    [Senate Hearing 116-390]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 116-390

                        SUCCESSFUL STATE STEWARDSHIP: A
                     LEGISLATIVE HEARING TO EXAMINE S. 614,
                     THE GRIZZLY BEAR STATE MANAGEMENT ACT

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

                                    HEARING

                                   before the

                                  COMMITTEE ON
                          ENVIRONMENT AND PUBLIC WORKS

                              UNITED STATES SENATE

                         ONE HUNDRED SIXTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                               SEPTEMBER 9, 2020

                                   __________

      Printed for the use of the Committee on Environment and Public Works

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

            Available via the World Wide Web: http://www.govinfo.gov

                                 _________

                     U.S. GOVERNMENT PUBLISHING OFFICE

    42-801                   WASHINGTON : 2023

                   COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                         ONE HUNDRED SIXTEENTH CONGRESS
                                 SECOND SESSION

                        JOHN BARRASSO, Wyoming, Chairman
    JAMES M. INHOFE, Oklahoma            THOMAS R. CARPER, Delaware,
    SHELLEY MOORE CAPITO, West Virginia      Ranking Member
    KEVIN CRAMER, North Dakota           BENJAMIN L. CARDIN, Maryland
    MIKE BRAUN, Indiana                  BERNARD SANDERS, Vermont
    MIKE ROUNDS, South Dakota            SHELDON WHITEHOUSE, Rhode Island
    DAN SULLIVAN, Alaska                 JEFF MERKLEY, Oregon
    JOHN BOOZMAN, Arkansas               KIRSTEN GILLIBRAND, New York
    ROGER WICKER, Mississippi            CORY A. BOOKER, New Jersey
    RICHARD SHELBY, Alabama              EDWARD J. MARKEY, Massachusetts
    JONI ERNST, Iowa                     TAMMY DUCKWORTH, Illinois
                                         CHRIS VAN HOLLEN, Maryland

                  Richard M. Russell, Majority Staff Director
                  Mary Frances Repko, Minority Staff Director

                                C O N T E N T S

                                  ----------
                                                                       Page

                               SEPTEMBER 9, 2020
                               OPENING STATEMENTS

    Barrasso, Hon. John, U.S. Senator from the State of Wyoming......     1
    Carper, Hon. Thomas R., U.S. Senator from the State of Delaware..     3
    Enzi, Hon. Michael B., U.S. Senator from the State of Wyoming....     5
    Daines, Hon. Steve, U.S. Senator from the State of Montana.......     8
    Inhofe, Hon. Thomas M., U.S. Senator from the State of Oklahoma..    12

                                   WITNESSES

    Roady, Chuck, Vice President and General Manager, F.H. Stoltze
      Land and Lumber................................................    13
        Prepared statement...........................................    16
        Responses to additional questions from:
            Senator Barrasso.........................................    19
            Senator Carper...........................................    20
    Crank, Patrick, Vice President, Wyoming Game and Fish Commission,
      and Attorney, Crank Legal Group, P.C...........................    23
        Prepared statement...........................................    26
        Responses to additional questions from:
            Senator Barrasso.........................................    46
            Senator Carper...........................................    48
    Leshy, John, Distinguished Professor Emeritus, University of
      California, Hastings College of the Law........................    55
        Prepared statement...........................................    57
        Response to an additional question from Senator Carper           62
        Responses to additional questions from Senator Cardin            64

                              ADDITIONAL MATERIAL

    Center for Biological Diversity..................................    74
    Chuck Neal, Ecologist USDI.......................................   113
    Franz J. Camenzind, Ph.D., Wildlife Biologist....................   114
    The Humane Society Legislative Fund and The Humane Society of the
      United States..................................................   119
    The Humane Society of the United States Facts Sheet..............   122
    The Humane Society of the United States..........................   124
    Montana Wildlife Federation......................................   143
    National Parks Conservation Association..........................   145
    Natural Resources Defense Council, Hunting Grizzly Bears in
      Montana........................................................   147
    Natural Resources Defense Council, Social Tolerance, Conflict
      Reduction, and Compensation....................................   155
    National Wildlife Federation.....................................   169
    Rocky Mountain Tribal Leaders Council............................   183

    SUCCESSFUL STATE STEWARDSHIP: A LEGISLATIVE HEARING TO EXAMINE S. 614,
                     THE GRIZZLY BEAR STATE MANAGEMENT ACT

                                  ----------

                          WEDNESDAY, SEPTEMBER 9, 2020

                                           U.S. Senate,
                     Committee on Environment and Public Works,
                                                        Washington, DC.
        The committee, met, pursuant to notice, at 10:05 a.m. in
    room 406, Dirksen Senate Office Building, Hon. John Barrasso
    (chairman of the committee) presiding.
        Present: Senators Barrasso, Carper, Cardin, Gillibrand, Van
    Hollen, Inhofe, Cramer, Braun, Boozman, and Ernst.

               OPENING STATEMENT OF HON. JOHN BARRASSO,
                 U.S. SENATOR FROM THE STATE OF WYOMING

        Senator Barrasso. Good morning. I call this hearing to
    order.
        Today, we will consider S. 614, the Grizzly Bear State
    Management Act of 2019. Senator Enzi introduced this
    legislation at the beginning of the 116th Congress, and Senator
    Daines, and Risch, and Crapo and I are cosponsors.
        The Grizzly Bear State Management Act delists the grizzly
    bear in the Greater Yellowstone Ecosystem from the list of
    threatened species under the Endangered Species Act. It directs
    the Secretary of the Interior to reissue the final rule
    delisting the grizzly bear that was published on June 30th,
    2017. It protects the reissuance of the final rule from
    judicial review.
        The grizzly bear in the Greater Yellowstone Ecosystem is
    fully recovered. End of story. It is one of the greatest
    recovery successes since the Endangered Species Act was enacted
    in 1973. It is a conservation triumph led by the people of
    Wyoming, Montana, and Idaho. It is a triumph that all Americans
    should celebrate.
        President Bush, President Obama, and President Trump agree.
    Under each of their administrations, the U.S. Fish and Wildlife
    Service determined that the grizzly bear is fully recovered and
    should be delisted. Wyoming, Montana, and Idaho first achieved
    all the grizzly bear's recovery objectives in 1997, 23 years
    ago. By 2003, they had met all of its recovery objectives for
    six consecutive years, the standard required by the 1993
    Grizzly Bear Recovery Plan. The States have met or exceeded all
    of the bear's recovery objectives ever since.
        In 2007, the Bush administration recognized the grizzly
    bear's recovery when it published the final rule delisting the
    species. That rule was overturned by a liberal Federal judge
    based on an environmental group's claim that a particular food
    source for the grizzly bear had not been adequately considered
    during the rulemaking. The importance of that food source was
    later debunked in a scientific review by the Interagency
    Grizzly Bear Committee.
        In 2016, the Obama administration recognized the grizzly
    bear's full recovery when it published a proposed rule
    delisting the grizzly bear. It concluded: ``The Yellowstone
    grizzly bear population has rebounded from as few as 136 bears
    back in 1995 to an estimated 700 or more today. Grizzly bears
    have more than doubled their range since the mid-1970's and now
    occupy more than 22,500 square miles of the ecosystem.'' This
    is the Obama administration saying this.
        They went on to say: ``Stable population numbers for
    grizzly bears for more than a decade also indicate that the
    Greater Yellowstone Ecosystem is at or near its carrying
    capacity for the bears.'' This from the Obama administration,
    2016.
        In 2017, the Trump Administration agreed with the Obama
    administration's findings. It finalized President Obama's
    proposed rule delisting the grizzly bear. It also credited the
    States of Wyoming, Montana, and Idaho with adopting necessary
    post-delisting plans and regulations that ensured that the
    species remained recovered under State management.
        Yet again, a liberal Federal judge overturned the delisting
    rule. This time, the judge agreed with a claim by environmental
    groups of other plaintiffs that even more studies were
    required.
        The grizzly bear in the Greater Yellowstone Ecosystem is
    one of the most studied animals in the world. Since 1980, 40
    years ago, the Wyoming Game and Fish Department has spent more
    than $50 million in grizzly bear recovery. The States of
    Montana and Idaho and stakeholders throughout the Greater
    Yellowstone Ecosystem have invested millions more.
        This decades-long commitment of time and resources cannot
    continue if the States' good work is simply ignored by liberal
    courts. As the grizzly bear has rebounded, conflicts with
    humans have increased. Members of Wyoming's Upper Green River
    Cattle Association have lost over 1,000 head of cattle since
    1995. In 2018, the Wyoming Game and Fish Department had to
    capture 53 individual grizzly bears to prevent or resolve
    conflicts. These bears not only mauled livestock, but
    tragically killed a Wyoming elk hunting guide and injured his
    client.
        This year, grizzly bear attacks injuring humans are
    happening at a record rate. By July 1st, seven people were
    attacked and injured by grizzly bears in the Greater
    Yellowstone Ecosystem, more than the first 6 months of any
    other year since data began being collected in 1992. This is a
    higher total than six of the previous 10 years, an unsettling
    trend, since over 80 percent of the conflicts generally occur
    in the second half of the year.
        The Grizzly Bear State Management Act will help address
    this by giving back to States the authority they need and have
    earned to manage the grizzly bear. It will recognize the full
    recovery of the grizzly bear and delist it once and for all. It
    will honor the conservation investment of people throughout
    Wyoming, Montana, and Idaho, and improve the public safety of
    our communities.
        I would now like to turn to Ranking Member Carper for his
    opening statement.

              OPENING STATEMENT OF HON. THOMAS R. CARPER,
                U.S. SENATOR FROM THE STATE OF DELAWARE

        Senator Carper. Thanks, Mr. Chairman.
        I want to welcome our witnesses here, our colleagues among
    them, and begin by saying that I share your concerns about
    this. There are a record number of human-grizzly interactions
    that have resulted in serious injury. First and foremost, let
    me just say that I hope and pray that everyone involved in
    these frightening encounters is either on the mend or fully
    recovered.
        Over the course of the Coronavirus pandemic, more people
    have been seeking opportunities to enjoy the great outdoors and
    visit our national parks. My wife and I visited Delaware's
    national park over the weekend. It stretches from one end of
    our State to the other.
        Yellowstone is no exception; in fact, nearly one million
    people visited Yellowstone Park just this past July alone. One
    million people this past July alone, a 2 percent rise in
    visitors compared to July 2019. While this rise in visitors may
    have contributed to the increase in human-grizzly conflicts in
    Yellowstone Park, experts suggest that there is no
    straightforward explanation for the record number of
    encounters. Consequently, there is likely no straightforward
    solution.
        As our Chairman knows, I believe, in the words of our
    mutual friend Rob Wallace, that bipartisan solutions are
    lasting solutions, and that is why I always try to reach across
    the aisle in this committee and others to find common ground on
    issues like this one. For instance, I am proud of the
    bipartisan legislation to authorize a new Theodore Roosevelt
    Genius Prize for reducing human-predator conflict, which is
    included in America's Conservation Enhancement Act, which we
    call the ACE Act. The ACE Act also authorizes a new program to
    compensate farmers and ranchers for losses caused by federally
    protected predatory species, which would include grizzly bears.
        Over the last several weeks, our staffs have collaborated
    with our House colleagues on the ACE Act. My hope is that we
    will be able to get that bill on the President's desk for his
    signature sometime this month, and if the ACE Act becomes law,
    it could help to spur innovation in preventing human-grizzly
    conflicts and address farmers' and ranchers' concerns regarding
    grizzly bears.
        Having said that, unfortunately, I am not convinced yet
    that the legislation we are examining today, the Grizzly Bear
    State Management Act, is the right way or the best way to
    resolve the many years of debate over whether or not the
    Greater Yellowstone Ecosystem grizzly bear continues to warrant
    Endangered Species Act protections.
        As the senior Senator for the State of Delaware, I am
    privileged to serve, and I recognize that grizzly bear
    management presents unique challenges that much of our Country
    may not understand. I commend the States, the local
    governments, the Tribes, and the stakeholders that have faced
    those challenges and worked diligently over many years to help
    recover this iconic species.
        I believe that many people across America would agree that
    the Greater Yellowstone Ecosystem grizzly bear is an Endangered
    Species Act success story in the making. Less than 140 bears
    were thought to be alive in the ecosystem when this specie was
    listed as endangered in 1975. Today, experts estimate that
    there are now hundreds living, I think the Chairman said as
    many as 700 or more in the Greater Yellowstone Ecosystem alone.
        With that said, I do not believe that Congress should
    intervene in the final determination on the recovery of this
    specie, or any species, for that matter, at this time.
        Judicial review of agency decisions is central to ensuring
    that the Endangered Species Act is guided by science and
    informed by public input. For example, in celebrating the
    recovery of a species, such as the bald eagle or the Delmarva
    fox squirrel in my own home State, we often look back and
    reflect on the work that was done to bring that species back
    from the brink of extinction.
        We should also look ahead and take steps to ensure that
    these species will not require the Endangered Species Act
    protections again in the future. A delisting rule should
    consider future threats against a species, like a lack of
    genetic diversity or climate change, which is already impacting
    habitats, migration patterns, and food supplies for some
    species. Judicial review can also help ensure the Federal
    Government takes future impacts to species into account, and it
    has done just that in the case of the grizzly bear.
        It is also important to note here that the Endangered
    Species Act protections are only required when State management
    to protect and recover imperiled species has failed. I have
    heard from any number of stakeholders who have ongoing concerns
    about the Greater Yellowstone Ecosystem grizzly bear's ability
    to fully recover and thrive under some State management plans.
        Before closing, I just want to take a moment to elevate the
    voices of the Tribes who oppose the Grizzly Bear State
    Management Act. These Tribes have a longstanding, treasured
    relationship with this particular resource, and their voices
    deserve to be heard.
        While I cannot support the legislation we are considering
    today, again, I hope our committee will continue to work in a
    bipartisan way, as we have successfully done in the past, to
    address human-wildlife conflicts and support species
    conservation.
        Mr. Chairman, those are my prepared remarks. I just want to
    conclude by noting that the prime sponsor of the legislation
    before us is our colleague, Mike Enzi, and you have known him
    forever, former mayor of Gillette, and I have been privileged
    to serve with him now for almost 20 years.
        I remember early in my tenure in the Senate, when we were
    in the majority, and I was actually presiding over the Senate
    at the time. I remember Mike Enzi on the floor speaking 1 day,
    and he was talking about the 80/20 rule.
        When he finished speaking, I gave a note to one of our
    pages, and I asked him to come up to the chair where I was
    sitting and explain to me what the 80/20 rule was, and he did.
    He used as an example his partnership with Ted Kennedy, very
    liberal, one of the most liberal Democrats in the Senate, and
    partnership with Mike Enzi on the committee, senior Democrat,
    senior Republican, Mike Enzi, one of the more conservative
    members of the Senate.
        I said, what is the 80/20 rule, Mike? And he said, Ted and
    I agree on 80 percent of the stuff, and we disagree on about 20
    percent. What we decided to do is focus on the 80 percent where
    we agree. I have never forgotten those words.
        Today as we consider this legislation, he and Diana will be
    packing up and heading home for good in a couple of months. But
    I just want to say how much, as a colleague, I appreciate him,
    and the opportunity to serve with him on a number of
    committees. I wish them well. In the meantime, and he has work
    to do, and part of that is today.
        Thank you so much.
        Senator Barrasso. Thank you, Senator Carper.
        As you said, Senator Enzi did introduce S. 614, the Grizzly
    Bear State Management Act, and I now would like to give Senator
    Enzi an opportunity to make some remarks.

              OPENING STATEMENT OF HON. MICHAEL B. ENZI,
                 U.S. SENATOR FROM THE STATE OF WYOMING

        Senator Enzi. Thank you, Mr. Chairman. Thank you for
    holding this hearing. Thank you for having me here today to
    discuss this issue that is incredibly important to Wyoming,
    should be important to this committee, and I know it is
    important to the West in general.
        Wyoming is home to ranchers, stewards of the land,
    sportsmen, and many others who have worked hard to ensure that
    the grizzly bears in the Greater Yellowstone Ecosystem continue
    to thrive while also guaranteeing they are properly managed
    like any other species. Proper management of grizzly bears is
    critical to safeguard the species.
        It is also critical to protect the species they
    disproportionately prey on, and people's livelihoods that can
    fall victim to grizzly bear attacks. Wildlife experts and
    Federal officials agree that the grizzly bears in Greater
    Yellowstone Ecosystem have been fully recovered for years.
    Senseless litigation still continues to hinder the effective
    State management and protection of the species.
        To fix this, I introduced the Grizzly Bear State Management
    Act. My bill would direct the Department of Interior to reissue
    its 2017 decision to delist the grizzly bear in the Greater
    Yellowstone Ecosystem and prohibit the further judicial review
    of this decision.
        As the grizzly bear population has increased in Wyoming, so
    has the danger these animals pose to livestock, property, and
    to humans. That is why I believe the authority to manage the
    species needs to be turned over to the States. I have often
    found that States are better suited to address these kinds of
    issues because they are more familiar with the unique needs of
    their own communities and ecosystem.
        We cannot let this be another decision made by out-of-touch
    courts, carefully chosen courts, rather than science, common
    sense, and States that have the ability to effectively manage
    and protect the species, as well as everything that grizzly
    bears interact with. When these species are listed, the listing
    should have a recovery plan, complete with numbers or when
    recovery has been achieved. Had that been done on this, it
    would have been over a long time ago.
        The bar keeps being lifted, and States have some expertise
    in managing wildlife. There are some court decisions that say
    that the wildlife actually belongs to the States, at least to
    Wyoming, that has been tested in the courts a number of times,
    and I am very proud of my State and our ability to manage
    animals.
        Incidentally, we are the only State that has ever recovered
    an extinct species. There was a rancher who discovered black--
    footed ferrets on his property. Now, why he ever reported that,
    I am sure he wondered, but he did report it. Those were
    trapped, put in a special facility that Wyoming built in the
    Seville Canyon, and they were used to get the best
    crossbreeding for the strongest species.
        I am pleased to report that those have been planted out in
    the wild again, put in prairie dog towns, which is what their
    main food is. So an extinct species has been brought back.
        Wyoming worked to make sure that these tourist attractions,
    these animals, the grizzly bear, are an ongoing species, and
    ongoing efforts to delist the grizzly bear have been
    continuously held hostage by litigation.
        That isn't the way to manage wildlife. These decisions to
    keep the grizzly bear on the endangered species list are
    concerning, to say the least. They are based on everything but
    concrete scientific evidence, including healthy recovery
    numbers that show the grizzly bear is thriving in the Greater
    Yellowstone Ecosystem.
        In reality, the States have been providing most of the
    management of the species at great cost to the sportsmen,
    landowners, and citizens during the non-stop litigation.
    However, without sustainable delisting, the State lacks the
    decisionmaking authority that is essential for effective
    management and protection of the species. The Grizzly Bear
    State Management Act is a better way forward for management of
    these magnificent animals that makes sense for States, makes
    sense for local communities, and makes sense for the species
    itself.
        I look forward to the day when grizzlies in the Greater
    Yellowstone Ecosystem are delisted and being effectively
    managed and protected by the efforts of States like Wyoming.
        Thank you.
        [The prepared statement of Senator Enzi follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Barrasso. Thank you so much, Senator Enzi.
        Senator Daines, you are a cosponsor of the legislation, and
    I want to thank you for joining us in the hearing room today,
    and ask you for your comments.

                OPENING STATEMENT OF HON. STEVE DAINES,
                 U.S. SENATOR FROM THE STATE OF MONTANA

        Senator Daines. Chairman Barrasso, thank you, and also
    thanks to Ranking Member Carper, and thank you for the
    opportunity to provide testimony on the Grizzly Bear State
    Management Act.
        For decades, Montana and Wyoming collaborated on the
    conservation of the grizzly bear, which led to the successful
    recovery of the bear in the Greater Yellowstone Ecosystem. I am
    proud to continue that partnership today as we fight to restore
    State management of this species.
        Let me begin by saying the recovery of the grizzly bear in
    the Greater Yellowstone Ecosystem is a monumental conservation
    success story. The grizzly bear population has rebounded from
    approximately 136 bears in 1975 to over 700 bears today. I
    remember the days, spending a lot of time in the back country
    as a kid growing up, you rarely ever saw a grizzly bear, back
    in the 1970's, because there weren't that many of them.
        Today, they are everywhere. Just this spring, my son and I
    ran into a big boar as we were on horseback around Southwest
    Montana. Seven hundred bears today is well over the carrying
    capacity and the minimum population that experts believe are
    needed to preserve the species.
        But instead of celebrating the success, the courts have
    once again politicized the issue and moved the goalpost for
    species recovery, replacing wildlife biologist and grizzly bear
    specialist expertise with their own political and philosophical
    preferences. During this time, the grizzly bear range has more
    than doubled.
        This means that bears are showing up in places that they
    haven't seen in decades, which is increasing the rate and risk
    of human and livestock conflict. Livestock loss to predators
    has skyrocketed, and the Montana Livestock Loss Compensation
    Fund is struggling to keep pace. Just last year, 51 livestock
    fatalities from grizzly bears occurred within the Greater
    Yellowstone Ecosystem, and human conflicts also are becoming
    commonplace.
        Just this last weekend, a 69-year-old man was mauled by a
    grizzly bear while hunting near Flat Top Mountain near Big Sky.
    It appears increasingly unlikely that a high-visibility iconic
    species like the grizzly bear could ever be removed from the
    endangered species list due to this politicized, divisive
    rhetoric. Despite the extensive resources, time, and expertise
    Montana has devoted to the grizzly bear, the State is being
    stopped from assuming management responsibility.
        We must ask ourselves how situations like this will
    dissuade future wildlife conservation efforts as States,
    landowners, and other partners know their efforts may be
    futile. The constant litigation undermines the Endangered
    Species Act by eliminating this key incentive to conservation.
        That is why I am a proud cosponsor of the Grizzly Bear
    State Management Act. This bill reissues the science-based
    decision to delist the grizzly bear in the Greater Yellowstone
    Ecosystem and prevents future obstruction and uncertainty for
    bear management.
        Opponents of this bill will lead you to believe that the
    grizzly bear won't receive any protections when they are
    delisted. That is flat-out false. Nothing could be further from
    the truth. No one cares more about Montana wildlife than
    Montanans.
        We have the expertise, the resources, and plans in place to
    assume management of a healthy grizzly bear population and
    stand ready to take on that responsibility, which is why later
    today, I intend on sending a letter to Director Skipwith,
    inviting her to Montana this fall to discuss grizzly bear
    management across our State.
        Wildlife management should be determined by science, not a
    court order. The science has long proven that the grizzly bear
    population in the Greater Yellowstone Ecosystem has fully
    recovered. Both Montanans and bears suffer as we await action.
    Delisting the grizzly bear is in the best interest of our
    communities in terms of public safety, the ecosystem, wildlife,
    and the grizzly bear itself. Montana has proven it can conserve
    and manage this species, and it is time to return that
    management back to the State.
        Before I conclude, I would like to take a minute to welcome
    and introduce a fellow Montanan and a good friend, Mr. Chuck
    Roady. Chuck is the vice president and general manager of F.H.
    Stoltze Land and Lumber Company of Columbia Falls, and he is
    president of the Federal Forest Resource Coalition. He also
    serves on the Montana Grizzly Bear Advisory Council, and he has
    been working on this issue for 44 years.
        I am most grateful for his work and for his willingness to
    leave beautiful Montana and come back to Washington, DC. to
    testify today. Chuck, I look forward to hearing more of your
    expertise, collaborating on grizzly bear conservation, and how
    the unchecked population growth has affected your operations.
        Chuck, the floor is yours.
        [The prepared statement of Senator Daines follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Barrasso. Before we do that, if it is OK with you,
    Senator Daines, Senator Inhofe has a previous commitment he has
    to get to.

                    STATEMENT OF HON. JAMES INHOFE,
                U.S. SENATOR FROM THE STATE OF OKLAHOMA

        Senator Inhofe. I will make this very, very brief, but it
    will conclude with a question to Commissioner Crank, though it
    has equal application to the grizzly bear, because I am going
    to talk about another endangered species.
        Back in 1989, at that time, I was in the House of
    Representatives, and at that time, the American burying beetle
    was listed as an endangered species. I was in the House at that
    time, and when this happened, you stop and think about the fact
    that it is not quite as big as a grizzly bear, you don't know
    where it is. Any home builder, any rancher, any farmer, anyone
    else who is out there trying or exploring for oil and gas,
    anything else, that was just devastating to them.
        So today, they have made a resurgence, not that people
    really care about it, the American burying beetle, and so it no
    longer warrants listing. We have been trying to get it off the
    same as you guys that we just heard from, have been working on
    their endangered species problem.
        So I was very gratified that President Trump's Fish and
    Wildlife recently took actions to downgrade it to threatened.
    It actually should be just reversed, but nonetheless, this is
    going to be very, very helpful.
        Now, the thing that Senator Enzi was talking about, I think
    is very significant here, because with over 1,650 species have
    been listed, only 47 have been delisted. That is 2 2 percent.
    There is something wrong with this, and it has not been
    working.
        So the question I have for Commissioner Crank is, will you
    share why it is important for series to be taken, for a species
    to be taken off endangered species lists once it has made a
    recovery? Second, will you speak to the role of the States and
    the private partners, and what their role is that they play in
    conserving and recovering at-risk species?
        Senator Barrasso. And since Commissioner Crank hasn't had a
    chance to testify yet----
        Senator Inhofe. Why don't we do this: let's wait and have
    him address that during his testimony, and in questions
    afterwards.
        Senator Barrasso. OK, thank you, but I know you have a
    commitment as Chairman of the Armed Services Committee. But we
    appreciate your being here and sharing your thoughts, and
    asking the questions, which we will then allow Commissioner
    Crank to address. So thanks so much, Senator Inhofe.
        We are now going to hear from our witnesses. We have Pat
    Crank, who is the senior partner at Crank Legal Group, who is
    joining us remotely from Thermopolis, Wyoming, and I will more
    formally introduce Mr. Crank in a minute. We have Chuck Roady,
    who is the vice president and general manager of F.H. Stoltze
    Land and Lumber, who is here with us in the hearing room and
    has already been introduced by Senator Daines. And we have John
    Leshy, who is the distinguished professor emeritus at the
    University of California, Hastings College of Law, who is
    joining us remotely from San Francisco, California.
        I want to remind the witnesses that your full testimony
    will be made part of the official hearing, so please keep your
    statements to 5 minutes, so that we may have time for
    questions. I look forward to hearing your testimony.
        Since Senator Daines is still here, and, I know looking
    forward to hearing from Mr. Roady, perhaps we could just switch
    the order of the testimony and we could lead with our witness
    from Montana, and then go to Mr. Crank, and then to John Leshy.
        So if I could ask you, Mr. Roady, to please share your
    thoughts with us at this time.

     STATEMENT OF CHUCK ROADY, VICE PRESIDENT AND GENERAL MANAGER,
                      F.H. STOLTZE LAND AND LUMBER

        Mr. Roady. Good morning. My name is Chuck Roady, and I am
    the Vice President and General Manager of F.H. Stoltze Land and
    Lumber Company. We are the oldest private, family owned forest
    products manufacturer and timberland owner in Montana.
        I am a natural resource manager by education; I have B.S.
    in forest management from the University of Idaho, and I have
    44 years of experience working in the forest products industry
    in the Western U.S. During the course of my career, I have
    served as a leader on multiple boards all related to the
    management of natural resources and wildlife. Those boards
    include two terms on the Softwood Lumber Board, 10 years on the
    board of the Rocky Mountain Elk Foundation, the last two as
    chairman.
        I was appointed by Idaho Governor Batt in 1995 as the first
    private, individual, non-government member to the Interagency
    Grizzly Bear Committee, and I am currently Chairman of the
    Federal Forest Resource Coalition, and was appointed to the
    2019 Montana Governor Bullock's Grizzly Bear Advisory
    Committee.
        The subject of grizzly bear management is an emotionally
    charged issue, especially in the States of Idaho, Montana, and
    Wyoming that encompass the Greater Yellowstone Ecosystem.
    Everyone has their own opinion on how they believe grizzly
    bears should be managed. Much of that opinion is based on where
    you live, if you are a rancher, if you are a farmer, a
    timberland owner, a sportsman, or an outfitter, or just a
    recreational user of our Federal lands.
        As a natural resource manager of private lands and
    purchaser of government contracts, I have to deal with the
    balance of managing grizzly bears and other wildlife species
    with the other uses on our lands and resources. That management
    balance is a difficult line to walk, and always controversial,
    but has taught me and convinced me beyond any doubt that
    grizzly bears must be managed, just like all other wildlife
    species.
        There is absolutely no question in my mind that the grizzly
    bear in the Yellowstone Ecosystem deserves and needs to be
    delisted from the endangered species list, and the sooner the
    better. I adamantly disagree with the decisions of the Federal
    District Court, and more recently, that of the Ninth Circuit
    Court in keeping the bear listed under the ESA. This is another
    sad case of judicial review by philosophically biased judges
    not heeding the work of years of research and recommendations
    by our trained biologists.
        We as a society and citizens of the U.S. and those
    respective States of the GYE need to recognize and celebrate
    the successful implementation of the ESA and the work of these
    hundreds of experts to achieve that success. The litigation
    halting the delisting process in the GYE is having a negative
    implication on the Northern Continental Divide Ecosystem in
    central and northern Montana, as well. The NCDE also needs to
    be delisting the bears. It has an incredibly high number of
    grizzlies and an ever-expanding population far beyond the
    recovery areas.
        We must enthusiastically illustrate to the American people
    that the efforts and the work of the agency biologists, our
    land managers, the ranchers, the wildlife groups, and the
    sportsmen have all culminated in a success story of recovering
    the grizzly bears in the GYE. Both for the benefits of humans
    and our society and the grizzly bear, it needs to be delisted
    and managed by the States and follow the North American
    Wildlife Model.
        The delisting process and the handing over of the
    management of species to the States does not happen in a
    vacuum. The States have a significant number of experienced
    biologists and wildlife managers at their disposal to manage
    grizzly bears and the other large predator species. The success
    story of management following delisting is demonstrated as a
    classic example in the gray wolf. We have more wolves today in
    far more habitats that when it was delisted, all under now
    management of the State.
        I have worked, hiked, camped, hunted for many years in
    Wyoming, Idaho, Montana, and Alaska, and I can tell you there
    are very few experiences more intimidating than that of a
    confrontation with a grizzly bear when you are walking through
    the forest or thick brush.
        I can also attest without question there is generally a
    very distinctive difference in the reaction of bears and other
    predators in an area where hunting is an integral part of the
    management of wildlife. I have been very fortunate over the
    years to have not had a bad experience with a grizzly bear that
    resulted in anything more than having the crap scared out of me
    and having my plans for the entire day altered.
        In my experience, those bears that are regularly accustomed
    to being around humans without a hunting component, such as in
    Yellowstone and Glacier Parks, behave very differently than
    bears that are in areas where they are subjected to hunting. A
    closely regulated and continuously monitored hunting season for
    grizzly bears has proven to be a very manageable tool.
        I worry every single day about the safety of our foresters
    and the contractors who work for my company on a regular basis
    while they are out in the forest, which is effectively now all
    grizzly bear habitat. I am equally concerned for the safety and
    the liability for the members of the general public who
    recreate on our lands: the hunters, the outfitters, the berry-
    pickers, the firewood, the list goes on.
        I am not naive enough for a second to believe if we delist
    the grizzly bear, that these interactions will be alleviated.
    But I do believe that if we delist the grizzly bear, that these
    interactions will be managed and should be greatly reduced in
    number. Implementing a more hands-on management by State
    predator managers will allow a regulated hunting season and
    most certainly would help mitigate and provide more
    opportunities to avoid many of these conflicts.
        The farmers and ranchers who live and work in these
    livestock areas where grizzly bears roam and continue to expand
    their range suffer tremendous economic losses due to
    depredation from grizzly bears. Hearing the stories from the
    ranchers who participated with me on the Montana Grizzly Bear
    Advisory Council was quite real and definitely shocking.
        The concerns of these landowners range from losing 25
    percent of their current year of calf or lamb crop and having
    the grizzles trample into their grain fields, eat out of their
    grain storage bins, and even several families that were afraid
    to let their kids play outside.
        Senator Barrasso. Could I ask you to kind of summarize now,
    since you are well over the time?
        Mr. Roady. Yes. The United States needs to delist the
    grizzly bear and recognize our success in recovering the
    species, while managing the other wildlife species. We will
    gain far greater support for the provisions of the Endangered
    Species Act from those of us that reside there and make our
    living there and raise our families there, as well as the other
    areas in the West where the grizzly bears roam.
        We, the residents, live, work, and play here because we
    like it here. Grizzly bears are part of that equation. They
    appeal to us, but they must be managed in a reasonable and
    prudent manner. The first step is delisting the species.
        Thanks.
        [The prepared statement of Mr. Roady follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Barrasso. Well, thanks so much for your very
    thoughtful and passionate testimony. We look forward to having
    a chance to ask questions in a few moments.
        We would now like to hear from additional witnesses who are
    here today. I want to introduce Pat Crank. He is joining us
    from Thermopolis today. He is from Cheyenne, Wyoming, and spent
    a lot of time in Casper, as well. He is a senior partner with
    Crank Legal Group in Cheyenne.
        He has been a commissioner on the Wyoming Game and Fish
    Commission since 2014. He has also served as Wyoming Attorney
    General from 2002 to 2007 under then Democrat Governor, Dave
    Freudenthal. I am so happy to have him joining us today. He
    received both his undergraduate degree and his law degree from
    the University of Wyoming.
        It is a privilege to welcome such a distinguished witness
    as Mr. Crank before the Environment and Public Works Committee
    today. Pat, thanks so much for joining us from Thermopolis, and
    I understand that a Game and Fish meeting is occurring there
    today, which you are attending and have stepped out of a
    meeting to join us at this hearing.

     STATEMENT OF PATRICK CRANK, VICE PRESIDENT, WYOMING GAME AND
         FISH COMMISSION, AND ATTORNEY, CRANK LEGAL GROUP, P.C.

        Mr. Crank. Thank you. Good morning, Chairman Barrasso,
    Ranking Member Carper, members of the Senate Environment and
    Public Works Committee, and Senator Enzi.
        Thank you for the opportunity to offer my perspective today
    on the stunning and amazing recovery of the Yellowstone Grizzly
    Bears, the significant failures that have occurred with regard
    to judicial review of the delisting decisions made by the Fish
    and Wildlife Service, the significant erosion of public support
    that occurs when a species has been recovered and then the
    courts block the removal of that species from the endangered
    species list, and to offer my support for Senate Bill 614.
        My testimony is based on having served on the Game and Fish
    Commission for approximately five and a half years. It is based
    on my experience as the Wyoming Attorney General for five-plus
    years. It is based on my experience as a lifetime sportsman and
    lifetime resident of Wyoming, and 35 years of legal practice.
        The grizzly bears, in 1972, we had approximately 100 bears
    left in the Greater Yellowstone Ecosystem. By 2020, we have a
    very conservative estimate of at least 700 to 800 bears. I
    think you would be hard-pressed to find any scientist involved
    with grizzly bear recovery that would disagree with the
    statement that we likely have 1,000 to 1,200 bears in the
    Greater Yellowstone Ecosystem.
        We know more about this species than any other species of
    wildlife on the face of the Earth. They have been intimately
    and exquisitely studied since being placed on the endangered
    species list in the 1970's. The world's best large carnivore
    biologists have studied and managed and recovered this species,
    and it is an amazing success story under the ESA.
        This year, in Wyoming, we surpassed the 1,000th bear that
    we have captured and fitted with radio-telemetry equipment. We
    are closely, well, in the very near future, we will have over
    one million GPS monitor coordinates from grizzly bears that are
    collared with GPS monitor collars. In one 2.5-hour hour flight
    in 2020, our personnel observed 82 grizzly bears.
        As of 2019, grizzly bears occupy over 42,000 square miles.
    That is an area larger than the State of West Virginia. As of
    2020, grizzly bears occupy virtually every square inch of
    suitable habitat in the Greater Yellowstone Ecosystem. Grizzly
    bears have exceeded all federally mandated and biologically
    determined recovery criteria since at least 2003, and in
    reality, clear back to 1997, as mentioned by Chairman Barrasso.
        The ESA is an amazing piece of legislation, and it has
    resulted in this incredible success story where we recovered an
    iconic and amazing wildlife species to levels far surpassing
    recovery criteria.
        The premise of the ESA is quite simple: if an animal is
    suffering, they are placed on the Endangered Species Act list,
    given Federal protection, and then State and Federal wildlife
    managers study that species, figure out what makes them tick,
    what they need to survive, and what recovery criteria should be
    set to ensure they remain in the environment for the
    foreseeable future.
        Once that species reaches recovery, the Federal and State
    wildlife experts, via the Fish and Wildlife Service, and the
    delisting process propose a rule delisting the species and
    setting forth what will occur, what State management will
    occur. Those are written plans. They are quite precise, and the
    species should then be removed from the list.
        After that, State wildlife managers, who are truly the
    experts on managing these species, because they are the ones
    that day in and day out, do the work to recover the species,
    understand the species, and ensure they exist in perpetuity.
    Environmental groups, unfortunately, file endless lawsuits to
    prevent delisting at all costs.
        The Yellowstone grizzly bears are a great example. No one
    can argue that we have met recovery criteria, that we have a
    robust population of grizzly bears, that this species will
    exist for the foreseeable future under State management. These
    lawsuits that they file generate millions of dollars in
    contributions and membership contributions.
        Everyone, environmentalists, hunters, fishermen, sportsmen,
    are passionate about wildlife. That passion combined with
    frequent misinformation regarding what will happen once a
    species is removed from the endangered species list generates
    millions of dollars of revenue for environmental groups. Then
    if they are successful in Endangered Species Act litigation,
    all their attorneys' fees get paid.
        I have been informed that, with regard to the most recent
    action with regard to the 2017 delisting rule which was struck
    down by a judge in Montana, the environmental groups have
    already requested over $1.4 million dollars in attorneys' fees
    with regard to that litigation.
        The tragic thing is, under the Endangered Species Act,
    environmental groups can form shop and pick the judge that they
    believe will be most likely to strike down a delisting rule. I
    have been a litigator, and I spend the bulk of my time doing
    personal injury cases. I would love to be able to select the
    judge that will hear my client's case.
        Under the Endangered Species Act, environmental groups get
    to form shop, pick the judge that they think will be most
    likely to be politically unbiased in their favor and strike
    down the rule. These judges and courts, unfortunately, who are,
    I believe, in direct violation of the Endangered Species Act,
    ignore the findings of the experts.
        Those experts within the Fish and Wildlife Service, within
    State wildlife management agencies, and the judges substitute
    their political decisions with regard to delisting proposals
    for the actual experts who understand and, in the case of
    Yellowstone grizzlies, have managed and recovered this species
    for over the last 50 years.
        Senator Barrasso. Since we have another witness to testify,
    we want to have time for questions. Pat, if you can just very
    quickly make any final statement. We need to get to our third
    witness and then have time for questions.
        Mr. Crank. Thank you, Mr. Chairman.
        I would just sum up that, better to remove a species once
    it is been recovered seriously erodes public support for that
    species, and it is a tragedy with regard to this species that
    endless litigation and Federal courts substituting their
    political and uneducated judgment for the scientists' have
    prevented statewide wildlife biologists and experts from
    managing grizzly bears in the States of Wyoming, Montana, and
    Idaho.
        Thank you.
        [The prepared statement of Mr. Crank follows:]

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        Senator Barrasso. Thank you, and we will be back with
    questions in a moment.
        We are going to turn to Mr. John Leshy, who is the
    distinguished professor emeritus at the University of
    California, Hastings College of Law, and he is joining us
    remotely from San Francisco, California.
        Professor Leshy, please proceed.

      STATEMENT OF JOHN LESHY, DISTINGUISHED PROFESSOR EMERITUS,
         UNIVERSITY OF CALIFORNIA, HASTINGS COLLEGE OF THE LAW

        Mr. Leshy. Thank you very much, Mr. Chairman, Ranking
    Member Carper, members of the committee, and Senator Enzi. I am
    Professor Emeritus at the University of California, Hastings
    College of the Law.
        I appreciate your invitation to testify today. The ESA is a
    cornerstone of national policy protecting the web of life on
    Earth, our creation. Congress enacted it essentially in its
    current form nearly a half a century ago with broad bipartisan
    support; indeed, almost no dissenting votes.
        President Nixon said when he signed it into law, that
    ``Nothing is more priceless and more worthy of preservation
    that the rich array of animal life with which our Country has
    been blessed. It forms a vital part of the heritage we all
    share as Americans.''
        One component Congress took pains to build into the act was
    that courts should review agency decisions implementing it.
    Indeed, Congress affirmatively encouraged this judicial review
    by authorizing what the act calls citizen suits, making it
    clear that the courts have an important role to play to ensure
    that Congress's intent is fairly carried out by the executive
    branch.
        I have worked on ESA issues for more than four decades,
    including nearly a dozen years in the Interior Department,
    where I had some responsibility for overseeing its
    implementation. I know firsthand that judicial review can be a
    pain in the neck to agencies who are usually trying their best
    to implement the act, often in challenging circumstances.
        I know the frustration that comes when a court rules, in
    effect, you didn't follow the correct procedure, or, you
    considered something that you shouldn't have, or, you failed to
    consider something that you should have, and , therefore we are
    setting aside your action and sending the matter back to you.
    That frustration can be particularly acute where, as here, as
    many have noted, the ESA has been producing benefits. Indeed,
    the Greater Yellowstone grizzly is an ESA success story in
    progress.
        Judicial review, let me emphasize, is a policy-neutral
    tool. It is available to all interests, those who are regulated
    under the act, as well as those who advocate for preserving the
    species. My considered judgment, based on my long experience in
    environmental regulation, is that courts generally have played
    a constructive role in the act's implementation, and that the
    benefits of judicial review clearly outweigh its costs. Court
    decisions have helped clarify ambiguities and reconcile
    disparate provisions in this complex statute, have promoted
    fair processes, including ensuring that all affected interests
    are heard, and have curbed agency excesses, all the while
    working to enforce and fulfill the intent of Congress in
    enacting the statute in the first place.
        Given the importance that Congress has attached to judicial
    review, it seems to me that rarely, if ever, is there
    justification for doing away with it, as S. 614 proposes to do.
    Short-circuiting judicial review can have real costs. I have
    given one example in my written statement involving the Trans-
    Alaska Pipeline. There are many others. As it shows, judicial
    review of agency action can and often does produce better long-
    run outcomes for all interests.
        Finally, let me underscore that even assuming there is
    strong sentiment in the Congress that the Greater Yellowstone
    Ecosystem grizzly ought to be delisted, it is not at all clear
    that congressional action is needed to achieve that result.
    Although I take no position on whether the grizzly should be
    delisted here, it appears to me that the Fish and Wildlife
    Service could readily, even easily, correct the three defects
    that the Ninth Circuit Court of Appeals identified in its
    decision in July. I have explained why in my written statement.
        It also seems obvious that whether or not the grizzly is
    delisted, the need will remain for both the Fish and Wildlife
    Service and the pertinent States to carefully manage the bears
    for the sake of all humans and bears alike.
        Again, I appreciate the opportunity to testify, and am
    happy to answer any questions you might have.
        [The prepared statement of Mr. Leshy follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Barrasso. Well, we appreciate your testimony, and
    thank you for your thoughts on this.
        Let's proceed to a series of questions. I will start with a
    question for Commissioner Crank. If the Grizzly Bear State
    Management Act is enacted, and the grizzly bear population
    subsequently, say, fails to meet recovery criteria, what
    mechanisms would remain in place to provide potential remedies
    for the recovery of the species?
        Mr. Crank. Chairman Barrasso, the biggest remedy is that
    any time a species is delisted, the Fish and Wildlife Service
    has at least a 5-year monitoring period to ensure that the
    delisted species remains viable and that the plan to delist the
    species is working. So ultimately, if the grizzly bear was
    delisted and the population failed, the grizzly bear could go
    right back on the endangered species list.
        I think most importantly is the fact that Wyoming, as you
    mentioned, has spent $50 million of sportsmen-generated fees to
    understand, recover, and know what is important to a grizzly
    bear population. So you have the world's best wildlife managers
    in Wyoming, Montana, and Idaho that will continue to monitor,
    protect, and preserve this iconic species.
        The idea that any State management, wildlife management
    agency would take steps that would allow a recovered species to
    go back on the list is just kind of preposterous to me. You
    would not want to ask to have cancer twice, Chairman Barrasso,
    in the vernacular.
        Senator Barrasso. So, following up with that answer, I
    think Wyoming has a very impressive track record when it comes
    to wildlife conservation, and not just with grizzly bears.
    Could you maybe discuss conservation status of other major
    carnivores in Wyoming? Because this is not just a one-species
    situation.
        Mr. Crank. Chairman Barrasso, I can. The best example I can
    give you would be the management of gray wolves after they were
    removed from the endangered species list, after a tortuous
    path, consistent with what we have experienced with regard to
    attempts to delist the grizzly bear. We were ultimately given
    management authority.
        We have been managing those for over 5 years, now. We have
    maintained the population objectives and our conservation
    strategies. Gray wolves, having been removed from the
    Endangered Species Act, are doing quite well under our
    management authority, and will continue to do quite well into
    the foreseeable future.
        Senator Barrasso. Thank you.
        Mr. Roady, I have a question for you, in terms of
    stakeholders whose operations bring them into frequent contact
    with wildlife are often those most heavily invested in
    conservation, as you said in your opening statement. Your
    company was incorporated in 1912. Can you please outline what
    measures your company and industry have taken to contribute to
    the recovery of the grizzly bear populations, and why you feel
    a sense of responsibility to protect and conserve grizzly bear
    populations?
        Mr. Roady. Yes, Mr. Chairman. Like I said in my statement,
    we all live there because we like it. We love it there. We live
    and work there, we raise our families there, and the grizzly
    bear is part of that. Just like all the other species, not only
    is it part of the law to recover it, but we want it recovered,
    but even more reason to manage it.
        What we do within our company and a lot of the other
    landowners is we work with the States and the Federal
    Government to, sometimes we manage the access; we manage the
    time of year that we do a lot of our work, and a lot of our
    timber harvest, we do in the winter when the grizzly bear is
    hibernated. We only work on roads at certain times.
        We do all kinds of mitigating measures to help, and not
    just the grizzly bear, there is a whole litany of species that
    we work with. And our management, written right into our own
    management plans on our company lands as the Federal and the
    State school trust lands.
        So we work constantly to mitigate any of those things. We
    want it to succeed, and it is a success. That is why I say we
    need to be celebrating it.
        Senator Barrasso. Senator Carper.
        Senator Carper. Thanks, Mr. Chairman.
        Again, we welcome all of our witnesses in person and
    remotely, as well, as far away as California. I want to start
    off, if I could, with a question for all witnesses, and this is
    drawn from Mr. Leshy, by something you said right at the end of
    your testimony. I would ask all three witnesses to respond to
    this, we will start off with Mr. Roady and Mr. Crank, and
    conclude with Mr. Leshy.
        Here is the question: how difficult do you think it would
    be for the U.S. Fish and Wildlife Service to correct the
    deficiencies that the courts have identified in the 2017
    delisting rule for the Greater Yellowstone Ecosystem grizzly
    bear?
        As I said, Mr. Leshy, I think you included some information
    in your written statement, and you mentioned it briefly at the
    end of your statement. But if I could ask Mr. Roady and Mr.
    Crank just to start off and respond to that question. How
    difficult do you think it would be for the U.S. Fish and
    Wildlife Service to correct the deficiencies that the courts
    have identified in the 2017 delisting rule for the grizzly
    bear?
        Mr. Roady, do you want to kick us off, please? Then we will
    conclude with Mr. Leshy, please, and I ask you be fairly brief,
    please.
        Mr. Roady. OK. I can start. But they have already started,
    the Fish and Wildlife Service. They have been working on it
    since the day of the court decision, and most of those, they
    have been very aggressive at proceeding. There are a number of
    things, as you may be aware, that the courts listed, some in
    their counting procedure, some in their habitats, some in their
    connectivity to other ecosystems.
        So I don't think it is be difficult at all, because most of
    those have already been met, and those of us that live there
    know that. And there are a lot of bears, especially in their
    genetics and their connectivity, that are already traveling
    between those areas. So they are working very aggressively, is
    the answer.
        Senator Carper. Thank you. Same question, if I could, for
    Mr. Crank, how difficult do you think it would be for the U.S.
    Fish and Wildlife Service to correct the deficiencies that the
    courts have identified in the 2017 delisting rule?
        Mr. Crank. Ranking Member Carper, I think two of the issues
    would be very easy to correct. One issue is a significant and
    major problem. So, the easy issues are the issue of genetic
    interchange. That is one or two sentences in the delisting rule
    saying that, basically, if we don't have the genetic diversity
    we need within the Yellowstone population, we will truck some
    bears from Glacier National Park. The distinct population
    segment found to justify the striking down of the rule is
    further study by the Fish and Wildlife Service, and I think
    they can fix that problem fairly easily.
        The issue of recalibration is, in my mind, a huge issue
    that will not be able to be solved by the Fish and Wildlife
    Service. They attempted to do it in the original 2017 rule,
    didn't do it appropriately. Recalibration is an issue that is
    not even consistent with the Endangered Species Act, in my
    mind. Recalibration is a misnomer; it is essentially, you can't
    go out and physically count grizzly bears, so you have to
    develop statistical and scientific models to estimate the
    number of bears on the landscape.
        The judge in Montana ruled that those three States,
    Wyoming, Montana, and Idaho, had rejected recalibration for
    political reasons. That is absolutely wrong. We rejected the
    idea of recalibration, which is what happens if some new
    statistical model shows that there are a greater number of
    bears in the ecosystem than we currently estimate? Our model
    right now is----
        Senator Carper. Mr. Crank, I have to leave some time for
    Mr. Leshy to answer this, as well. Can you just wrap up in one
    more sentence? I apologize, but they don't give me unlimited
    time here.
        Mr. Crank. Ranking Member Carper, the issue of
    recalibration cannot be solved quickly or easily, and it is a
    direct intrusion into State management authority, and it is
    inconsistent with the Endangered Species Act itself.
        Senator Carper. OK, thank you sir.
        Mr. Leshy, I will give you the last word on this question,
    please, and I have one more short question. Go ahead, Mr.
    Leshy. Please be brief.
        Mr. Leshy. Thank you, Senator Carper. I certainly agree
    with the other witnesses that the first two issues are easily
    solved.
        I should point out that the Court of Appeals actually,
    here, sort of reined in the District Court a little bit, and
    said to the extent the District Court was requiring extensive
    analysis to make a new decision, it was wrong. So it sort of
    curbed the District Court decision.
        On the third issue about recalibration, there are basically
    two basic formulas for estimating grizzly populations. They are
    kind of well-known, and the Fish and Wildlife Service basically
    said in its initial decision that if the second formula is used
    to estimate populations, then the conservation strategy needs
    to be recalibrated.
        The Fish and Wildlife Service is actually moving to do that
    in its 2017 listing decision, when it was asked to sort of hold
    off by the States. The Court of Appeals basically said, that
    was a mistake, and that you need to make a commitment to
    recalibrate if you use this second population estimate.
        Since the Fish and Wildlife Service was already moving to
    do that, it seems to me that it is really not difficult on
    remand to simply make that commitment. They were about to make
    the commitment, and they held off. So I don't think there is a
    lot of magic here, and I think this is a problem that is easily
    solved, if you give the courts a chance to do it.
        Senator Carper. All right, thank you. Thank you all for
    your response to that question.
        I have several other questions that I will ask for the
    record. I do want to mention one of them right now to Mr. Crank
    and Mr. Roady. I won't ask you to respond right now, but the
    question which would be among the questions for the record that
    you will receive from us later, but you both have extensive
    experience working with your States on the development of
    grizzly bear management plans.
        The question I will ask you to answer for the record is,
    would you elaborate on how your respective States consider the
    perspective of Tribes in the development of grizzly bear
    management plans?
        Again, we appreciate your joining us today, and thank you
    so much. Thank you.
        Thanks, Mr. Chairman.
        Senator Barrasso. Senator Cramer.
        Senator Cramer. Thank you, Mr. Chairman, thank you Senator
    Carper. Thank you to all of the witnesses for sharing your
    expertise with us today, whether you be here in person or
    virtually, it is working very well.
        Mr. Chairman, it seems to me there are a couple of
    constitutional principles that are at stake here, beyond even
    just the grizzly bear. It may not surprise anybody to know that
    there aren't any grizzly bears outside of zoos in North Dakota,
    however, our western friends have a real big issue on their
    hands.
        So, the issue isn't just grizzly bears to me. It is not
    even just the Endangered Species Act, which by the way, I think
    requires a review in and of itself. I happen to chair the
    subcommittee that has jurisdiction. We need to look at how is
    it possible there could be 1,600 plants and species listed on
    the ESA, and only just a little more than 1 percent of them
    have been delisted. That is not a success story to me, that is
    a failure.
        Now, the greater principles in my mind are these: one is,
    of course, the role of cooperative federalism. That is to say,
    the role of the States to manage their States, not in
    competition with, but rather in concert with, in collaboration
    and cooperation with, our Federal friends, our partners.
        The second one is even greater, and that is what exactly is
    the role of, what I consider the superior of the three
    supposedly co-equal branches of government. I don't think that
    the three branches are co-equal. It is the legislative branch,
    the Congress of the United States, that passed the law that
    created the Endangered Species Act.
        As we do with many authorities, too often, we look back,
    and we think, hmm, there is some lazy legislating going on that
    turned this much power over to a bureaucracy and a judiciary
    that is not prepared to do it or doesn't reflect the will of
    the people that elected the Congress of the United States. I
    think we need to restore some of that.
        I think this hearing today illustrates that as well or
    better than any. The idea that somehow, the Federal bureaucracy
    could come up with all of these rules that seem to be more than
    adequate, and the oversight that seems to be more than
    adequate, is confounding enough.
        But the idea that activist judges, in cooperation with
    friendly litigants, could come up with things like
    recalibration as a means of counting when the experts on the
    ground know better, is just completely, it is an abuse of
    power, is what it is. It is an abuse of one of the other
    branches of government.
        But the bureaucracy is the bureaucracy. It is our job, as
    the Congress of the United States, to set policy, Mr. Chairman,
    we need to do it more proscriptively, and then to correct bad
    behavior by the enforcers of policy, especially over the course
    of decades, when a lot of things have changed.
        With that, I have one question, really, for all three of
    you to take a shot at. Going back to my first point, if there
    are 1,600 plants and species listed under the Endangered
    Species Act, why is it that fewer than 2 percent have been
    successfully delisted? What is the problem?
        We will start with our friend Mr. Roady, who is actually in
    the room.
        Mr. Roady. Thank you, Senator Cramer. I might tell you,
    just have a little bit of patience, and you might get grizzly
    bears in North Dakota. They are coming across the prairie in
    Montana faster than you can imagine.
        Senator Cramer. We didn't have mountain lions not that long
    ago, and we have lots of them now.
        Mr. Roady. They are coming. So, would you repeat your
    question?
        Senator Cramer. The question is, why has the Endangered
    Species Act been so unsuccessful in getting critters delisted?
        Mr. Roady. I think a lot of attention is paid to iconic
    species, i.e., the grizzly bear, and the wolf, and the black--
    footed ferret. I think a lot of attention goes to those iconic
    species, and some of the others don't happen. But that doesn't
    mean people aren't out there trying all the time. I certainly
    agree with your big-picture view of the whole concept of the
    three branches of government.
        It is a pet peeve of mine that the Judiciary Branch is
    making biological decisions, and that is just not right. That
    is part of the equation of trying to get these delisted. There
    is a lot of stuff we are trying to do out there on the ground
    that isn't getting done because they are half-paranoid about
    the judicial branch being litigated.
        Senator Cramer. Mr. Crank, do you have a different answer?
        Mr. Crank. Senator Cramer, I have a consistent answer. I
    think the answer to your question is threefold. Environmental
    groups can generate incredible funds by challenging any
    delisting decision, no matter what the facts are, and
    Yellowstone grizzly bears are a great example. They are
    recovered; they should be delisted.
        You reward those efforts to challenge delisting decisions
    with the award of attorney's fees under the Endangered Species
    Act. That might be something you want to look at possibly
    changing.
        Third, the environmental groups have the ability to
    essentially hand-pick the judge that will handle their appeal,
    so that leads to very few delisting decisions being upheld by
    the court, and the judge substitutes his political judgment for
    those of the scientists who have studied and recovered the
    species, and that is wrong.
        Senator Cramer. Yes. I realize I am a little over. I would
    still like to hear from Mr. Leshy if the Chairman would oblige.
        Mr. Leshy. Thank you. I will be very brief. I think any of
    the scientists that look at this problem would say one thing in
    particular about delisting: most species do not make it on the
    list unless they are very close to blinking out after a long
    decline. In other words, species are really, really in peril
    already before they ever make the list, and then once they make
    the list, they are protected.
        Actually, the Endangered Species Act has been quite
    successful in that almost no species that ever makes it on the
    list actually goes extinct. But by the time they get there,
    they are so much in peril that it takes an enormous amount of
    effort. There has been an enormous amount of effort to keep
    them alive and to make them flourish to come off the list is a
    challenge, and it takes time, and that is the basic reason why
    so few species have been delisted.
        Senator Cramer. I thank you all, and I assure you, if we
    get grizzly bears in North Dakota, you will be able to count
    them face-to-face because they are rather easy to see on the
    prairies.
        Thank you, Mr. Chairman.
        [Laughter.]
        Senator Barrasso. Thank you, Senator Cramer.
        Senator Carper.
        Senator Carper. Mr. Chairman, I ask unanimous consent to
    enter into the record letters and materials from stakeholders
    who oppose the Grizzly Bear State Management Act, including
    letters from Montana Wildlife Federation, Defenders of
    Wildlife, National Parks Conservation Associations, and several
    Tribes.
        In addition to that, Mr. Chairman, I asked my staff to give
    me just a quick timeline, a rundown of the timeline of the
    litigation. I am not a lawyer, as you know, but in August 2017,
    environmental groups and Tribes filed suit in district court in
    Montana to retain ESA protection for Yellowstone grizzlies with
    a single judge making that decision. In May 2019, the Trump
    Administration appealed to the Montana District Court decision
    to the Ninth Circuit Court in California. And on July the 8th
    of this year, the Ninth Circuit Court of Appeals unanimously
    upheld the Montana decision, three to nothing. But I understand
    that the Trump Administration still may appeal its decision to
    the full Ninth Circuit Court if they choose to do, but I am
    told that they have not chosen to do that yet.
        I regret that I did not get to ask a question about bear
    spray, and that was an issue we spent a lot of time talking
    about, and it seems a shame to let this hearing end without at
    least mentioning those words. Thank you.
        [The referenced information was not submitted at the time
    of print.]
        [Laughter.]
        Senator Barrasso. Thank you.
        Well, going back to the Senator Enzi who is the original
    cosponsor and author of this, and then the 80/20 rule that my
    colleague, Senator Carper, mentioned at the beginning of this,
    you would think that if there was something that President Bush
    and then President Obama and Vice President Biden from
    Delaware, as well as President Trump all agree on, that would
    be that the grizzly bear is fully recovered and should be
    delisted entirely. That ought to fit into that 80 percent
    category of things that we agree on, on both sides of the
    aisle, and could get to a solution to.
        So I want to thank all of the witnesses for being here
    today. Thank you so much for your thoughts.
        I know Senator Inhofe had a question for Mr. Crank that I
    think, Pat, you will be able to respond to in writing. So the
    hearing record will remain open for 2 weeks.
        I really do want to thank you for your time and your
    testimony, and with that, the hearing is adjourned.
        [Whereupon, at 11:17 a.m., the hearing was adjourned.]
        [Additional material submitted for the record follows:]

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