[Congressional Record Volume 151, Number 130 (Friday, October 7, 2005)]
[Extensions of Remarks]
[Page E2076]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




         THREATENED AND ENDANGERED SPECIES RECOVERY ACT OF 2005

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                               speech of

                             HON. JIM COSTA

                             of california

                    in the house of representatives

                      Thursday, September 29, 2005

       The House in Committee of the Whole House on the State of 
     the Union had under consideration the bill (H.R. 3824) to 
     amend and reauthorize the Endangered Species Act of 1973 to 
     provide greater results conserving and recovering listed 
     species, and for other purposes:

  Mr. COSTA. Mr. Chairman, I rise today to clarify the intent and 
importance of language in H.R. 3824 regarding the discretionary nature 
of recovery plans under the ESA. Language in TESRA states that, 
``Nothing in a recovery plan shall be construed to establish regulatory 
requirements.'' This important language will ensure that, as is 
currently the case, recovery plans cannot be used as a regulatory 
``hammer'' on private landowners or others. Let me elaborate.
  The ESA Sec. 4(f) states that the Secretaries of Interior and 
Commerce ``shall develop and implement recovery plans'' for listed 
species, ``unless . . . such a plan will not promote the conservation 
of the species.'' This responsibility has been delegated to the U.S. 
Fish and Wildlife Service (FWS) and the National Oceanic and 
Atmospheric Administration Fisheries Service (NOAA Fisheries) 
(collectively, the Services).
  Thus, as a general matter, the ESA compels the Services to develop 
recovery plans. While FWS and NOAA Fisheries are under a general duty 
to develop a recovery plan for listed species, the federal courts are 
in unanimous agreement that the contents of a recovery plan are 
discretionary with the Services. Recovery plans do not impose legal 
obligations or requirements on anyone--not on private landowners, not 
on local or state government units, and not even on the federal 
government itself. Rather, the case law makes clear that recovery plans 
are guidance documents.
  For example, the 11th Circuit Court of Appeals rejected the argument 
of an environmental group that would have ``elevate[d] the 1987 
[Florida panther] recovery plan into a document with the force of 
law.'' Fund for Animals v. Rice, 85 F.3d 535,547 (11th Cir. 1996). The 
11th Circuit wrote that ESA Sec. 4(f):

       ``makes it plain that recovery plans are for guidance 
     purposes only. . . . By providing general guidance as to what 
     is required in a recovery plan, the ESA `breathe[s] 
     discretion at every pore.' ''

Id. (emphasis supplied), citing Strickland v. Morton, 519 F.2d 467, 469 
(9th Cir. 1975)).

  FWS itself has taken the position that recovery plans have no binding 
effect. Courts have agreed with the agency's position. For example, in 
Biodiversity Legal Found. v. Norton, 285 F.Supp. 2d 1 (D.D.C. 2003), 
environmental groups argued that the recovery plan for the Cape Sable 
Seaside sparrow had a binding impact to compel revisions to the 
species' critical habitat. FWS asserted that `` `the content of 
Recovery Plans required under ESA Sec. 4(f) is not binding upon the 
Service, so cannot create a legal duty.' '' Id. at 13. The district 
court, citing the 11th Circuit's opinion in Fund for Animals (discussed 
above), agreed with FWS. It ruled that the sparrow's recovery plan 
``was merely a guidance, which FWS had discretion to follow.'' Id.
  Similarly, environmental groups claimed that the recovery plan for 
certain whale species was deficient because it failed to include 
substantive, mandatory requirements. The court disagreed, holding that 
``[c]ase law instructs that [FWS is] correct in [its] assertion that 
the content of recovery plans is discretionary.'' Strahan v. Linnon, 
967 F.Supp. 581, 597 (D.Mass. 1997), aff'd, 187 F.3d 623 (1st Cir. 
1998). The court recognized that FWS is under a statutory duty to 
develop a recovery plan ``to the extent that it is feasible and 
possible,'' but that ``requirement does not mean that the agency can be 
forced to include specific measures in its recovery plan.'' Id. at 598. 
Environmental groups also argued that the recovery plan for the Perdido 
Key beach mouse must include an expansion of the species' critical 
habitat. The court, aligned with all of the other opinions on the 
topic, rejected the environmentalists' argument because ``the contents 
of the [recovery plan] are discretionary.'' Morrill v. Lujan, 802 
F.Supp. 424, 433 (S.D.Ala. 1992).
  There is a strong policy justification for finding that recovery 
plans are discretionary: namely, to allow FWS to allocate its scarce 
resources as it sees fit. ``Congress recognized that the development of 
recovery plans for listed species would take significant time and 
resources. It therefore provided in the ESA that the Secretary could 
establish a priority system for developing and implementing such plans. 
This priority system allows the Secretary broad discretion to allocate 
scarce resources to those species that he or she determines would most 
likely benefit from development of a recovery plan.'' Oregon Natural 
Resources Council, supra, 863 F.Supp. at 1282-83 (emphasis supplied).
  To conclude, in a rare show of agreement among court interpretations 
of the ESA, the federal judges that have addressed this point have all 
agreed that recovery plans are simply discretionary guidance documents, 
with no binding effect. It is clearly the intent of H.R. 3824 to not 
only remain consistent with this established line of precedent, but to 
codify this important fact.

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