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




 
                  EXAMINING THE ENDANGERED SPECIES ACT

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

                                HEARING

                               before the

                     SUBCOMMITTEE ON ENERGY POLICY,
                      HEALTH CARE AND ENTITLEMENTS

                                 of the

                         COMMITTEE ON OVERSIGHT
                         AND GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                           FEBRUARY 27, 2014

                               __________

                           Serial No. 113-107

                               __________

Printed for the use of the Committee on Oversight and Government Reform


         Available via the World Wide Web: http://www.fdsys.gov
                      http://www.house.gov/reform


                                 ______

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              COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

                 DARRELL E. ISSA, California, Chairman
JOHN L. MICA, Florida                ELIJAH E. CUMMINGS, Maryland, 
MICHAEL R. TURNER, Ohio                  Ranking Minority Member
JOHN J. DUNCAN, JR., Tennessee       CAROLYN B. MALONEY, New York
PATRICK T. McHENRY, North Carolina   ELEANOR HOLMES NORTON, District of 
JIM JORDAN, Ohio                         Columbia
JASON CHAFFETZ, Utah                 JOHN F. TIERNEY, Massachusetts
TIM WALBERG, Michigan                WM. LACY CLAY, Missouri
JAMES LANKFORD, Oklahoma             STEPHEN F. LYNCH, Massachusetts
JUSTIN AMASH, Michigan               JIM COOPER, Tennessee
PAUL A. GOSAR, Arizona               GERALD E. CONNOLLY, Virginia
PATRICK MEEHAN, Pennsylvania         JACKIE SPEIER, California
SCOTT DesJARLAIS, Tennessee          MATTHEW A. CARTWRIGHT, 
TREY GOWDY, South Carolina               Pennsylvania
BLAKE FARENTHOLD, Texas              TAMMY DUCKWORTH, Illinois
DOC HASTINGS, Washington             ROBIN L. KELLY, Illinois
CYNTHIA M. LUMMIS, Wyoming           DANNY K. DAVIS, Illinois
ROB WOODALL, Georgia                 PETER WELCH, Vermont
THOMAS MASSIE, Kentucky              TONY CARDENAS, California
DOUG COLLINS, Georgia                STEVEN A. HORSFORD, Nevada
MARK MEADOWS, North Carolina         MICHELLE LUJAN GRISHAM, New Mexico
KERRY L. BENTIVOLIO, Michigan        Vacancy
RON DeSANTIS, Florida

                   Lawrence J. Brady, Staff Director
                John D. Cuaderes, Deputy Staff Director
                    Stephen Castor, General Counsel
                       Linda A. Good, Chief Clerk
                 David Rapallo, Minority Staff Director

      Subcommittee on Energy Policy, Health Care and Entitlements

                   JAMES LANKFORD, Oklahoma, Chairman
PATRICK T. McHENRY, North Carolina   JACKIE SPEIER, California, Ranking 
PAUL GOSAR, Arizona                      Minority Member
JIM JORDAN, Ohio                     ELEANOR HOLMES NORTON, District of 
JASON CHAFFETZ, Utah                     Columbia
TIM WALBERG, Michigan                JIM COOPER, Tennessee
PATRICK MEEHAN, Pennsylvania         MATTHEW CARTWRIGHT, Pennsylvania
SCOTT DesJARLAIS, Tennessee          TAMMY DUCKWORTH, Illinois
BLAKE FARENTHOLD, Texas              DANNY K. DAVIS, Illinois
DOC HASTINGS, Washington             TONY CARDENAS, California
ROB WOODALL, Georgia                 STEVEN A. HORSFORD, Nevada
THOMAS MASSIE, Kentucky              MICHELLE LUJAN GRISHAM, New Mexico


                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on February 27, 2014................................     1

                               WITNESSES

Mr. Samuel Rauch, Deputy Assistant Administrator for Regulatory 
  Programs, National Oceanic and Atmospheric Administration 
  Fisheries Service, U.S. Department of Commerce
    Oral Statement...............................................     5
    Written Statement............................................     7
Mr. Michael Bean, Counselor, Fish and Wildlife and Parks, U.S. 
  Department of the Interior
    Oral Statement...............................................    11
    Written Statement............................................    13

                                APPENDIX

Opening Statement of Chairman James Lankford.....................    50
Opening Statement of Rep. Lujan Grisham submitted for the record.    52
Feb. 27, 2014, Statement of the U.S. Chamber of Commerce 
  submitted for the record by Chairman James Lankford............    53
Statement of Mr. William L. Kovacs...............................    55
Responses from the Dept. of the Interior to questions by Rep. 
  Speier, submitted for the record...............................    61
U.S. Fish and Wildlife Service Endangered Species information....    66
``Lesser Prairie Chicken; A Technical Conservation Assessment'' 
  Prepared for the USDA Forest Service...........................    70


                  EXAMINING THE ENDANGERED SPECIES ACT

                              ----------                              


                      Thursday, February 27, 2014

                  House of Representatives,
   Subcommittee on Energy Policy, Health Care, and 
                                      Entitlements,
              Committee on Oversight and Government Reform,
                                                   Washington, D.C.
    The subcommittee met, pursuant to call, at 2:47 p.m., in 
Room 2154, Rayburn House Office Building, Hon. James Lankford 
[chairman of the subcommittee] presiding.
    Present: Representatives Lankford, Chaffetz, Walberg, 
Woodall, and Speier.
    Also Present: Representative Lummis.
    Staff Present: Joseph A. Brazauskas, Counsel; Sharon Casey, 
Senior Assistant Clerk; Ryan M. Hambleton, Senior Professional 
Staff Member; Matt Mulder, Counsel; Jessica Seale, Digital 
Director; Jaron Bourke, Minority Director of Administration; 
Courtney Cochran, Minority Press Secretary; and Juan McCullum, 
Minority Clerk.
    Mr. Lankford. Ladies and gentlemen, we are going to go 
ahead and start. I know Jackie is on her way here. We have 
three Members here, so technically we can begin. And I am going 
to do an opening statement, so let me go ahead and get started.
    The committee will come to order.
    I would like to begin this hearing by stating the Oversight 
Committee mission statement.
    We exist to secure two fundamental principles. First, 
Americans have the right to know the money Washington takes 
from them is well-spent. And, second, Americans deserve an 
efficient, effective government that works for them. Our duty 
in the Oversight and Government Reform Committee is to protect 
these rights.
    Our solemn responsibility is to hold the government 
accountable to taxpayers, because taxpayers have the right to 
know what they will get from their government. We will work 
tirelessly in partnership with citizen watchdogs to deliver the 
facts to the American people and bring genuine reform to the 
Federal bureaucracy.
    This is the mission of the Oversight and Government Reform 
Committee.
    I will walk through a quick opening statement, and then I 
will yield the floor to our ranking member to do the same.
    We are here today to discuss the Endangered Species Act, 
which is now in its 40th year. Happy birthday.
    The ESA was enacted to conserve habitats and species that 
are considered endangered or threatened. President Nixon signed 
it into law with the support of 99 percent of Congress. At the 
time, there were high expectations for the Endangered Species 
Act, President Nixon saying this new law will protect an 
irreplaceable part of our national heritage and threatened 
wildlife.
    However, over the years, some flaws of the Endangered 
Species Act have surfaced. There is a significant concern that 
some are using the act to advance other policy goals, such as 
stopping development, instead of for its intended purpose of 
protecting threatened animal and plant species.
    Concerns also abound over whether or not the law gives the 
implementing agencies enough time to properly process the 
candidates for species listing. In one instance, Fish and 
Wildlife Service was asked in a petition to examine 374 
separate aquatic species, all from 1 petition, in the statutory 
90-day timeframe. As a result, the Agency admitted that it was 
only able to conduct cursory reviews of the information in 
their files and the literature cited in the petition.
    This put the Agencies in a very difficult position: Process 
the enormous work brought in by a petition within 90 days or 
face a lawsuit for missing the deadline from the same groups 
bringing the petition in the first place.
    The mass amount of petitions lead to a transition toward 
sue-and-settle agreements. Whether by choice or not, the 
Federal Government faces lawsuits that are very often settled 
to the financial benefit of environmental groups and their 
lawyers. In many of these cases, States and other affected 
stakeholders are not even aware of the negotiations or what is 
being discussed until they are resolved.
    Also, there have been instances where much of the basis of 
these settlements remains sealed. Thus, communities and 
stakeholders affected by these listings don't have a full view 
of what all occurred. In general, the lack of transparency of 
the data used to justify a species' listing remains a major 
problem. In some cases, data gathered at taxpayer expense has 
not been publicly released.
    Transparency is essential to public faith in government. 
The less information the public has to understand the 
Endangered Species Act and how it is carried out, the less 
support the act will have, and it will be even more difficult 
to process in the future.
    The general success rate of the ESA has also come under 
criticism, as well: only a 2-percent recovery rate of the 
approximately 2,100 species listed on the endangered/threatened 
list since 1973. As I discussed previously, we have seen how we 
get species on the list. However, the above statistic begs the 
question, how do species graduate off the list? Is 2 percent 
enough for success?
    Like all Federal agencies in this time of belt-tightening, 
Fish and Wildlife Service and NOAA Fisheries have finite 
resources. They are spending all their time and resources 
getting species on the list. It is unclear if they are able to 
spend the time necessary and the finances necessary to get 
species off the list, which was the reason this law was passed 
in the first place 40 years ago.
    Some claim that success can be measured by adding species 
to the list, as their prospects will benefit once they get 
there. I hope that is the case. However, the goal of the law 
enacted 40 years ago was to rehabilitate species and to move 
them off the list, not perpetual staying on it.
    If Americans are going to have faith in the Endangered 
Species Act, they need to see how it works and that it works at 
all. Constantly heaping more species on the listings while 
barely moving any off of it will undermine that faith and raise 
questions about the act's effectiveness.
    We also have to deal with the issues of: How do we 
determine if the act is being effective? And when things are 
moved off, are they moved off because of habitat or because of 
population numbers? Are those goals set in advance? And do the 
different communities even know how to have those goals 
achieved at all?
    The ESA is jointly administered by Fish and Wildlife 
Service, the Department of the Interior, the National Marine 
Fisheries Service, and the National Oceanic and Atmospheric 
Administration at the Department of Commerce. I am pleased that 
we have representatives of both agencies here today as 
witnesses, and I thank them for coming and look forward to 
hearing their answers to the subcommittee questions and to the 
conversation we will have today.
    And I recognize our ranking member, Mrs. Speier, for her 
opening statement.
    Ms. Speier. Mr. Chairman, thank you for holding this very 
important hearing.
    And thank you to the witnesses who are here to testify.
    You know, 40 years ago, the Endangered Species Act was 
passed with overwhelming bipartisan support from Congress. As 
President Nixon signed it into law, he said, ``Nothing is more 
priceless and more worthy of preservation than the rich array 
of animal life with which our country has been blessed.''
    The Endangered Species Act, or ESA, has preserved our 
country's rich natural heritage, preventing the extinction of 
99 percent of the plants and animals it protects. Without this 
landmark legislation, scientists estimate that as many as 227 
U.S. species would have disappeared. My own State of California 
would be much poorer without our brown pelicans, our sea 
otters, and our bighorn sheep, all of which were saved by the 
ESA.
    Too often in Congress, the ESA is invoked as some kind of 
legislative boogeyman. My colleagues on the other side of the 
aisle have on occasion been known to imply we would all be 
better off if we didn't have to protect this insignificant bird 
or that ugly flower.
    During the debate over the recovery package in 2009, the 
salt marsh harvest mouse, anendangered species found around San 
Francisco Bay, was blamed for an entirely fictitious spending 
boondoggle. Now, I do not want to find a salt marsh harvest 
mouse inhabiting my kitchen, but when they are living where 
they belong, these lesser-known species act as sentinels for 
the health of our ecosystems. When these species decline, they 
act as an early-warning system for problems that will harm us, 
as well.
    Species like the salt marsh harvest mouse or the endangered 
San Francisco garter snake that also lives in my district 
simply need healthy wetlands. This is a win-win since the 
people of the Bay Area also need healthy wetlands to filter out 
pollution, buffer homes and businesses from storm surge and 
floods, and support thousands of fishing, tourism, and 
recreational jobs around the bay. This holds for other 
threatened ecosystems, too, from the heights of the Sierra 
Nevada to the Great Plains shortgrass prairie.
    The ESA is also protecting future technological and 
biomedical advances. Bacteria found in a hot spring in 
Yellowstone National Park led to the discovery of an enzyme 
that underpins all basic genetic research and forensic 
techniques. Protein from a jellyfish supports advances in 
almost every aspect of biomedical science.
    To be clear, the bacteria and jellyfish that I mentioned 
are not listed under the ESA. But we do not know where the next 
discovery might come from. An endangered species could lead to 
the next medical breakthrough. By preventing extinction, the 
ESA preserves a natural medicine chest for the coming 
generations.
    Frequently, the ESA is blamed for tying up the courts in 
wasteful litigation. My colleagues on the other side of the 
aisle claim that the Department of Justice litigates an average 
of at least three cases a week dealing just with citizen suits 
under the ESA. However, Department of Justice data shows that 
civil litigation filed by industry and nonprofit organizations 
is far less than that rate. A hundred and nineteen lawsuits 
were filed in 2009, 111 in 2010, 57 in 2012, and only 23 
through April 2012.
    Let's stick to the facts. The implementation of the ESA has 
not been perfect. ESA programs have been chronically 
underfunded. The fiscal year 2013 appropriation approved by 
Congress for endangered-species work at the Fish and Wildlife 
Service was $45.7 million less than the administration's 2013 
request. This has led to a substantial backlog of candidate 
species which continues to decline, making recovery more 
difficult and expensive.
    Species also can't recover if there is no place for them to 
live. Since the passage of the ESA in 1973, 25 million acres of 
land have been converted from undeveloped to developed and 22 
million acres have been converted from forested to nonforested, 
areas roughly the size of Virginia and South Carolina 
respectively. But the answer to the limited resources is 
cooperation and coordination, not rolling back protections for 
vulnerable species.
    You know, when I was on the Board of Supervisors in San 
Mateo County way back in the 1980s, I helped to develop what 
was then called the Habitat Conservation Plan. It was the very 
first in this Nation, and it was an experiment, in part. But we 
had endangered butterflies: the Mission Blue, the San Bruno 
Elfin, and the Callippe Silverspot. They were inhabiting an 
area where a developer wanted to build homes. So we came up 
with a habitat conservation plan, created an opportunity for 
all of those endangered species to live and to thrive, and were 
able to build homes as well.
    So we worked with the developer and with the environmental 
community to achieve both housing and habitat conservation. 
These are the kinds of win-win situations that the ESA can help 
facilitate when we commit to protecting species instead of 
arguing about whether species should be protected.
    Thank you, Mr. Chairman, and I yield back the balance of my 
time.
    Mr. Lankford. I would love to discuss at a future date how 
local leadership could make decisions about how to protect 
species, as well. So we will continue that maybe throughout the 
course of the day, as well.
    Members will have 7 days to submit opening statements for 
the record.
    Mr. Lankford. We will now recognize our first and only 
panel of the day today.
    Mr. Sam Rauch is the--it is ``Rauch,'' right? Okay, I said 
it wrong the first time--Rauch is the Deputy Assistant 
Administrator for Regulatory Programs at the National Oceanic 
and Atmospheric Administration's National Marine Fisheries 
Service in the Department of Commerce. It is a very long 
business card, by the way.
    Mr. Michael Bean is the Counselor to the Assistant 
Secretary for Fish and Wildlife and Parks at the Department of 
the Interior.
    Gentlemen, thank you both for being here. Look forward to 
our conversation.
    And pursuant to committee rules, all witnesses are sworn in 
before they testify. So if you would please stand, raise your 
right hand, please.
    Do you solemnly swear or affirm that the testimony you are 
about to give will be the truth, the whole truth, and nothing 
but the truth, so help you God?
    Thank you. You may be seated.
    Let the record reflect the witnesses have answered in the 
affirmative.
    In order to allow time for discussion, I would like you to 
limit your initial testimony to 5 minutes. You have a clock in 
front of you there. Your entire written statement--thank you so 
much for submitting that--will be a part of the permanent 
record. And then we will go into a dialogue from that point.
    Mr. Rauch?

                       WITNESS STATEMENTS

                   STATEMENT OF SAMUEL RAUCH

    Mr. Rauch. Good afternoon, 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 National Marine Fisheries 
Service. We co-administer the ESA with the Fish and Wildlife 
Service.
    The purpose of the Endangered Species Act is to conserve 
threatened and endangered species and their ecosystems. 
Congress passed this law on December 28th, 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 Services has recently 
delisted the eastern population of Steller sea lion. This is 
the first delisting that has occurred because of recovery for 
the National Marine Fisheries Service since 1994 when we 
delisted the now-thriving eastern population of Pacific gray 
whales.
    Actions taken under the Endangered Species Act have also 
stabilized and 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, more than twice the 10-year 
average.
    Recovery of threatened and endangered species is a complex 
and challenging process. We engage 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 enlisted species or its designated 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; tribes; 
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 $1.02 
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 our 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 to and care for stranded marine mammals.
    The National 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.
    Thank you again for the opportunity to discuss 
implementation of the Endangered Species Act, and I am 
available to answer any questions you may have.
    Mr. Lankford. Thank you, Mr. Rauch.
    [Prepared statement of Mr. Rauch follows:]

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    Mr. Lankford. Mr. Bean?

                   STATEMENT OF MICHAEL BEAN

    Mr. Bean. Thank you, Mr. Chairman, Ranking Member Speier, 
members of the committee. It is a pleasure to appear before 
you. My name is Michael Bean. I am Counselor for Fish and 
Wildlife and Parks at the Interior Department.
    Rather than read my statement, sir, I would like to simply 
summarize what I think are some of the key points for you.
    Congress set an ambitious goal when it passed the 
Endangered Species Act, and that was simply to halt the slide 
toward extinction and to provide a more secure future for the 
wildlife and plant life that comprise our Nation's natural 
heritage. And, to perhaps a surprising degree, it is working.
    A recent example that I included in my testimony concerns 
the Oregon chub, a fish, one of four species that the Fish and 
Wildlife Service in this month has proposed to delist from the 
endangered species list. I want to note three aspects of that 
particular fish and its recovery that I think are noteworthy.
    First, that the listing and recovery of that fish generated 
little controversy. There were no major headlines, there were 
no major conflicts. Like most endangered species, the work that 
was done to recover it was done in a way that was both 
successful and generated few conflicts.
    Secondly, the recovery of that species benefited greatly 
from the help of private landowners who took advantage of new, 
administratively created mechanisms to work with the Fish and 
Wildlife Service to cooperate in conserving that fish. Those 
agreements, called safe harbor agreements, are the same sorts 
of agreements that ranchers in Texas have used to help 
reintroduce the Aplomado falcon to that State after an absence 
from the U.S. of more than 50 years. Those same safe harbor 
agreements are akin to the ones that over 300 forestland owners 
in the Southeast, including some 28 forestland owners in 
Georgia, Mr. Woodall's State, who are in effect laying out the 
welcome mat on their property for an endangered species, the 
red-cockaded woodpecker. And as a result of their efforts, that 
species is growing in numbers on private land for the first 
time in a very long time.
    The third thing I want to note about the Oregon chub 
recovery is that it took over 2 decades to happen. And that is 
actually rather speedy, because, unfortunately, for many 
endangered species, by the time we start efforts to conserve 
them, they are so reduced in numbers that the prospects of 
recovering them will inevitably take a very long time.
    I will give you a few examples: the whooping crane. This 
country has, since the mid-1940s when the numbers of that bird 
were fewer than 20, been engaged in a steadfast effort to 
recover it. And that has been successful, although it has taken 
some 70 years. We now have a wild population of roughly 400 or 
so whooping cranes in 3 populations, 2 of which were created 
through conservation actions.
    The California condor, in Ms. Speier's home State and is 
now also in Utah and Arizona due to a translocation effort, is 
a species that, like the black-footed ferret, was once extinct 
in the wild. That is to say, all the wild specimens were gone. 
The only specimens of those two species that survived were in 
captivity. And those two species became the subject of 
successful reintroduction--captive rearing and reintroduction 
programs. They are both now reintroduced in the wild. They are 
both reproducing in the wild. They both have a better shot at 
recovery than ever in their history.
    These and other examples of clear progress being made show 
that recovery is possible, even for species that only a few 
decades ago seemed to face inevitable extinction.
    A few lessons that I draw from these experiences are: 
First, don't wait until species are in extremis. Get started 
early. That is when you have the best chance and you have the 
most options to succeed.
    And, secondly, take advantage of what I argue will be the 
inherent flexibility of the Endangered Species Act to craft 
innovative solutions, like the safe harbor agreements I have 
described; like the candidate conservation agreements that have 
made possible the decision not to list the dune sagebrush 
lizards in Texas; like the experimental population provisions 
of Section 10(j) of the act that have helped restore both the 
whooping crane and the California condor; and like the 
flexibility provided through Section 4(d) of the Endangered 
Species Act to tailor requirements to the needs of threatened 
species.
    If we can learn from these lessons and if we can heed 
Congress' own admonition when it passed this law to temper our 
economic growth and development with adequate concern and 
conservation, then we can continue to make progress in 
reversing the slide toward extinction and getting on the road 
to recovery.
    Thank you, sir.
    Mr. Lankford. Thank you.
    [Prepared statement of Mr. Bean follows:]

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    Mr. Lankford. I recognize myself for a line of questioning.
    As I mentioned to both of you in advance, we will do the 5 
minutes of questioning, and then when we get into our second 
round we are going to open it up for more open colloquy.
    Let me just ask a couple quick questions. Species at this 
point, how are they identified for concern? I know that is not 
an official term, but how does the initial process come out in 
both of the agencies to say, we now recognize this species as 
something we need to look at closer? Can you tell me the 
process of how it gets into that?
    Mr. Bean. I would be happy to give an answer to that to 
start.
    Two ways the Fish and Wildlife Service addresses species 
that may be in need of the act's protection. First, the Service 
itself sometimes generates its own priorities of species based 
on the information it has----
    Mr. Lankford. So I am asking, where is that information 
coming from?
    Mr. Bean. Oh----
    Mr. Lankford. So you don't have a population count of every 
species of plant and animal and fish in North America, I would 
assume, that there is not some such listing somewhere, correct?
    Mr. Bean. That is correct. Instead, what----
    Mr. Lankford. Then there has to be some way to be able to 
identify a certain plant, fish, or animal to say, okay, this is 
something we want to look at.
    Mr. Bean. Yes. There are a variety of published and 
unpublished studies about the status of species. Certainly, 
every State has a fish and wildlife agency that tends to keep 
careful track of the trends of species in the State. And the 
Fish and Wildlife Service utilizes and accesses that 
information to determine whether any of those species may be 
declining or facing threats that warrant protection of the act. 
So that is a very common mechanism.
    Secondly, the act provides for citizen petitions, and any 
person can petition the Fish and Wildlife Service to consider 
for listing a species. And if the petition presents substantial 
evidence, the Service then does a status review to determine, 
based upon all the evidence that is available from all sources, 
whether a proposal to list is appropriate.
    Mr. Lankford. Okay. I am going to a couple quick questions, 
and then we will move on to Mr. Rauch on that, as well.
    What percentage do you think come from State agencies that 
are saying that there is a concern here? And what percentage of 
those currently--and you can take the last couple years. And I 
know it is going to be an estimate. What are coming from State 
agencies identifying and what are coming from citizen 
petitions?
    Mr. Bean. We have in the last several years been heavily 
weighted toward citizen petitions. As you noted in your opening 
statement, we have received some petitions to list multiple 
species, and those have occupied the great majority of the 
attention of the Fish and Wildlife Service.
    Mr. Lankford. So, in the past, if you go back, were the 
species that were citizen suits coming, they would bring one or 
two species at a time, and you have seen a trend difference, 
where now they are bringing hundreds at a time?
    Mr. Bean. We, beginning 5 or 6 years ago, began to receive 
multi-species petitions, which were atypical prior to that.
    Mr. Lankford. I know Ms. Speier had mentioned that the 
number of lawsuits is dropping dramatically, but you are saying 
the number of species included in each of those lawsuits, in 
those petitions, seem to be much higher?
    Mr. Bean. I am not talking about lawsuits, sir. I am 
talking about petitions.
    Mr. Lankford. Okay. So the actual petition to request to 
get into it, you are seeing this big jump of the number?
    Mr. Bean. There have been a few large petitions that have 
required a fair amount of attention from the Fish and Wildlife 
Service because of the number of species protected.
    Mr. Lankford. Okay. So how many do you think right now of 
the citizen petitions that are sitting out there that citizens 
have brought in the last couple of years even? Are we talking 
200? Are we talking 700?
    Mr. Bean. Species subject to petition?
    Mr. Lankford. Yes.
    Mr. Bean. I don't have that number. It is probably in the 
hundreds, but I don't have a precise number.
    Mr. Lankford. Okay. So we have 2,100 total that are 
currently threatened or endangered at this point, and we are 
having hundreds coming in citizen petitions at this point 
asking to be listed in additional?
    Mr. Bean. Yes. A petition does not mean a species will 
become listed.
    Mr. Lankford. Correct. But it starts your review process.
    Mr. Bean. It starts the review process, that is true.
    Mr. Lankford. Okay.
    Mr. Rauch--thank you, by the way.
    Mr. Rauch, what is the process for you all?
    Mr. Rauch. Thank you, sir.
    We follow much the same process that the Fish and Wildlife 
Service follows by looking at different sources of information. 
The petition process in recent years has largely driven our 
listings.
    But before we get to the listing process, we do maintain a 
species-of-concern list, which we look at--as Mr. Bean said, 
the time to act to protect these species, when you can do it at 
the least cost to the greatest effect, is before they get 
critically imperiled. And so the point of our species-of-
concern list is it identifies issues where we can work with the 
States and our partners well before the Endangered Species Act 
kicks in to try to deal with that.
    The one difference between us and the Fish and Wildlife 
Service is we do maintain a series of marine surveys of marine 
life in Federal waters, and oftentimes our own surveys can feed 
into some of our analysis.
    Mr. Lankford. So it is not necessarily a State bringing 
species that are specific to that. It is more often your own 
population counts. Because that is what I am trying to 
determine; how do they get on this species of concern? It is 
something you are tracking, a certain number in a population?
    Mr. Rauch. That is something that we track. I am not aware 
that a State has petitioned us in recent memory.
    Mr. Lankford. Okay.
    Then the big question we will deal with as we come through 
this is obviously getting on and then it is a matter of getting 
off in the process.
    And I want to yield to my ranking member, Mrs. Speier, for 
her questioning.
    Ms. Speier. Thank you both for your service and for your 
participation here today.
    I guess I would love to have an understanding of how we can 
measure the success of the Endangered Species Act. Some might 
suggest that you have to either prevent extinction or you have 
to delist a species to show that there has been some kind of 
success.
    And, as you have mentioned, in many cases, they don't even 
get to the list until they are truly almost extinct, which 
makes it that much more difficult to recover. And I am 
thinking, in part, of the bald eagle and the American alligator 
and their status.
    So I guess to each of you I would like to ask you, what 
would you count as success?
    Mr. Bean. I would be happy to begin. Thank you for the 
question.
    Clearly, the examples that I gave earlier of the California 
condor, the whooping crane, the black-footed ferret, we are 
making extraordinary progress in giving those species a more 
secure future. But they are still endangered, and they will 
remain endangered probably for many more years. And so anyone 
who suggests that that is a failure, because they have not been 
recovered yet, is really blind to the major progress that has 
been accomplished. So, for me, I think an important indicia is 
simply: Are they more secure? Are they more abundant? Are they 
more widespread? Have the threats to them been reduced?
    Clearly, we would like to get and hope to get and intend to 
get to a point where we can take these species off the list 
because they are no longer endangered. But, as I suggested in 
my testimony, that is often a very long process, and what is 
important is that we make progress over the course of the 
years, as we have done for a great many of these species.
    Ms. Speier. Mr. Rauch?
    Mr. Rauch. For the Fisheries Service, the Marine Fisheries 
Service, we currently have 94 species on the list that our 
Fisheries Service is managing. Of those, only one of them has 
gone extinct over the time, and it may well have been extinct 
at the time of listing in 1973.
    Since then, we do measure our success in terms of the 
number of stable or increasing populations. The species are 
critically imperiled, and many of them are in a steep decline 
at the time that they are listed. If we can stabilize them at 
all, that is a sign of success. And the majority of our species 
are either stable or increasing. We only have a few of those 94 
that still are exhibiting a decline.
    And so I think that is how we--that is how we measure our 
success at this point. I would love to measure it in terms of 
more recovered species, like the Steller sea lion that we just 
did, but, as Mr. Bean said, that is a long process.
    Ms. Speier. So, of these citizen petitions, how much time 
is afforded the review of these petitions?
    I think, Mr. Rauch, you indicated that most of your 
listings now come from citizen petitions, not from anywhere 
else. So is that a lion's share of the time that you spent 
doing your work, is reviewing these petitions?
    Mr. Rauch. No. We do spend a substantial amount of time 
reviewing petitions, and most of our listing work does come 
through the petition process. But we spent a substantial amount 
of resources working on recovery. I listed at the beginning 
some of the resources working on salmon recovery in the western 
United States. We have made great strides in recovering monk 
seals and right whales. All of that is done post-listing.
    And so, I don't have a breakdown. We don't calculate our 
resources in terms of how much time on listings versus others. 
But we do spend a substantial amount of resources and time on 
recovery efforts.
    Ms. Speier. Let me just spend a couple minutes on habitat 
conservation plans, since I cut my teeth on them decades ago. 
How many are there in the country now?
    Mr. Bean. I don't have a precise number, but it is well 
over 500.
    Ms. Speier. Is that right.
    Mr. Bean. Yes. And they have been very widely used in 
California, they have been widely used by other local 
governments as a way of integrating concerns about endangered 
species with local land-use planning decisions. And they have 
been quite successful, particularly in California, but they are 
increasingly in use elsewhere, as well.
    Ms. Speier. Now, how do they compare to the safe harbor 
agreements?
    Mr. Bean. Well, habitat conservation plans, as you know 
from your experience in San Mateo County, are designed for 
situations in which there is some development or other project 
that is planned that is going to cause some degree of harm to 
an endangered species. And what those plans do is to offset 
that harm with a mitigation program, typically by protecting 
certain lands from development.
    Safe harbor agreements are intended for landowners who are 
willing to voluntarily do things that improve or create or 
restore habitat on their land, thus attracting endangered 
species to it, or hopefully attracting endangered species to 
it, or allowing species already there to expand. And those 
agreements protect those landowners from any additional 
regulatory burden for having laid out the welcome mat on their 
land for endangered species.
    So that is the key difference.
    Ms. Speier. Thank you.
    My time has expired.
    Mr. Lankford. Thank you.
    I recognize the gentleman from Utah, the home of the Utah 
prairie dog, Mr. Chaffetz.
    Mr. Chaffetz. I thank the chairman. We will have to get you 
such a shirt. You will enjoy it.
    Mr. Bean, you are obviously a very accomplished individual. 
Where did you grow up?
    Mr. Bean. I grew up in a small town in Iowa.
    Mr. Chaffetz. Oh, very good. And at some point, I am sure, 
you will look towards retirement, way, way in the future. Where 
would--do you have any idea where you might retire?
    Mr. Bean. I haven't the foggiest.
    Mr. Chaffetz. My guess is it is probably not in Utah, 
right?
    Mr. Bean. Utah is a great place. I would consider it.
    Mr. Chaffetz. Oh, well, thank you.
    I guess one of the things we are concerned about is Utahans 
feel like they have lived there--they have lived there for 
generations, they will live there in the future. They want what 
is best for the land, and wildlife is part of that.
    Why is it that there is so much resistance to taking State 
data and information under consideration when you are making 
these types of decisions?
    Mr. Bean. Respectfully, sir, I don't think there is much 
resistance to taking State data. I think the Fish and Wildlife 
Service routinely uses information from the States in making 
its decisions.
    Mr. Chaffetz. We don't feel like that in Utah, quite 
frankly.
    Let me ask you this. The 2010 decision by Fish and Wildlife 
Service that the greater sage grouse warrants an ESA listing 
was based, as I understand it, on a 2009 taxpayer-funded Fish 
and Wildlife Service study. The study was cited 62 times in the 
listing decision, yet the data used in the study has still not 
been made publicly available. Do I have that right?
    Mr. Bean. I don't know whether you have it right or not. I 
do know as a general matter that some of the underlying data 
for studies that the Fish and Wildlife Service relies upon is 
not publicly available.
    Mr. Chaffetz. Why not?
    Mr. Bean. Because the--as I understand it, because the 
researchers who collected that data have it as a proprietary 
source of data.
    Mr. Chaffetz. Isn't that patently unfair? You are making a 
decision that affects people's lives and dramatically affects 
their way of living, and yet they can't see it?
    Mr. Bean. Well, sir, the decision made in 2010 was not a 
decision to list the species. It had no effect upon anyone's 
life. There will be a decision forthcoming about whether to 
list----
    Mr. Chaffetz. It is going to be part of the decision-making 
process, is it not?
    Mr. Bean. Well, there will be a decision made in 2015 on 
the sage grouse----
    Mr. Chaffetz. And they are going to rely upon some of that 
data, right?
    Mr. Bean. Well, I don't know.
    Mr. Chaffetz. But why can't we look at it? I mean, 
taxpayers paid for it.
    Mr. Bean. It is not as though the Fish and Wildlife Service 
is withholding it. The Fish and Wildlife Service doesn't have 
it to give, as I understand.
    Mr. Chaffetz. Who paid for it?
    Mr. Bean. I don't honestly don't know.
    Mr. Chaffetz. The taxpayers. Taxpayers paid for it. Why 
can't we see the information? It is not about some North Korean 
nuclear bomb that the military is--we are talking about data 
that should be made publicly available.
    Mr. Bean. Sir, I can tell you that I am currently aware 
that the Fish and Wildlife Service is working quite closely 
with the State of Utah. Mr. John Harja, representing Governor 
Herbert, is involved on a regular basis in dialogue with 
respect to Utah's efforts to protect the sage grouse. And any 
information from Utah or other sources relevant to whether that 
species should be listed will be fully taken into account by 
the Service, I can assure you of that.
    Mr. Chaffetz. It seems to be a one-way street. And it 
shouldn't be. We have spent time with Mr. Harja. He is a very 
good, talented individual. I don't feel like there is a good, 
two-way communication.
    This is a taxpayer-funded study with data and information 
that we should be able to review and challenge. That is part of 
the open and transparent process where we are ultimately going 
to make some sort of decision.
    I am running short of time here. I really don't understand 
the philosophy behind this. I don't think it is fundamentally 
fair. I think you are hiding something. And I think it should 
be made publicly available.
    And if you would please get back to this committee and try 
to articulate why you are hiding this information, we can't see 
it, I would greatly appreciate it, because I really don't 
understand it.
    The other part I want to ask about is, for instance, with 
the prairie dogs, how you count them on public lands but not on 
private lands, but then if they are deemed to get on the list, 
then you have to manage them also on the private lands. Explain 
that philosophy to me.
    Mr. Bean. I think the Fish and Wildlife Service recovery 
plan for the prairie dog relied primarily upon recovering the 
species on public lands. And that was done, I believe, in part, 
in recognition of the fact that, for the most part, private 
landowners regard the Utah prairie dog as not a desirable thing 
to have on their lands, and therefore the prospects for 
recovery really depend upon securing its survival on public 
lands.
    Mr. Chaffetz. But when you are assessing--when you are 
assessing how endangered they might be, you don't take into 
account what is on the private property.
    Mr. Bean. Respectfully, sir, I do not think that is 
correct. I think the Fish and Wildlife Service takes into 
account all the prairie dogs in assessing whether or not they 
belong on the list.
    Mr. Chaffetz. All right. Well, that is a question that I 
would like to further explore with you.
    My time is expiring here, but I can tell you in general 
that the good people of Utah, they care deeply about their 
land. They pass this on from generation to generation. It is 
highly offensive when we have people who come in and make 
fundamental decisions about the longevity of the State and 
don't properly, I think, can take into account the State plans. 
The State data is not necessarily used with the consistency we 
would like it to. And it seems to be a one-way street, because 
when we ask for data from the Federal Government in how they 
are making these decisions before they are finally made--
because once they are finally made, it is very difficult--we 
can't get our hands on that information.
    And that is the frustration. And it should be an open and 
collaborative process. I believe the States are in a much 
better position to draw up the plans, come to these 
conclusions, and gather this information.
    But, Mr. Chairman, I appreciate the time. I am well over. 
Yield back.
    Mr. Lankford. Thank you.
    Mr. Woodall?
    Mr. Woodall. Thank you, Mr. Chairman.
    I appreciate you all being here.
    I would encourage you to come look at the great State of 
Georgia when you are thinking about retirement, Mr. Bean. We 
have everything from close proximity to the oceans to close 
proximity to the mountains and wonderful folks and flora and 
fauna in between.
    I have great frustration about these ESA debates that we 
have, because I look around my community and I can't find 
anybody who loves native species more than we do. It is the 
hunters and the fishermen, it is the hikers and the bikers who 
are invested. I share Mr. Chaffetz's observation that I can't 
believe there is anybody in the Nation that cares more about 
preserving the God-given benefits of Utah more than the folks 
who live in Utah.
    Why do you think here 40 years after a bipartisan effort, 
not just bipartisan agreement but really a bipartisan effort, 
to get the ESA passed into law, why are we arguing about it 
instead of celebrating it?
    Mr. Rauch, do you have a--is it obvious to you, from where 
you sit?
    Mr. Rauch. I don't have an opinion on why we continue----
    Mr. Lankford. The light should come on there when you hit 
the ``talk'' button.
    Mr. Rauch. Oh, sorry. Thank you.
    I don't have an opinion about why we continue to argue 
about it. I do think that both services have done in recent 
years a--have undertaken a significant effort to look for 
flexibilities in the current law, to forge partnerships. I 
think we both agree that if you are going to recover the 
species, it cannot be solely on the part of the Federal 
Government acting as a regulatory entity but as a conservation 
partner. And I know that both services have tried in many 
instances to do that. And where we have been able to do that 
successfully, I think it has worked.
    Mr. Woodall. Well, I think about how suspicion gets 
created. And it is very tough to get anything done around here 
without trust, and you need that basis of trust.
    I am an attorney by training, but I look at the lawsuits in 
this area, where attorneys are suing the Federal Government. I 
mean, you are talking about having a partnership with private-
sector entities. I mean, I am just asking us to have a 
partnership with one another as a Federal Government.
    If this is the law of the land, if we are not only 
personally invested as public servants in making this happen 
but personally invested as citizens in making this happen, is 
having the process driven by attorneys rather than by 
individuals, Mr. Bean, a part of what undermines public 
confidence in whether our goal is to preserve species or 
whether our goal is to manipulate a process to achieve yet a 
different goal?
    Mr. Bean. Mr. Woodall, I think that the most successful 
efforts at conservation are ones that are carried out in 
cooperation with the local landowners. And in your State of 
Georgia, as I indicated, many of the landowners in the Red 
Hills area in the southwest part the State are voluntarily 
participating in a Fish and Wildlife Service agreement, known 
as a safe harbor agreement, to improve the habitat on that land 
for red-cockaded woodpeckers and other wildlife. Because, as 
you know, they care a great deal about their land and about the 
wildlife on it. And that has been a remarkably successful 
effort. It has been replicated next-door in South Carolina and 
in Florida.
    So I think that is the best way to do things. And where the 
Fish and Wildlife Service has been able to sit down 
successfully with landowners and strike these agreements, great 
progress is being made. And we are committed to doing more of 
that, just as we have been committed to doing much of it in the 
past.
    Mr. Woodall. Well, but if you and I are invested in getting 
this done, if at a government level we are invested in getting 
this done, and if, as I would ask that we stipulate is true, if 
public trust is being undermined by not just the amount of 
litigation on the issue but the size and scope and direction of 
the litigation on this issue, what would be the harm in 
eliminating attorney-fees recovery, say, here?
    Because, again, we are invested as individuals, we are 
invested as public servants. What if we took that small step to 
say, you know what, let's find the right answers, but let's not 
finance attorneys who might be doing the wrong thing under the 
guise of helping to protect native species that we care so much 
about?
    Any harm in removing those attorney-fees awards today, Mr. 
Rauch?
    Mr. Rauch. I can't speak to that. The Justice Department 
would be better.
    I think that----
    Mr. Woodall. Well, let me just--I mean, you have these 
issues come across your desk. If what you are saying is that 
your job would be much harder to do without private litigators, 
you would know the answer to that. But if private litigators 
are not value-adds here, then it seems, you know, we have 
limited resources, limited opportunities, it is--I know of no 
one better than you to make the determination of whether or not 
this is mission-critical or whether or not this is a case of 
misapplied resources.
    Mr. Rauch. I know that the Fish and Wildlife Service has 
significantly more Endangered Species Act litigation than we 
do. We do have some. We believe that it is--we do devote 
resources to it, but it is not constraining our overall effort 
towards recovery.
    And I am from Georgia, by the way. I was born and raised 
there.
    Mr. Woodall. And will we get you back?
    Mr. Rauch. In the--probably so.
    Mr. Woodall. I am glad to hear it.
    Mr. Rauch. But it was the Ninth District. Sorry.
    Mr. Woodall. We move the lines around frequently. You and I 
may be teammates yet again down the road.
    Mr. Bean?
    Mr. Bean. Congressman Woodall, I am a bit worried I am 
looking older than I am because you are all talking about my 
retirement here already.
    With respect to the litigation, the Fish and Wildlife 
Service is an equal-opportunity defendant. We get sued not just 
by environmental groups, but in the last year or 2 we have been 
sued by the National Association of Homebuilders, by 
Weyerhaeuser Corporation, American Forest Resources Council, 
which is a timber industry group, and numerous others.
    We don't like be sued by anybody, but I will say this: The 
fact that people are looking over our shoulder, our left 
shoulder and our right shoulder, does make us pay careful 
attention to dotting our i's and crossing our t's and getting 
it right as best we can.
    So there is a salutary benefit, as much as I hate to admit 
it, to being sued sometimes, because that forces you to pay 
careful attention to what you are doing. So I think that is 
something that should not be lost sight of.
    Mr. Lankford. Ms. Lummis?
    Mrs. Lummis. Mr. Bean, have you ever been the one who was 
looking over the agency's left shoulder?
    Mr. Bean. I have certainly been one who has closely 
followed the agency's implementation of the Endangered Species 
Act, yes.
    Mrs. Lummis. Were you the director of wildlife conversation 
at the Environmental Defense Fund from 1977 to 2008?
    Mr. Bean. Yes, I was.
    Mrs. Lummis. During those years, was the Environmental 
Defense Fund party to at least 138 lawsuits, most of them 
against the Federal Government and some involving the 
Endangered Species Act?
    Mr. Bean. To my recollection, during the time I was there, 
there were two or three lawsuits involving the Endangered 
Species Act.
    Mrs. Lummis. Has the Environmental Defense Fund been 
involved in any litigation that was ESA-related since then, 
since you joined the administration?
    Mr. Bean. Not to my knowledge.
    Mrs. Lummis. Has it been party to almost 90 lawsuits 
against the Federal Government?
    Mr. Bean. Since I left, I have no idea what has happened 
since I have left.
    Mrs. Lummis. Do you know what year the gray wolf met 
Federal recovery goals in Wyoming?
    Mr. Bean. I don't know the precise year, but it was some 
years ago, yes.
    Mrs. Lummis. It was 2002. So here we are, 11 years, 
numerous lawsuits later. The Fish and Wildlife Service proposed 
national delisting in June 2013, correct?
    Mr. Bean. I believe that is correct, yes.
    Mrs. Lummis. Now, the extended public comment period, now 
twice, ends on March 27th of 2014; is that correct?
    Mr. Bean. Again, I don't know for sure. That sounds like it 
is in the ballpark, however.
    Mrs. Lummis. Do you have a deadline for final decision on 
delisting the gray wolf?
    Mr. Bean. The statute requires the Fish and Wildlife 
Service to make a final decision within 1 year after publishing 
a proposed rule.
    Mrs. Lummis. With the gray wolf having first been 
introduced under Section 10(j) of the Endangered Species Act, 
which is the nonessential experimental populations, having met 
its first recovery goal in 2002, here it is 2014 and it is 
still not delisted, does that seem like a reasonable amount of 
time?
    Mr. Bean. Just for correction, it has been delisted not 
only in Wyoming but throughout the North Rockies.
    Mrs. Lummis. But not a national delisting.
    Mr. Bean. That is correct.
    Mrs. Lummis. Is Wyoming's management plan still being 
litigated?
    Mr. Bean. I believe there is a lawsuit pending against the 
decision to delist. I don't think there is a challenge, that I 
am aware of at least, to the Wyoming management plan.
    Mrs. Lummis. Were you aware that Secretary Salazar promised 
Wyoming a delisting decision of the grizzly bear by 2014?
    Mr. Bean. I am not aware of what Secretary Salazar may have 
said about----
    Mrs. Lummis. Are you aware that in December of 2013 a panel 
of State and Federal wildlife officials recommended delisting?
    Mr. Bean. What was the date again?
    Mrs. Lummis. December 2013.
    Mr. Bean. Yes.
    Mrs. Lummis. When can we expect a proposal to delist?
    Mr. Bean. I don't know precisely when, but I suspect you 
will see a proposal to delist reasonably soon.
    Mrs. Lummis. Do you think that a 1 percent delisting rate 
is indicative of a successful program?
    Mr. Bean. I don't think it is an appropriate measure of the 
success or failure of the program.
    Mrs. Lummis. The Endangered Species Act passed over 40 
years ago, and the last time it was amended, even tweaked, was 
in 1988. I have never heard a Republican or a Democrat suggest 
that the Endangered Species Act should be repealed. But I have 
heard people suggest in testimony before the Natural Resources 
Committee and before a committee which Doc Hastings, who is 
chairman of the Natural Resources Committee, and I co-chair, 
that it should be amended and tweaked.
    And let me give you some ideas about some of the areas that 
we heard about from people testifying. We heard that local, 
State, and tribal governments should be involved in species 
management listing decisions. Do you agree with that?
    Mr. Bean. They should be, and they are.
    Mrs. Lummis. We heard that they aren't at least adequately 
involved at the front end and that they were not party to the 
multi-species listing petitions and the resultant settlement 
agreements that set the priorities and the time periods for 
delisting the hundreds of species that were included in the 
multi-species listing petitions.
    Is that true? Were they involved or not? Were they part of 
the discussions in the settlement agreements?
    Mr. Bean. Only the parties to the litigation were involved 
in those settlement agreements.
    Mrs. Lummis. And why was that, since the law says that they 
should be involved?
    Mr. Bean. Well, every opportunity that the law provides for 
States and tribes and citizens, for that matter, to have a say 
in whether or not species should be listed or not listed will 
be, in fact, carried out. Because what the settlement agreement 
simply did was to set a schedule----
    Mrs. Lummis. But the schedules were set without involving 
State, local, and tribal governments. So they were excluded 
from settlements that the Fish and Wildlife Service made with 
agencies that were suing them or nonprofit entities that were 
suing----
    Mr. Bean. They were not involved in setting the schedule, 
that is correct. They will have every right to be involved and 
will be involved in any proposals that may come pursuant to 
that schedule.
    Mrs. Lummis. Thanks, Mr. Chairman, for running a generous 
clock.
    Mr. Lankford. Thank you.
    Second round, I had informed everyone that we will just 
open this up for more of a colloquy setting. And so it is 
entirely appropriate to be able to interject, during this 
round, any line of questioning with anyone that is running a 
line of questions, so let's feel free. Let's get answers and be 
able to walk through the dialogue.
    Let me kick it off. There is a question on the data. And 
Mr. Chaffetz brought this up, as well. How common is it that 
data is withheld for the research at the beginning part of 
that?
    So I understand this is not the listing, but this is part 
of--the beginning part of actual research--the emphasis to be 
able to look at these species.
    Mr. Bean. Honestly, sir, I don't know how common it is. It 
is my understanding that the Service typically relies upon 
published studies----
    Mr. Lankford. Right.
    Mr. Bean. --that are done by researchers who have collected 
data. And those researchers have invested their time, effort, 
energy, and so forth in collecting that data and want the 
ability to publish additional studies with that data. And, 
therefore, it is not made available by them either to us or to 
other parties.
    So I think that situation is reasonably common, just as 
businesses, when they enter into agreements with the Fish and 
Wildlife Service, often seek to protect some of their data as 
proprietary.
    Mr. Lankford. All right, but here is the concern. You take 
a--we have discussed before, you and I, the lesser prairie 
chicken. The lesser prairie chicken--five States are dealing 
with significant financial changes. It has not been listed, as 
you have mentioned before. It is not listed as threatened, it 
is not listed as endangered. Just being studied, just being 
evaluated. Oklahoma alone has spent millions of dollars trying 
to adjust around it, just with the threat hovering.
    Now, you deal with the sage grouse in Utah. I know you can 
say it has not been listed, but there is data that exists 
somewhere that no one can look at that a State and private 
landowners are going to spend millions of dollars trying to be 
able to protect a species on there, but no one also has access 
to the data.
    Do you see what the problem may be? So I am spending 
millions of dollars fighting against data that I have no idea 
what it is, how accurate it is, how well-researched it was, if 
it was even peer-reviewed. I don't know what I am fighting 
against. So I am now suddenly fighting a ghost, and my own 
Federal Government is bringing the cost on me.
    Mr. Bean. Well, sir, my understanding is that the Fish and 
Wildlife Service, before it makes any decision on the sage 
grouse or, for that matter, the lesser prairie chicken, will 
rely upon all the information from all the sources, the States 
and others.
    And the studies I think that Mr. Chaffetz is referring to 
were peer-reviewed studies----
    Mr. Lankford. So they were available to other people, just 
not to the State?
    Mr. Bean. Well, peer reviewers don't necessarily review 
underlying data. They review, as I understand it----
    Mr. Lankford. Well, that would be--just to dialogue, how do 
you peer-review something without actually looking at the 
underlying data? Because you then have to rely on their opinion 
of the data rather than the data.
    Mr. Bean. I think, sir, as I understand this, the typical 
peer-review situation--peer-review process, rather, involves 
reviewers analyzing the methodologies and the conclusions based 
upon the summaries of the data but not the raw data themselves.
    Mr. Lankford. See, I am familiar with peer reviews. It 
typically goes back to evaluate--they are checking their math, 
not just their grammar. They are actually looking back into the 
documents, as well, to say, is this conclusion correct based on 
the data itself.
    And so, if you have a reviewer that is reviewing based on 
their--they are really doing a grammar check at that point, not 
a mathematical check. And that becomes a big issue. Again, you 
have people spending millions of dollars, and it is one person 
that has drawn conclusions that I won't let you see where I got 
those conclusions from.
    Mr. Bean. Well, if I have misstated the situation, I will 
happily correct the record later, but I have described to you 
what my understanding is.
    Mr. Lankford. I understand. Is there a way that we can 
actually get some transparency, though, into the operation so 
that people can see it?
    Because you can understand the situation, if someone were 
to come and say, I believe that Fish and Wildlife Service or 
NOAA should look at this particular species, that there is a 
major problem here and I think you should do a review, which is 
very costly to the American taxpayer and very time-consuming to 
Fish and Wildlife and NOAA, you should do this review, they are 
going to bring a citizen suit on it, but they are going to tell 
you, ``I think there is a major problem, but, by the way, I am 
not going to give you our data, you can't look at it, you are 
just going to have to trust me on this one that there is a 
major problem,'' you then have to kick in and engage. All the 
people have to then mitigate something that may or may not even 
be a problem.
    Mr. Bean. Well, I can assure you, it really doesn't work 
like that. The Service does not simply act upon somebody coming 
to it and saying, ``Here is what I think; I am not showing you 
any data.'' Rather, the Service responds to situations in which 
there are published, peer-reviewed studies, there are maybe 
data from the States. I mentioned that the States themselves 
are frequently a source of information from----
    Mr. Lankford. Right, but the majority are citizen suits 
still, not from the States.
    Mr. Bean. They may be citizen petitions----
    Mr. Lankford. All right, petitions.
    Mr. Bean. --but even those rely upon State-generated data 
frequently. Because, keep in mind, virtually every State has 
its own endangered species laws----
    Mr. Lankford. Sure.
    Mr. Bean. --and so every State has data, has information 
about the status of species in that State. Frequently, that 
information is woven into the petitions----
    Mr. Lankford. Could that data originate from someone doing 
a graduate study in their master's or doctoral work and that 
becomes the study that is then proposed?
    Mr. Bean. It could be.
    Mr. Lankford. So the publishing is not necessarily 
publishing in a research journal; it could be just publishing 
their dissertation?
    Mr. Bean. I think, again, it could be.
    Mr. Lankford. Okay.
    So, again, we are back to the same issue. A graduate 
student--and I have nothing against graduate students--could do 
a study which could be even fairly recent into the studies of 
different animals and different biology and such. The best that 
they know and understand as a graduate student, there is a 
limitation on this, they write a paper, they publish it. And 
then suddenly a State goes into millions of dollars of expenses 
and a tremendous amount of effort.
    It goes back to this conversation that we have as a Nation, 
balancing the issue of data and this term that I have heard 
before, ``best professional judgment.'' How do we balance those 
two?
    Because the statute seems to lean towards this requirement 
that we get data. And, you know, we talked about from NOAA that 
they are actually going out and scanning it; they know they 
have a baseline. With Fish and Wildlife, there is just no way 
to be able to get a baseline of every single species of plant, 
animal, and fish. We just don't have any way to possibly do 
that.
    So how do you balance between data and best professional 
judgment when there is no baseline number to come from, when 
you can actually have someone that is a graduate student 
someplace say, ``I only see 20 of them in this area,'' and then 
extrapolate from that, ``I assume there used to be millions of 
them in this area,'' when we really don't know at that point?
    Mr. Bean. Well, to address your hypothetical, 
hypothetically, that could happen. In actuality, I am not aware 
of any examples like that. So I----
    Mr. Lankford. You know the first study from the lesser 
prairie chicken, where it came to attention from? Was it from a 
published or was it from a doctoral thesis?
    Mr. Bean. The first study, I don't know.
    Mr. Lankford. Or the first attention that came to Fish and 
Wildlife on the lesser prairie children.
    Mr. Bean. I don't know.
    Mr. Lankford. I believe it was from a doctoral dissertation 
that came.
    Mr. Bean. Okay.
    Mr. Lankford. It is this route. This is a route that is 
occurring. And our State has spent millions of dollars and 
other States have spent millions of dollars, and it is not 
listed. So it is a matter of, how do we manage this at this 
point? How do we manage the difference between data--and I want 
to pass this--I want others to be able to engage in this 
conversation.
    How do you manage from day to day the difference between 
having hard data, the science of it, and best professional 
judgment, where you may have some species that there are very 
few people that actually study that particular species, so the 
best available judgment may be three people that are scientists 
that study this particular species?
    Mr. Bean. Well, the Fish and Wildlife Service seldom has 
perfect data or all the data that it needs to make a decision, 
so it has to rely upon professional judgment in interpreting 
data often. The Service does not use judgment to create data, 
but it uses judgment to interpret and understand the data that 
it has.
    Mr. Lankford. No, I am not accusing you of creating that. 
It just goes back to, if you have very limited data and you 
have very limited number of people that study that particular 
species, now you have a situation where someone is going into 
the--trying to determine and then trying to figure out how to 
mitigate all the issues around it, when we really don't have 
data and we have very few people that have looked at it. You 
are managing hundreds of things that are coming on with the 
citizen petitions; you don't have time to manage this either. 
But we are quickly moving an issue that was designed to be able 
to protect species, but we don't have time to study it, we 
don't have enough people to look at it, and we don't have 
enough data to evaluate it. It puts us all in a very difficult 
position, both the species and the people that live around it.
    You and I have talked about the American burying beetle, 
and we can discuss about that more. We can't really study the 
American burying beetle much; they live underground. But there 
is a tremendous amount that happens in construction that is now 
slowed--pipeline construction, bridge construction, wind power 
construction, utility construction that now can't build in 
certain times of the year because we think maybe, possibly, but 
we don't have data, that the American burying beetle may be in 
that area.
    Mr. Bean. The Fish and Wildlife Service has a pretty good 
sense of the areas that may be occupied by the beetle, for 
example, and it has some techniques to determine presence. You 
are right, the beetle lives underground much of its life, but 
it spends some of its life above ground and is routinely 
attracted to lights. So there are ways to determine whether it 
is present in an area or not.
    Mr. Lankford. Right.
    Mr. Bean. The Service, to the extent of its ability, bases 
its decisions upon the best available information that it has. 
And it puts a heavy emphasis upon peer-reviewed and high-
quality data and analysis, and primarily published data. That 
isn't always available, but the standard that Congress has 
given the Service to guide its decisions is that of best 
available scientific information.
    Ms. Speier. Can----
    Mr. Lankford. Go ahead, Jackie.
    Ms. Speier. Can we talk a little bit--well, first of all, 
let me point out that we just had a discussion about the gray 
wolf in Wyoming. It is presently delisted----
    Mr. Bean. That is correct.
    Ms. Speier. --which means the population can be 
exterminated.
    Mr. Bean. Well, what it means is that the population is 
managed by the State of Wyoming. The State of Wyoming does not 
intend to exterminate the wolf. They do intend to manage it----
    Ms. Speier. ``Exterminate'' was not the right word. They 
can be shot.
    Mr. Bean. They can shoot--they can hunt it, yes.
    Ms. Speier. So I have been told that, since delisting, the 
gray wolf population has declined by some 16 percent in 
Wyoming, 4 percent in Montana, and 11 percent in Idaho. Now, I 
don't know what that percent means. Is that a percent that 
should be of concern to us, or is that healthy?
    My understanding, also, is that there are fewer than 1,600 
of these animals in those 3 States. So I realize they are 
predatory animals and that, you know, if they are killing your 
herd or your cattle that that is problematic. But I also would 
like to have a better understanding of, now that it has been 
delisted--Ms. Lummis is concerned about the length of time it 
is taking, but it is already delisted, the numbers have been 
declining.
    Is this anything that we should be concerned about?
    Mr. Bean. Representative Speier, since the wolf was 
delisted not only in Wyoming but Idaho and Montana, all of 
those three States--each of those three States has managed the 
wolf and has allowed hunting and has reduced somewhat the 
populations, although the populations are still well above a 
level that the Fish and Wildlife Service regards as safe, in 
the sense that the Service doesn't need to reconsider putting 
it back on the endangered species list. They are well above 
that number.
    Ms. Speier. Okay.
    So let's move on to the lawsuit issue, which, you know, by 
numbers that I mentioned in my opening statement would suggest 
there is--the numbers have declined dramatically. But even if 
you do file a lawsuit, it does not mean that if you win the 
lawsuit that the Fish and Wildlife Service will delist or list 
the creature. Is that correct?
    Mr. Bean. I think you are referring to the deadline 
lawsuits, of which there have been many filed against the Fish 
and Wildlife Service for its failure to meet the statutory 
deadlines for responding to petitions. The statute has some 
explicit statutory deadlines for responding to a petition. And 
because of the volume of petitions, the Service has sometimes 
missed those deadlines, and then the petitioner has sued the 
Fish and Wildlife Service for the purpose of getting a court-
ordered deadline.
    So you are right that those lawsuits do not result in 
decisions to list species. They result in decisions to either 
propose or not propose the listing of the species by a certain 
date.
    Ms. Speier. And, finally--and, Mr. Chairman, I am going to 
have to leave to go to another meeting, so I thank you for 
indulging my questions here.
    If everyone is supportive of retaining the Endangered 
Species Act, which is what I was hearing from some of my 
colleagues, and there are opportunities to allow for 
development and protection of the endangered species, habitat 
conservation plans being a great way of doing so and I guess 
been used very successfully, what things should you have, what 
tools should you have to create greater flexibility so that we 
can protect endangered species, development can happen, hunting 
can happen, and we can all sing Kumbayah?
    Mr. Bean. Well, thank you for the question.
    And I certainly agree with the premise that habitat 
conservation plans have been a very effective way of 
reconciling development interests with conservation interests.
    I think, frankly, more understanding of the potential 
application of that tool to solve various problems and more 
understanding of the availability of tools like safe harbor 
agreements that Georgia landowners are using, California 
landowners are using, and others, will be helpful in bringing 
to the attention of the public, particularly the landowning 
public, the whole panoply of tools that are potentially 
available to help them live compatibly and successfully with 
endangered species on or near their land.
    Ms. Speier. Well, I guess I am asking if you want any 
additional tools. Would it be helpful to give you any 
additional tools of flexibility beyond those that exist?
    Mr. Bean. I think the Fish and Wildlife Service is 
currently exploring some administrative initiatives much like 
safe harbor agreements and candidate conservation agreements 
which were administratively developed.
    It is exploring the use of mitigation banking in a more 
aggressive manner to allow some landowners to basically invest 
in conservation on their land as a way of offsetting the 
impacts of development on others' lands. That is an idea that 
has been used widely in California, as well. It is something 
the Fish and Wildlife Service is currently exploring ways to 
improve or expand the availability of that. So that would be 
one example.
    Ms. Speier. And you could do that without legislation?
    Mr. Bean. Yes, I believe we could.
    Ms. Speier. Okay. Thank you.
    Mr. Lankford. Can I ask a quick follow-up? I don't want to 
interrupt. I know others want to be able to--when will we be 
able to see those proposed ideas? Will that come out through 
the rulemaking process, or will that just appear?
    Mr. Bean. No, it will come out as a proposal in the Federal 
Register. There will be opportunity for any interested person 
to weigh in it.
    Mr. Lankford. Okay. Can you give me a timeframe on that? 
Are we talking 2014? 2015? 2016?
    Mr. Bean. We are definitely--well, I very strongly belive 
it will be 2014, and probably early 2014.
    Mr. Lankford. Okay. Thank you.
    Other Members who want to contribute?
    Mrs. Lummis. Mr. Chairman?
    What percentage of species for which listing petitions have 
been filed have been listed?
    Mr. Bean. I don't know the precise percentage.
    Mrs. Lummis. More than not?
    Mr. Bean. Of those for which decisions have been made, yes, 
more than not, a majority. Well, actually, I am not certain. I 
will have to----
    Mrs. Lummis. The information I have is that it is about 85 
percent.
    Mr. Bean. Of all petitions since the act was passed? I 
don't really know.
    Mrs. Lummis. The mitigation banking that you mentioned, 
that is something we are using in Wyoming that the private 
sector is using pretty substantially. Is Federal land going to 
be allowed to participate in mitigation banks?
    Because you know about our irrational, I would call it, 
landownership patterns in Wyoming, where you have private land 
commingled with Federal land, with State land. And so it does 
make some sense if you have a landscape-sized mitigation 
project----
    Mr. Bean. Uh-huh.
    Mrs. Lummis. --that where there is BLM land, for example, 
interspersed with private land, that the BLM land should be 
considered part of the mitigation bank.
    Mr. Bean. Ms. Lummis, I met with some of your Wyoming 
constituents just this week to discuss mitigation banking, and 
they are developing a proposal, as I understand it, that would 
include both private and BLM and maybe State lands. And I think 
the Fish and Wildlife Service will, when it is presented with 
that proposal, assuming it is, be sort of welcoming of that 
idea. Until we see the details, we can't say for sure whether 
it will be approved or not, but it certainly, on the face of 
it, seems like a good idea.
    Mrs. Lummis. Well, since we do know that on a landscape 
scale we can probably achieve better results for protection of 
habitat, which equals protection of species a lot of the time, 
it seems to make a lot of sense to me that the Federal 
Government would cooperate with private landowners who wish to 
provide mitigation banking lands at a landscape scale. It seems 
to be working pretty well.
    Our science, our ability to understand science has 
improved, in your opinion, since the Endangered Species Act 
passed, correct?
    Mr. Bean. I suppose so, yes.
    Mrs. Lummis. You suppose so? Do you not really believe 
that?
    Mr. Bean. I am not sure how you would measure it, but I 
suppose it would be, yes.
    Mrs. Lummis. Okay. Well, let me ask it this way: Do you 
think science has been static since 1973?
    Mr. Bean. Of course not.
    Mrs. Lummis. Do you think that people's environmental ethic 
has been static since 1973?
    Mr. Bean. Probably not.
    Mrs. Lummis. Do you think that people in general are more 
attuned to their stewardship responsibilities to the 
environment than they were in 1973?
    Mr. Bean. Probably so.
    Mrs. Lummis. I think so, too. In fact, I think it has 
become embedded, it is cultural now, much more so than it was 
when the Endangered Species Act was passed. I think that the 
culture has grown in its sensitivity and its stewardship 
obligations to species, to clean water, clean air, clean land. 
And I think that is why things like our compliance with the 
Kyoto protocols for clean air have been met. And we are the 
only country that met those Kyoto protocols, even though we 
didn't sign on to the Kyoto protocols.
    Americans have a marvelous stewardship and an environmental 
sensitivity that is cultural; it is embedded. And, to that 
extent, litigation, in my opinion, that puts briefcases in 
courtrooms but not species on conserved habitat isn't the 
answer in the 21st century. To me, the answer in the 21st 
century is boots-on-the-ground conservation by people who are 
culturally attuned to preserve species, be they tribal members 
or State government employees or private landowners working 
together to conserve species.
    So to take an act that passed in 1973 and was last amended 
in 1988, where the people, the culture has gone far beyond the 
ethos of the act, and expect that act and its litigation-driven 
model to be the way we should administer the law in the 21st 
century is a lot like driving an Edsel in 2014 and thinking 
that it ought to perform like a 2014 car. The performance of 
automobiles is better. The performance of the American people 
with regard to science and culture and the ethics of species 
conservation have improved.
    So I would really like to see the Endangered Species Act 
updated to acquaint it with and harmonize it with the culture 
and the ethos and the ethics and the stewardship that the 
American people are quite capable of providing. It doesn't need 
to be done in the courtroom anymore. Those funds that are so 
difficult to come by can be spent on habitat conservation and 
boots-on-the-ground species recovery without lawyers in the 
courtroom earning the money and taking that precious financial 
resource that is so hard to come by away from the very species 
that the Endangered Species Act was designed to protect.
    Mr. Chairman, thank you. I yield back.
    Mr. Woodall. Mr. Chairman, if I could follow up on that? I 
want to ask, because listening to both Ms. Lummis and the 
chairman, it felt oddly adversarial to me. I am thinking, for 
Pete's sakes, the chairman's talking about millions of dollars 
that are being spent that are not directed at something that we 
have come together on and tried to unify our might to solve but 
directed towards ambiguities.
    Ms. Lummis doesn't just live this every day back home but, 
you know, isn't talking through her hat when she talks about a 
conservation ethos. And, obviously, things have changed over 
the last 40 years. Obviously, what President Nixon envisioned 
is not where we are today. Are we close, are we further? We 
could have that conversation, but, obviously, we are not 
exactly where folks thought we would be 40 years later.
    Why does it feel adversarial? Why isn't it a big Kumbayah 
session to say, let's make some changes and let's refocus our 
resources on those most critical missions?
    I can't think of the last time I was involved in an ESA 
problem-solving session that was on its way to fruition. I can 
think of many ESA arguments that I have been involved in. Tell 
me why that is. Why aren't we moving closer to a common goal 
today?
    Mr. Bean. Well, sir, I will be happy to offer my own 
experience in answer to your question.
    My own experience is I have worked with landowners in your 
State; I mentioned the forest landowners in the Red Hills area. 
I have worked with forest landowners in North Carolina in the 
Sandhills area. I have worked in ranchland in Texas. In 
particular, I mentioned to Mr. Lankford yesterday a gentleman 
named Bob Long, who was chairman of the Republican Party of 
Bastrop County, Texas--local bank president, fundamentalist 
minister, extreme conservative, but somebody who was willing to 
manage his land to help recover an endangered amphibian called 
the Houston toad.
    And what I learned from that work with him and those other 
landowners is that a lot of this acrimony or contention that 
has been talked about today in this room doesn't really exist 
at that level. People are willing to roll up their sleeves and 
work together with the Fish and Wildlife Service, with the 
organization for which I work which Mrs. Lummis mentioned. And 
one doesn't get that sense often out on the ground talking to 
people where these efforts are ongoing.
    So I can only answer based on my experience, but my 
experience is that when you offer landowners an opportunity to 
work constructively with the Fish and Wildlife Service in a way 
that each understands the needs of the others and tries to 
accommodate them, you can have success.
    Mr. Woodall. I am afraid you are making my point exactly. 
That is my experience on the ground, too.
    So when the chairman says he sees millions of dollars being 
wasted on efforts that we are not directing together, why 
aren't we equally incensed about that?
    When Ms. Lummis says that there are dollars being errantly 
directed to litigation instead of mitigation, and you talk 
about your successful experiences one-on-one on the ground, why 
aren't we rushing to agree with Ms. Lummis and talk about 
proposed changes to the statute to foster what is the most 
hard-fought commodity in this Nation, not the all-precious and 
incredibly too limited American dollar, but the all-precious 
and incredibly limited trust that goes between citizens and 
their government?
    What you say I will stipulate is true. So what next? Why 
isn't the next conversation, then, that collaborative sitting 
around the table making changes to the statute to amplify those 
successes and mitigate these failures?
    Mr. Bean. Well, sir, perhaps the answer is that all the 
examples I gave--or none of the examples I gave required 
amending the law. All of the examples I gave required 
creatively interpreting and applying the law.
    And I think what this act has shown, despite the fact that 
it has remained unchanged by Congress since 1988, it has been 
changed substantially by the Fish and Wildlife Service in its 
implementation, in its use of new tools that didn't exist in 
1973 or 1988 in order to engage landowners as partners, in 
order to better engage States, in order to make use of the 
flexible authorities I described.
    The act has been, in my judgment, remarkably flexible and 
adaptive. I don't for a minute mean to suggest that there 
aren't controversies, but as I tried to make the point with 
respect to the Oregon chub at the outset, most of the species 
most of the time don't generate those controversies. Progress 
is being made without lots of headlines, without lots of heat, 
without lots of rancor.
    Mr. Woodall. If I could just take one last stab at it. You 
are absolutely right; the successes that you mentioned don't 
require changing the statute at all, but the failures that my 
colleagues mentioned did.
    I don't know why it is that somehow we have to choose 
between having both the successes and the failures or having 
neither the success nor the failures. I don't think that is the 
world that we live in. I think we can have the successes, and 
even greater successes, and eliminate those failures.
    But, again, just one last effort: Am I wrong about that? 
Again, you are talking about successes that don't require 
changes. My colleagues are talking about failures that do 
require changes. Why aren't we coming together around 
eliminating the failures and amplifying the successes?
    Mr. Bean. We may have a disagreement about the failures. In 
Mr. Lankford's case, I don't think the money that is being 
spent is being wasted. I think the money is being invested to 
find out what the status of the lesser prairie chicken really 
is. And I think that will be very helpful to us in deciding 
whether we need to protect it and, if so, how we need to 
protect it.
    So I don't for a minute suggest that it isn't oftentimes 
difficult and sometimes expensive in order to get answers to 
these questions, but I think investing in finding out the 
answers is not necessarily a waste of resources or money or 
time.
    Mr. Woodall. Mr. Chairman, I thank you.
    Mr. Lankford. No, it is most--thank you, Mr. Woodall--but 
it is most certainly not a waste of time to able to protect 
species. We wholeheartedly agree with that.
    A couple of challenges just on the intensity of it. One is 
this sense of, as you mentioned, the creative interpretation of 
the law and how flexible the law is and how many times it has 
changed in its application over the past 40 years brings some 
concerns to individuals that just want consistency. They just 
want to know, here is the law and here is how it is applied and 
I know what it is. When it changes at different points, then 
there is great consternation. People just want to know, here is 
the law, here is how it is going to be applied.
    That is some of the conversation up here, as well, to say--
and there may be needs for fixes in the law, because it seems 
to change often, though it hasn't actually changed. Does that 
make sense?
    Mr. Bean. I understand your point. However, the examples I 
gave are all examples in which the law was made to be more 
flexible and accommodating to landowner or regulated interest 
concerns. So I think, as a practical matter, nobody objected to 
those changes, people welcomed those changes.
    Mr. Lankford. It is the how they are coming out and how the 
species are being identified and put up in front of landowners.
    Let me just read part of a statement here. And I know every 
State has its own unique species that they get a chance to have 
significant conversations about. Let me read you a document. It 
is the summary of key components--this is an official Federal 
document coming out--summary of key components for conservation 
of lesser prairie chicken. And here is just the summary of it, 
from the executive summary.
    The primary threats dealing with the lesser prairie 
chicken. There are five areas here--six. Inappropriate timing 
and intensity of livestock grazing. In other words, grazing in 
the wrong place, wrong time. Conversion of native prairie for 
development in crop production, which I thought was 
interesting. In other words, we are having issues with this 
because we are planting crops there instead. Alteration of fire 
regimes. By the way, if you go into the details of the study, 
the study assumes that in Oklahoma there used be wildfires all 
the time and no one stopped them and that was good for the 
chicken. I would assume--I have had very well-cooked chicken 
over a fire before, and I don't know if that was good for it, 
but that is a whole different issue. Introduction and expansion 
of noxious weeds; fragmentation of habitat with roads, utility 
corridors, fences, towers, turbines, or energy development; and 
the planting of trees.
    So when folks in Oklahoma read this, here is what they read 
as the next paragraph. ``Features associated with human 
development'' is the quote here. And then the quote before that 
is the issue being, ``Returning the situation to prior European 
settlement status.''
    So I want you to understand that people get a little 
concerned when a document comes out and says, if we are going 
to protect the lesser prairie chicken, we need to return 
western Oklahoma to a situation that looks like prior European 
settlement status, and that there may be a problem with 
planting of trees, building roads, planting crops, or grazing 
cattle. Those are, kind of, things that people do.
    And so you understand the situation here and why the 
immediate frustration comes up when you--if you were to read 
this and think, that is my land, there would be a concern 
immediately.
    Mr. Bean. Yes, indeed. I don't know what document you are 
referring to, but I can assure you that the Fish and Wildlife 
Service has no intention of trying to return to pre-European 
conditions in Oklahoma or elsewhere. We recognize that isn't 
going to happen, and that isn't going to be the strategy that 
the service pursues.
    Mr. Lankford. I will bring you the document. I won't add 
this to the record, but I will bring you the document and be 
able to walk through it. But if you go through the original 
study that triggered this, it is loaded throughout the entire 
study.
    There are also great statements in there about that lesser 
prairie chickens are concerned about anything taller than 13 
feet, and so they don't want have any construction in western 
Oklahoma taller than 13 feet. I am not sure how they knew that 
lesser prairie chickens were okay with something 12 feet but 
not 14 feet, but it is loaded throughout the entire study.
    This becomes a big issue for individuals as we spend 
millions of dollars based around a study that is not based on--
as it comes through this over and over again, that is not based 
on population count, it is based on habitat. And that is an 
issue I want to be able to deal with both of you on.
    How do we balance this issue? When a species comes to 
light, there is an assumption always, we have only found so 
many, and so you assume there used to be more, though 
oftentimes there is not a count. Now, you have mentioned NOAA 
occasionally, you all have done population counts and you are 
tracking those, and in certain areas at certain times you are 
aware of a certain population count. Many times in Fish and 
Wildlife, that is just not possible with every plant species to 
know what was the population count 100 years ago based on what 
it is right now.
    But some assumptions are made. So we need to protect this 
habitat, but then there is also--correct me if I am wrong here. 
Oftentimes when we have listing, we are not listing it and 
saying, to come off delisting, we need to go to a certain 
population. It seems to state that this species is listed 
because the habitat is diminishing. The only way to be able to 
delist them, it would sound like, would be for the habitat to 
increase.
    Tell me where I am wrong on that.
    Mr. Bean. The way to delist a species once it is listed is 
to remove the threats. And those threats may be addressed in 
manners other than what you suggest.
    Mr. Lankford. Could those threats be a road or a utility 
pole or a house taller than 13 feet?
    Mr. Bean. Likely not, in the sense that simply--well, in 
the sense that what needs to be done is to remove enough 
threats in enough places in order to ensure that the species 
has a good chance of surviving. That may mean protecting some 
land in perpetuity. It may mean securing cooperative agreements 
with willing private landowners to manage their lands in ways 
compatible with the needs of the species.
    It certainly doesn't mean removing all trees, removing all 
development, and what have you. As I said a moment ago, this 
notion of returning to pre-European conditions is not the goal 
or strategy or intent of the Fish and Wildlife Service.
    Mr. Lankford. Okay.
    Mr. Rauch, you have been graciously quiet on this. We have 
had a lot of conversations with Mr. Bean. Let's talk a little 
bit about the habitat issue and numerical counts. How are you 
tracking that, as far as dealing with a species and getting 
them delisted?
    Mr. Rauch. Thank you, Mr. Chairman.
    We do, when we set recovery plans, we try to set standards 
for recovery, and many of those do have numerical counts. We do 
have----
    Mr. Lankford. Is that typical at the beginning, that 
everyone kind of knows, we think the population is decreasing; 
if we get to this number, we are going to delist?
    Mr. Rauch. No. It is typical when we do a recovery plan, 
which is often not when we do the listing. Sometimes it takes a 
while to do the recovery plan after the listing, and we do it 
in consult with some of our State partners. Private landowners 
and other kinds of people are all involved in that process.
    Mr. Lankford. Can you just help me--``it takes a while.'' 
Is that 6 months? A year? Is that 10 years? How long is that?
    Mr. Rauch. It can vary. Sometimes it is quicker.
    Mr. Lankford. ``Quicker'' meaning?
    Mr. Rauch. More than 6 months.
    Mr. Lankford. Okay. So give me some timeframes here. A 
year? Ten years?
    Mr. Rauch. A year to 10 years would--somewhere in there. 
And it varies by species. And we have some species, 
particularly foreign species, since there is very little the 
U.S. can do about them, that we don't prioritize in our 
recovery plans. For the U.S., we tend to prioritize them 
higher.
    But there is no particular deadline for doing a recovery 
plan. Because it is designed and we try to maximize the 
participation of landowners and States in that, we often can't 
dictate the timeframe. We come to the table when they come to 
the table, and we have these discussions. And sometimes that 
takes a while to get to a common vision of what it needs to 
recover the species.
    But it is often--it is almost certainly longer than a year. 
Hopefully it is less than 10 years in most instances.
    Mr. Lankford. Is it the same thing for Fish and Wildlife, 
Mr. Bean? The recovery plan may take a year to 10 years, and 
that is where the numerical population goal is set?
    Mr. Bean. I think the Fish and Wildlife Service informal 
goal is to try to have recovery plans done within 3 years of 
listing, which it is able to do in most instances.
    Mr. Lankford. Population goals attached to that?
    Mr. Bean. Sometimes, but rarely, if ever, is a recovery 
plan goal expressed solely in terms of population. There are 
almost always other objectives, as well, beyond population 
goals.
    Mr. Lankford. Let's go back to Mr. Chaffetz's comment 
earlier when we were talking about the fabulous Utah prairie 
dog. The last thing that I read on it, it was estimated the 
population is somewhere around 40,000. Is that number correct, 
not correct? I don't know how your----
    Mr. Bean. I----
    Mr. Lankford. --quick facts and figures on prairie dogs 
here, but----
    Mr. Bean. Yes, sir. I don't know, but I believe it is much 
lower than that, sir.
    Mr. Lankford. Okay. We will try to pull the number. The 
last thing I saw here, around 40,000 total on that. That may be 
the issue between public lands and private lands. Larger survey 
done with both at 40,000. Public lands may be lower than that. 
And that becomes still the study of we are trying to recovery 
them in public lands, where they may or may not prefer to be; 
they may prefer to be more in someone's flower bed than they 
would in public lands, where it is not necessarily a flower 
bed, as well, based on the preference of it.
    How do they know when that animal is coming off?
    Mr. Bean. I don't know the recovery goals and the recovery 
plan, but there is a recovery plan for the Utah prairie dog, 
and it does set forth goals for delisting. And the Fish and 
Wildlife Service will keep track of trends with respect to both 
population, habitat condition, and so forth. And either when 
those goals are met or when the Fish and Wildlife Service has 
other reason to conclude that the species no longer is 
endangered, it would initiate a status review and a proposal to 
delist.
    Mr. Lankford. Yeah, it is a challenge with a species like 
the prairie dog, obviously, that is a nuisance creature, quite 
frankly. Cute as can be on someone else's yard, but in yours it 
is a problem.
    Mr. Bean. Most landowners in Utah look at it that way, but 
not all. I worked with one named Allen Henrie, who entered into 
a safe harbor agreement basically to allow Utah prairie dogs to 
occupy some of his land. And there were other landowners, as 
well. So while what you say is generally true, it is not true 
of all of the landowners.
    Mr. Lankford. At my house in Oklahoma, a couple years ago I 
distinctly remember complaining to my next-door neighbor about 
armadillos, which will shred your yard, and in my particular 
yard was absolutely shredding them overnight. And he chastised 
me for saying that and said, armadillos are so slow, you can 
just get a trash can, load them up, go get them because they 
are so slow, and go haul them out in the country and drop them 
off. And about 2 weeks later, at about 9 o'clock at night, I 
heard a shotgun blast next door and walked outside and found my 
neighbor standing over a dead armadillo who was shredding his 
yard.
    And so, yeah, at times, there is this perception of that. I 
get that. But there is something unique when we are dealing 
with how we are trying to recover a species. And I don't want 
to talk about shooting armadillos, but there are some serious 
issues that we deal with in recovering a species, that once 
landowners are pushing back significantly, saying, we are being 
overrun, how do we manage that, whether that be a gray wolf 
that is taking down significant parts of a herd or whether that 
is a prairie dog that they are being overrun with in certain 
communities and can do nothing about.
    I am going to run through a couple things quickly. I want 
to be attentive to our time, as well. I want to go through 
solutions. I am interested in two sets of things: One that I 
can bring to say, what do you think about this? One is ideas 
that you have.
    You have already mentioned one of those, Mr. Bean, as well, 
of ways to be able to create an environment for more 
collaboration that you said is going to be an issue that will 
be put out in the Federal Register in the coming days.
    Can we form a clear definition of the difference between 
``threatened'' and ``endangered'' and how they are handled with 
landowners and status? Because we seem to have an emerging, 
from my understanding--and, really, I am no professional on 
it--from its history, is that ``threatened'' and ``endangered'' 
used to be really distinct. And now there seems to be a third 
category that is created with, ``We are looking at listing 
this,'' and so it kicks in a whole series of things. And then 
we have a threatened listing and an endangered listing.
    It appears to me that ``threatened'' used to be this other 
status that was created in the past, that now we have grown 
into three statuses. Am I correct or not correct on that, 
historically?
    Mr. Bean. Well, for listed species----
    Mr. Lankford. Can you pull the microphone a little closer, 
as well?
    Mr. Bean. Yeah, excuse me. For listed species, there have 
always been just two categories: threatened and endangered. 
Recently, the two services, I believe, have utilized this 
notion of candidate species----
    Mr. Lankford. Right.
    Mr. Bean. --species under consideration for possible----
    Mr. Lankford. Has ``threatened'' always meant the same 
thing, though? ``Threatened'' seems to be candidate level now, 
and candidate seems to be something new that has been added to 
it.
    Mr. Bean. I wouldn't characterize it that way. I would say 
that threatened species have always been species that aren't 
yet endangered but they are likely to become so in the 
foreseeable future. Candidate species are species for which 
there is concern that they may warrant listing as threatened or 
endangered.
    It is worth pointing out there are no regulatory 
requirements that attach to candidate species, no Federal 
regulatory requirements.
    Mr. Lankford. And that is one of my questions on it, is, 
where did that come from, the candidate-type listing? Is that 
from statute? Is that from regulation or----
    Mr. Bean. It originated as a response to the fact that the 
Fish and Wildlife Service responded to petitions by 
acknowledging that certain species that had been petitioned may 
warrant listing but there were higher priorities to deal with 
first. And so, those basically were put in queue, and those in 
queue were considered to be candidate species.
    I think the word ``candidate'' now appears in the statute, 
but it did not originally appear in the statute.
    Mr. Lankford. In the statute or the regulations?
    Mr. Bean. I think in the statute, if I recall correctly.
    Mr. Lankford. Mr. Rauch, do you know in that one, or how 
you are handling that, where this--the candidate has risen up?
    Mr. Rauch. I cannot recall where it has risen up. But I can 
confirm that we do, as well as the Fish and Wildlife Service, 
use those species to try to engage with landowners in a 
nonregulatory fashion ahead of the listing so that we can avoid 
listing. There are a lot more options that you can do while the 
species is not----
    Mr. Lankford. Uh-huh. Are we having a better recovery of 
species in the candidate phase or in the threatened phase?
    Mr. Rauch. I am not sure that we completely track recovery 
in the threatened phase, because recovery means, under the 
statute, recovery to the point where the ESA mandates are no 
longer needed. Since the candidate species did not become 
listed in the first place----
    Mr. Lankford. Right.
    Mr. Rauch. --they are technically--the distinction doesn't 
really apply.
    Mr. Lankford. We are back to Mr. Bean's comment earlier; it 
is better to catch it earlier and to be able to go after it.
    Mr. Rauch. I completely agree with that.
    Mr. Lankford. Sure. But at that point, it is the State that 
is also managing it, is that correct, other than in Federal 
waters?
    Mr. Rauch. Yes.
    Mr. Lankford. Okay. So we need some clarification what 
``candidate'' means, because that is one of the areas that 
there is some concern nationwide in different entities, that 
when something suddenly becomes a candidate, no one really 
knows what that means fully. They just know the hammer is 
coming down quickly on them, and they are trying to figure out 
what do we do. And that is a nebulous threat, so we do need 
some clarification on that in the days ahead.
    Making data publicly available, I know we have had some 
conversation about this in the research part of it. I am trying 
to figure out why that is still a bad idea, that we can peer-
review data, and if someone is going to bring an issue and say, 
I have studied this, but no one else can second-guess me on it, 
and because this data is proprietary, there is a major problem 
with that, when individuals and States, counties, and tribes 
are going to spend millions of dollars mitigating for a risk 
that they can't actually verify.
    Any disagreement on that? Or any solutions on how we 
resolve that?
    Mr. Bean. All I would say beyond what I have said already 
is I will be happy to explore this further within the agency to 
see, first of all, if my understanding is correct and, 
secondly, if there are reasonable solutions.
    Mr. Lankford. Mr. Rauch, anything you can share with that?
    Mr. Rauch. I can't speak to the discussions about the sage 
grouse or the specific instances you are talking about. We do 
value public and peer-reviewed data. We recently, when we were 
dealing with the core listing, we put all our science out in a 
broad peer-reviewed document, to the extent that we had it, and 
made it available.
    I can confirm that there are instances in which we would 
like to release data but we don't have it, because the 
researchers won't give it to us. So that appears to be what is 
happening to the Fish and Wildlife Service. That does happen to 
us on occasion; it does create issues. But we would prefer, and 
where we can, we try to make all of our data publicly 
available.
    Mr. Lankford. I can tell you what you we do with anonymous 
letters, where people don't give us backup. We don't take them 
seriously. If I can't verify your number, if I can't verify 
your information, I am not going to take it seriously. Because 
I am not going to take ``trust me'' as an answer.
    Even if you are you a respected researcher, every person 
makes mistakes and every bit of data should be peer-reviewed 
and should be public. And if States and individuals are going 
to be put into a status where they have to spend millions of 
dollars to mitigate for something, they should be able to back 
it up and to be able to disagree or disagree, and you can't do 
that.
    That is the basic American principle of I should be able to 
face my accuser, and if suddenly the accuser says, no, there is 
a problem, but I can't tell you why, we have a problem as a 
Nation. That is one we have to resolve.
    States getting involved and the affected parties being 
involved, they need, kind of, the consent decree or the 
research of an entity at the start rather than finding out much 
later. How do we get affected parties involved at the very 
beginning of this and accelerate that process?
    And you have mentioned several times, Mr. Bean, that States 
are made aware of this and they are engaged. How do we get them 
at the very beginning engaged? Any ideas on that?
    Mr. Rauch. I will say that we are currently engaged in a 
joint State-Federal task force with the States to talk about 
their involvement. We have a series of ongoing meetings--the 
next one is coming up next month in Denver--where we talk with 
them about that exact question, about how they can be not just 
engaged but meaningfully engaged in this process.
    There are many roles, as Mr. Bean said, for the States to 
become involved in the process, the substantive decision. And 
we do take that seriously and look to make sure that that is 
meaningful and that we can fully take account of the data, that 
they have the expertise and that they have them bring that to 
the decision.
    Mr. Lankford. Right. Again, you are going back to a basic 
American principle: The Federal Government exists to be able to 
serve the people. And affected parties should be at the table 
and should be very aware of that. So getting them there at the 
very beginning makes a huge difference.
    Mr. Bean, any comments on that? We will move on to other 
things if not.
    Mr. Bean. Just one comment. The Interior Department has 
provided support to the western States to develop what are 
known as crucial habitat assessment tools; the acronym is 
CHATs. These are Internet-accessible databases of the most 
important areas in those western States for a variety of 
purposes--wildlife habitats, wildlife migratory corridors, and 
the like.
    So that investment by the Federal Government to assist the 
States in developing that data is proving very useful in 
identifying those places on the map where conflicts are likely 
to be most acute and, conversely, those places on the map where 
conflicts are likely to be least likely. So I think that is a 
good way to further your goal of having State and Federal 
cooperation.
    Mr. Lankford. Right. And you are fully aware, once we get 
into the western United States, my State included, that the 
push is on in many areas to be able to protect where we are 
now. And it leaves the implication that right where we are in 
the level of development we are is the right level of 
development. And we are pushing through habitat. And it has the 
feeling in the western part of the United States of, ``We don't 
want you to grow. You are going to stay right where you are.''
    Now, I understand the words are that we can coexist, but 
when the focus is on habitat erosion rather than population 
counts, it sends the clear signal: Not developing energy in 
this area, not developing wind power in this area, not 
developing homes or cities or roads in this area. Sends a 
pretty clear signal, you have to stay at this spot. And that 
becomes a concern, when the focus is habitat rather than 
population.
    A couple things. Is there a way to be able to move to an 
arbitration system for the citizen petitions to expedite this 
process, to be able to help clear the deck? If you have a high 
number of these that don't end up going through the rest of the 
process that are cleared, is there a faster route to do this 
and be more efficient for the services to take care of this?
    Mr. Bean. That is an idea I have not heard discussed, so I 
don't have--I haven't given it much thought, but I will be 
happy to give it some thought.
    Mr. Lankford. Okay.
    Mr. Rauch?
    Mr. Rauch. I have not thought about it either. And as I 
mentioned I think earlier, we do have listing petitions, not 
merely as many as Fish and Wildlife Service. So we believe we 
are able to perform our work and stay in general on schedule. 
We don't have the backlog that they have had.
    Mr. Lankford. Right. Because there is nothing to stop a 
group coming to you with 2,000 species in a petition at this 
point. I mean, the continual ramp-up is larger and larger, 
which becomes more irrational and unachievable. There has to be 
a way to be able to manage and to be able to mitigate this in 
the days ahead.
    Last piece on it I want to--I have a couple other quick 
notes on it. The issue of data versus best professional 
judgment, how do we manage between the two to be able to create 
the maximum amount of trust?
    Because, again, if individuals and businesses and cities 
and States and tribes are going to spend millions of dollars in 
mitigation and they don't have data on it, they have someone's 
best professional judgment, and it may be species where there 
is a very small group of individuals that are specialists in 
that species, how do we manage that to be able to create trust?
    Mr. Bean. Mr. Chairman, I think that it is rarely the case, 
and is probably never the case, that the Fish and Wildlife 
Service makes decisions just based upon somebody's opinion, 
devoid of reference to published studies or other real data.
    As I indicated in an earlier answer, there is often an 
absence of definitive data on many of the questions the Service 
has to answer, and, thus, it has to use judgment in how its 
interprets or applies the information and data that exists. But 
the Service takes seriously the statutory command to base its 
decisions on the best available scientific information and 
tries to do that consistently.
    Mr. Lankford. Yeah. That is the grand challenge again. When 
you are dealing with a species, when you are dealing with 
someone who has published a paper that no one else has tracked 
before, and it, again, assumes it used to be higher than what 
it is now, ``It is only this; certainly it was larger than that 
at some point,'' no one knows. And how do you track that? And 
now what do we do as a reaction to that?
    Again, no one is looking to be able to wipe out a species, 
but neither are we looking for all of our lives to be turned 
upsidedown because someone wrote a research paper that was 
published. We have to be able to find a balance between those 
two.
    Mr. Bean. Certainly.
    May I just offer the observation that, while it is 
obviously impossible to say what the population may have been 
at some point in the past, it is possible to determine that a 
species was present in certain places in the past where it is 
no longer present today. We have that from collection records, 
from museum records, from accounts from explorers and others. 
So it is possible to document loss of range for many of these 
species.
    Mr. Lankford. Right. And we also have a documentation of 
loss of range for dinosaurs that we can document, as well, that 
was not due to human activity or whatever it may be. And so 
species come and go; we are very aware of that. And we have 
every obligation to be able to protect a species. As an 
Evangelical Christian myself, I have this overwhelming sense 
that we have a responsibility to take care of what God has 
given us. But it is also a challenge to be able to do that, in 
an economic sense, that also allows for the movement of people 
to be able to process through that.
    There is a statement and there are several questions that I 
wanted to be able to put in the record. I think both of you all 
may have heard of a group called the U.S. Chamber of Commerce. 
They occasionally have disagreements on some of the ESA 
applications. I would like to ask unanimous consent, which I am 
pretty confident I will get, to be able to put this into the 
record, as well, and some of the other questions and thoughts 
that they had as a part of this.
    Mr. Lankford. Final statements that either of you gentlemen 
would like to make, or observations or ideas?
    Mr. Bean. Just thank you for your interest. As you 
indicated when I talked to you yesterday, you wanted to have, 
you know, an honest, candid discussion, and I think we have had 
that. So I appreciate that very much.
    Mr. Lankford. You bet. Thank you.
    Mr. Rauch?
    Mr. Rauch. Thank you for the opportunity to come here and 
share our views with you.
    Mr. Lankford. Thank you.
    Obviously, this conversation is not done. We will continue 
to work on solutions and how we resolve some issues to be able 
to make this as clear as possible in the days ahead.
    With that, this hearing is adjourned.
    [Whereupon, at 4:31 p.m., the subcommittee was adjourned.]


                                APPENDIX

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