[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

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                                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






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               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  

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                           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 

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                      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:]

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    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:]

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    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:]

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    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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