[Congressional Record Volume 146, Number 146 (Tuesday, November 14, 2000)]
[Senate]
[Pages S11518-S11521]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    ATLANTIC SALMON LISTING DECISION

  Ms. COLLINS. Mr. President, it is with great disappointment that I 
rise today to comment on the decision announced yesterday by the U.S. 
Fish and Wildlife Service and the National Marine Fisheries Service to 
list as endangered Atlantic salmon in Maine. The decision represents an 
opportunity lost and reflects a process gone badly astray. It also 
raises serious questions about the mechanics of the Endangered Species 
Act, a law that I support, and how the Services have chosen to 
interpret and follow its dictates.
  I rise also out of deep concern for the Atlantic salmon. The rivers 
of Maine once played host to magnificent runs of Atlantic salmon. 
Scores of fish returned each year to the streams where they were born 
after two- or three-year journeys out to sea, venturing thousands of 
miles off the coast of Maine, as far away as Newfoundland. The question 
is, ``What is the best way to protect and restore these extraordinary 
fish?''
  Yesterday's announcement is no small matter to my home State. It has 
serious implications for the aquaculture, blueberry, cranberry, and 
forest product industries that form the backbone of the economy in the 
most economically challenged area of Maine. The cruel irony underlying 
the decision is that Maine believed it had laid the issue to rest some 
three years ago when the Services withdrew a proposed listing and 
joined with the State in pursuing the Maine Salmon Conservation Plan. 
On December 15, 1997, the Services announced they were withdrawing 
their proposed listing of Atlantic salmon to pursue a ``cooperative 
recovery effort spearheaded by the State of Maine.'' At that time 
Secretary of the Interior Bruce Babbitt announced:

       We are unlocking the full potential of rivers in Maine and 
     opening a new chapter in conservation history. The governor 
     showed great leadership in forging this collaboration, which 
     will enhance the ecology and economy of the state for years 
     to come. The seven rivers will continue to attract more 
     anglers, boaters and other sportsmen who will help grow and 
     sustain new jobs and revenue as the rivers continue to stand 
     as a model for the nation.

  At the same time, Assistant Secretary of Commerce for Oceans and 
Atmosphere and NOAA Deputy Administrator Terry Garcia praised Maine's 
salmon conservation plan with these words:

       This plan, which was developed by a state-appointed task 
     force with input and advice from federal fisheries 
     scientists, is an innovative effort to resolve the real world 
     conflicts that occur when preserving a species clearly means 
     rethinking traditional uses of a river. Our decision to 
     protect salmon through this plan rather than through a 
     listing under the Endangered Species Act highlights the ESA's 
     flexibility and our willingness to consider state-designed 
     plans.

  Bruce Babbitt's and Terry Garcia's statements purported to highlight 
the ESA's flexibility and the Services' willingness to consider state-
designed conservation plans. But the decision to list Atlantic salmon 
exposes the statements as hollow rhetoric and reflects a policy of 
inflexibility and of rejecting potentially effective state plans as 
alternatives to listing. In the end, Secretary Babbitt and Mr. Garcia 
reneged on their commitment to work with the state, within the 
framework of the state plan.

  The Services have taken the implicit position that they are under no 
legally-binding obligation to abide by their earlier commitments to 
work with the state through the Maine Salmon Conservation Plan. In 
proposing the salmon listing, they abandoned the Plan, which the 
Services relied on to withdraw their 1995 proposal to list Atlantic 
salmon as threatened. Indeed, in withdrawing the proposed listing three 
years ago, the Services referred to the Plan as ``a comprehensive 
collection of measures and protective actions that offer[s] a positive 
benefit to the species'' and as a substitute for listing. Moreover, at 
the time, the Services signed a statement of cooperation with the State 
of Maine to support the Plan as the means toward restoring Atlantic 
salmon in the seven identified rivers.

[[Page S11519]]

In short, the Services gave every indication that they were committing 
to the Plan as an alternative to listing the salmon under the 
Endangered Species Act.
  And that is precisely how the ESA is meant to operate. Listing 
determinations may not be made until the Services take ``into account 
those efforts, if any, being made by any State * * * to protect such 
species.'' As one court recently put it, ``The ESA specifically 
requires [the Services] to consider conservation efforts taken by a 
state to protect a species.'' By its own terms, the ESA also encourages 
states ``to develop and maintain conservation programs.'' This means 
that the Services can and should rely on a competent state plan to 
avoid listing a species as threatened or endangered. In Defenders of 
Wildlife v. Babbitt, decided just last year, the court ruled that the 
Fish and Wildlife Service properly relied, in part, on a cooperative 
state/federal conservation plan to withdraw a proposed rule to list the 
flat-tailed horned lizard under the ESA. The court reasoned as follows:

       The ESA was not implemented to discourage states from 
     taking measures to protect a species before it becomes 
     technically or legally ``necessary'' to list the species as 
     threatened or endangered under ESA guidelines. Rather, states 
     are encouraged to work hand in hand with other government 
     agencies and conservation groups to implement evolving 
     policies and strategies to protect wildlife over time. Though 
     the ESA regulations may represent many species' last chance 
     at survival, Congress surely did not intend to make it the 
     only chance at survival.

  The court's decision in the Defenders of Wildlife case hits the nail 
on the head. The ESA encourages state/federal cooperative efforts to 
protect and restore species before listing is required. This goal is 
supported further by the Services' own regulations, which authorize 
Candidate Conservation Agreements between the Services, states, and 
private entities. These agreements are ``designed with the goal of 
precluding or removing any need to list the covered species,'' a goal 
shared by the Maine Salmon Conservation Plan. The Services' stated 
policies, too, profess to ``[u]tilize the expertise of State agencies 
in designing and implementing prelisting stabilization actions * * * 
for species and habitat to remove or alleviate threats so that listing 
priority is reduced or listing as endangered or threatened is not 
warranted.'' The Services also are working to establish criteria for 
evaluating the certainty of implementation and effectiveness of 
formalized state conservation efforts in order to facilitate the 
development of such efforts. Again, the goal is to make listing a 
species as threatened or endangered unnecessary.

  In short, the Services are well-aware that the ESA encourages 
cooperative, responsible conservation efforts such as Maine's plan. 
Three years ago Commerce Department official Terry Garcia celebrated 
the Plan as ``highlight[ing] the ESA's flexibility and [the Services'] 
willingness to consider state-designed plans.'' Today, the Plan has 
been rejected as not ``adequately address[ing] the increasing threats 
salmon are facing from aquaculture, fish disease, habitat modification 
and catch-and-release fishing.'' No compelling record has been 
established indicating that the Plan has not met its interim goals. No 
request was made to modify the Plan. It was simply abandoned.
  The Services contend that the proposed rule was the direct result of 
a status review that they conducted some time in 1999 and issued in 
October of that year. Yet, the Status Review is riddled with logical 
fallacies and unsupportable conclusions. Moreover, its timing presents 
cause for concern.
  Under the ESA, ``species'' is defined to include any ``distinct 
population segment of any species of vertebrate fish or wildlife which 
interbreeds when mature.'' In other words, a subpopulation of a given 
species can be listed under the ESA if, indeed, it is distinct and 
self-contained. In the current circumstance, the Services rely on a 
supposed distinct population segment of Atlantic salmon remarkable only 
for its genealogical diversity. The population segment proposed for 
listing includes salmon in eight Maine rivers--each of which has long 
been under an intensive federal stocking program--and, curiously, does 
not include Atlantic salmon stocked in the Merrimack and Connecticut 
Rivers.
  As far back as 1979, Congress expressed great concern about the 
Services' misuse of distinct population segments. In the report 
accompanying the bill to re-authorize the Endangered Species Act that 
year, the Senate Committee on Environment and Public Works, while 
acknowledging there may be some instances where different population 
segments of a single species are appropriate stated, ``Nevertheless, 
the committee is aware of the great potential abuse of this authority 
and expects the FWS to use the ability to list populations sparingly 
and only when the biological evidence indicates that such action is 
warranted.'' In this case, the population distinction proposed by the 
Services fails to meet the standard set by Congress due to both a long-
running stocking effort and the use of a territorial boundary that has 
little to do with reproductive isolation.
  The July 1999 Status Review documents a stocking effort in the 
Kennebec, Sheepscot, Ducktrap, Narraguagus, Pleasant, Machias, East 
Machias, and Dennys Rivers that dates back to 1871. Up until 1992, 
these various stocking efforts took no account of the river-specific 
genetics that form the basis of this proposed listing. In 1871, 1,500 
parr from the Canadian province of Ontario were released into the 
Sheepscot River. That was the first of many instances of planned 
introduction of foreign salmon for the purpose of interbreeding into 
what the Services now claim to be a genetically distinct population 
segment. Over eight years in the 1960s, 136,500 parr and 65,700 smolt--
100 percent of which came from rivers in Canada--were stocked in the 
Sheepscot river. As late as 1990 and 1991, 13 percent of a substantial 
stocking effort used fish from New Brunswick.

  In fact, from 1970 to 1992, while many substantial stocking efforts 
occurred putting millions of fry, parr, and smolt in these Maine 
rivers, not a single effort used salmon from the home river. In a 
stocking program 128 years old, only in the last seven years have 
river-specific salmon been used. For the Services now to try to claim 
that the fish in the eight rivers constitute a distinct population 
segment after this massive, century-long effort designed purposefully 
to introduce fish from other rivers and other countries into the eight 
is plainly disingenuous.
  The Biological Review Team acknowledges that historic stocking 
practices may have had an adverse effect upon the genetic integrity of 
local stocks but claims that the limited stocking abilities of these 
early efforts minimized interference with the genetic purity of these 
river stocks. This is inconsistent with other assertions in the 
biological review.
  The Services claim escaped aquaculture salmon pose a grave threat to 
the river-specific genetics of the salmon they propose to list. On the 
one hand, the Services argue that the enormous stocking of non-river 
specific species did not change the genetic composition of these stocks 
because the 128-year stocking effort was primitive, even in 1991. Yet, 
on the other hand, the Services claim an estimated 113 suspected adult 
escapees in the last ten years from aquacultural facilities in the Gulf 
of Maine pose a grave threat to genetic makeup of these river-specific 
salmon. Simply put, the Services' position defies logic.
  The ESA requires that a listing decision be made on the basis of 
scientific data relating to the status of the species taking into 
account state protection and conservation efforts. Nowhere does the ESA 
permit a listing decision to be driven by a national interest group's 
lawsuit meant to force a listing to occur. Yet, it appears this sort of 
motivation may underlie the Services' decision to abandon the Plan. I 
wrote Secretary Babbitt and then-Secretary Daley requesting documents 
concerning the listing process and, in particular, the decision to 
conduct the Status Review. The Status Review appears to have commenced 
shortly after a lawsuit was filed to force an emergency listing of the 
salmon. The documents shed light on the Services' motivations in 
ordering the Status Review and, ultimately, deciding to list Maine's 
Atlantic salmon.
  I would like to take a few minutes today to share with my Senate 
colleagues what I found when I examined the documents provided to me by 
the

[[Page S11520]]

Services, some pursuant to subpoena. I do so because the documents 
reflect a listing process that appears to have been badly out of step 
with the letter and spirit of the ESA.
  It is important to keep some dates in mind. On December 18, 1997, the 
Services withdrew a proposed rule to list the very same Atlantic salmon 
under the ESA. Again, the withdrawal was made with much fanfare and was 
based in large part on the State's adoption of the Maine Salmon 
Conservation Plan. On January 27, 1999, Defenders of Wildlife and other 
plaintiffs filed suit against the Services claiming that the withdrawal 
was an arbitrary and capricious decision and seeking an emergency 
listing of the Atlantic salmon. Some time thereafter, the Services 
began a biological review of the status of Atlantic salmon in Maine. 
According to the Services, the review was completed in July 1999, 
though it was not released until October of the same year. In August 
1999, a second lawsuit was filed against the Services. The two cases 
were eventually consolidated. Then, on November 17, 1999, the Services 
issued a proposed rule to list the Atlantic salmon as endangered. That 
proposed rule led to the recent listing decision.

  More than anything else, the documents I requested show that concerns 
about losing the lawsuits influenced the Services ultimately to abandon 
the Maine Salmon Conservation Plan and to proceed toward an ESA 
listing. But the decision to abandon the plan was not easily reached. 
The documents show that, throughout much of 1999, the Services were in 
disagreement over whether to abandon the State plan. In a March 31, 
1999 e-mail, for example, Department of Interior officials express 
dismay over the position of the Department of Commerce legal team, 
which purportedly believed that ``the state should be given every 
opportunity to accomplish the conservation measures accepted under the 
1997 non-listing decision.'' According to this same e-mail, the 
Commerce Department legal team felt that NMFS could ``maintain a more 
productive relationship with the state if eventually forced to list by 
the court (as opposed to willingly listing).''
  For its part, the Interior Department legal team apparently did not 
want NMFS to give the Maine plan a further chance. In an April 2, 1999 
e-mail, an Interior Department lawyer wrote to a colleague at the 
Commerce Department that he had heard NOAA's general counsel had, 
``without consulting [the Fish & Wildlife Service], recommended that 
NMFS give the state a list of conservation plan deficiencies and a 
delay of several months to address them.'' The e-mail continues: 
``Today, I heard that NOAA Assistant Administrator for Oceans & 
Atmosphere Terry Garcia has picked up the idea and is running with 
it.'' The Interior Department lawyer went on to express his concern 
that giving Maine time to implement and improve the plan ``will appear 
political, and will be difficult to defend on scientific grounds.''
  Another Interior Department attorney expressed her opposition to the 
NMFS proposal more pointedly. She argued that giving the State of Maine 
more time to conserve and restore Atlantic salmon through its plan 
would risk a loss in the ongoing salmon litigation. In her words, 
``racking up another loss on conservation agreements'' such as Maine's 
would ``threaten'' the Service's ability to rely on such plans in the 
future in lieu of listing.
  Yet this view was not shared equally by each Service. It appears that 
the Commerce Department was more optimistic that the Maine Salmon 
Conservation Plan could be relied upon as an effective defense to the 
ongoing litigation. Another e-mail, dated March 30, 1999 and between 
two Interior Department attorneys, notes a NMFS official's view that 
the state plan could provide ``a viable defense'' in the ongoing 
litigation. The Interior Department attorney disagreed, citing 
``serious litigation risks'' and the potential for setting an adverse 
precedent that could ``extend to future actions in lieu of listing.''

  The Services' differing stances on whether to support or abandon the 
State plan lasted at least into August 1999, mere months before the 
listing proposal was issued. An e-mail between two Interior Department 
attorneys, and which appears to have been written in August 1999, notes 
that ``NOAA management apparently still feels ESA listing over state 
opposition is wrong.'' The e-mail goes on to characterize a Commerce 
Department attorney's ``best scenario'' as the State of Maine agreeing 
to a ``friendly listing, perhaps as threatened.'' The notion of a 
``friendly" threatened listing also appears in an August 17, 1999 e-
mail between the same two Interior Department lawyers. The e-mail 
discusses the view of the Commerce Department attorney as follows: 
``The Services could either immediately propose a threatened listing 
and start working on a 4(d) rule, or propose as endangered and back off 
to a threatened listing if the state plays ball for the next few 
months.''
  These documents are disturbing because they show that legal 
considerations--and not ``solely . . . the best scientific and 
commercial data available,'' as required by law--motivated the 
Services' decision to abandon the state plan and list Atlantic salmon 
in the Gulf of Maine as endangered. Granted, there is a clear link 
between science and the viability of the Maine Salmon Conservation 
Plan. The plan is either effective in conserving and restoring Atlantic 
salmon, or it is not. But the fact that the Services differed as to 
whether the state plan could be relied upon as an effective defense in 
the salmon suits makes the decision to list appear more like a matter 
of litigation strategy than a matter of science. Indeed, in another e-
mail, an Interior Department attorney explains the effort to complete 
the 1999 salmon status review as a means ``to support whatever action 
[the Services] take next.''
  Ultimately, I believe that the Services should be able to rely on 
appropriate, effective state conservation plans in lieu of listing. At 
the same time, a state that makes the effort to craft an effective plan 
in cooperation with the Services, should be afforded assurances by the 
Services that the plan will not be abandoned, as Maine's plan was, 
after only one full year of implementation. A state should be 
encouraged to propose effective conservation plans and should be able 
to count on the Services' consistent support. A listing decision should 
not be affected by whether or not a state ``plays ball.'' It should be 
affected by the actions a state has made and commits to make to 
conserve and restore a given species.
  I wanted to speak to my colleagues today in the hope that the 
experience Maine has undergone will not be repeated. One potential 
solution was suggested five years ago, by President Clinton. In a 1995 
white paper recommending changes to the Endangered Species Act, this 
administration wrote the following:

       To encourage states to prevent the need to protect species 
     under the ESA, the ESA should explicitly encourage and 
     recognize agreements to conserve a species within a state 
     among all appropriate jurisdictional state and federal 
     agencies. If a state has approved such a conservation 
     agreement and the Secretary determines that it will remove 
     the threats to the species and promote its recovery within 
     the state, then the Secretary should be required to concur 
     with the agreement and suspend the consequences under the 
     ESA that would otherwise result from a final decision to 
     list a species. The suspension should remain in place as 
     long as the terms or goals of the agreement are met.

  Were such a standard adopted by policy or statute, Maine and other 
states would have the incentive to devise and fully implement effective 
conservation agreements. The alternative is what has taken place in 
Maine. A plan is announced with great fanfare and a listing proposal is 
withdrawn. One year and a lawsuit later, the Services reverse course, 
deeming the plan as unfit to rely upon as a litigation defense. This is 
the wrong result, and I would hope that during the next Congress, we 
can change the Services' policy or change the law to encourage 
responsible, effective state conservation plans.
  Mr. President, in order to avoid taxpayer expense, I will not ask 
that the documents I referred to be printed in the Record. Instead, I 
will post the documents on my Web site. Thank you.
  Mr. President, I yield the floor and, seeing no one seeking 
recognition, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.

[[Page S11521]]

  The assistant legislative clerk proceeded to call the roll.
  Mr. DODD. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________