[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]


          BARRIERS TO ENDANGERED SPECIES ACT DELISTING, PART I

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

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                              THE INTERIOR

                                 OF THE

                         COMMITTEE ON OVERSIGHT
                         AND GOVERNMENT REFORM
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED FOURTEENTH CONGRESS

                             SECOND SESSION

                               __________

                             APRIL 20, 2016

                               __________

                           Serial No. 114-94

                               __________

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


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         Available via the World Wide Web: http://www.fdsys.gov
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              COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

                     JASON CHAFFETZ, Utah, 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
JIM JORDAN, Ohio                     ELEANOR HOLMES NORTON, District of 
TIM WALBERG, Michigan                    Columbia
JUSTIN AMASH, Michigan               WM. LACY CLAY, Missouri
PAUL A. GOSAR, Arizona               STEPHEN F. LYNCH, Massachusetts
SCOTT DesJARLAIS, Tennessee          JIM COOPER, Tennessee
TREY GOWDY, South Carolina           GERALD E. CONNOLLY, Virginia
BLAKE FARENTHOLD, Texas              MATT CARTWRIGHT, Pennsylvania
CYNTHIA M. LUMMIS, Wyoming           TAMMY DUCKWORTH, Illinois
THOMAS MASSIE, Kentucky              ROBIN L. KELLY, Illinois
MARK MEADOWS, North Carolina         BRENDA L. LAWRENCE, Michigan
RON DeSANTIS, Florida                TED LIEU, California
MICK MULVANEY, South Carolina        BONNIE WATSON COLEMAN, New Jersey
KEN BUCK, Colorado                   STACEY E. PLASKETT, Virgin Islands
MARK WALKER, North Carolina          MARK DeSAULNIER, California
ROD BLUM, Iowa                       BRENDAN F. BOYLE, Pennsylvania
JODY B. HICE, Georgia                PETER WELCH, Vermont
STEVE RUSSELL, Oklahoma              MICHELLE LUJAN GRISHAM, New Mexico
EARL L. ``BUDDY'' CARTER, Georgia
GLENN GROTHMAN, Wisconsin
WILL HURD, Texas
GARY J. PALMER, Alabama

                   Jennifer Hemingway, Staff Director
                 David Rapallo, Minority Staff Director
           Bill McGrath, Interior Subcommittee Staff Director
                    Sharon Casey, Deputy Chief Clerk
                                 ------                                

                      Subcommittee on the Interior

                  CYNTHIA M. LUMMIS, Wyoming, Chairman
PAUL A. GOSAR, Arizona               BRENDA L. LAWRENCE, Michigan, 
BLAKE FARENTHOLD, Texas                  Ranking Member
KEN BUCK, Colorado, Vice Chair       MATT CARTWRIGHT, Pennsylvania
STEVE RUSSELL, Oklahoma              STACEY E. PLASKETT, Virgin Islands
GARY J. PALMER, Alabama
                            
                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on April 20, 2016...................................     1

                               WITNESSES

Mr. Lowell Baier, Attorney at Law, Environmental Historian
    Oral Statement...............................................     4
    Written Statement............................................     6
Mr. Robert Thornton, Partner, Nossaman, LLP
    Oral Statement...............................................    18
    Written Statement............................................    20
Mr. Joel Bousman, Chairman, Board of County Commissioners, 
  Sublette County, Wyoming
    Oral Statement...............................................    32
    Written Statement............................................    34
Mr. Robert Glicksman, J.B. and Maurice C. Shapiro Professor of 
  Environmental Law, The George Washington University Law School
    Oral Statement...............................................    37
    Written Statement............................................    39
Ms. Karen Budd-Falen, Senior Partner, Budd-Falen Law Offices
    Oral Statement...............................................    59
    Written Statement............................................    61

 
          BARRIERS TO ENDANGERED SPECIES ACT DELISTING, PART I

                              ----------                              


                       Wednesday, April 20, 2016

                  House of Representatives,
                      Subcommittee on the Interior,
              Committee on Oversight and Government Reform,
                                                   Washington, D.C.
    The subcommittee met, pursuant to call, at 1:07 p.m., in 
Room 2154, Rayburn House Office Building, Hon. Cynthia M. 
Lummis [chairman of the subcommittee] presiding.
    Present: Representatives Lummis, Buck, Palmer, Chaffetz, 
Lawrence, and Plaskett.
    Also Present: Representative Zinke.
    Mrs. Lummis. The Subcommittee on the Interior will come to 
order.
    Without objection, the chair is authorized to declare a 
recess at any time.
    Thank you all for being here today for this meeting of the 
Interior Subcommittee of the Oversight and Government Reform 
Committee.
    Thank you, Mr. Chairman, of the full committee.
    Chairman Chaffetz has joined us today as well as our 
ranking member, Mrs. Lawrence, and we will have others join us.
    We are here this afternoon to discuss barriers to the 
discovery of endangered species and, hopefully, how we can 
break those barriers down.
    The Endangered Species Act was signed into law by President 
Nixon in 1973. Its primary goal was to prevent the extinction 
of imperiled plant and animal life and to recover those 
populations by removing or lessening threats to their survival.
    Species are considered for listing primarily through a 
petition process. Anyone can file a petition, and the Fish and 
Wildlife Service has 90 days to respond. If the Service 
determines there's merit to the petition, they have 1 year to 
either list the species, determine it is not warranted to list 
the species, or that listing is warranted but precluded by 
other priorities.
    According to the Fish and Wildlife Service Web site, there 
were 2,258 plant and animal species on the threatened or 
endangered species list. According to the Service's delisting 
report, 63 species have been removed from the endangered 
species list. Thirty-four have been recovered, 10 have gone 
extinct, and 19 species were listed in error. That's not a 
great track record.
    Some will argue that simply spending more money will fix 
the problem, but even former Clinton and Obama administration 
Deputy Interior Secretary David Hayes stated to the 
Environmental Law and Policy Annual Review in 2013 that ``this 
has been fish-in-the-barrel litigation for folks, who because 
there's a deadline, and we miss these deadlines, and so, we've 
been spending a huge amount of, in my mind, relatively 
unproductive time fending off lawsuits in this arena.''
    There seems to be bipartisan consensus that changes need to 
be made to improve the law, which has been under siege by 
litigation. ESA decisions are increasingly driven by 
litigation, the threat of litigation, closed-door settlements, 
and, in some cases, the whims of Federal judges. Serial 
litigants flood the agency with petitions, and when the Fish 
and Wildlife Service predictably fails to meet rigid statutory 
timelines, they sue.
    The Service eventually settles in court to set priorities 
behind closed doors with the serial litigants, and the process 
repeats. Such litigation does little more than benefit lawyers 
and diverts time and resources away from species conservation. 
What is needed is boots on the ground instead of briefcases in 
the courtroom.
    Flexibility for the Service needs to be accompanied by an 
increased emphasis on species recovery planning as well as 
increased utilization of State and local stakeholders for data 
collection, habitat conservation, and the grunt work of 
protecting and ultimately recovering a species.
    The gunnison sage-grouse, the lesser prairie-chicken, dunes 
sagebrush lizard show that States and locals have the 
expertise, resources, and will to lead on species conservation. 
Today, I hope to hear from our panel on how to better harness 
these voluntary conservation initiatives that I believe are 
critical to actually recovering species and, when we can, keep 
them off the list in the first place.
    Our witnesses today will talk about their efforts on 
candidate conservation agreements, on habitat conservation 
plans, and on efforts to overcome serial litigation.
    I welcome your input and hope we can have a productive 
discussion on how to improve the success rate of species 
recovery and delisting. Thank you.
    I now recognize Mrs. Lawrence, the ranking member of the 
Subcommittee on the Interior, for her opening statement.
    Mrs. Lawrence. Thank you, Madam Chair. Thank you for 
holding this important hearing.
    American species face challenges on many fronts, including 
real estate development, energy exploration, and global climate 
change. In my own State of Michigan, there are roughly 25 
federally recognized endangered or threatened species, 
including the Karner blue butterfly and the eastern prairie 
fringed orchid, both found in or around Detroit.
    But I am optimistic that all of these species can be saved. 
That's because the Nation's principal statute, the Endangered 
Species Act, has a remarkable track record. Ninety-nine percent 
of the species that have qualified for its protections are 
still with us today.
    The Endangered Species Act of 1973 was a bipartisan 
legislation passed by Congress and signed into law by President 
Nixon. The Endangered Species Act's purpose is to conserve 
species identified as endangered or threatened with extinction 
and conserving the ecosystems on which they depend.
    Some want to role back those protections. They point to a 
low rate of delistings to indicate the failure of this 
important legislation. They complain that there is too much 
litigation. They support bills to sidestep the scientifically 
informed regulatory process.
    I think it is an unfortunate point of view and ignores the 
reality. The reason species are listed for protection under the 
Endangered Species Act is the inability or unwillingness of 
State wildlife agencies to protect them from extinction.
    I'm not saying that there cannot be differences of opinion 
about the status of given species. Fortunately, the Federal law 
requires that these opinions be informed by science and not 
guided by political rhetoric or self-interest.
    Under this administration, the Fish and Wildlife Service 
has delisted 18 species, 16 due to recovery, which is success--
more than any other administration since this act was enacted 
in 1973.
    So, in conclusion, we should be celebrating the Endangered 
Species Act, not detracting from it. And that means funding the 
Fish and Wildlife Service so it can use all the tools that 
Congress gave it, including voluntary candidate conservation 
agreements with assurances and habitat conservation plans in 
addition to formal listings.
    And inadequate funding has meant long lines and excessive 
delays in the agency's consideration of these various measures 
at protecting the endangered or threatened species. That is a 
shame but one that was created by Congress.
    I thank our witnesses for appearing here today, and I look 
forward to your testimony and really want you to know that I am 
extremely committed to ensuring that we in America continue the 
leadership in protecting all endangered or threatened species.
    Thank you so much.
    Mrs. Lummis. Thank you.
    I will hold the record open for 5 legislative days for any 
member who would like to submit a written statement.
    The chair notes the presence of our colleague, Congressman 
Ryan Zinke of Montana.
    We're delighted you're here today. Appreciate your interest 
in the topic and welcome your participation in this hearing.
    I ask unanimous consent that Congressman Zinke be allowed 
to fully participate in today's hearing.
    Without objection, so ordered.
    We will now recognize our panel of witnesses.
    I'm pleased to welcome Mr. Lowell Baier, attorney at law 
and environmental historian; Mr. Rob Thornton, partner at 
Nossaman, LLP; Mr. Joel Bousman, chairman of the Board of 
County Commissioners of Sublette County, Wyoming; Mr. Robert 
Glicksman, the J.B. And Maurice C. Shapiro Professor of 
Environmental Law at the George Washington University Law 
School; and Ms. Karen Budd-Falen, senior partner at the Budd-
Falen Law Offices.
    Welcome to you all.
    Pursuant to committee rules, witnesses will be sworn in 
before they testify.
    Please rise and raise your right hand.
    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?
    Thank you. Please be seated.
    Let the record reflect that the witnesses answered in the 
affirmative.
    In order to allow time for discussion, please limit your 
oral testimony to 5 minutes. And thank you all for being 
willing to come to this hearing early. This way, we have a 
chance to hear from our witnesses and hopefully answer some 
questions before the panel gets called to votes.
    In order to allow time, we'll have your entire written 
statement made part of the record. So if you choose to cut it 
short, don't be worried that your remarks will not be taken 
into the record.
    Mr. Baier, you are recognized for 5 minutes. And welcome.

                       WITNESS STATEMENTS

                   STATEMENT OF LOWELL BAIER

    Mr. Baier. Thank you, Madam Chairman, members of the 
committee.
    A primary incentive to litigation that's a barrier to 
delisting is money. Money, money, money. It's that simple. It's 
the reimbursement of legal fees.
    Now, I first became interested in this topic after reading 
some of my co-witness Karen Budd-Falen's writings on the 1980 
Equal Access to Justice Act, which in turn led me to a 5-year 
research project that resulted in my new book, just published, 
which is here on the dais, or on the table, entitled ``Inside 
the Equal Access to Justice Act: Environmental Litigation and 
the Crippling Battle over America's Lands, Endangered Species, 
and Critical Habitats.''
    And I couldn't understand from my research, which is what 
got me into it, how a handful of small litigation groups 
masquerading under the banner of environmental stewards could 
wage serial litigation wars on our Federal land management 
agencies.
    So I did what a good forensic investigator does; I followed 
the money trail. And it led to my finding that the citizen suit 
provisions in the Endangered Species Act and the 1980 Equal 
Access to Justice Act pay a bevy of both in-house and outside 
attorneys on retainer who parade under the title of, ``pro bono 
counsel'' but are, in fact, paid handsomely for their work by 
the U.S. Treasury. So the number-one incentive to litigation 
that stymies delisting is money, the reimbursement of legal 
fees.
    Let me give you a graphic of the money trail that followed 
the 2011 multidistrict litigation settlement, which expires at 
the end of the next fiscal year, in 2017.
    Now, this is a graphic that we created--can we get that up 
on the screen? Or is it on your monitors?
    There it is. No, that's not it.
    Well, this is what it's--oh, there it is. Good. Good. All 
right.
    If you look across the top right here, right across the top 
of this, you'll see a bunch of boxes up there. There are eight 
boxes.
    I'll wait for a moment for you all to get that in front of 
you.
    All right. There are a series of boxes across the top. Each 
of those represents a lawsuit.
    What happened is the two litigants, WildEarth Guardians and 
Center for Biological Diversity, in a pincer action, literally 
surrounded the Fish and Wildlife Service with these lawsuits in 
different districts throughout the United States. And so, in 
order to get these consolidated and dealt with in one court so 
their personnel and their resources weren't stretched, the 
Service consolidated them here in Washington.
    And the court here then added, over on the left side--here, 
right where I'm pointing--three more cases. So now we have a 
total of 15 cases in front of the U.S. district court here in 
the District of Columbia.
    And the judge asked the parties to try to settle. They did 
reach a settlement agreement in September of 2011, which we 
refer to as the multidistrict litigation settlement.
    Now, you would think, folks, that at that point the case is 
over. It's settled, and now the Fish and Wildlife Service has a 
whole order of--a calendar that they set up. 1,030 species were 
now on their calendar. So, between 2011 and 2017, they had a 
calendar to follow of species that they were supposed to then 
make a decision on as to whether to list, delist, or not find 
an appropriate listing.
    And what happened was they began to work their way down 
through the 1,030, over the calendar, and as they made 
decisions, these two litigants continued to then sue them 
because they didn't like the decision the Fish and Wildlife 
Service made, whether it was to list or delist--or not delist, 
but not list at all.
    And so what's happened is--we had 15 cases consolidated, 
and if you look at the list on the far left, these are the 
challenges that they issued after September 11, each of them a 
separate lawsuit. And in the middle are other lawsuits that 
were generated by the settlement agreement, and on the far 
right, more lawsuits.
    So what the settlement did is nothing but generate a whole 
series of new lawsuits. And, you know, I scratch my head. And 
what's driving this? The money trail. That's what the money 
trail led to.
    I can see that I'm about out of time, Madam Chairman.
    This litigation has undermined the work of Dan Ashe and the 
Service, who were promoting cooperative conservation projects 
with the States and with the private sector that put money on 
the ground, boots-on-the-ground money, and not money into 
lawyers' pockets. And this trail has demonstrated that their 
hard work to do cooperative conservation work is being 
undermined by lawsuits.
    I have more, Madam Chairman.
    Mrs. Lummis. Thank you, Mr. Baier. I gave you a few extra 
seconds----
    Mr. Baier. Oh, thank you.
    Mrs. Lummis. --because it took me a while to find the 
exhibit and get on track. So----
    Mr. Baier. Well, thank you for your indulgence.
    Mrs. Lummis. Yeah, I appreciate your preparing the exhibit.
    Mr. Baier. Should I continue then?
    Mrs. Lummis. You know, I think that we'll ask you 
questions.
    Mr. Baier. Okay.
    [Prepared statement of Mr. Baier follows:]
    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
    
    Mrs. Lummis. So, with that, Mr. Thornton, you are 
recognized for 5 minutes.

                  STATEMENT OF ROBERT THORNTON

    Mr. Thornton. Madam Chair, members of the committee, it's a 
pleasure to be with you today. I will summarize my testimony.
    I'm a partner in the Nossaman law firm, but I'm testifying 
as an individual, not on behalf of the firm or its clients. But 
the firm is an affiliate of the California association that's 
affiliated with the National Association of Home Builders.
    My testimony is based on my three decades of experience 
representing both plaintiffs and defendants in Endangered 
Species Act matters and focuses particularly on efforts to 
delist two species, the coastal California gnatcatcher and the 
valley elderberry longhorn beetle. I've left with staff some 
pictures because it's always nice to have pictures to put with 
descriptions.
    Our view is that the best available science indicates that 
neither species should be listed because neither are endangered 
or threatened and that the Service's consideration of the 
delisting petitions for these two species exemplifies the 
barriers to delisting even in circumstances where published and 
peer-reviewed studies and the Service's own status review 
documenting the original grounds for listing are wrong.
    I'll focus on the California gnatcatcher. The gnatcatcher 
is a species--as a species, is a common Mexican bird that's 
found from southern California to the tip of Baja. You have the 
range map there showing the range of the gnatcatcher. There are 
likely several million gnatcatchers in Mexico. The coastal 
California gnatcatcher, which is the listed subspecies, is 
found from southern California to El Rosario and Baja, Mexico.
    The subspecies designation is important because the 
petitioner for the listing, Dr. Jonathan Atwood, testified 
that, ``no credible scientist would claim or has claimed that 
California gnatcatchers as a species are endangered or 
threatened throughout their range.''
    Using 19th-century ornithology, the Service listed the 
coastal gnatcatcher as a distinct subspecies in 1993 based on 
two crude measurements of two physical features, the brightness 
of breast feathers and the purity of back feathers. And they 
took the position that the differences in these two physical 
features constituted sufficient genetic distinctiveness to 
justify the listing of the subspecies.
    During the extensive delisting or listing debate in the 
1990s, several nationally recognized scientists testified that 
the data did not support this conclusion, in part because the 
measurements of the two physical characteristics were based on 
measurements of museum specimens, some of which had been 
sitting in museum desk drawers for 100 years. After a Federal 
court initially invalidated the listing, the Service relisted 
the species, relying on the, what they call, morphological 
data.
    Now, over the next 7 years, a group of nationally 
recognized scientists conducted genetic analysis of 
mitochondrial DNA. Mitochondrial DNA is the DNA that we all 
inherit from our mothers. And this was, at the time, the state-
of-the-art method for analyzing genetic differences among 
animals.
    Those studies, published in--a peer-reviewed study 
published in the very well-known journal Conservation Biology 
concluded that there's no material genetic differences between 
any gnatcatchers throughout the entire range, its range from 
southern California to the tip of Baja.
    In 2010, a group of landowners petitioned the Fish and 
Wildlife Service to delist the gnatcatcher based on that study. 
That study--that delisting petition was denied. Essentially, 
the Service said that the mitochondrial DNA evidence was not 
sufficient and said that what was required was a nuclear DNA 
study.
    The scientists went back to the lab and in 2013 published 
another study, this time based on nuclear DNA, reconfirming the 
results of the prior study, that there is no significant 
genetic differences and that the listing of the subspecies is 
not warranted.
    On behalf of several organizations, we filed a petition to 
delist. The final decision on that delisting petition is still 
pending. But we're concerned for, among other reasons, we filed 
a Freedom of Information Act to obtain documents regarding the 
Service's review of the delisting petition, and the Service is 
refusing to provide us any substantive documents regarding 
their external review of the delisting petition--that is, their 
engagement of an outside contractor to review the delisting 
petition. And they're even refusing to disclose the identity of 
the individuals conducting the review, which we believe is a 
violation of the Endangered Species Act.
    Thank you, Madam Chair and members of the committee.
    [prepared statement of Mr. Thornton follows:]
    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
    
    Mrs. Lummis. I thank the witness.
    Mr. Bousman, you are recognized for 5 minutes.

                   STATEMENT OF JOEL BOUSMAN

    Mr. Bousman. Thank you, Chairman Lummis, Ranking Member 
Lawrence, and members of the Interior Subcommittee.
    My name is Joel Bousman. I am a rancher and county 
commissioner in Sublette County, Wyoming, currently serving as 
second vice president for the Western Interstate Region of the 
National Association of Counties. Today, I am speaking to you 
as a Sublette County, Wyoming, commissioner.
    When a species is put on the Endangered Species Act list, 
it's a bit like checking into Hotel California. You need to 
look no further than the Great Lakes wolf to find that barriers 
to delisting species are a nationwide problem with 
implementation of the ESA.
    At the county level, we do not deny the value of protecting 
truly endangered species. But it is troubling to us that the 
goal of the ESA appears to be permanent and perpetual listings 
rather than species recovery. It is also troubling that the ESA 
itself has created a system that incentivizes closed-door 
litigation over cooperation with local governments.
    Often, when we think about the ESA, we tend to think about 
the Federal Government's relationship to the States. All across 
the West, State game and fish agencies are the local experts. 
They should be trusted with managing our wildlife 
appropriately.
    However, it is important to understand that the Fish and 
Wildlife Service also has an obligation to consult with and 
receive input from counties affected by petition listings and 
regulations written as a result of those listings. Section 1533 
of the ESA twice lists counties as necessary partners in the 
process. While the language is clear, its overly vague 
instructions let the Fish and Wildlife Service off the hook on 
any meaningful coordination with counties. This is a part of 
the ESA that is crying out for congressional attention.
    The National Association of Counties has adopted a 
permanent policy that seeks to improve the ESA by mandating 
that, ``Federal agencies treat State and county governments as 
cooperating agencies with full rights of coordination, 
consultation, and consistency to decide jointly with the 
appropriate Federal agencies when and how to list species, 
designate habitat, and manage for species recovery and 
delisting.''
    What is it that counties have to offer that others do not? 
First and foremost, what we have to offer is a broad view on 
both the need for ESA listing and the effects on our counties 
resulting from those listings.
    By the very nature of the charge of the office, a county 
commissioner must take into account the health and welfare of 
their entire county--its people, land, water, and wildlife. We 
have found in Wyoming that the most successful efforts of 
Federal land managers on any topic have been ones that were 
developed collaboratively with local governments. The best 
decisions are made by people working together on the ground at 
the local level.
    As it is currently written, the ESA does not promote and 
certainly does not require collaboration with local 
governments. This is a mistake. The Fish and Wildlife Service 
would benefit from a coordinated effort with local governments, 
not required at this time. Such a change would create more 
meaningful conservation, which should be our collective goal. 
It would also help to inoculate the Fish and Wildlife Service 
from the kinds of groups who appear to be more interested in 
money to be made from litigation than boots-on-the-ground 
species conservation.
    There may have been a time in America's past when 
inflexible laws were necessary to overcome cultural apathy 
towards conservation, but, as has been so eloquently explained 
many times by this subcommittee's chairman, America's signature 
conservation laws have not kept pace with our cultural 
conservation ethic.
    Allowing for greater local input, understanding the custom 
and culture of the local community, and an honest assessment of 
socioeconomic impacts is not a threat to species viability. 
Rather, it would be a help in creating regulations when they 
are necessary that can be embraced at the local level. The lack 
of intentional coordination with local governments is a barrier 
to delisting and would be easy to remedy in looking to improve 
the ESA.
    Thank you, and I look forward to your questions.
    [Prepared statement of Mr. Bousman follows:]
    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
    
    Mrs. Lummis. I thank the witness.
    And, Mr. Glicksman, you are recognized for 5 minutes.

                 STATEMENT OF ROBERT GLICKSMAN

    Mr. Glicksman. Madam Chair, Ranking Member Lawrence, and 
subcommittee members, my name is Robert Glicksman. I'm the J.B. 
& Maurice C. Shapiro Professor of Environmental Law at the 
George Washington University Law School, although I speak today 
solely in my personal capacity. I've taught and written about 
environmental and natural resources law for 35 years and am a 
coauthor of the leading treatise on public natural resources 
law. I appreciate the opportunity to testify today on the 
Endangered Species Act.
    I'll make several points.
    First, as the Government Accountability Office has 
recognized, the success of the Endangered Species Act cannot be 
measured in delisting alone. By one account, more than 250 
species would have disappeared in the U.S. during the ESA's 
first 30 years if they hadn't been listed.
    As of 2014, about three dozen species had been down-listed 
from endangered to threatened and three times as many have been 
delisted as declared extinct since the ESA's adoption. The 
condition of other species is improved, though not yet enough 
to justify delisting. One study found that 90 percent of 
species are recovering at the rate specified by their Federal 
recovery plans.
    Species recovery could be slow for reasons having nothing 
to do with the ESA's utility. Species are not listed until they 
are already in very bad shape. It's not surprising that it may 
take years or even decades to bring them back from the brink.
    Some species are slow to respond to recovery efforts. They 
may reproduce slowly; face ongoing, unabated threats; or 
require habitat that government hasn't yet been able to secure.
    Recovery efforts may hinge on unavailable information about 
threats facing species or how best to mitigate them. Both the 
GAO and Fish and Wildlife Service biologists have found that 
ESA recovery plans play an important role in identifying 
actions that scientists deem most important to recovery.
    Second, resource constraints have prevented the ESA from 
being even more successful in staving off species decline and 
promoting recovery. Congress has long funded the ESA at levels 
inadequate to enable the Fish and Wildlife Service to carry out 
its responsibilities. Researchers have estimated that over the 
past 15 years spending to protect listed species has covered 
only about a third of the recovery needs.
    A study published last month found a strong correlation 
between recovery funding and trends in population levels. It 
found that only about 12 percent of listed species are 
receiving funding at levels prescribed by their recovery plans 
but that recovery goals are 2.5 times more likely to be met for 
those species than for those inadequately funded.
    Congress should redress the chronic underfunding of ESA, as 
Fish and Wildlife Service Director Dan Ashe has called on it to 
do. He has also recommended increasing financial incentives for 
species conservation by non-Federal actors. But instead of 
continuing or increasing programs that assist States and 
private parties in conserving listed species, Congress is 
cutting or ending these effective programs. They include 
programs to fund acquisition of land needed to support listed 
species and to help farmers protect biodiversity on their land.
    Third, some trace difficulties in ESA's implementation to 
efforts by citizen groups to compel species listing through 
petitions filed with the Fish and Wildlife Service or lawsuits 
in Federal court. Congress has recognized the vital role that 
citizens can play in helping to implement laws that protect 
civil rights, voting rights, consumer protection, and the 
environment.
    Citizen-initiated lawsuits help ensure that individuals and 
groups from across the political spectrum with a wide range of 
interests can call on the Federal courts to ensure 
accountability of agencies and their compliance with conditions 
Congress imposed on them. Those maintain that the Fish and 
Wildlife Service has been both too aggressive and not 
aggressive enough in protecting species. Those who want both 
less and more government intervention have consistently taken 
advantage of their access to the courts.
    Senator Edmund Muskie recognized decades ago that the 
concept of compelling agencies to carry out their duties is 
integral to democratic society. Administrative failure should 
not frustrate public policy, and citizens should have the right 
to seek enforcement.
    Congress will authorize suits against the Fish and Wildlife 
Service to enforce listing-related duties, to increase 
opportunities for citizen participation in the policymaking 
process, and to address concerns that political pressure might 
discourage listing of deserving species. According to a 
prominent ESA expert, citizen suits have played an important 
role in almost every aspect of ESA implementation.
    Greater funding would be one way to redress or at least 
address the backlog that the Fish and Wildlife Service is 
currently experiencing in responding to petitions both to list 
and delist species.
    I look forward to your questions.
    [Prepared statement of Mr. Glicksman follows:]
    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
    
    Mrs. Lummis. I thank the witness.
    And, Ms. Budd-Falen, you are recognized for 5 minutes.

                 STATEMENT OF KAREN BUDD-FALEN

    Ms. Budd-Falen. Thank you.
    Chairman Lummis and Minority Leader Lawrence, honorable 
members of the committee, my name is Karen Budd-Falen. I am a 
fifth-generation rancher who is working to ensure that that 
ranch we have in Big Piney, Wyoming, is secured for a sixth 
generation. I'm also an attorney who has worked to protect our 
ranching heritage, our way of life from the Federal Government 
overreach, including that of the Endangered Species Act.
    Chairman Lummis went through some of the numbers today, and 
I think those numbers are important to understand. There are 
2,258 plant and animal species listed as threatened or 
endangered, 1,592 of which are located in the U.S.
    Part of listing a species is also critical habitat 
designation, yet only 791 of these species have critical 
habitat designated. And even with that backlog, the Fish and 
Wildlife Service data indicate that there is another 1,508 
species that are pending for review as either listed--pending 
as listing as threatened or endangered.
    Today's hearing is about delisting, so we should consider 
the number of species that have been delisted and recovered. 
According to the Fish and Wildlife Service, that total number 
is 63. Analyzing that list, the numbers of species that have 
been removed because of a listing error is 19. The number that 
were recovered is 34. The number that has gone extinct is 10.
    And while the Obama administration is correct that it has, 
``recovered more species than ever,'' part of that recovery is 
based on development of recovery plans. The problem is that the 
number of recovery plans has significantly been decreasing. For 
example, if you look between 1990 and 1999, 843 species were 
included in a recovery plan. Between 2000 and 2009, the number 
of species included in a recovery plan dropped to 235, and from 
2010 to today, only 177 species are included in a recovery 
plan.
    I would argue that there are three problems with the 
delisting of species, and the number-one problem is priority. 
It does appear to me that, when you look at the decrease in 
species included in a recovery plan versus the increased number 
of species listing, that the priority is in listing, not in 
setting recovery plans to get species off the list.
    When you look at the Congressional Record for the 
Endangered Species Act, it talked about recovery and getting 
species off the list. There is nothing in the Congressional 
Record that indicated that species were supposed to get put on 
a list and parked there forever.
    The second problem that I see happen is that so often 
recovery goals are simply not set. And that's a hard issue for 
me to understand. If the Fish and Wildlife Service has enough 
information to determine that the number of species is getting 
close to extinct, certainly at the same time it can come up 
with the converse to determine how many species we need so that 
the species is protected.
    And once you set forth that number and those goals, then 
landowners, then States, then the Federal Government knows what 
to manage for. But so often these recovery numbers and the 
numbers of what to manage for are never included so that the 
public doesn't know what the end goal is. And I think that that 
is a barrier to getting species off the list. If we know where 
we're going, we can figure out how to get there.
    The third problem I see is such difficulty in developing 
candidate conservation agreements with assurances or candidate 
conservation agreements. Currently, only 77 CCAAs or CCAAs--
excuse me--CCAs are in existence.
    I've worked on numerous of those. One of the big 
differences we have in those is looking at different regions of 
the Fish and Wildlife Service have completely different 
policies on what is an adequate CCA or a CCAA. Look at the one 
for the greater sage-grouse, which did keep the sage-grouse 
from being listed, but the policies in the different regions of 
the Fish and Wildlife Service on how to develop those candidate 
conservation agreements were completely all over the board.
    A lot of people yesterday in the hearing touted the CCAA 
for the greater sage-grouse in Oregon and Washington because 
they had a saying there, ``What is good for the bird is good 
for a herd.'' The problem is, when you talk to those Fish and 
Wildlife Service people, they will tell you that they went out 
on a limb because the candidate conservation agreement looked 
at the entire ecosystem, not just at the species, and when you 
look at the entire ecosystem, they were able to develop a CCAA 
that dealt with all of the issues and protected landowners as 
well as protecting a bird. You can't do that if you're singly 
focusing on the species.
    The second issue that we come up with in terms of CCAAs and 
CCAs is the difficulty in litigation. If you don't have enough 
time in the litigation, you can't allow the policy to work.
    With that, I would stand for questions. Thank you.
    [Prepared statement of Ms. Budd-Falen follows:]
    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
    
    Mrs. Lummis. Thank you, panel.
    And I'm pleased to report that it appears that we'll be 
able to complete our hearing without being interrupted by 
votes. So the strategy of moving this hearing an hour earlier 
has been successful, allowing this panel an opportunity to ask 
questions of you, which we will begin now.
    So thank you for your testimony.
    And the chair will yield herself 5 minutes to begin 
questioning.
    Ms. Budd-Falen, how did we get to the point where the Fish 
and Wildlife Service spends most of its time in court rather 
than helping boots-on-the-ground recovery of species?
    Ms. Budd-Falen. Madam Chairman, I think the answer to that 
is, when you look at the Endangered Species Act, the only 
timeframes that are included are listing timeframes. You 
petition a species for listing; the Fish and Wildlife Service 
is mandated to respond in 90 days. If they miss that 90-day 
deadline, litigation can occur. If they meet the 90-day 
deadline, then they have a 12-month finding that the Fish and 
Wildlife Service has mandated on issuing. If they miss that 
deadline, litigation can occur.
    There are seven different places--excuse me, eight 
different places in the listing process that litigation can 
occur, and litigation occurs in all eight of those areas. But 
if you look on the converse side, there are no mandatory 
timeframes, so you can't mandate that the Fish and Wildlife 
Service create a recovery plan or delist a species, because 
there's no mandatory timeframe for that.
    And so I think the act was set up to enforce the listing 
but not give us the chance in court to enforce delisting or 
recovery plans because the Fish and Wildlife Service always 
prioritizes something else first.
    Mrs. Lummis. Thank you.
    A question for Mr. Baier. Now, in terms of the use of 
litigation not just to force listings but to block delistings, 
do you think in Congress in 1973 they envisioned or intended 
litigation to play this role under the ESA?
    Mr. Baier. No. The answer is no.
    My next book is--that we're well into the research on--is 
on the Endangered Species Act and its history and its 
application and the flash points that we're experiencing with 
it. In that research, I've been going around the country 
interviewing the people that wrote that act, starting in 1972--
well, going back to 1966, the Organic Act. And I've been 
talking with the folks that actually wrote this act back in 
1972, 1973.
    John Dingell was the floor manager. He wrote the preface 
for this book. And I've asked John and I've asked many others 
that were really involved with this back then about that very 
question, and they just assumed delisting would happen. So I 
said, why in the 1973 act does the word ``delisting'' only 
appear once? The word is only in that act one time. And I said, 
what were you folks thinking back then about this? And they 
said, well, you know, our focus was protecting the eagle, the 
condor, the iconic species in America, and that's what our 
focus was.
    So the whole etiology of the act, when you read it, read it 
through, the systemic focus of the act is on listing, and they 
just assumed delisting would occur. And they have all said 
universally that if they could go back today they would've put 
appropriate criteria in for delisting.
    Mrs. Lummis. Thank you.
    Ms. Budd-Falen, you began to describe the process to reach 
a candidate conservation agreement. What are some of the ways 
that the process could be improved?
    Ms. Budd-Falen. I think the first way that the process 
could be improved is to allow the process to look at the 
ecosystem of the species rather than the species itself. I 
realize that the ESA says species and the ecosystems upon which 
they depend. But the litigation occurs over species listing, 
and so that is the focus. I think to broaden that to look at 
landscapes, at ecosystems would help.
    The second thing I think we have to look at is really 
focusing on making on-the-ground improvements to the land. I 
think that so often these end up in big paper exercises with no 
incentives for landowners to participate, that it's very 
difficult to convince them to do it.
    For example, if you look at the lesser prairie chicken 
range-wide plan, that was actually a really good combination of 
allowing oil and gas development to put up funding so that 
private landowners could then protect species. That is a great 
balance.
    The problem with the lesser prairie chicken listing was 
that the time ran out because of this litigation settlement 
agreement, so the Fish and Wildlife Service said, even though 
we agree with this range-wide plan, even though we think this 
is a wonderful thing, we are going to not consider it and list 
the species anyway. So you had litigation occur. The time just 
ran out.
    Mrs. Lummis. Thank you.
    My time has expired, and I will now recognize the ranking 
member, Mrs. Lawrence, for 5 minutes.
    Mrs. Lawrence. I really appreciate the witnesses and the 
different perspectives that you're bringing today.
    According to the Fish and Wildlife Service and the National 
Marine Fisheries Service, State agencies are the primary 
protectors of endangered species. ``States possess primary 
authority and responsibility for the protection and management 
of fish, wildlife, plants, and their habitats.''
    Too often, States are either unwilling or unable to 
exercise that authority effectively. That is when the Federal 
Government must step in. The reason species are listed for 
protection under the Endangered Species Act is a failure of 
States to protect species from extinction.
    So, Mr. Glicksman, will you comment, do States have the 
ability to be proactive and to implement their own conservation 
efforts before a species needs to be considered for listing?
    Mr. Glicksman. They do. Congress was careful in enacting 
the Endangered Species Act to preserve traditional State 
prerogatives in many areas in managing wildlife. The Endangered 
Species Act vests the Fish and Wildlife Service and the 
National Marine Fisheries Service with authority as kind of a 
backstop in the event that the States don't take adequate 
measures to protect wildlife species within their borders.
    The statute preempts State authority only if it is in 
conflict with measures adopted by the Federal Government under 
the Endangered Species Act. So the States really have the first 
opportunity to protect endangered species, and the Fish and 
Wildlife Service will step in only in emergencies--that is, 
when the species are already on the brink of extinction.
    Mrs. Lawrence. Have there been cases in which the State did 
fail to implement and follow through on an adequate plan to 
ensure the recovery?
    Mr. Glicksman. There are certainly examples of that, and 
one that comes to mind is with respect to the gray wolf in 
Wyoming. There you had a species that was in trouble in at 
least three States--Montana, Idaho, and Wyoming. Montana and 
Idaho came up with plans that adequately addressed the problems 
that the species was encountering. Wyoming did not initially.
    A court remanded the Wyoming plan back to the State to fix 
it. The Fish and Wildlife Service ultimately approved Wyoming's 
plan, but on judicial review a court concluded that the plan 
was again inadequate, primarily because it did not include 
binding commitments to ensure that wolf populations remained 
above minimal levels specified in the recovery plan that the 
State had adopted.
    Mrs. Lawrence. But there's been similar examples where 
delisting of wolves did not occur because judges noted a lack 
of protections as a reason to not delist the wolves. So we 
talked about litigation, but there also has been that role that 
the State has to play. And these States have included North and 
South Dakota, Iowa, and Indiana, just to name a few.
    Do you believe, Mr. Glicksman, that the court was justified 
in finding that the unregulated killing of wolves might 
represent a real threat to their survival?
    Mr. Glicksman. One of the requirements that the agency has 
to take into account both in listing and delisting decisions is 
the adequacy of the existing regulatory mechanisms to protect a 
species.
    I think the court in the gray wolf case concluded that, 
among other things, the State's designation of 90 percent of 
the State's territory as predator area for the wolf and its 
designation of only about 10 percent of the wolf habitat as 
trophy game area, in which the taking of wolves would be 
regulated and restricted by the State, was inadequate. The 
court felt that giving that degree of authority to hunters to 
kill wolves would not be sufficient to meet the target level 
specified in the plan of 10 breeding populations in 100 
animals.
    Mrs. Lawrence. Thank you.
    Madam Chair, I yield back my time.
    Mrs. Lummis. I thank the gentlelady and recognize the 
gentleman from Alabama, Mr. Palmer, for 5 minutes.
    Mr. Palmer. Thank you, Madam Chairman.
    Ms. Budd-Falen, recently the administration has come out 
with new regulations and policies for designating critical 
habitats for endangered species. Could you briefly describe for 
us some of the major changes these regulations create? I would 
like briefly, if possible.
    Ms. Budd-Falen. I believe that the new Obama changes to the 
critical habitat rules between 2012 and 2016 completely turn 
over the designation of critical habitat to anything within the 
whim of the Fish and Wildlife Service. The new rules allow the 
designation of potential critical habitat even if that habitat 
does not have the primary features of the habitat.
    So it basically means that any circle can be drawn on a map 
and anything is now a critical habitat, which then makes it 
significantly harder for private property owners and Federal 
grazing permittees.
    Mr. Palmer. What kind of effects would these regulations 
have on Federal, State, and private landowners?
    Ms. Budd-Falen. Mr. Palmer, I think that these are going to 
have a significant impact. The problem is that the adverse 
modification rules were also changed, which means that now a 
private landowner or a State cannot adversely modify critical 
habitat, which means it would slow its progress toward becoming 
a critical habitat at some time in the future.
    And we don't know when that future is. It could be you 
can't now, you know, cut your hay meadow or you can't now graze 
your field because in the next 200 years it may contain the 
features necessary for some threatened or endangered species. 
That's where the rub comes.
    Mr. Palmer. And I'd also add that they really don't take 
into account the economic cost and the burden that's imposed by 
these critical habitat designations.
    Ms. Budd-Falen. No. That was eliminated by the 2013 rule, 
which eliminates the consideration of economic analysis.
    Mr. Palmer. And it doesn't take into account the burden on 
the private landowners.
    Ms. Budd-Falen. No, sir.
    Mr. Palmer. Let me transition here a little bit. One of my 
concerns with what's going on not only with the Fish and 
Wildlife and National--and the Marine Service--Marine Fisheries 
Service includes the EPA, and that is this whole issue of sue 
and settle, which you brought up, Mr. Glicksman.
    Do you not see that as very problematic in terms of how it 
undermines the State's roles, as mentioned by Mrs. Lawrence?
    Mr. Glicksman. No, I don't see that as problematic. First 
of all, the States can take measures to prevent species from 
getting to the point that they are endangered or threatened, 
and the statute wouldn't be triggered in the first place----
    Mr. Palmer. Well, let me cut you off there, because I don't 
think it's about how the State's taking the action in as timely 
a manner as some people want it. It's more a matter of how the 
statutes are implemented.
    And, particularly, this prairie chicken, for instance, is a 
sue-and-settle issue. It's a consent decree. And----
    Mr. Glicksman. Well, courts have to approve consent 
decrees. So the court won't approve a decree that it regards as 
unfair or----
    Mr. Palmer. That hasn't been the case. We know that there's 
court shopping, judge shopping. There's collaboration between 
these independent outside groups, so-called independent outside 
groups, and Federal agencies to really cook up a pre-agreement 
on this. So they file the suit and we don't fight it in court, 
where if we fought it in court I think the outcomes might be 
different.
    Have you participated in any of the sue-and-settle 
lawsuits?
    Mr. Glicksman. I have not, no.
    But I would point out that sue-and-settle techniques have 
been engaged in by litigants from a variety of interests. So, 
for example, there's been litigation in Utah over the scope of 
R.S. 2477 rights. Litigation was brought against the Federal 
Government----
    Mr. Palmer. Yeah, but my point about this is that it is I 
think, not only a violation of the intent of the Clean Air Act, 
the Clean Water Act, the Endangered Species Act, it violates 
the matching principle that States had.
    I mean, there's a great piece on this in the Harvard 
Journal of Law and Public Policy, and the Harvard Journal of 
Law and Public Policy article basically deals with the EPA, but 
I think the same principle applies.
    What's going on with sue and settle is a violation of State 
rights and, I think, private property rights, as well. And it's 
using the courts in a very manipulative and, I think, 
disingenuous way to impose these regulations on the States and 
on private landowners.
    Madam Chairman, I yield.
    Mrs. Lummis. I thank the gentleman.
    And I recognize the gentlewoman from the Virgin Islands, 
Ms. Plaskett.
    Ms. Plaskett. Thank you.
    Mrs. Lummis. Did I pronounce that right?
    Ms. Plaskett. Yes, you did. Thank you.
    Mrs. Lummis. Thank you.
    Ms. Plaskett. Good morning--or good afternoon to you all. 
Thank you so much more your time.
    Mr. Thornton, you talked about litigation that you've been 
involved in and the scientific data indicating the issues 
involving delisting. That's particularly interesting to me, 
living in the Virgin Islands, the impediments to delisting that 
you've talked about.
    Can you explain some of your thoughts on why this occurs 
and why it's so difficult to delist species?
    Mr. Thornton. Congresswoman, I think the fundamental reason 
is that, once a species is on the list, the inertia takes over 
within the regulatory agency. Very difficult to have them 
reverse that decision.
    Frankly, the Endangered Species Act provides a lot of 
regulatory authority and power to the Fish and Wildlife 
Service, so I think the natural, kind of, human inclination of 
a regulator is to want to retain that authority.
    And once a species is listed, it develops a constituency, 
usually, that become strong votes to retain that species on the 
list, even when the science emerges, as it did in the case I 
mentioned where we went from, frankly, 19th-century ornithology 
to very sophisticated genetic testing----
    Ms. Plaskett. You know, this is one time where with some of 
my colleagues on the other side I tend to agree. And I agree 
wholeheartedly with you as to the advocacy groups that come 
around and are formed when species come on the list.
    I live in the U.S. Virgin Islands, and we have enormous 
impediments that are put on us with our economic development 
and the growth of the territories because of the endangered 
species listing and because once species are put on the list 
there is almost nothing we can do to adequately satisfy the 
needs of the--you know, you talked about the U.S. Fish and 
Wildlife, the National Marine Fisheries Association, NOAA, 
others that keep us from being able to grow our economy.
    I'm often, I think unfairly, labeled by many in my 
community as being against our natural resources, which I think 
is in--and not an environmentalist, which I think is an unfair 
label that has been put on me. I'm worried, quite frankly, 
about the extinction of the people of the Virgin Islands that 
are occurring because of the endangered species listing.
    In August of 2014, 19 new corals were listed by the 
Endangered Species Act, requiring specific ways in which we 
could operate around these corals that were put on this list. 
It costs us now 30-percent more to develop in the territory 
because of this listing.
    And that really necessitates, in some instances, developers 
leaving the area entirely. We've had projects--Williams and 
Punch--creating dolphins within our coral world--with Thatch 
Cay. Lots of development can no longer move forward because it 
takes 2 years to get a biological opinion passed by--and I see 
you're shaking your head, Ms. Budd-Falen--where it takes so 
long to come up with a plan that says how we're going to move 
the coral so that we can have sustainable projects take place.
    And I'm not just talking about resorts that are created for 
visitors and people who want to come down and enjoy themselves. 
We were trying to move from fossil fuel oil to propane to 
reduce the cost of energy in an already exorbitant economy, and 
it took almost 2 years to get the permitting requirement 
because, in the time period that we put the permit, this 
listing came up in August 2014 that has absolutely crippled us.
    I can't imagine what occurs in American Samoa and in 
Northern Marianas and Guam, where their way of life is being 
absolutely shut down because of this listing that's put on 
here. And the fishermen are no longer able to fish at all in 
many areas because of this listing.
    Ms. Plaskett. Once listed, it's almost impossible to go on 
with the delisting. I know the administration has said that 
they have about 28 percent that have come off of the list, but 
that is entirely not enough. And they do not have aggressive 
plans on how to move to delisting.
    Mr. Glicksman, you talk about the States having inadequate 
measures. In the Virgin Islands, we believe that we've done and 
have been doing for hundreds of years a great job in preserving 
our natural resource. We understand that that is the most 
important resource that we have. And we are now feeling the 
effects of global warming that we had nothing to do with. And 
we are being penalized by the Federal Government by not 
allowing us to exact plans that we believe balance the needs of 
our natural resources and the needs of the people to have jobs 
and food and be able to sustain themselves with this endangered 
species.
    Madam Chairwoman, I know that my time has expired. I guess 
I really didn't have any questions in the 5 minutes that I had, 
but I thought it was necessary to put on the record the 
concerns of the people of the Virgin Islands and, I'm sure, the 
concerns of many communities throughout the United States that 
feel that there needs to be a balance between the endangered 
species, which we want to keep, as well as not endangering the 
lifestyles of the--what we believe are natural and fair 
lifestyles of Americans living in those areas.
    Thank you.
    Mrs. Lummis. The gentlewoman yields back.
    And I think many people share the frustrations and the 
goals on a bipartisan basis of saving species, recovering 
species, and have the ethic to do so but are frustrated with a 
process that is actually beginning to interfere with the 
ability to recover those species in an effective and timely 
manner.
    The chair now recognizes the gentleman from Montana, Mr. 
Zinke, for 5 minutes.
    Mr. Zinke. Thank you, Madam Chairman, and I appreciate the 
opportunity to be on your committee.
    I guess--I, you know, listened to it. One is I think we 
need more scientists and less lawyers in the woods. I think 
that's an overriding conclusion.
    And I appreciate--I can't wait to read your book, Mr. 
Baier. As a native son of Montana, I think you're aware of it.
    When I looked at the sage-grouse--and I consider myself a 
Teddy Roosevelt Republican. When I looked at the sage-grouse, I 
talked to Director Kornze, and I asked him, why do you think 
the numbers of sage-grouse are low? And it depends on where in 
Montana. Now, bear in mind that Montana has the same distance 
between here and Chicago plus 2 miles. His immediate answer was 
oil and gas exploration. I found that somewhat ironic because, 
at the time, Montana had one oil derrick. Today, we have none.
    So I asked him, does the plan take into consideration 
predators? We have a coyote population. We have more hawks. The 
eagle population is soaring, no pun intended. The answer was 
no. What about wildfires? The answer was no.
    And the core of the issue was, what does a healthy 
population of sage-grouse look like? Because if we're going to 
target to return to a healthy population, then we should strive 
to a number. As a former SEAL commander, metrics are important. 
The answer was, we don't have one, but it is about habitat. And 
so, if you don't know the difference between Butte and Bozeman, 
then how can you manage a difference that Butte and Bozeman 
have?
    So I guess my question would be to Mr. Bousman. Because, as 
I look at it, these collaborative efforts are so incredibly 
important, that we can come together on issues. Because we all 
value, I believe, endangered species, and we want to make sure 
we have healthy populations, but certainly local jurisdictions 
have a place in it.
    So, Mr. Bousman, what level of engagement does the 
Endangered Species Act require between Federal officials and 
local?
    Mr. Bousman. Congressman Zinke, thank you for that 
question.
    At this time, section 1533 of the ESA does say that 
consultation will occur when deciding whether or not a species 
is threatened or endangered. It also requires Fish and Wildlife 
Service to give notice of any pending new regulations or 
designation and invite comment from the counties.
    But it does not require any defined level of cooperating 
agency status or collaboration. And I guess, as a local 
government official, we continually work with both land 
management agencies in Wyoming--the Forest Service and the BLM. 
They are required through NEPA to designate local and State 
governments as cooperating agencies, and they're required to 
coordinate with any local plans they have in place. That's not 
true at Fish and Wildlife Service.
    And I think it would be a great benefit if Congress could 
change the rules a little bit in terms of Fish and Wildlife 
Service and their endangered/threatened species management to 
require the same level of coordination and collaboration with 
local and State governments as what they do with the land 
management agencies. That has proven to work fairly well when 
it's taken advantage of.
    And there's ways that that--it goes back to the whole idea 
that the best management decisions are made at the local level, 
by the local people, working together with the local Federal 
agency people and the community. And it takes into account the 
socioeconomic impact on the community, and it allows you to 
develop a plan for the species or for the habitat that takes 
into account those concerns. And it turns out to be a win-win 
for everyone.
    Mr. Zinke. Mr. Baier, in your book, do you estimate how 
much is spent every year on litigation by both outside sources 
and the agency?
    Mr. Baier. The low figure is a million dollars. The high 
figure is, as best I recall--I know Karen Budd-Falen published 
some numbers on that, and I forget--I cannot remember off the 
top of my head, but it was, I think, over $2 million.
    Mr. Zinke. Is that from the agency or outside sources or 
combined?
    Mr. Baier. It's a combination of the fees that are paid out 
by the Treasury Department--even though the law says they're 
supposed to come out of the agency budget, they don't. The 
Department of Justice authorizes checks being written. It comes 
right out of the U.S. Treasury.
    But on top of that you've got to then add the cost to the 
agency of all the personnel. And that's, from talking to all of 
the Fish and Wildlife Service Directors over the past years, 
they estimate, for every dollar of fee that goes out, anywhere 
from five to seven times that are spent in personnel costs.
    Mr. Zinke. Thank you.
    And thank you, Madam Chairman. I yield back the rest of my 
time.
    Mrs. Lummis. I thank the gentleman.
    And with the committee's indulgence, we will do one more 
round of questioning but 4 minutes only per person. And then I 
would like to give each member of the panel 1 minute to say 
anything that they wish they could have said but didn't get to 
during the course of this hearing. Fair enough?
    Okay. The chair recognizes herself for 4 minutes.
    Mr. Bousman, do you think that the conservation ethic of 
Americans has changed? Do you think that local governments, 
such as yours, are willing and able to protect species like the 
grizzly bear, the wolf, sage-grouse, black-footed ferret, and 
other species that are within their counties?
    Mr. Bousman. Congresswoman Lummis, definitely the 
conservation ethic has changed at the local level. And, in my 
experience in Wyoming, for example, the local people now look 
to us, as their elected officials, to take into account those 
sorts of things, which 20 years ago you would have never seen a 
county commissioner at a hearing in Washington, D.C., talking 
about these kinds of issues. The mindset has changed.
    And we are in a position now, both willing and ready, to 
work with our State game management agencies to point out at 
the local level what the problems are. An example could be--and 
we have one in our county--mule deer migration and bottlenecks 
that have occurred that inhibits the mule deer from migrating 
from one place to another where they spend the winter, getting 
back in the summer. And we're ready and engaged in addressing 
those issues.
    And if we could somehow redirect a little bit the Fish and 
Wildlife Service to become more of a resource for State and 
local governments to say how can we help you meet the goals, 
the conservation goals of a species, we could be much more 
effective on the ground.
    Mrs. Lummis. I commend to the panel's attention a drive 
between Pinedale, Wyoming, and Jackson, Wyoming, where there 
have been overpasses created over a road for antelope and 
underpasses for elk and deer because the species choose 
different means of access across the highways. The antelope 
won't go under an underpass, whereas elk and deer will. And so 
two massive overpasses were built specifically for antelope to 
cross that road, thereby saving tremendous wildlife deaths on 
the highway.
    So I commend, Mr. Bousman, your county and your particular 
involvement in these issues.
    Ms. Budd-Falen, a comment was made about Wyoming's wolf 
recovery plan and its adequacy. Would you care to comment on 
the wolf case?
    Ms. Budd-Falen. I think the most frustrating thing about 
the wolf case for the people in Wyoming was the fact that that 
case got litigated in Washington, D.C., rather than in Wyoming 
with a Wyoming Federal district judge who knew the people, who 
knew the land, who knew the State.
    In fact, there was litigation in both Wyoming and 
Washington, D.C., and the case got moved over to Washington, 
D.C., to a judge who I don't think has any idea where Wyoming 
is, which one of the square States we are. That was one of the 
first problems.
    I think the second problem is that, after the wolf case got 
sent back to Wyoming because they didn't have a commitment, a 
written commitment from the Governor, the legislature and the 
Game and Fish immediately acted to put in that true, written 
commitment on wolf recovery in place, but the case was over, 
the court wouldn't recognize it, and then the U.S. Fish and 
Wildlife Service refused to recognize it. So Wyoming tried to 
fix the problem identified by the court, and it didn't help.
    Mrs. Lummis. My time has almost expired, so I will yield to 
the ranking member, Mrs. Lawrence, for 4 minutes.
    Mrs. Lawrence. I appreciate my chairman's lesson on 
antelope and elk. I had no idea, so I learned something today.
    Mr. Glicksman, let's discuss the consequences that budget 
cuts have had. Would you--let's talk about this. Do you agree 
that a lot of the litigation is due to an agency's missed 
deadlines?
    Mr. Glicksman. Yes.
    Mrs. Lawrence. So the Fish and Wildlife Service uses 
innovative programs, but they're understaffed and underfunded 
and they struggle to manage it. It's not surprising, when 
funding cuts are made, you have an issue with missing 
deadlines, and plaintiffs sue the agency.
    What do you recommend or what would you say to Congress as 
we talk about this, as we talk about the need to ensure that 
our sincere efforts to protect the endangered species--that, 
one hand, because they're cutting the costs and staffing of 
that agency and litigation is increasing--and I agree with the 
comment that was made, we need more scientists and less 
litigation.
    But can you comment on that? Enlighten us.
    Mr. Glicksman. I would say that, to me, it seems 
counterintuitive to redress a research shortage by cutting 
funds still further. If the agency lacks sufficient funds to 
comply with the statutory responsibilities, the solution, it 
appears to me, would be to provide more funding and more staff.
    In recent years, the agency has experienced about a 10-
percent decline in the levels of staffing, which obviously 
would make it more difficult for it to comply with its 
obligation to respond to petitions of all sorts on a timely 
basis.
    It would also, I think, increase the likelihood that, when 
the agency does make a decision, it's not going to be as 
thorough, well-considered, or take into account all 
perspectives that ought to be taken into account. And it may be 
that the lack of funding is responsible for failure to consult 
and work rigorously with all affected interests. They just 
don't have the time, the personnel, or the money to do so.
    Mrs. Lawrence. I thank you.
    And, Madam Chair, I just wanted to close with, when we have 
an objective in a bipartisan act and we want to be able to use 
the full entirety of it, that we must look at the staffing that 
we have. And lack of funding leads to lawsuits. It also makes 
it difficult to keep species off the endangered species list, 
and it hampers the ability of the Fish and Wildlife to 
adequately oversee the recovery, which is ultimately the real 
barrier to delisting.
    And I yield back.
    Mrs. Lummis. I thank the ranking member for her time and 
her participation in this hearing.
    The chair now recognizes the gentleman from Arkansas, Mr. 
Palmer, for 4 minutes.
    Mr. Palmer. Madam Chairman, if I may, I'd like to correct 
the record that I'm from Alabama.
    Mrs. Lummis. Excuse me.
    Mr. Palmer. That's all right. Bruce Westerman would've been 
proud of it.
    Mr. Thornton, you were counsel to the House Fisheries and 
Wildlife Conservation Subcommittee during the congressional 
consideration of the 1978 and 1979 Endangered Species Act. As 
such, you have familiarity with the background and legislative 
intent of these amendments and their provisions.
    What is your understanding of the reason for that part of 
the law that creates the distinct population segments, or DPS?
    Mr. Thornton. So, Congressman, some of the problems you 
might be able to blame on me, perhaps, but----
    Mr. Palmer. We're not blaming anyone.
    Mr. Thornton. But it's very interesting because the 
distinct population segment question was controversial at the 
time, and I think there was a recognition that there was a 
potential for abuse of listing of distinct populations and the 
inability to properly define what's a distinct population.
    Just, if you'll bear with me, a little story. In the course 
of the testimony during the oversight hearings in 1979, the 
Fish and Wildlife Service was responding to the complaints 
about the ability to list distinct population segments, and 
they cited as an example of why they needed population 
authority was their down-listing of the American alligator in 
the southern parishes of Louisiana.
    That was near and dear to the then-chair of the 
subcommittee, Congressman John Breaux, who represented 
southwest Louisiana and had worked for a number of years to, A, 
have the State implement a management program that was 
phenomenally successful in increasing the populations of 
alligators and then subsequently reducing the regulations.
    And, frankly, it was the case that they made to Congressman 
Breaux, that we need this authority to give us more flexibility 
in the statute to remove those populations from the list when 
they recover, when they're not threatened----
    Mr. Palmer. But that hasn't been the case, has it?
    Mr. Thornton. No. In fact, unfortunately, it's worked just 
the opposite, where the DPS authority is now used as a barrier.
    Mr. Palmer. You mentioned the possibility of it being 
abused. Do you believe it's been abused?
    Mr. Thornton. I do think that, in general, the barriers 
that have been created by a listing of distinct population 
segments, which has increased, and now, in some of the 
litigation that's occurred, the inability to delist component 
parts of a broader listed species, a subspecies or a species 
where it's recognized that there are individual populations 
that have recovered. The courts have made it more difficult to 
delist those individual segments.
    Mr. Palmer. Okay.
    Mr. Baier, you had a slide up during your opening remarks. 
Could you please explain the second graphic exhibit in your 
written statement regarding the delisting attempts for the 
wolves and grizzly bears, all of which, it seems, the courts 
have overturned and reversed?
    Mr. Baier. Yes. Thank you, Mr. Palmer.
    If you all will get that graphic in front of you, if we can 
put it up.
    The vagueness of the language in ESA surrounding distinct 
population segments, a significant portion of a species range, 
or the adequacy of existing regulatory mechanisms to manage a 
species once recovered are the three areas, the three sets of 
language in the act which has led to the inability to delist 
the wolf, both in the Great Lakes and northern Rocky Mountains, 
and pretends to do so with the Yellowstone grizzly.
    What this graph does is, serially, by year, walk down 
through for each of the species the delisting or down-listing 
of the species by the Service and then, under each of those, 
shows the delisting being reversed by a court.
    And at the bottom you'll see, ``Key to the grounds for 
reversal.'' There's three different grounds down there--1, 2, 
and 3. And so, in this graph, you'll see in parens under each 
reversal either a 1, 2, or a 3, and those show the specific 
language upon which the court's decision turned to delisting.
    I wish we would've put these court decisions in red, but 
that's what this graph shows, is that, because of the vagueness 
of the language itself, each of these cases has turned on one 
of three.
    Mr. Palmer. I'd just like to point out that, in regard to 
the distinct population segments, it was used seven times.
    I yield back.
    Mrs. Lummis. I thank the gentleman and recognize the 
arrival of our vice chair, the gentleman from Colorado, Mr. 
Buck, who will be recognized for 5 minutes due to the fact that 
he missed the first round.
    Mr. Buck, you are recognized for 5 minutes.
    Mr. Buck. Thank you, Madam Chair.
    Ms. Budd-Falen, I had the pleasure of practicing law in 
Cheyenne for a short period of time. And I remember a saying, 
actually probably more outside the bar than inside the bar, 
but: If there's one lawyer in town, the lawyer starves; if 
there are two lawyers in town, both lawyers become very 
wealthy.
    I'm trying to figure out the attorneys' fees with the 
Endangered Species Act and what the legal basis for those 
attorneys' fees are.
    Ms. Budd-Falen. The Endangered Species Act is actually paid 
out under a provision in the ESA itself, which means that the 
fees for that act are paid from the judgment fund, not from the 
Equal Access to Justice Act.
    The judgment fund allows payment for achieving part of the 
goal of the litigation, whatever part of that goal might be. So 
even if the goal is simply, ``Fish and Wildlife Service, you 
missed a time deadline,'' that is achieving the goal of the 
litigation, you get paid your attorneys' fees.
    There is no cap on the hourly fee that you charge under the 
judgment fund, so $500 an hour or $700 or whatever. They don't 
pay Cheyenne attorneys that, but whatever the attorneys' fees 
paid are, that gets paid.
    I pulled the Department of Justice run sheets from 2010 to 
2015 just for Endangered Species Act cases alone and found that 
over $9 million was paid in attorneys' fees from 2010 to 2015 
for ESA cases solely.
    Mr. Buck. And so how much did the Department of Justice 
recover from plaintiff's attorneys that filed frivolous 
lawsuits?
    Ms. Budd-Falen. None. There is no fee shifting in the 
opposite direction. So if I lose a case against the Justice 
Department, I don't have to pay.
    Mr. Buck. One of the beauties of Wyoming is this common 
sense. Does that encourage or discourage people from filing 
lawsuits, when they get money if any small part of their suit 
is successful but they don't have to risk anything if they are 
deemed to have filed a frivolous lawsuit?
    Ms. Budd-Falen. Quite honestly, Mr. Buck, I think that 
there is no downside to filing this kind of litigation. I have 
seen these attorneys' fees cases and these ESA cases brought by 
students of Denver University Law School. We have seen these 
brought by, ``nonprofit organizations.'' The attorneys' fees go 
strictly back into them.
    The vast majority of attorneys' fees we found is done 
through a settlement agreement, so we have no idea, as the 
American public, the hours charged for a particular task in the 
litigation or the hourly fee charged by the attorney.
    Mr. Buck. And what is the effect on the administration of 
the Endangered Species Act or the administration generally in 
government when individuals file lawsuits? Does it prolong the 
study or effort to move forward on certain issues?
    Ms. Budd-Falen. Yesterday at the hearing, Director Ashe 
talked about how litigation wasn't even a consideration. He is 
not getting that from his staff. The staff people on the ground 
will absolutely tell you that they spend so much time preparing 
for litigation, responding to Freedom of Information Act 
requests, that they simply cannot do their job because all of 
their hours are sucked up in litigation.
    So it may not be a policy at the top, but it is killing the 
regular Fish and Wildlife Service or Bureau of Land Management 
or Forest Service people at the bottom of the totem pole.
    Mr. Buck. And the effect is really twofold. On the one 
hand, where a species should be delisted it would take much 
longer, and where a species may need to be listed, at the same 
time, those individuals that are burdened with paperwork don't 
have the ability to go out and do their job.
    Ms. Budd-Falen. That's correct. They don't have time to go 
do the science and gather up the information so that they can 
figure out if something needs to get off the list, or so that 
they can set a recovery bar so that States and landowners can 
work toward goals to get it off the list.
    Mr. Buck. I appreciate your testimony.
    I yield back.
    Mrs. Lummis. Now I wish to ask each member of our panel to 
use 1 minute each to say anything that they wish they could 
have said but was not asked of them.
    Mr. Baier, thank you for your testimony. You are recognized 
for 1 minute if you wish to use it.
    Mr. Baier. Thank you, Madam Chairman.
    I wish Mr. Zinke were still here. I checked my record. He 
asked me how much--Mr. Buck--how much was spent on payments 
each year, what are these lawsuits costing us as taxpayers. And 
I said it was over a million. I was having trouble remembering. 
It's about $49 million. For fiscal years 2009 and 2010, we went 
back and checked the records, and the average is about $49 
million for those 2 years.
    We need to have an open book. I have had to do the 
research, Karen Budd-Falen has had to go back and do the 
individual research to find out how much is being paid out.
    And thank God, in the energy bill, the Equal Access to 
Justice Act reform measure that Chairwoman Lummis has been a 
champion of in the House has finally passed, and now it's in 
the energy bill, which I understand was finally passed. So we 
are going to get an open book, finally, so we can keep track of 
this.
    Thank you, Madam Chair.
    Mrs. Lummis. I thank the gentleman.
    Mr. Baier. And thank you for your championing this for 6 
years. It's taken 6 years to get that open book finally passed.
    Mrs. Lummis. I commend also to those in attendance Mr. 
Baier's book, which is sitting on the dais, or on the table 
next to him. It's exhaustive research and factual information 
on the Equal Access to Justice Act.
    Mr. Thornton, you are recognized for 1 minute.
    Mr. Thornton. Madam Chair, I think what I would like to 
add, that I think it's very important that Congress focus on 
the issue of what constitutes best science. That was added to 
the statute when I was counsel to the committee in 1978. The 
thought was that it established a higher standard for the Fish 
and Wildlife Service to meet. Frankly, that has not worked out 
in practice, and we get into the problem of the agency relying 
on the defense, ``Well, these are technical issues, and 
therefore you have to defer to the agency.''
    I think there has to be some standard of what constitutes 
best science. One element that I spoke about in my testimony is 
transparency. It seems to me that should be noncontroversial, 
that there should not be hiding the data, that you shouldn't 
have to file lawsuits, as I've had to do, just in order to 
obtain the data, which we had to do in the gnatcatcher. You 
shouldn't have to have the agency hiding behind the so-called 
deliberative process exemption in the Freedom of Information 
Act and refuse to provide information that is, after all, facts 
that's in possession of the agency or in possession of the 
agency's consultants.
    And then an understanding that best science means that the 
agencies are obliged to use what is the current standard in the 
profession and, frankly, not rely simply on what might have 
been perfectly adequate science in 1920 but is no longer.
    Mrs. Lummis. I thank the gentleman for his specific 
recommendations about how to improve the implementation of the 
act.
    Mr. Bousman, you are recognized for 1 minute.
    Mr. Bousman. Thank you, Madam Chairman.
    One thing that comes to my mind, to give an example, an on-
the-ground example of how local government participating with a 
Federal agency can actually improve the outcome of a process 
and decrease the prospects of litigation, the Forest Service 3 
or 4 years ago started an analysis in the Hams Fork area in 
northern Lincoln County. They wanted to do a timber management 
project.
    And up until that time, every time the Forest Service 
seemed to propose cutting trees that might create jobs and thin 
the forest and reduce the cost of fire suppression, it got 
litigated. In this case, with the help from the county's 
involvement and the Governor's office involvement, working with 
the Forest Service in a collaborative effort, bringing in 
representatives from local environmental groups whose national 
group tends to litigate--by involving that local component in a 
collaborative effort up front in developing this forest 
management plan, that record of decision on the Hams Fork was 
not litigated at all. The record of decision stood as it was 
proposed.
    And now we're in the process of actually putting out--
letting people bid on projects to harvest trees, make the 
forest a healthier forest for all the multiple uses that use 
that forest. And it's a win-win for everybody. But it required 
the in-depth participation at the local level to make that 
happen.
    Mrs. Lummis. I thank the gentleman and commend you on your 
leadership on these issues.
    Mr. Glicksman, you are recognized for 1 minute.
    Mr. Glicksman. Thank you.
    I would like to point out first that there are costs to the 
filing of frivolous lawsuits under the ESA and elsewhere. 
There's a reputational cost to an attorney in a case in which a 
judge says that the suit was frivolous. There are sanctions 
available in the Federal Rules of Civil Procedure for bridging 
frivolous lawsuits, although they're not often exercised. And 
attorneys' fees are not going to be reimbursed if the plaintiff 
loses.
    But I wanted to end by pointing out that I think there's 
common ground between me and at least some of the points of 
each of my co-panelists.
    So I would agree, for example, that the ultimate goal of 
the statute ought to be protection of ecosystems, not 
protection of individual species alone.
    I wouldn't necessarily agree that we need fewer lawyers. As 
a law professor, that would be against my self-interest. But I 
do agree that we need more scientists, especially at the Fish 
and Wildlife Service.
    I agree that a recovery plan should have clear metrics that 
indicate when we have met recovery goals.
    I agree that policy-based decisions in natural resources 
management are often best when they're a result of 
collaboration among and decisions that are acceptable by all 
levels of government. So I do encourage collaboration between 
the Fish and Wildlife Service and lower levels of government.
    And, finally, I think that one advantage of authorizing 
Federal action is its capacity to act as a resource pooler. And 
so the idea of the Fish and Wildlife Service providing needed 
information to allow local governments to act in ways that are 
beneficial to species while protecting economic interests is an 
attractive one to me.
    Thank you.
    Mrs. Lummis. Well, I thank you, Mr. Glicksman. And we are 
seeking common ground, and I believe we've found some today. 
Thank you for your testimony.
    Ms. Budd-Falen, you are recognized for 1 minute.
    Ms. Budd-Falen. Thank you, Congresswoman.
    I think that I would agree with my panelists that one of 
the biggest problems we have now is that, often, we don't have 
goals for how many species we need or what kind of habitat we 
need. Species get put on the list without clear goals, without 
clear recovery, and then States and private landowners simply 
can't manage to what they don't know to manage for.
    I think that if the Fish and Wildlife Service truly wants 
to recover species, they need to tell us what they want or let 
the States and local governments figure out what they want so 
that they can manage for it. It's impossible to manage for 
something if you don't have a goal.
    I do think, though, that it's a little sort of disingenuous 
to say, oh, States can just keep species off the list if they 
just manage better for the species. The problem is you've got 
all the litigation. And so, even if the species, for example in 
the lesser prairie chicken case, is putting together a range-
wide plan covering five different States and 5.8 million acres, 
the Center for Biological Diversity sued anyway. And the Fish 
and Wildlife Service said the range-wide plan doesn't have a 
chance to work, we are not going to wait for all the CCAAs in 
place, we're listing it anyway.
    And then we just went through 2 years of litigation where 
the court finally said, Fish and Wildlife Service, you didn't 
give the range-wide plan a chance to work, and so the listing 
got vacated. Fish and Wildlife Service has to determine if 
they're going to appeal that to the Fifth Circuit Court of 
Appeals. I think their timeline is, like, another 10 days to 
appeal it or not.
    So that was a case where you had five States trying to do 
the right thing and it got preempted by litigation. The species 
ought to matter, not the litigation, and I'm afraid that's the 
way it works now.
    Thank you.
    Mrs. Lummis. Well, this panel has exhibited great expertise 
and an effort to find common ground to recover species. And 
that's what we're after. And we are deeply grateful to each one 
of you, who has traveled far to offer up and share your 
expertise.
    I'm hopeful that your wise admonitions and advice will 
change the way the Endangered Species Act is used in the future 
so species recovery is paramount to other considerations, as I 
believe the people who envisioned the Endangered Species Act in 
1973 envisioned.
    So, with that, I would like to thank our witnesses for 
taking the time to appear before us today. And if there is no 
further business, without objection, the subcommittee stands 
adjourned.
    [Whereupon, at 2:43 p.m., the subcommittee was adjourned.]

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