies to ``provide a means whereby the ecosystems upon which 
endangered species and threatened species depend may be conserved'' and 
``to provide a program for the conservation of such endangered species 
and threatened species.'' 16 U.S.C. Sec. 1532(b).
    The proposed legislation can be described as follows:
    H.R. 4315 requires that the information and data used to list 
species as threatened or endangered and make critical habitat decisions 
be put on the Internet. It does NOT require the FWS or the NMFS to 
gather more, different or additional data; it does not change the 
existing requirement that the ``best available scientific and 
commercial data'' be used; it does not add to the citizen suit 
provisions or create a new cause of action to sue to change the listing 
process; it does not include any new deadlines. Under this bill, 
deference will still be owed to the Federal agency regarding what to 
consider as the best scientific and commercial data available. See 
Hawksbill Sea Turtle v. Fed. Emergency Mgmt. Agency, 11 F.Supp.2d 529, 
549 (D.Vi. 1998). The bill also does not require that only ``peer'' 
reviewed or published information be considered nor does it require 
that the FWS or NMFS conduct new studies or await the completion of new 
studies and analysis. See California Native Plant Soc'y v. Norton, 2004 
WL 1118537 (S.D. Cal. Feb. 10, 2004). This bill merely requires that 
the FWS and NMFS take the ``best scientific and commercial data 
available'' supporting their decision scan it onto the Internet. If 
litigation is filed related to the listing or critical habitat 
decision, this data has to be produced for the administrative record 
anyway. H.R. 4315 does nothing to change that. This bill is not a 
radical change to the ESA.
    H.R. 4316 similarly only adds a requirement for reporting of data 
that should already be available. This bill requires a report on 
attorney's fees and costs for ESA-related litigation. Again, this bill 
does not change the citizen suit provision of the ESA to add or 
subtract the amount or type of litigation that can be filed; this bill 
does not take away any of the Department of Justice's authority or 
ability to settle litigation at any point, this bill does not bypass 
the ``existing legal safeguards'' ensuring that the Federal Government 
follows its procedural and legal mandates, including ensuring that 
deadlines are met. See Testimony of Robert V. Percival, Before the 
House Committee on Oversight and Government Reform, Hearing on 
``Mandate Madness: When Sue and Settle Just Isn't Enough,'' June 28, 
2012. In his testimony, Professor Percival opines that the citizen suit 
and Administrative Procedures Act (``APA'') waivers of sovereign 
immunity to allow litigation against the Federal agencies are 
``desirable and favored by public policy,'' and that ``existing legal 
safeguards preclude collusive litigation.'' H.R. 4316 does nothing to 
dispute or change any of those arguments. The bill simply requires 
reporting of existing litigation and attorney's fees payments to the 
public. It should not be a radical notion for the public to know how 
much is being paid by the Federal Government and to whom the check is 
written.
    H.R. 4317 is equally benign. This bill states that the FWS and NMFS 
must cooperate and consult with State agencies with regard to the data 
that the Federal Government considers, and that ESA listing 
decisionmakers consider data submitted by State and local governments 
and Indian tribes. State and local governments and Indian tribes have 
significant interest and expertise in protecting plant and animal 
species and habitats, particularly given that they have local 
conservation district managers, State game management agencies, and 
tribal government resources to use for this task. It seems exceedingly 
arrogant for the Federal Government to not want to coordinate with 
these local experts. Other Federal statutes, such as the National 
Environmental Policy Act, require coordination and consultation with 
State and local governments and Indian Tribes; the ESA should be no 
different and Federal biologists should take advantage of this 
important local knowledge.
    As with H.R. 4315, H.R. 4317 does not define ``best scientific and 
commercial data available'' nor does it require the FWS of NMFS to wait 
until the State or local government or Indian tribe develops 
independent data. The terms ``cooperate'' and ``consult'' do not give 
State and local governments or Indian tribes any type of ``veto power'' 
over the Federal agencies nor do these terms regulate the requirements 
of the ESA to a subservient position with regard to State, local and 
tribal interests. The Federal cases that define ``cooperate'' cite to 
the dictionary definition of the term from the Webster's New 
International Dictionary which defines the term as ``to work 
together.'' See Long Term Capital Holdings v. United States, 330 
F.Supp.2d 122, 168 (D. Conn. 2004) aff'd sub nom. Long-Term Capital 
Holdings, LP v. United States, 150 F.App'x 40 (2d Cir. 2005).
    The Federal courts define ``consult'' by stating:

        Merriam-Webster's Collegiate Dictionary defines 
        ``consultation'' as ``the act of consulting or conferring,'' 
        and it defines ``consult'' as ``to deliberate together,'' among 
        other things. See Merriam-Webster's Collegiate Dictionary 268 
        (11th ed. 2005). The American Heritage Dictionary of the 
        English Language similarly defines ``consultation'' as ``[t]he 
        act or procedure of consulting'' and defines ``consult'' as 
        ``[t]o seek advice or information of'' or ``[t]o have regard 
        for; consider.'' The American Heritage Dictionary of the 
        English Language 286 (1978).

        Makua v. Gates, 2008 WL 976919 (D. Haw. Apr. 9, 2008) order 
        clarified, 2009 WL 196206 (D. Haw. Jan. 23, 2009).

    Consulting and cooperating with State governments, local 
governments and Indian tribes does not change the mandates or substance 
of the ESA, but it ensures that all data and information is available 
to the FWS and NMFS so that they can make the best decision they can.
    Finally, H.R. 4318 caps the hourly fee that attorneys can charge 
for ESA litigation filed pursuant to the ESA citizens suit provision at 
the same rate as the hourly fee allowed under the Equal Access to 
Justice Act (``EAJA''). 28 U.S.C. Sec. 2412(D)(2)(a)(ii). Although the 
citizens suit provision waives sovereign immunity for ESA litigation 
related to alleged violations of ESA section 4 (cases related to 
species listing, critical habitat designation, development of recovery 
plans and special rules), litigation filed against the Federal 
Government related to other ESA provisions are not subject to the 
citizens suit provision. For example, a substantial amount of 
litigation related to the ESA stems from charges that the Federal 
Government is violating the section 7 consultation requirements of the 
ESA. 16 U.S.C. 1536(a)(2). Sovereign immunity for those suits is waived 
pursuant to the Administrative Procedures Act (``APA''); attorney's 
fees for cases brought pursuant to the APA are paid under the EAJA. 
EAJA statutorily sets the attorney's fees cap at $125 per hour. If the 
purpose of litigation enforcing the ESA is truly species protection 
driven, is seems very inequitable for attorneys litigating ESA section 
4 cases to receive ``unlimited'' hourly fees, although those attorneys 
litigating the equally important ESA section 7 consultation provisions 
only receive $125 per hour. This bill would not stop litigation, change 
any of the causes of action possible under either the ESA citizens suit 
provision or the APA enforcing the provisions of ESA section 7; it just 
treats all ESA plaintiffs' counsel equally.
    The concern that litigation, rather than biology or science, would 
overtake the ESA is nothing new. In fact, settlement agreements like 
the multi-district settlement agreements in 2011 are not new. In Re: 
Endangered Species Act Section 4 Deadline Limitation, Misc. Action No. 
10-377 (EGS), MDL Docket No. 2165. Just over 10 years ago, the Clinton 
administration's U.S. Fish and Wildlife Service issued its Final 
Listing Priority Guidance because, even at that time, pending and 
threatened litigation was ``diverting considerable resources away from 
the Service's efforts to conserve endangered species.'' See Notice of 
Listing Priority Guidance, 61 FR 24722-02, 24724 (May 16, 1996). That 
notice was published because the Service wanted to publically announce 
that it would not ``elevate the priority of proposed listings simply 
because they are the subjects of active litigation. To do so would let 
litigants, rather than expert biological judgment, control the setting 
of listing priorities.'' Id. at 24728.
    The publication of that guidance was based upon a 1992 Clinton 
negotiated settlement agreement with Plaintiffs Fund for Animals and 
Defenders of Wildlife that required the FWS to resolve the conservation 
status of 443 candidate species by publication of a proposed listing or 
a notice stating why listing was not warranted.\1\ Fund for Animals et 
al v. Babbitt, 92-cv-800 (D.D.C. April 2, 1992). The complaint was 
never answered by the Justice Department. Rather a settlement agreement 
was negotiated, and attorney's fees of $67,500 were paid. In 1996, the 
Fund for Animals revived the same litigation to seek a court ordered 
compliance with the original settlement agreement because the FWS could 
not keep up with the ambitious decisionmaking schedule. Fund for 
Animals et al v. Babbitt, 92-cv-800 (Motion filed by Plaintiffs 
enforcing the settlement agreement, docket 19 (August 19, 1996)). 
Again, no answer was filed by the Justice Department, but a new 
schedule for the remaining decisions was negotiated and another $24,500 
was paid in attorney's fees. It was then that the U.S. Fish and 
Wildlife Service issued its Final Listing Priority Guidance to ensure 
that the work of agency's biologists would not be driven by litigation. 
See 61 FR 24722-02, 24728 (stating that ``The Service will not elevate 
the priority of proposed listings for species simply because they are 
subjects of active litigation. To do so would let litigants, rather 
than expert biological judgments, control the setting of listing 
priorities. The Regional Office with responsibility for processing such 
packages will need to determine the relative priority of such cases 
based upon this guidance and the 1983 listing priority guidance and 
furnish supporting documentation that can be submitted to the relevant 
Court to indicate where such species fall in the overall priority 
scheme.'')
---------------------------------------------------------------------------
    \1\ This is exactly the same requirement as the current Center for 
Biological Diversity and WildEarth Guardians multi-species settlement 
agreements, although the current multi-species settlement includes 1053 
ESA actions.
---------------------------------------------------------------------------
    The events leading up to the 1996 Listing Priority Guidance Federal 
Register notice are eerily similar to the 2011 multi-species Obama 
settlement agreement with the Center for Biological Diversity and 
WildEarth Guardians. The litigation in both cases was filed by 
environmental groups who were not satisfied with the pace of decisions 
issued by the FWS or NMFS. Rather than answering the litigation, the 
Justice Department entered into settlement agreements committing the 
Federal agencies to strict time deadlines for making decisions that 
either list species or determine that listing is not warranted. 
Decisions to place the species on the ``warranted but precluded'' or on 
the candidate list are not allowed under either the 1992 or 2011 
settlement agreements. Between the settlement agreement in 1992 and the 
motion to force compliance with the settlement agreement in 1996, the 
FWS determined, on its own, that it could not comply with the 
settlement time schedule and its regular workload. 61 FR 24726 (noting 
that if the Service were to devote its budget to compliance with the 
settlement agreement, it would be devoting no resources to the final 
listing decisions of the 243 species that were proposed for listing at 
the time. ``This course of action would also result in a still larger 
backlog of proposed species awaiting final decision.'').
    Still other FWS notices decry the concern over the immense amount 
of ESA litigation. For example, in the proposed rules listing the 
Spalding's Catchfly (plant) as threatened, the Service stated that 
because of ``litigation demands'' even though the petition to list was 
presented on November 16, 1998, action was not taken until December 3, 
1999. 64 FR 67814-02 (December 3, 1999). The plant was not finally 
listed as threatened until October 10, 2001. 66 FR 51598-01 (October 
10, 2001) (again citing litigation demands as one of the reasons for 
the delay). Even as recently as 2010, the Service noted that ``resource 
demands associated with litigation'' delayed the finalization of the 
draft recovery plan for the bull trout. 75 FR 2270-01 (January 14, 
2010). Any claim that the current pace of litigation does not impact 
implementation of the ESA is simply not borne out by the FWS' own 
documents.
    Recently, there have also been claims that ESA litigation costs are 
``not a concern under the Endangered Species Act.'' See Center for 
Biological Diversity (``CBD'') March 29, 2014. In support of its claim, 
the CBD cites two studies that it simply did not read. First the 
August, 2011 Governmental Accountability Office (``GAO'') study 
entitled ``Environmental Litigation Cases Against EPA [Environmental 
Protection Agency] and Associated Costs over Time'' shows a dramatic 
increase in litigation against the EPA from 2009 to 2010. Because the 
EPA does not administer the ESA, it is not a surprise that ESA 
litigation against the agency is limited. The two ESA cases reported 
against the EPA dealt with claims that the EPA had failed to comply 
with the section 7 consultation requirements of the ESA. One 
environmental group, Northwest Environmental Defense Center, was paid 
$40,000 in 2010; the CBD was paid $405,000 for its section 7 
consultation case against the EPA in 2007. Because these cases involved 
ESA section 7 claims, the attorney's fees were paid based upon the 
Equal Access to Justice Act. Additionally, the 2011 GAO report 
complained, ``Justice [Department] maintains separate, decentralized 
databases containing environmental case litigation and does not have a 
standard approach for collecting and entering data. Without a standard 
approach, it is difficult to identify and summarize the full set of 
environmental litigation cases and costs managed by the department 
agency wide.''
    The second GAO study cited by the CBD, ``USDA Litigation, Limited 
Data Available of USDA Attorney Fee Claims and Payments,'' March 26, 
2014 also does not support the CBD's claims. That study noted that 
there is no central internal or external tacking of attorney fee 
payments within the Department of Agriculture (``USDA''). With regard 
to ESA litigation, again because the Department of Agriculture does not 
implement the listing and critical habitat provisions of the ESA, 
litigation relates to alleged violations of the ESA section 7 
consultation provisions. Of the 33 USDA agencies, 29 do not track 
attorney's fees payments at all, even though some of those agencies 
have been sued for alleged violation of ESA section 7 consultation 
requirements. See, e.g., Buffalo River Watershed Alliance et al v. 
United States Department of Agriculture et al, 13-cv-450 (E.D. Ark, 
August 6, 2013) (claiming that a loan decision backed by the USDA's 
Farm Services Agency \2\ and the Small Business Administration violated 
the section 7 consultation provisions of the ESA). Clearly this report 
cannot be said to support the proposition that ESA litigation is ``not 
a concern.''
---------------------------------------------------------------------------
    \2\ The Farm Services Agency is one of the USDA agencies that does 
not track attorney's fees payments.
---------------------------------------------------------------------------
    The CBD press release, dated March 26, 2014, fares no better. This 
press release was based on a 276 page spread sheet run released by the 
Department of Justice (``DOJ'') listing litigation summaries in cases 
defended by the Environment and Natural Resources Division, Wildlife 
Section of DOJ. The spread sheets are titled ``Endangered Species 
Defensive Cases Active at some point during FY09-FY12 (through April 4, 
2012)''. Although the DOJ release itself contained no analysis, my 
legal staff calculated the following statistics:


------------------------------------------------------------------------
 
------------------------------------------------------------------------
Total Number of Cases Filed.......................                573
Total Number of Cases in which Attorney's Fees                    183
 were Paid........................................
Total Cases Filed by Environmental Group..........                489
Total Cases Filed by Industry Group, Local                         19
 Government or Water District.....................
Number of filed by Individuals Who Did Not Seem to                 65
 be Tied to any Group.............................
Total Attorney's Fees Paid........................        $52,518,628.93
------------------------------------------------------------------------


    And while the payment of $52,518,628.93 of American taxpayer's 
money over an approximate 3-year period seems high, use of the FOIA has 
shown that the DOJ does not keep an accurate account of the cases it 
defends. For example, in 2009, my firm sent a FOIA request to the DOJ 
asking for the amount of litigation defended and attorney's fees paid 
to a named environmental group based upon litigation against the 
Federal Government filed in the Federal District Court for the District 
of Idaho. The Justice Department responded with what it believed were 
all cases that met the criteria, a total of 67 cases in all. Reviewing 
those cases, according to the Justice Department's list, this 
environmental group received approximately $900,000 in attorney's fees 
in 9 years. However, when the list provided by the Justice Department 
was compared with the actual PACER documents from the Federal District 
Court of Idaho, it was discovered that the Department failed to account 
for an additional 23 cases filed by this single group in the District 
Court in Idaho. We also discovered that this single group had received 
$1,150,528 in tax payer dollars over the applicable period. This is 
just one illustration that shows that the DOJ run sheets attached to 
the 2014 CBD press release do not account for all the litigation filed 
or the attorney's fees paid.
    I would thank this committee for holding this hearing and for 
starting the discussion related to the ESA. The FWS Web site, as of 
April 5, 2014, shows that 1337 species have been listed, but only 30 
recovered. While the advocates can argue about whether the Act is 
working, these bills at least make the decisions more apparent and 
transparent to the American public and the bill-paying taxpayers.
    Thank you.

                                 ______
                                 

    Mrs. Lummis. I thank the witness, and wish to recognize Mr. 
Robert Percival for 5 minutes. Thank you for being here.

STATEMENT OF ROBERT V. PERCIVAL, ROBERT F. STANTON PROFESSOR OF 
    LAW, DIRECTOR, ENVIRONMENTAL LAW PROGRAM, UNIVERSITY OF 
 MARYLAND FRANCIS KING CAREY SCHOOL OF LAW, BALTIMORE, MARYLAND

    Mr. Percival. Thank you, Madam Chair. I have a bit of a 
cold, but I am the Director of the Environmental Law Program at 
the University of Maryland School of Law.
    The Endangered Species Act is the product of a remarkable 
bipartisan consensus concerning the moral imperative of 
preserving biodiversity. I remind the committee that it was 
approved by Congress overwhelmingly by a 92-to-0 vote in the 
Senate, and with only 12 dissenting votes in the House. The ESA 
has been recognized as one of the most profound moral 
accomplishments of the human race, because it recognizes that 
we have an ethical obligation to preserve all of God's 
creation.
    The U.S. Supreme Court, in its first decision, interpreted 
the Act--called it the most comprehensive legislation for the 
preservation of endangered species ever enacted by any nation, 
and it emphasized the importance of citizen involvement 
provided by the Act with respect to petitioning to list 
species, and also the citizen suit provisions of the Act.
    One chronic problem with implementation of the Act, though, 
is that the agencies have not been given sufficient 
appropriations to carry out all their statutory duties, and 
that is a large reason why they have been subjected to so many 
lawsuits.
    I do want to make one correction to Ms. Budd-Falen's 
testimony. She refers in it to a 1992 Clinton administration-
negotiated settlement with the Fund for Animals and Defenders 
of Wildlife that required the Fish and Wildlife Service to 
resolve the conservation status of 443 candidate species, and 
she cites the case as having the settlement agreement approved 
on April 2, 1992. I would remind her that President Clinton was 
not elected President until November 1992, and did not take 
office until January 1993. That indeed was the settlement 
negotiated by the Bush administration, which I think makes my 
point that this has been a chronic problem with respect to 
implementation of the Act under both Republican and Democratic 
administrations.
    Now, the legislative proposals we have before us today 
would only exacerbate this problem by imposing new, unfunded 
mandates on the agencies. Until Congress provides adequate 
funding to enable the agencies to discharge in a timely fashion 
their responsibilities for listing endangered species, 
consulting with other Federal agencies concerning their 
conservation, obligations for listing species, and for 
promoting species recovery acts, the current pattern of 
litigation is likely to continue.
    Three of the four bills under consideration at this hearing 
would create new statutory responsibilities for the agencies 
implementing the ESA without increasing the already inadequate 
funds made available to them. The fourth would change the 
standard for awarding attorney's fees under the Act. The 
ability of citizen groups and businesses to go to court to hold 
agencies accountable has been one of the most important 
features of our legal system that makes it the envy of the 
world. It has been absolutely critical to ensuring that our 
Federal environmental laws are implemented and enforced in a 
manner consistent with statutory directives, as the Supreme 
Court noted in its landmark TVA v. Hill decision.
    The citizen suit provision currently in Section 11(g) of 
the Endangered Species Act mirrors those provisions contained 
in virtually all the other major Federal environmental laws. 
There is no warrant for singling out the Endangered Species Act 
and cutting back on the possibility of attorney's fees, just 
because some don't like litigation, which occurs in both 
Republican and Democratic administrations.
    The ESA is a landmark piece of legislation that was the 
product of an overwhelming bipartisan consensus concerning the 
importance of preserving biodiversity. Congress authorized 
citizen suits to hold agencies accountable for violations of 
the Act. Measures to oppose additional unfunded mandates on 
agencies implementing the ESA will only make it more difficult 
for them to carry out their statutory responsibilities. There 
is certainly no justification for singling out the ESA's 
attorney's fee-shifting provision that currently mirrors those 
contained in virtually every other major Federal environmental 
law. Thank you.
    [The prepared statement of Mr. Percival follows:]
 Prepared Statement of Robert V. Percival, Robert F. Stanton Professor 
  of Law, Director, Environmental Law Program, University of Maryland 
Francis King Carey School of Law, Baltimore, Maryland on H.R. 4316 and 
                               H.R. 4318
    My name is Robert V. Percival. I am the Robert F. Stanton Professor 
of Law and the Director of the Environmental Law Program at the 
University of Maryland Francis King Carey School of Law. Thank you for 
inviting me to testify today. For more than two decades I have been the 
principal author of the most widely used environmental law casebook in 
U.S. law schools, Environmental Regulation: Law, Science & Policy 
(Wolters Kluwer Law & Business, 7th ed. 2013). I have taught 
Environmental Law for more than a quarter century and I also teach 
Constitutional Law, Administrative Law and Global Environmental Law.
  i. the endangered species act reflects our highest moral aspirations
    The Endangered Species Act (ESA) is the product of a remarkable, 
bipartisan consensus concerning the moral imperative of preserving 
biodiversity. In his Special Message to Congress on February 8, 1972, 
President Richard Nixon called on Congress to enact ``legislation to 
provide for early identification and protection of endangered 
species,'' to ``make the taking of endangered species a Federal offence 
for the first time,'' and to ``permit protective measures to be 
undertaken before a species is so depleted that regeneration is 
difficult or impossible.'' \1\ Congress responded by enacting the ESA 
by an overwhelming, bipartisan majority. The legislation passed the 
Senate by a vote of 92-0 on July 24, 1973. On September 18, 1973, the 
House approved its own version of the bill by a vote of 390-12. The 
final legislation that emerged from a joint conference committee was 
agreed to by the Senate unanimously on December 19, 1973 and by the 
House by a vote of 355-4 on December 20, 1973. President Nixon signed 
the ESA into law on December 28, 1973.
---------------------------------------------------------------------------
    \1\ Richard M. Nixon, Special Message to Congress Outlining the 
1972 Environmental Program, Feb. 8, 1972 (http://
www.presidency.ucsb.edu/ws/index.php?pid=3731).
---------------------------------------------------------------------------
    The ESA is a profoundly ``pro-life'' piece of legislation. It 
creates a presumption that humans should avoid activity that would harm 
endangered species and that Federal agencies should avoid actions 
likely to jeopardize species continued existence. The ESA has been 
recognized as one of the most profound moral accomplishments of the 
human race because it recognizes that we have an ethical obligation to 
preserve all of God's creation.\2\
---------------------------------------------------------------------------
    \2\ Roderick F. Nash, The Rights of Nature: A History of 
Environmental Ethics (Univ. Wisc. Press 1989). See also Evangelical 
Environmental Network, On the Care of Creation: An Evangelical 
Declaration on the Care of Creation (1994) (http://
www.earthcareonline.org/evangelical_declaration.pdf).
---------------------------------------------------------------------------
    In its first major decision interpreting the ESA, the U.S. Supreme 
Court declared the Act to be ``the most comprehensive legislation for 
the preservation of endangered species ever enacted by any nation.'' 
\3\ It explained that ``Congress has spoken in the plainest of words, 
making it abundantly clear that the balance has been struck in favor of 
affording endangered species the highest of priorities.'' \4\ As an 
illustration of ``the seriousness with which Congress viewed this 
issue,'' the Court specifically cited the ESA's ``provisions allowing 
interested persons to petition the Secretary to list a species as 
endangered or threatened and bring civil suits in United States 
district courts to force compliance with any provision of the Act.'' 
\5\
---------------------------------------------------------------------------
    \3\ Tennessee Valley Authority v. Hill, 437 U.S. 153, 180 (1978).
    \4\ Id. at 194 (1978).
    \5\ Id. at 181.
---------------------------------------------------------------------------
    Despite strong public support for the ESA,\6\ it often has been a 
target for political attacks because the costs of species protection 
measures are more visible and immediate than the more diffuse, long-
term benefits of preserving biodiversity. Yet the bipartisan majority 
that enacted this landmark legislation rejected the notion that species 
should be sacrificed to political expediency. As the Supreme Court 
explained in TVA v. Hill ``Congress was concerned about the unknown 
uses that endangered species might have and about the unforeseeable 
place such creatures may have in the chain of life on this planet.'' 
\7\ Thus ``the plain intent of Congress in enacting'' the legislation 
``was to halt and reverse the trend toward species extinction, whatever 
the cost.'' \8\
---------------------------------------------------------------------------
    \6\ During the spotted owl controversy in 1992, voters supported 
the ESA by a margin of 66 to 11 percent. When asked to choose between 
protecting species or savings jobs and businesses, species protection 
was favored by a margin of 48 to 29 percent. Sawhill, Saving Endangered 
Species Doesn't Endanger the Economy, Wall. St. J., Feb. 20, 1992, at 
A15.
    \7\ 437 U.S. at 178-79.
    \8\ Id. at 184.
---------------------------------------------------------------------------
    Balanced, scientific evaluations of the ESA have consistently 
endorsed its basic principles. Evaluating more than two decades of 
experience with the ESA, the National Research Council in 1995, in a 
report commissioned by Congress, found that ``the ESA is based on sound 
scientific principles.'' \9\ It concluded that ``there is no doubt that 
it has prevented the extinction of some species and slowed the decline 
of others.'' \10\ In a letter to the U.S. Senate in March 2006 a group 
of 5,738 biologists praised the ESA and criticized proposals to weaken 
its protections. The biologists noted that the ESA had contributed to 
``significant progress'' in species protection. They stressed the 
importance of the ESA's emphasis on ``best available science'' and they 
criticized proposals to mandate the use of non-scientific factors to 
delay or block listing decisions, designations of critical habitat or 
implementation of species recovery plans.\11\
---------------------------------------------------------------------------
    \9\ National Research Council, Science and the Endangered Species 
Act 4 (1995).
    \10\ Id.
    \11\ Letter from 5,738 Biologists to the U.S. Senate Concerning 
Science in the Endangered Species Act, March 2006 (http://
www.ucsusa.org/assets/documents/scientific_integrity/
biologists_california.pdf).
---------------------------------------------------------------------------
   ii. inadequate funding has jeopardized implementation of the esa. 
   imposition of additional unfunded mandates on agencies would only 
                        exacerbate this problem.
    A fundamental problem with implementation of the ESA has been the 
chronically inadequate funding that has been afforded the Federal 
agencies charged with implementing the Act. Since it was last 
reauthorized in 1992, the ESA has been implemented through annual 
appropriations that have been inadequate to enable the agencies 
promptly to comply with their statutory responsibilities.\12\ This has 
made the agencies targets for lawsuits seeking to compel them to 
perform their non-discretionary duties. Until Congress provides 
adequate funding to enable Federal agencies to discharge in a timely 
fashion their responsibilities for listing endangered species, for 
consulting with other Federal agencies concerning their conservation 
obligations for listed species, and for promoting species recovery 
efforts, the current pattern of litigation is likely to continue.
---------------------------------------------------------------------------
    \12\ Donald C. Baur, Michael J. Bean & William Robert Irvin, A 
Recovery Plan for the Endangered Species Act, 39 Envt'l L. Rep. 10006, 
10010 (2009).
---------------------------------------------------------------------------
    The imposition of additional unfunded mandates on the agencies 
would only exacerbate existing problems of inadequate agency resources. 
Three of the four bills under consideration at this hearing would 
create new statutory responsibilities for the agencies implementing the 
ESA without increasing the already-inadequate funds available to them.
    H.R. 4315 would require publication on the Internet of the basis 
for determinations that species are endangered and threatened. This is 
unnecessary given the agencies' existing statutory obligation under the 
ESA and the Administrative Procedure Act (APA) to provide public notice 
of proposed and final agency actions in the Federal Register, which is 
available on the internet, and to describe and evaluate the reasons and 
data upon which agency actions are based.\13\
---------------------------------------------------------------------------
    \13\ See ESA Sec. 4(b)(3)(B), 16 U.S.C. Sec. 1533(b)(3)(B) (``the 
Secretary shall promptly publish such finding in the Federal Register, 
together with a description and evaluation of the reasons and data on 
which the finding is based.'') and ESA Sec. 4(b)(4), 16 U.S.C. 
Sec. 1553(b)(4) (mandating that the informal rulemaking provisions of 
the APA, 5 U.S.C. Sec. 553, apply to regulations issued under the ESA), 
and ESA Sec. 4(b)(8) (requiring that publication in the Federal 
Register of any listing regulation ``shall include a summary by the 
Secretary of the data on which such regulation is based and shall show 
the relationship of such data to such regulation.'').
---------------------------------------------------------------------------
    H.R. 4316 would require the Secretary of Interior annually, in 
consultation with the Secretary of Commerce, to gather and to submit to 
Congress detailed data concerning not only every citizen suit brought 
under the ESA, but also every notice letter informing the agency of an 
alleged violation of the Act. This data would include not only direct 
expenditures by the agencies on any aspect of preparation for, or 
conduct of such litigation, but also estimates of employee time devoted 
to such activities. The bill targets only citizen suits and does not 
require reporting of the costs of responding to oversight requests by 
congressional committees, which have been quite substantial.\14\ By 
focusing solely on the costs of performing agency duties under the ESA, 
without any consideration of the benefits of such actions, this data 
would contribute to a distorted view of the value of the ESA.
---------------------------------------------------------------------------
    \14\ See Letter from Secretary of Interior Sally Jewell to Chairman 
Hastings, January 15, 2014 (http://www.eenews.net/assets/2014/01/16/
document_daily_04.pdf) (estimating that the Department of Interior 
spent more than 19,000 staff hours and nearly $1.5 million responding 
to 27 document requests from this committee).
---------------------------------------------------------------------------
    H.R. 4317 would dictate that the ``best scientific and commercial 
data available'' include ``all such data submitted by a State, tribal, 
or county government.'' If this is interpreted to mean that any data 
submitted by such a government must be deemed to be the ``best 
scientific and commercial data available,'' the requirement would 
constitute an improper effort by Congress to dictate scientific 
judgments. If instead it means only that when governments submit 
scientific and commercial data that is indeed the best available, it is 
unnecessary because this is already permissible under existing law.
iii. congress should not amend the attorney fee-shifting provisions of 
                                the esa
    The ability of citizen groups and businesses to go to court to hold 
agencies accountable is one of the most important features of our legal 
system that makes it the envy of the world. It has been absolutely 
critical to ensuring that our Federal environmental laws are 
implemented and enforced in a manner consistent with statutory 
directives, as the Supreme Court noted in its landmark TVA v. Hill 
decision.\15\
---------------------------------------------------------------------------
    \15\ 437 U.S. 153, 181 (citing the ESA's ``provisions allowing 
interested persons to petition the Secretary to list a species as 
endangered or threatened and bring civil suits in U.S. district courts 
to force compliance with any provision of the Act.'')
---------------------------------------------------------------------------
    The citizen suit provision contained in Section 11(g) of the 
Endangered Species Act \16\ mirrors those contained in the other major 
Federal environmental statutes.\17\ It authorizes the court to ``award 
costs of litigation (including reasonable attorney and expert witness 
fees) to any party, whenever the court determines such award is 
appropriate.'' \18\ In Ruckelshaus v. Sierra Club,\19\ the Supreme 
Court interpreted similar language in the citizen suit provision of the 
Clean Air Act to require success on the merits before a party can 
become eligible for an award of attorney's fees.
---------------------------------------------------------------------------
    \16\ 16 U.S.C. Sec. 1540(g).
    \17\ See generally, Congressional Research Service, Award of 
Attorneys' Fees by Federal Courts and Federal Agencies, June 20, 2008.
    \18\ 16 U.S.C. Sec. 1540(g)(4).
    \19\ 463 U.S. 680 (1983).
---------------------------------------------------------------------------
    The attorney fee-shifting provisions Congress has enacted in nearly 
all the Federal environmental laws are designed to enable ordinary 
citizens to ensure that the laws are implemented and enforced.\20\ 
Despite claims to the contrary, citizen suits have proven to be 
essential to effective implementation of the ESA \21\ and the other 
major Federal environmental statutes. Thus, there is no justification 
for measures to discourage such actions.
---------------------------------------------------------------------------
    \20\ Robert V. Percival & Geoffrey P. Miller, ``The Role of 
Attorney Fee Shifting in Public Interest Litigation,'' 47 Law & Cont. 
Problems 235 (1984), available online at: http://
scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3755&context=lcp.
    \21\ Laura Peterson, Lawsuits Not Hurting Endangered Species Act--
FWS Director, Greenwire, July 5, 2012; Berry Bosi & Eric Biber, Citizen 
Involvement in the U.S. Endangered Species Act, 337 Science 802 (Aug. 
2012).
---------------------------------------------------------------------------
    H.R. 4318 would replace the existing standard for awarding 
attorney's fees under the ESA with a more restrictive standard 
contained in the Equal Access to Justice Act (EAJA). Rather than 
allowing judges to award ``reasonable'' fees to prevailing parties when 
``appropriate,'' as authorized under existing law, this amendment would 
single out ESA citizen suits and subject them to below-market fee caps 
under the EAJA. There is no justification for removing citizen suits 
brought under the ESA from the same fee-shifting standards applicable 
to the other major Federal environmental laws. As noted above, 
Ruckelshaus v. Sierra Club already restricts attorney's fee awards to 
prevailing parties. Thus, H.R. 4318 is merely a measure designed to 
make it more difficult for citizens to hold government agencies 
accountable for failing to implement the ESA.
                             iv. conclusion
    The ESA is a landmark piece of legislation that was the product of 
an overwhelming, bipartisan consensus concerning the importance of 
preserving biodiversity. Congress authorized citizen suits to hold 
agencies accountable for violations of the Act. Measures to impose 
additional unfunded mandates on agencies implementing the ESA will only 
make it more difficult for them to carry out their statutory 
responsibilities. There is no justification for replacing the ESA's 
attorney's fee-shifting provision that currently mirrors those 
contained in virtually every other major Federal environmental law.

                                 ______
                                 

    Mrs. Lummis. I thank the gentleman, and I now recognize Mr. 
Ken Holsinger of Denver, Colorado. Thank you for being here.

 STATEMENT OF KENT HOLSINGER, ATTORNEY, HOLSINGER LAW, DENVER, 
                            COLORADO

    Mr. Holsinger. Thank you, Madam Chair, members of the 
committee. It is my honor to be here to testify in support of 
H.R. 4316, the ``Endangered Species Recovery Transparency 
Act,'' and H.R. 4318, the ``Endangered Species Litigation 
Reasonableness Act.''
    As the manager of a small Denver-based law firm that 
specializes in lands, wildlife, and water law, I can attest to 
the rampant litigation abuses that have been perpetrated under 
the Endangered Species Act. Last year was the 40th anniversary 
of the Act. It has been amended in 1978, 1982, and, last, in 
1988. Now, to put that in perspective, in 1988 the Soviet Union 
was a superpower, and Def Leppard topped the pop charts. It is 
high time to modernize and update this law.
    Like none other, litigation drives the ESA. And, 
unfortunately, a few activist groups have buried the U.S. Fish 
and Wildlife Service in petitions and litigation. The Center 
for Biological Diversity and Wild Earth Guardians in particular 
have petitioned to list hundreds and hundreds of species. And 
when the Fish and Wildlife is overwhelmed in trying to respond, 
these groups are litigating against missed deadlines. They are 
creating the very problems they are suing over.
    For example, Wild Earth Guardians, formerly known as Forest 
Guardians, and Center for Biological Diversity have been 
litigants in no fewer than 1,366 cases between 1990 and the 
present: Wild Earth Guardians in 401 cases, Center for 
Biological Diversity in 965.
    Now, looking closely at the Wild Earth Guardians cases, 
most have been brought against the Federal Government, about 95 
percent. Most have been against the Department of the Interior, 
and most have been on ESA issues.
    Center for Biological Diversity, you can see, has filed 
most of their cases in the 9th Circuit Court of Appeals. This 
is, by the way, a chart showing, by each U.S. district court, 
cases filed by Center for Biological Diversity. We got this 
information through the Public Access to Court Electronic 
Records, or PACER, and searched each and every Federal 
jurisdiction to find where Center for Biological Diversity and 
Wild Earth Guardians had filed suit.
    We also searched the appellate courts and the number of 
cases. You can see a huge preference for the 9th Circuit Court 
of Appeals, the most overturned circuit in the Nation. And if 
you tally these 965 cases brought by CBD, about two-thirds were 
in the 9th Circuit and the District of Columbia.
    Wild Earth Guardians, in the next slide, a little bit 
different. You can see many cases filed where they are based in 
New Mexico, of their total of 403 cases filed.
    In 2011, as you know, Wild Earth Guardians and CBD entered 
a significant settlement agreement with Fish and Wildlife 
Service, auspiciously to help prevent litigation and stem this 
vicious sue-and-settle cycle. Unfortunately, since then, CBD 
has still been a party to 179 lawsuits, Wild Earth Guardians, 
88.
    These actions are robbing the species to pay the attorneys. 
And as long as 10 years ago the Fish and Wildlife Service 
itself recognized, in discussing litigation over critical 
habitat, it provides little real conservation benefit. ``Driven 
by litigation in the courts, rather than biology, it limits our 
ability to fully evaluate the science, consumes enormous agency 
resources, and imposes huge societal and economic costs.'' That 
quote is more apropos today than ever.
    H.R. 4316 and H.R. 4318 would do much to improve the ESA, 
and make sure that resources are used where they belong. Let's 
use our scarce conservation resources wisely, rather than on 
this frivolous and needless litigation.
    Madam Chair, thank you again for the opportunity to testify 
in support of these measures. We have seen a windfall to the 
attorneys in these few activist groups, and it is high time 
that Congress address these issues, update and modernize the 
ESA for the betterment of people, wildlife, and the communities 
that depend upon them. Thank you.
    [The prepared statement of Mr. Holsinger follows:]
  Prepared Statement of Kent Holsinger, Attorney, Holsinger Law, LLC, 
              Denver, Colorado on H.R. 4316 and H.R. 4318
    Thank you for the opportunity to testify in support of H.R. 4316 
(the Endangered Species Recovery Transparency Act) and H.R. 4318 (the 
Endangered Species Litigation Reasonableness Act). Holsinger Law, LLC 
is a small, Denver-based law firm that specializes in lands, wildlife 
and water law. I am testifying as the manager of Holsinger Law, LLC. In 
that capacity, I can attest to the rampant litigation abuses under the 
Endangered Species Act (``ESA'') and the need for H.R. 4316 and H.R. 
4318. These measures would improve and update the ESA while ensuring 
scarce conservation resources go to real, on-the-ground work rather 
than taxpayer-funded litigation.
            i. the endangered species act should be updated
    Last year was the 40th anniversary of the ESA. The ESA is the most 
powerful environmental law in the world. The end product of nearly a 
century of Federal encroachment on State authority and control over 
wildlife, it was passed by the Congress and signed by President Nixon 
in 1973. The ESA replaced 1966 and 1969 laws which provided for the 
listing of endangered species but with little substance. The 1973 Act 
has been reauthorized eight times. Significant amendments have been 
enacted in 1978, 1982, and 1988, while the overall framework of the 
1973 Act has remained essentially unchanged.
    Former Idaho Senator Dirk Kempthorne tried, but ultimately failed, 
to amend and reauthorize the ESA in 1997. I was intimately involved in 
those efforts as well as the amendments to the ESA that passed the 
House in October, 2005 under the leadership of former House Resources 
Committee Chairman Richard Pombo. Unfortunately, the Senate never 
adopted similar legislation. The last time the ESA was updated (1988), 
the Soviet Union was a superpower and Def Leppard topped the pop 
charts.
                         ii. litigation abuses
    Like no other law, litigation drives the ESA. Unfortunately, a few 
activist groups have buried the U.S. Fish and Wildlife Service 
(``FWS'') with listing petitions and litigation under the ESA. The 
Center for Biological Diversity (``CBD'') and WildEarth Guardians 
(``WEG'') have petitioned to list hundreds and hundreds of species 
under the ESA. As soon as the FWS is overwhelmed responding to 
petitions, these groups start litigating over missed deadlines. They 
are creating the very problems upon which they are suing the FWS.
    CBD and WEG \1\ have been litigants in no fewer than 1,366 cases 
between 1990 and the present. WEG was involved in 401 cases while CBD 
was a party to 965 cases. Of the WEG cases, approximately 95 percent 
have been brought against the Federal Government. In 2010, WEG filed 
more than one new lawsuit per week. Most of these have been brought 
against the U.S. Department of the Interior (DOI), and most have raised 
claims related to the ESA. In just the past 5 months, these two groups 
have been a party to an additional 19 cases.
---------------------------------------------------------------------------
    \1\ Formerly known as Forest Guardians.
---------------------------------------------------------------------------
    We compiled this information using the Public Access to the Court 
Electronic Records (``PACER'') system and performing a query for 
``WildEarth Guardians'' and ``Center for Biological Diversity'' as a 
party in each of the Federal district courts, courts of appeal, and the 
U.S. Supreme Court. The earliest case included in this data was filed 
in 1990. The search using this method was finished on November 12, 
2013. In order to update the information, the PACER ``National Case 
Locator'' function was utilized to search for cases in which WEG or CBD 
were a party that were filed between November 13, 2013 to April 4, 
2014. These cases were then added to the numbers generated using the 
former method.
    Responding to litigation-driven settlement agreements has consumed 
the FWS and a significant part of its budget. Activist groups often 
collect taxpayer-funded attorney fees when new deadlines are negotiated 
in these cases--perpetuating a vicious ``sue and settle'' cycle.
    In the summer of 2011, WEG and CBD announced a settlement agreement 
with the FWS that imposed deadlines for final determinations for listed 
status on 757 species no later than September, 2016. The Plaintiffs 
collected over $140,000 in attorney fees and costs from the taxpayers 
as part of the settlements. Since the settlements, CBD has been a party 
to approximately 179 lawsuits and WEG has participated in 88 lawsuits.
    On March 17, 2014, the State of Oklahoma (``Oklahoma''), along with 
the Domestic Energy Producers Alliance (``DEPA''), filed suit against 
the FWS citing the use of ``sue-and-settle'' tactics. Additionally the 
settlements require the FWS to submit either a ``warranted'' or ``not 
warranted'' decision, effectively eliminating the ``warranted but 
precluded'' category. Scott Pruitt, Oklahoma Attorney General, also 
stated that the ``sue and settle'' timelines force decisions from the 
FWS before they have had a chance to review the science, which violates 
the original structure of the ESA requiring sound science before a 
listing determination is made. Overall, the parties argued that FWS has 
deviated from the ESA requirements and the guidance FWS adopted 
thereunder by committing to these unrealistic deadlines; and that this 
action undermines support for State-led voluntary conservation programs 
of other species.
    Despite the settlement agreements, CBD has boasted of filing new 
ESA petitions (including one emergency petition) and lawsuits as 
recently as April 3, 2014, with 15 press releases announcing notices of 
intent to sue, lawsuits filed, and lawsuits joined since the beginning 
of the year.
             iii. robbing the species to pay the attorneys
    Congress passed the Endangered Species Act with visions of 
protecting grizzly bears and bald eagles from reckless human-caused 
extinction. Few could have foreseen how all-out protective efforts on 
behalf of such little-known creatures as the burying beetle, the pallid 
sturgeon, or the Preble's meadow jumping mouse would adversely impact 
U.S. taxpayers due to rampant litigation abuses in which millions of 
dollars of taxpayer funds are used to prepare, litigate, and settle 
lawsuits brought by just a few activist groups.
    This abusive litigation does little to further conservation of 
species. It does much to pad the pocketbooks of a few litigious groups 
and their attorneys. The Center for Biological Diversity (``CBD'') 
posted an astonishing $1,406,139 in legal returns in 2012 (17 percent 
of that year's total revenue) and $503,509 in 2011. In WEG's 2011 
Financial Report, they stated $303,406 in legal income--accounting for 
16 percent of their total income for the year. 2010 brought them 
$153,545 in legal income.
    Even the FWS has recognized the huge social and economic cost of 
such activist litigation. In discussing critical habitat, the FWS has 
stated it:
        . . . provides little real conservation benefit, is driven by 
        litigation and the courts rather than biology, limits our 
        ability to fully evaluate the science involved, consumes 
        enormous agency resources, and imposes huge social and economic 
        cost. The Service believes that additional agency discretion 
        would allow our focus to return to those actions that provide 
        the greatest benefit to the species most in need of 
        protection.. . .\2\
---------------------------------------------------------------------------
    \2\ 69 FR 53135 (Aug. 31, 2004).
---------------------------------------------------------------------------
            iv. h.r. 4316 and h.r. 4318 will improve the esa
    Currently, no one seems to know exactly how destructive this 
litigation is. H.R. 4316, The Endangered Species Recovery Transparency 
Act, introduced by Rep. Lummis, would require the FWS to report the 
resources used to respond to ESA litigation, including the number of 
employees needed, the funds used, and the attorney's fees awarded due 
to litigation and settlement agreements. This information is vital to 
determine how taxpayer dollars are being consumed by attorneys rather 
than being used to support real conservation work. By reviewing this 
information, steps can be taken to direct funds where they will more 
effectively promote the conservation and recovery of endangered or 
threatened species, and to also support boot-on-the-ground conservation 
efforts at the local level.
    As an attorney in private practice, I have seen environmental 
groups claim excessive hourly rates in litigation. It is not uncommon 
to see claims for more than $500 per hour. H.R. 4318, The Endangered 
Species Litigation Reasonableness Act, introduced by Rep. Huizenga, 
would place a cap on attorney fees that can be awarded by the courts. 
Litigation abuses result in excessive pay-outs of taxpayer funds. A cap 
limiting the hourly rate for prevailing attorneys would diminish the 
incentive to ``sue and settle'' by activist groups, but more 
importantly, allow taxpayer dollars to be more effectively allocated to 
the conservation and recovery of species.
    I strongly support the passage of these measures to improve the ESA 
and urge the committee to advance them in the legislative process.
                             v. conclusion
    Now is hardly the time for ``business as usual'' under the ESA. 
Scarce resources are being wasted on litigation driven by a handful of 
activist groups with little or no real conservation benefits. People 
and wildlife would benefit from improvements to the ESA, through 
enactment of H.R. 4316 and H.R. 4318. I urge Congress and the 
administration to work together to reduce frivolous litigation through 
disclosure of costs to the taxpayers and a reasonable cap on the hourly 
rate for awards of attorney fees. It is high time to stop wasting 
taxpayer dollars and rewarding frivolous and abusive litigation.
    Thank you again for the opportunity to testify on these important 
measures.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Mrs. Lummis. I thank you, and want to thank all of our 
panelists for their testimony. The Members will now have 
questions for you. Each will receive 5 minutes to ask 
questions. The Chair will begin by recognizing herself.
    Ms. Budd-Falen, did the multi-species settlement in the 
1990s help or hinder the agency's ability to manage its 
workload, in your opinion?
    Ms. Budd-Falen. Actually, in the opinion of the Fish and 
Wildlife Service itself it hindered their ability to manage 
their workload. Particularly toward the end, when the listing 
priority guidance was filed, the Service was concerned that 
dealing with the backlog of the species under the settlement 
agreement was going to create a backlog of considering current 
petition, and the Service itself said that it was not going to 
allow this backlog to continue. That is why the listing 
priority guidance was issued in the first place.
    Mrs. Lummis. Do we run the same risk with the current mega-
settlement, since there is no limitation on groups continuing 
to submit listing petitions?
    Ms. Budd-Falen. Actually, I believe that the backlog and 
the risk is worse. The original settlement only had 443 
species. The current mega-settlement has 1,053 actions. So you 
have dramatically increased the number of backlogged cases that 
they have to deal with, as well as the Center for Biological 
Diversity and Wild Earth Guardians continuing to petition more 
and more species, which just puts the agency further and 
further behind.
    Mrs. Lummis. Mr. Bean, I used to be on the Interior 
Appropriations Subcommittee. And how do you develop a budget 
when you don't know how much you will be spending annually on 
litigation and attorney's fees? Because this comes out of 
your--well, out of U.S. Fish and Wildlife Service's budget.
    Mr. Bean. Some of the fees come out of our budget, some 
come out of the judgment fund, which is not Fish and Wildlife 
Service----
    Mrs. Lummis. Exactly. But the judgment fund has money in 
it, whereas, when it comes out of your--U.S. Fish and Wildlife 
Service budget, that comes out of the agency's appropriated 
budget.
    Mr. Bean. I believe, in the case of these deadline suits, 
that they do not come out of the agency budget.
    Mrs. Lummis. That is just the opposite of what I was told 
by Director Ashe when I was on the committee. Now, did you make 
a distinction that I misunderstood?
    Mr. Bean. I am not sure what Director Ashe may have said. 
My understanding is that the attorney's fees paid in the 
deadline suits are paid from the judgment fund.
    Mrs. Lummis. OK, a deadline suit being different from some 
of these mega-settlements.
    Mr. Bean. No, the mega-settlements all--the MDL settlement, 
as we call it, dealt only with deadline cases.
    Mrs. Lummis. OK. So if it is true that mega-settlements are 
paid out of the judgment fund, what types of litigation are 
paid for out of the agency's budget, in terms of reimbursing 
lawyers?
    Mr. Bean. Yes, my understanding is if the Fish and Wildlife 
Service is sued under the Administrative Procedure Act for----
    Mrs. Lummis. Missing deadlines.
    Mr. Bean. Not for missing deadlines, but for discretionary 
actions that are alleged to be arbitrary and capricious, if we 
lose those cases we pay out of our agency funds.
    Mrs. Lummis. OK. So do you just guess about how many 
settlements of those kinds of suits there will be every year, 
where your budget is actually tapped?
    Mr. Bean. I don't know the precise process. My assumption 
is the Fish and Wildlife Service looks to the past as a guide 
to the future, and anticipates based on past experience.
    Mrs. Lummis. OK. At this time I am going to recognize the 
Ranking Member for 5 minutes.
    Mr. Grijalva. Thank you. Mr. Percival, do you agree with 
the statement that was just made, that the ability to file 
citizens suits has made ESA essentially a situation where those 
suits are robbing species--that we are robbing species 
protection to pay for litigation, and pay attorney's fees?
    Mr. Percival. No, definitely not. Citizen suit provisions 
are sometimes the only lawyer the species has, if it is not 
adequately being dealt with, or being ignored by the agency.
    Mr. Grijalva. You know, and just a quick follow-up on 
citizen suits. You know, suing the government is as American as 
apple pie. And the issue is litigation in terms of education, 
voting rights, health care that just went to the Supreme Court, 
where citizens brought that to that court, seeing it as a last 
resort. So it is not a unique situation that we are talking 
about in this instance with ESA. And if you could, just expand 
on that.
    Mr. Percival. It is certainly not unique under American 
law. It is one of the aspects of American law that makes our 
system the envy of the world. In the last several years I have 
done a tremendous amount of work in China, where they have 
immense environmental problems. And the Chinese 
environmentalists realize that the one thing they are never 
going to be able to do is to sue their national government to 
enforce the environmental laws. And that is one aspect of U.S. 
environmental law that they would love to be able to have.
    Mr. Grijalva. Thank you. Ms. Budd-Falen, while you have 
repeatedly challenged the merits of the attorney's fees 
recovered by environmental organizations, in 2001 your firm 
received 100,000 in fees under the New Mexico Cattle Growers 
Association case brought under the Endangered Species Act; 
2005, again, Cattle Growers against Fish and Wildlife, 59,000 
in fees, Section 11(g) of ESA; in 2006, 165,000 in fees, 4,500 
in costs under the Equal Access to Justice Act and the ESA in 
the Nebraska Habitat Conservation. Can you tell this committee 
whether there have been other ESA-related cases, where you 
successfully recovered fees? And how much recovered, either 
under ESA or Equal Access to Justice Act?
    Ms. Budd-Falen. Mr. Grijalva, I believe that you have 
listed the ESA cases. We have settled other cases with regard 
to getting EAJA funds.
    But you are totally mischaracterizing my testimony. I am 
not arguing that the Endangered Species Act citizen suit 
provision should be eliminated. I am not arguing that 
attorney's fees shouldn't be paid under the Equal Access to 
Justice Act. What I am arguing, and what I have offered on 
behalf of every client that I have received fees from is that 
those ought to be transparent to the public. Those fees are 
American taxpayer dollars. And if my clients receive them, the 
public should know. If the Center for Biological Diversity 
receives them, they should----
    Mr. Grijalva. You are saying they should come out of Equal 
Access--that the payments should be capped under the Equal 
Access, right?
    Ms. Budd-Falen. Under the Equal Access to Justice Act they 
are already capped at----
    Mr. Grijalva. I know, and so--not out of the judgment fund.
    Ms. Budd-Falen. That is correct.
    Mr. Grijalva. So, if the cases you litigated are under the 
suit provisions of ESA, that section that is not capped, 11(g), 
were you able to avail yourself of unlimited and unreasonable 
fees, as you claim other litigants under the same provision, in 
citizen suits, are doing so?
    Ms. Budd-Falen. Actually, if you look at the petitions that 
we filed, we requested our regular attorney's fees. My maximum 
hourly rate, as of 2014, is----
    Mr. Grijalva. Well, it is a goose and gander question. 
Because if it is--we are assuming, then, that other 
organizations, whether it be the Center for Biological 
Diversity--are somehow playing the system and not doing the 
practices that you are doing. So, therefore, you are not 
availing yourself of unlimited fees and collections there, the 
assumption can be that potentially no one else is, either.
    Ms. Budd-Falen. I strongly disagree with you. If you look 
at the last attorney's fees request from Earth Justice--maybe 
it wasn't the last, but it was a recent one----
    Mr. Grijalva. OK.
    Ms. Budd-Falen [continuing]. They requested $775 an hour 
for attorney's fees. There is not an attorney in the United 
States worth $775 an hour----
    Mr. Grijalva. Let me just--if I can wrap up, Madam Chair, I 
have similar questions for Mr. Holsinger, relative to his fees, 
and relative to the collection of those fees, including a thing 
yesterday, which was $600 an hour per page, $6,000. I have 
those. I will submit those for appropriate answers following 
the goose and gander scenario that I am trying to ask about. 
Thank you.
    Mrs. Lummis. The gentleman's time is expired. And before 
the Chair recognizes the gentleman from Utah for 5 minutes, I 
would like to ask the staff to put up the chart on the Center 
for Biological Diversity litigation 1990 to present. Thank you 
very much.
    The Chair recognizes the gentleman from Utah, Mr. Bishop.
    Mr. Bishop. Thank you. And you recognized me on the first 
guess, too. I appreciate that.
    We had in the first panel a whole lot of talk about the 
kinds of data that are used. So, Ms. Budd-Falen, if I could ask 
you, first question about data. Are critical habitat 
designations only limited to natural features?
    Ms. Budd-Falen. No, your Honor. Actually, there has--I am 
sorry. I am so used to court.
    [Laughter.]
    Mr. Bishop. And from now on, Grijalva is going to use that 
all the time. I appreciate it.
    [Laughter.]
    Ms. Budd-Falen. Actually, we recently had a decision by the 
U.S. Fish and Wildlife Service on the Chiricahua leopard frog. 
That Chiricahua leopard frog critical habitat designation 
includes manmade stock tanks created by ranchers in the 1930s 
and 1940s. Those ranchers in Arizona are now being told that 
they have to ensure pH and all of these different criteria for 
water tanks that they developed that is now critical habitat. 
Those frogs wouldn't be there, had it been for the ranchers, 
and they are trying to cut the ranchers' ability to use their 
grazing allotments.
    Mr. Bishop. All right, I appreciate that. Let me follow up 
with another question to you on a different track of what the 
second panel is more interested in doing.
    The second--I am sorry. The administration says that it 
wants to explore administrative options to track costs. Why is 
legislation necessary to achieve this, Ms. Falen?
    Ms. Budd-Falen. Because, quite frankly, the administration 
is doing a terrible job at tracking costs, even according to 
the GAO reports that have come out. The GAO reports very 
clearly state the Department of Justice does not clearly track 
these costs. It also stated that, with regard to the USDA and 
the recent report that came out on that, as well as the EPA and 
the GAO report on that.
    And, in my own experience, when we filed a Freedom of 
Information Act request with Department of Justice asking for 
all of the cases filed by a certain environmental group in one 
Federal district court in a certain period of time, when we 
compared the docket sheets with the Federal court database, 
they missed 23 cases.
    Mr. Bishop. OK. So to both you and Mr. Holsinger, does 
anything in H.R. 4316 or the other bill--I can't remember the 
number right now--prohibit litigants from suing the Federal 
Government on ESEA? ESA, I am sorry.
    Ms. Budd-Falen. Absolutely not. And I think the idea that--
claiming that this is somehow harming the citizen suit 
provision is just a red herring, because people are so afraid 
to modernize the ESA.
    Mr. Bishop. Mr. Holsinger?
    Mr. Holsinger. I would echo that. There is absolutely no 
prohibition. And I would liken back to Congressman Grijalva's 
comment that litigation is like apple pie. Well, if that is the 
case, then CBD and Wild Earth Guardians have had 1,366 
servings, and that is outrageous.
    Mr. Bishop. Thank you. And I wish you could do the same 
thing on ESEA, which is another pain I have to bear. But I am a 
teacher, so forget that one.
    [Laughter.]
    Mr. Bishop. Can I--again, to the two of you, Mr. Holsinger 
and Ms. Falen, one of your colleagues there has testified that 
H.R. 4318 discourages lawsuits by reducing taxpayer-financed 
attorney's fees. You have extensive experience with these kind 
of fees. This committee has found instances where environmental 
attorneys have charged the government over $500 per hour. And 
one attorney received exorbitant fees for successfully using 
the ESA to stop construction of an elementary school.
    How do you address the argument that attorneys should not 
live under the same attorney's fee standard as the Equal Access 
to Justice Act?
    Ms. Budd-Falen. Actually, I do not think that there is a 
justification. The Equal Access to Justice Act has the same 
purpose as the fee shifting provisions under the citizen suit 
provision, which is to reimburse reasonable attorney's fees. It 
was not a get-rich-quick, make-a-lot-of-money-for-your-
organization proposition.
    The Equal Access to Justice Act attorney's fees have been 
updated. They are now approximately $200 an hour, considering 
cost of living and all that other kind of requirements. I see 
no reason that an attorney for a veteran should be treated any 
different than an attorney for a tree or a rock.
    Mr. Bishop. All right, thank you. Mr. Holsinger, 30 seconds 
or less.
    Mr. Holsinger. I can say, as an attorney in private 
practice, that my practice is nowhere near as lucrative as some 
of the outrageous fees that we have heard about today.
    Mr. Bishop. Thank you. And Mr. Bean, I actually had one 
last question for you. Unfortunately, I have 20 seconds, and it 
would have fit better in the first panel anyway, so next time 
you come up here you've got it coming.
    Mr. Bean. Beg your pardon, sir?
    Mr. Bishop. I am sorry. I will save it until the next time 
you come up here.
    Mr. Bean. OK. Thank you, sir.
    Mr. Bishop. Yield back.
    Mrs. Lummis. I thank the gentleman and recognize the 
gentleman from Montana, Mr. Daines.
    Mr. Daines. Thank you, Madam Chairwoman. In Montana, we 
know too well how land management actions by Federal agencies 
are halted, due to habitual litigants. This is all to the 
detriment of responsible resource management and our local 
economies. From providing timely renewals of recreation 
permits, to approving much-needed timber sales, or preventative 
treatments for catastrophic wildfire, Federal agencies spend 
millions of dollars analyzing their decisions to bullet-proof 
them from lawsuits that are then only halted in court.
    You know, in Montana national forests cover about 15 
million acres. That is about 60 percent of the total forested 
acreage in the State. But timber sales on national forests have 
declined by 58 percent since 2009. And, meanwhile, our timber 
mills are obtaining logs hundreds of miles away from their 
mills to keep their business afloat, while their resources 
deteriorate in our Montana forests.
    In fact, I was up in Lincoln County, met with a couple from 
Eureka, Montana at dinner, and they shared with me. They said, 
``We describe this part of the State any more as poverty with a 
view.'' The poverty rates in our forested counties in Montana 
are well above the State average. In fact, in Lincoln County, 
75 percent of the ground up there is owned by the Federal 
Government, and the unemployment rate is 15.2 percent.
    Now, the Alliance for the Wild Rockies, one of these 
environmental groups that file lawsuits, they filed an 
injunction of timber sale in the Little Belt of Montana, based 
on the lynx habitat impact. This sale could have provided logs 
to a mill in Montana.
    The more resources spent on analyzing decisions, fighting 
in court, not only waste taxpayer dollars, but reduces the 
value of the resource, and kills jobs in rural communities. 
Additionally, after these decisions are made, the taxpayers 
foot the bill for the attorney's fees. In fact, the Alliance 
for Wild Rockies challenged the Cabin Gulch Vegetation 
Management Project, a project intended to treat beetle-infested 
trees. These are trees that have died in the Big Belt Mountains 
in Montana. This 9th Circuit that is referred to here on the 
screen, the 9th Circuit Court judge upheld the Forest Service 
actions--upheld the Forest Service actions--in 11 of the 12 
counts. But they halted the project, due to potential impact on 
lynx habitat.
    And then here is what happened, to add insult to injury. 
The Federal judge awarded 100 percent of the attorney's fees, 
requested at a rate in excess of the normal fee, despite the 
Forest Service challenge. The court paid $300 an hour, instead 
of the standard Montana rate of $220 an hour. And although the 
Forest Service prevailed in 11 of the 12 counts--that is not 
too bad a batting average--the Forest Service must now pay 
$72,000 in attorney fees. Those are taxpayer dollars.
    Karen, maybe we could start with you. Could you tell me 
what effect does litigation and attorney's fees, pay-outs, have 
on actual species recovery?
    Ms. Budd-Falen. Absolutely none. The problem is the money 
isn't going to on-the-ground projects or on-the-ground 
improvement for the species. It is simply going to pay 
attorneys to file more litigation to stop more projects that 
are happening on the ground.
    Mr. Daines. Mr. Holsinger, you know, we are making some 
pretty rich apple pies up there in Montana, based on your 
analogy there. Could you comment on that?
    Mr. Holsinger. Yes, Congressman. I would echo Ms. Falen. I 
have personal knowledge of working with the Upper Colorado 
River Recovery Program, an effective program to help recover 
and de-list species in the Colorado River. They were faced with 
litigation filed against them, much like we are talking about 
today. And I can tell you that tied them up for years in 
responding to the document requests and the huge burdens of 
litigation. It prevented them from doing their jobs, which were 
to try to recover the listed fish in the Colorado River. I am 
sure that plays over time and time again.
    And I am, frankly, mind-boggled. I have a great deal of 
respect for Mr. Bean. I am stymied that he would devote only a 
sentence of his oral remarks on this litigation issue. And, Mr. 
Rauch, who I did not know until today, as far as I could tell, 
virtually ignored it.
    Mr. Daines. I have to tell you. I was at a mill recently in 
southwest Montana, and we only have 9 timber mills left in 
Montana; we used to have 30. Working with these hard-working 
Montanans, they are looking at having to go 450 miles away for 
a timber sale right now, out of State and, by the way, outside 
the 9th Circuit jurisdiction, to get logs.
    As we are having this conversation, looking at a hillside 
of dead trees on national forests, killed by beetles, next to a 
hillside that had been wiped out by a forest fire that we still 
have recoverable timber, and we couldn't go up there and 
harvest it, and having to travel over 500 miles to get logs to 
supply the mill--I see my time is up, Madam Chairwoman.
    Mrs. Lummis. Yes, the gentleman's time is expired. We will 
have a second round. Each Member will be asked to limit 
themselves to one question. The Chair recognizes herself.
    There has been a lot of concern expressed on the first 
panel about how data transparency might jeopardize proprietary 
data. And we know that medical and other scientific fields have 
dealt with the issue of proprietary data versus transparency 
for non-proprietary data and protected personal data.
    Ms. Budd-Falen, have voluntary efforts to conserve the 
sage-grouse, including candidate conservation agreements, been 
undermined by the reluctance of the Federal Government to 
protect proprietary data in the case of land owners' personal 
data?
    Ms. Budd-Falen. Absolutely. And I find that a totally 
fascinating subject here, because you have the Federal agencies 
on one hand, saying that we have to protect all this data on 
which the decisions are made, yet, for example, on the sage-
grouse CCAA in Oregon that we are trying to do, the Fish and 
Wildlife Service is saying that if a land owner signs up to 
voluntarily do species protection, that all of his data is 
subject to FOIA, and that that can go out.
    And so, it really seems a conflict to me. And the idea that 
the Fish and Wildlife Service just voluntarily gives this data 
is truly laughable to a lot of us, because under FOIA is the 
only way that you know that you get all of the information in 
data. When they just voluntarily release it, you have no idea 
if they are cherry-picking the data, or if they are cherry-
picking the information.
    And so, to say that the current system is working with 
regard to the release of data is simply not correct and not 
transparent at all.
    Mrs. Lummis. Thank you. The Chair's time has expired. The 
Chair recognizes the Ranking Member, Mr. Grijalva.
    Mr. Grijalva. Thank you, and the issue of proprietary is 
confusing to me. The fluids and chemicals used in fracking are 
proprietary. And, therefore, that shouldn't be released. But 
data that somebody might consider proprietary in ESA, that 
shouldn't be protected.
    Anyway, Mr. Percival, what authority--third factor in this 
discussion. What authority do the Federal courts have to ensure 
that attorney fees, awards are reasonable, and only provided 
when appropriate under the citizen suit provision of ESA? And 
are the Federal courts vigorous in vetting that process?
    Mr. Percival. Yes, it is definitely the case that the 
Supreme Court in the Ruckelshaus case, as I mention in my 
testimony, said that before any party could be eligible for an 
attorney's fee they had to be a prevailing party. And that 
means you have to win some aspect of the lawsuit before you can 
even be eligible to apply for the attorney's fees.
    Then, the standard for receiving attorney's fees under the 
attorney's fees shifting provision of the Endangered Species 
Act requires that the court determine that the fee is 
reasonable. So, in each of these cases where attorney's fees 
awards have been made that some are touting as outrageous, you 
had a member of the independent, neutral, Federal judiciary 
determining, based upon an assessment of the amount of work and 
skill that went into the litigation, that that fee award was 
reasonable. And those are very important safeguards that ensure 
that fee awards are not outrageous windfalls to plaintiffs who 
bring non-meritorious litigation.
    Mr. Grijalva. Thank you. Yield back, Madam Chair.
    Mrs. Lummis. I thank the Ranking Member. The gentleman from 
Utah is recognized for one question.
    Mr. Bishop. Thank you. I have a three-parter.
    [Laughter.]
    Mr. Bishop. I am sorry. Mr. Bean, I have a chance to ask 
you the question, after all. So, during the hearing last August 
I was able to ask Director Ashe if it would be both possible 
and preferable that actual data be used for ESA decisions that 
affect both species and people, and should be available for 
everyone to see online and on the Internet. And he answered, 
clearly, yes. That is the verbiage that is up there.
    So, for A, just for the record, I would like to get--is 
your answer yes or no to that same question?
    Mr. Bean. I would answer the same way.
    Mr. Bishop. OK. So then, B, I further asked Mr. Ashe, then, 
that the Fish and Wildlife Service would look at the very 
questionable data that was referenced in a letter from Fish and 
Wildlife to the State of Utah relating to the greater sage-
grouse, namely relating to tall structures, buffers, and 
disturbance limits. The concern for many of the States, 
including Utah, was intensified last week when Secretary Jewell 
alluded to a scenario where 40 regulations might be used in the 
event the sage-grouse is listed.
    So, instead of that, why shouldn't the Department of the 
Interior simply make good on its stated purpose of endorsing 
the State plans, and keep it off list in the first place?
    Mr. Bean. The Fish and Wildlife Service has made no 
decision about whether the sage-grouse will go on the list or 
not. I will not make that decision, will not propose a 
decision, until September of 2015.
    Mr. Bishop. All right. Then, in that case, my question is 
rhetorical, and obviously, preferable than doing the 4(d) 
speculation that could be taking place. States have done a 
great job, they need to have their data there.
    And my part C, I need to ask if the Chairlady would be kind 
enough to tell me what my part C is.
    Mrs. Lummis. Oh, I thank the gentleman. Part C would be 
addressed to the gentleman from Denver regarding why the 9th 
Circuit is the preferred circuit for the Center for Biological 
Diversity and other environmental litigants.
    Mr. Bishop. I knew that.
    [Laughter.]
    Mr. Holsinger. Thank you, Madam Chair, Congressman. You 
know, one can only speculate, but it is commonly known that the 
9th Circuit is the most commonly over-turned circuit in all of 
the U.S. court system. I think these litigants are picking 
their venues.
    Mr. Bishop. With that, I yield back.
    Mrs. Lummis. I thank the gentleman. And I thank the panel. 
This has been a productive hearing. It follows a year's worth 
of hearings to develop the legislation that you see before you. 
And I appreciate the panel's feedback on the legislation you 
see before you, now that it has been drafted.
    As I mentioned before, Members will have additional 
questions for witnesses, possibly, and we ask that you respond 
to these in writing. The hearing record will be open for 10 
business days to receive these responses.
    Now, with our tremendous gratitude to the people who are 
here today--because we know how much time it takes to get to 
Washington and to prepare the testimony you have presented 
today--we want you to know we are extremely grateful for your 
input. If there is no further business, without objection, the 
committee stands adjourned.
    [Whereupon, at 12:43 p.m., the committee was adjourned.]

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