[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]

THE ENDANGERED SPECIES ACT:
REVIEWING THE NEXUS
OF SCIENCE AND POLICY

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

HEARING

BEFORE THE

SUBCOMMITTEE ON INVESTIGATIONS AND
OVERSIGHT

COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY
HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS

FIRST SESSION

__________

THURSDAY, OCTOBER 13, 2011

__________

Serial No. 112-44

__________

Printed for the use of the Committee on Science, Space, and Technology

Available via the World Wide Web: http://science.house.gov

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COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY

HON. RALPH M. HALL, Texas, Chair
F. JAMES SENSENBRENNER, JR., EDDIE BERNICE JOHNSON, Texas
Wisconsin JERRY F. COSTELLO, Illinois
LAMAR S. SMITH, Texas LYNN C. WOOLSEY, California
DANA ROHRABACHER, California ZOE LOFGREN, California
ROSCOE G. BARTLETT, Maryland BRAD MILLER, North Carolina
FRANK D. LUCAS, Oklahoma DANIEL LIPINSKI, Illinois
JUDY BIGGERT, Illinois GABRIELLE GIFFORDS, Arizona
W. TODD AKIN, Missouri DONNA F. EDWARDS, Maryland
RANDY NEUGEBAUER, Texas MARCIA L. FUDGE, Ohio
MICHAEL T. McCAUL, Texas BEN R. LUJAN, New Mexico
PAUL C. BROUN, Georgia PAUL D. TONKO, New York
SANDY ADAMS, Florida JERRY McNERNEY, California
BENJAMIN QUAYLE, Arizona JOHN P. SARBANES, Maryland
CHARLES J. ``CHUCK'' FLEISCHMANN, TERRI A. SEWELL, Alabama
Tennessee FREDERICA S. WILSON, Florida
E. SCOTT RIGELL, Virginia HANSEN CLARKE, Michigan
STEVEN M. PALAZZO, Mississippi VACANCY
MO BROOKS, Alabama
ANDY HARRIS, Maryland
RANDY HULTGREN, Illinois
CHIP CRAVAACK, Minnesota
LARRY BUCSHON, Indiana
DAN BENISHEK, Michigan
VACANCY
------

Subcommittee on Investigations and Oversight

HON. PAUL C. BROUN, Georgia, Chair
F. JAMES SENSENBRENNER, JR., DONNA F. EDWARDS, Maryland
Wisconsin ZOE LOFGREN, California
SANDY ADAMS, Florida BRAD MILLER, North Carolina
RANDY HULTGREN, Illinois JERRY McNERNEY, California
LARRY BUCSHON, Indiana
DAN BENISHEK, Michigan
VACANCY
RALPH M. HALL, Texas EDDIE BERNICE JOHNSON, Texas

C O N T E N T S

Thursday, October 13, 2011

Page
Witness List..................................................... 2

Hearing Charter.................................................. 3

Opening Statements

Statement by Representative Paul C. Broun, Chairman, Subcommittee
on Investigations and Oversight, Committee on Science, Space,
and Technology, U.S. House of Representatives.................. 9
Written Statement............................................ 10

Statement by Representative Donna F. Edwards, Ranking Minority
Member, Subcommittee on Investigations and Oversight, Committee
on Science, Space, and Technology, U.S. House of
Representatives................................................ 11
Written Statement............................................ 12

Witnesses:

Mr. Gary Frazer, Assistant Director, Endangered Species, U.S.
Fish and Wildlife Service
Oral Statement............................................... 14
Written Statement............................................ 16

The Honorable Craig Manson, General Counsel, Westlands Water
District
Oral Statement............................................... 24
Written Statement............................................ 25

Mr. Douglas Vincent-Lang, Senior Biologist, Alaska Department of
Fish and Game
Oral Statement............................................... 29
Written Statement............................................ 31

Dr. Neal Wilkins, Director, Texas A&M Institute of Renewable
Natural Resources
Oral Statement............................................... 37
Written Statement............................................ 38

Mr. Jonathan Adler, Professor, Case Western Reserve University
School of Law
Oral Statement............................................... 43
Written Statement............................................ 45

Dr. Francesca T. Grifo, Senior Scientist and Director, Scientific
Integrity Program, Union of Concerned Scientists
Oral Statement............................................... 50
Written Statement............................................ 52

Appendix I: Answers to Post-Hearing Questions

Mr. Gary Frazer, Assistant Director, Endangered Species, U.S.
Fish and Wildlife Service...................................... 82

The Honorable Craig Manson, General Counsel, Westlands Water
District....................................................... 90

Mr. Douglas Vincent-Lang, Senior Biologist, Alaska Department of
Fish and Game.................................................. 94

Dr. Neal Wilkins, Director, Texas A&M Institute of Renewable
Natural Resources.............................................. 98

Mr. Jonathan Adler, Professor, Case Western Reserve University
School of Law.................................................. 101

Appendix II: Additional Material for the Record

Representative Randy Neugebauer, Subcommittee on Investigations
and Oversight, Committee on Science, Space, and Technology,
U.S. House of Representatives.................................. 104

Photograph submitted for the record by Representative Dan
Benishek....................................................... 105

United States Department of the Interior, Office of Inspector
General's ``Report of Investigation: The Endangered Species Act
and the Conflict between Science and Policy,'' submitted for
the record by Representative Brad Miller....................... 106

Article entitled, ``Email Reveals State Dispute Over Polar Bear
Listing,'' submitted for the record by Representative Paul
Tonko.......................................................... 112

Article entitled, ``State Policy Leads Beluga Team to Remove
Alaska Scientists,'' submitted for the record by Representative
Paul Tonko..................................................... 115

The Delta Smelt Cases, San Luis & Delta-Mendota Water Authority,
et al. v. Kenneth Lee Salazar, et al., 09-CV-407, Reporter's
Transcript of Proceedings, September 16, 2011.................. 120

THE ENDANGERED SPECIES ACT:
REVIEWING THE NEXUS OF SCIENCE AND POLICY

----------

THURSDAY, OCTOBER 13, 2011

House of Representatives,
Subcommittee on Investigations and Oversight,
Committee on Science, Space, and Technology,
Washington, DC.

The Subcommittee met, pursuant to call, at 10:07 a.m., in
Room 2318 of the Rayburn House Office Building, Hon. Paul Broun
[Chairman of the Subcommittee] presiding.

hearing charter

COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY

SUBCOMMITTEE ON INVESTIGATIONS & OVERSIGHT

U.S. HOUSE OF REPRESENTATIVES

The Endangered Species Act: Reviewing the Nexus of Science and Policy

thursday, october 13, 2011
10:00 a.m. - 12:00 p.m.
2318 rayburn house office building

Purpose

On October 13, 2011, the Subcommittee on Investigations and
Oversight will hold a hearing on the nexus of science and policy
related to the Endangered Species Act (ESA) \1\. The purpose of the
hearing is to highlight the combination of science and policy decisions
that are made under the ESA. Numerous judicial disputes over ESA-
related actions highlight the challenges in weighing best available
science against other policy considerations, often under short
deadlines. Congress has frequently considered changes to the ESA as a
whole, and has also enacted species-specific ESA legislation, most
recently with 2011 legislation concerning the grey wolf. \2\
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\1\ 16 U.S.C. Sec. 1531-1544.
\2\ Title VII, Section 1713, of P.L. 112-10.

Although the ESA is designed to protect species, its application is
most visible when federally imposed plans to protect and recover a
species restrict the actions of private citizens and other entities.
For example, landowners may not be able to use their property in a
manner they had planned and farmers may not be able to use as much of a
river's water as they need. Since takings claims are rarely successful,
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the science used to make ESA decisions is critical.

Background

Enacted in 1973 and amended on several occasions, the Endangered
Species Act is designed to ensure the continued existence of species of
plants and animals that are at risk of extinction. The Act sets out a
specific timeline for action by federal agencies and requires agency
officials to make decisions based upon the best science available under
specific deadlines. The timelines cannot be waived or extended in an
effort to allow for the development of additional science related to a
species in question. \3\ This results in the focus of public and
federal review primarily upon the science used by proponents for a
particular action, typically a petition for a new listing.
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\2\ 16 U.S.C. Sec. 1533(b) (3).
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Almost 1400 U.S. species of plants and animals have been listed
under the ESA as threatened or endangered, resulting in the
implementation of 1100 active recovery plans. \4\ A small number of
species have been delisted, either due to successful recoveries,
extinction, or due to data errors in the original listing decision. \5\
The majority of listed species have remained at their original listing
level of endangered or threatened. The American bald eagle is viewed by
many as the highest profile species to go through the Endangered
Species Act process. After federal protections were enacted in 1940
prior to the enactment of the ESA, the bald eagle population of the
lower 48 states was listed as endangered in 1967 under a precursor to
the ESA, the Endangered Species Preservation Act of 1966, downlisted to
threatened in 1995, and delisted all together in 2007. \6\
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\4\ The current number of endangered and threatened species can be
found at http://ecos.fws.gov/tess_public/pub/boxScore.jsp.
\5\ See http://ecos.fws.gov/tess_public/pub/delisting Report.jsp
for the complete list.
\6\ See http://www.fws.gov/migratorybirds/baldeagle.htm
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In a recent high profile action in April 2011, the President signed
into law a provision that required the FWS to reissue an earlier final
rule published on April 2, 2009 concerning the Northern Rocky Mountain
population of the grey wolf as a distinct population segment. \7\ The
original rule delisted certain species of the grey wolf, but the rule
was set aside as a result of federal litigation brought by several
environmental groups. \8\ The legislation required the FWS to republish
its final rule and prohibited judicial review of the action. It is
important to note that the FWS initially determined that the delisting
decision was appropriate and the 2011 legislation did not override FWS
decisions for this species. \9\
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\7\ Section 1713 of P.L. 112-10.
\8\ Defenders of Wildlife et al. v. Salazar et al., 729 F. Supp. 2d
1207 (D. Mont.).
\9\ ``Final Rule to Identify the Northern Rocky Mountain Population
of Gray Wolf as a Distinct Population Segment and To Revise the List of
Endangered and Threatened Wildlife,'' Federal Register 74, (2 April
2009): 15123.
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Although the focus of the ESA is preventing the further decline of
species populations, significant societal impacts occur when a species
is listed as threatened or endangered. Various uses of lands and waters
identified as critical habitats for endangered species are restricted.
These restrictions make the accuracy of science concerning the status
of a particular species crucial to making appropriate policy decisions.
If critical habitat designations are not appropriately sized or scoped,
then either too much or too little protection for a particular species
will be applied. If usage restrictions are too small in size and scope,
this could result in additional losses to the species. If restrictions
are too large in size and scale, users of a particular area such as
home owners or farmers could have their usage of a resource overly
restricted.

The process used to list and delist species

The Fish and Wildlife Service and the National Marine Fisheries
Service are responsible for the ultimate listing of a species as
threatened or endangered through the publication of a final notice in
the Federal Register. Initial steps to determine whether a new listing
is warranted or an existing listing should be modified can occur within
these agencies for two reasons:

1. If federal scientists determine that the status of a species
warrants review, or

2. In response to a petition filed with the agency by an outside
group.

Upon receipt of a petition filed by an outside group or an internal
decision that a listing review should be considered, the agency has 90
days to make an initial determination after publication in the Federal
Register. Interested parties can submit additional information
regarding a listing review and/or comment upon data included in the
initial Federal Register notice. Within one year of publication in the
Federal Register, the agency is statutorily required to make a final
determination. Under existing statute, listed species are also subject
to ongoing review of their status every five years without the need for
petitions.
The FWS and NMFS have increasingly used their statutory authority
to determine that the listing of a species is ``warranted, but
precluded.'' \10\ This status means that the listing of a species is
warranted based upon available science, but that other species have a
greater priority for protection. No protections apply specifically
under the Endangered Species Act for species determined to be
``warranted, but precluded'' although the Bureau of Land Management and
the Forest Service provide additional protections for these species
under separate statutory provisions applicable only to those agencies.
\11\ All ``warranted, but precluded'' determinations are subject to
judicial review as are ongoing agency efforts to make a final
determination for such species. Recent court litigation brought by
environmental groups has focused on FWS actions, or lack thereof, to
reduce the number of species identified as ``warranted, but
precluded''.
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\10\ This authority is found at 16 U.S.C. Sec. 1533(b) (3) (B).
\11\ The spotted owl is one example of a species that the Forest
Service gave additional habitat protection. A review of Forest Service
actions regarding the spotted owl can be found at http://www.fs.fed.us/
pnw/pubs/marcot.pdf.
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Each species identified as ``warranted, but precluded'' is given a
ranking number known as a ``Listing Priority Number (LPN)'' from 1 to
12 that the FWS and NMFS is supposed to use as a roadmap for
identifying which species are listed first. The LPN is based upon three
factors: magnitude of the threats to the species, immediacy as to when
the threats will begin, and the importance of the species biologically.
An annual Candidate Notice of Review identifies all status changes to
listed species during the prior year and a ranking of ``warranted, but
precluded'' species. The annual cumulative total of candidate listings
identified as ``warranted, but precluded'' during the past six years
have numbered:

2010: 251 species

2009: 305 species

2008: 251 species

2007: 280 species

2006: 279 species

2005: 286 species

Biological opinions

Section 7 of the ESA requires any federal agency that seeks to
undertake an action such as issuing a permit or undertaking a project
that may impact an endangered species to conduct a biological
assessment to identify the likely impact of its action on an endangered
species. \12\ The Federal agency requesting formal consultation shall
provide the Service with the best scientific and commercial data
available or which can be obtained during the consultation for an
adequate review of the effects that an action may have upon listed
species or critical habitat. \13\ FWS or NOAA will review the
assessment and then issue its response in the form of a biological
opinion, BiOP for short. Although the document is called an opinion, it
is binding upon federal agencies and is subject to judicial review.
Judicial disputes over an endangered species that do not concern the
act of listing itself often focus on the contents of particular
biological opinions. For example, recent judicial activity noted later
in this memo regarding the Delta Smelt has been focused on the
biological opinions concerning minimum water flows necessary to protect
the species.
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\12\ 16 U.S.C. Sec. 1536.
\13\ 50 C.F.R. Sec. 402.14(d).

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Issues

Recent DOI Settlement Agreements Concerning ``Warranted, but
Precluded'' Species

In 2009 and 2010, WildEarth Guardians filed ten complaints in
federal court seeking declaratory and injunctive relief alleging that
the Secretary of Interior failed to comply with a statutory duty to
make 12-month findings on petitions made by WildEarth Guardians to list
12 species as threatened or endangered under the ESA. \14\ In a May
2011 settlement between the parties to resolve the case, FWS committed
to a number of activities related to listing petitions under a set time
frame as follows:
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\14\ Cases Numbers 1:09-2290, 1:09-2997, 1:10-57, 1:10-169, 1:10-
256, and 1:10-263. (D. Colo.); Numbers 1:10-0048 and 1:10-421 (D.
D.C.); and Numbers 1:10s

130 of 251 outstanding listing petitions will be resolved
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by September 30, 2013

30 more listings petitions will be resolved by September
30, 2014

40 more listings petitions will be resolved by September
30, 2015

All 251 listing petitions will be resolved by September
30, 2016

By September 30, 2013, the Distinct Population Segment
for the Canada Lynx will be extended to include New Mexico

Decisions regarding the New Mexico Jumping Mouse \15\,
the Greater Sage Grouse \16\, and the Sonoran Desert Tortoise \17\ will
be made by specific dates
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\15\ Zapus hudsonius luteus.
\16\ Centrocercus urophasianus.
\17\opherus agassizii.

Payment of an undetermined amount of legal fees to
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WildEarth Guardians

In 2010, the Center for Biological Diversity filed a similar
complaint in federal court seeking declaratory and injunctive relief
alleging that the Secretary of Interior failed to comply with a
statutory duty to make 12-month findings on petitions made by the
Center for Biological Diversity to list over 500 species as threatened
or endangered under the ESA. \18\ In a July 2011 settlement between the
parties to resolve the case, FWS committed to a number of activities
related to listing petitions under a set time frame as follows:
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\18\ Case Number: 10-0230.

The 90 day petitions for 477 aquatics species must be
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made by September 30, 2011

The 12 month findings for 11 non-aquatic species must be
made by September 30, 2011

Seven specific listing petitions must be resolved by
September 30, 2012

14 specific listing petitions must be resolved by
September 30, 2013

Seven specific listing petitions must be resolved by
September 30, 2014

Seven specific listing petitions must be resolved by
September 30, 2015

Two specific listing petitions must be resolved by
September 30, 2016

One specific listing petitions must be resolved by
September 30, 2017

Payment of an undetermined amount of legal fees to the
Center for Biological Diversity

In contrast to 1400 total species listings under the ESA since its
enactment in 1973, the two court settlements will require a review of
750 candidate species in only six years. The settlements assume that
there will be no increase in federal funding to manage the sharply
increased workload of reviewing approximately one petition per week for
the next five years. Even if the agencies can meet the logistical
challenge, there will be a limited amount of time available to review
the research that accompanies each petition.

Shift to Outside Science

In the initial years of the ESA, outside petitions were rare. In
recent years, most listing decisions have been initiated through public
petitions submitted by outside entities such as WildEarth Guardians and
the Center for Biological Diversity. Their submissions contain science
conducted by non-government scientists. In cases where the scientific
record is thin, decisions that could have a major financial or societal
impact upon land owners and users are essentially being made upon the
research of a few.

Distinct Population Segments

Under the 1976 amendments to the Endangered Species Act, the FWS is
required to protect distinct population segments of vertebrate species.
In practice, this means that a large subpopulation of a species facing
minimal threats to its existence may not be listed under the Endangered
Species Act while a smaller subpopulation elsewhere facing greater
threats to its existence may be listed. Although determining distinct
subpopulations is becoming easier due to the increased use of genetic
testing, making such decisions are still a subject of vigorous
scientific and policy debates. \19\ Under guidance issued in 1996, the
FWS and NOAA consider three criteria regarding the listing of a
distinct population segment:
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\19\ Fallon, Sylvia, ``Genetic Data and the Listing of Species
Under the U.S. Endangered Species Act'' Conservation Biology Volume 21
(2007), Pages 1186-1195.

1. Discreteness of the population segment in relation to the
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remainder of the species to which it belongs;

2. The significance of the population segment to the species to
which it belongs; and

3 The population segment's conservation status in relation to the
Act's standards for listing (i.e., is the population segment, when
treated as if it were a species, endangered or threatened?). \20\
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\20\ ``Policy Regarding the Recognition of District Vertebrate
Population Notice of Policy.'' Federal Register 61, (7 February 1996):
4722-4725.

Although increased usage of genetic testing can help answer the
first criteria question, the second and third criteria are a
combination of science and policy decision-making. For example, the
Florida panther is listed as endangered with less than 200 animals
found in the wild in southern Florida although genetic testing has
shown that the genetic differences between the Florida panther and the
other thirty species of cougars are minimal. \21\ In this case, the
science concerning genetic differences and population numbers are
fairly certain, but the policy decisions are not.
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\21\ Whoriskey, Peter. ``Plan to Protect Florida Panther Reopens
Issue of Its Identity,'' Washington Post, 21 February 2006.

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Concerns over Agency Science

The scientific work and opinions made by federal scientists is
given significant deference by federal courts. Federal scientists are
considered independent experts in their specific field working on
behalf of the United States and its citizens in contrast to scientists
that either directly represent or have a connection to one or more
specific entities. Disputing the decisions and testimony of federal
scientists is therefore challenging.
In one recent example, on September 16, 2011 U.S. District Court
Judge Oliver Wanger of California sharply criticized the work and
testimony concerning the Delta Smelt Biological Opinion by two federal
scientists, one from the Fish and Wildlife Service and one from the
Bureau of Reclamation. Commenting upon the FWS scientist, Judge Wanger
stated ``I find her testimony to be that of a zealot.'' In further
comments about the Bureau of Reclamation scientist, he stated
``And I am going to make a very clear and explicit record to
support that finding of agency bad faith because, candidly, the only
inference that the Court can draw is that it is an attempt to mislead
and to deceive the Court into accepting what is not only not the best
science, it's not science.''
Although Judge Wanger's comments were in reference to one specific
case, they do highlight the concerns over the quality of science and
the related federal actions that follow from relying upon that science.
If the science used by Congress, federal agencies, and federal courts
to make specific determinations is flawed or biased in some way, then
the policies that result will similarly be flawed and biased.
In another example, a memo dated March 22, 2011 from the Solicitor
General's office to the Acting Assistant Secretary for Fish and
Wildlife and Parks found that National Park Service employees had
failed to satisfy the Interim Code of Scientific and Scholarly Conduct
regarding their actions concerning research on the impact of shellfish
mariculture activities upon protected harbor seal populations. \22\
Although no intent to deceive or scientific misconduct was found by the
Solicitor's office, ``this misconduct arose from incomplete and biased
evaluation and from blurring the line between exploration and advocacy
through research.'' \23\
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\22\ The Solicitor's memo can be found at http://www.eenews.net/
assets/2011/03/23/document_gw_05.pdf.
\23\ Ibid. page 35.

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Witnesses

Mr. Gary Frazer, Assistant Director, Endangered Species,
U.S. Fish and Wildlife Service

The Honorable Craig Manson, General Counsel, Westlands
Water District

Mr. Douglas Vincent-Lang, Senior Biologist, Alaska
Department of Fish and Game

Dr. Neal Wilkins, Director, Texas A&M Institute of
Renewable Natural Resources

Mr. Jonathan Adler, Professor, Case Western Reserve
University School of Law

Dr. Francesca T. Grifo, Senior Scientist and Director,
Scientific Integrity Program, Union of Concerned Scientists

Appendix A

Excerpt of Recent Comments by Federal District Court Judge Wanger from
Court Transcript in the Delta Smelt Cases Concerning the Testimony of
Two Federal Employees and a Finding of Agency Bad Faith by the Bureau
of Reclamation
The Court believes that the testimony of Mr. Feyrer, Bureau of
Reclamation's expert, and Dr. Norris, the Fish & Wildlife Service's
expert, are--and I'm going to be making findings that are going to be
justified by specific factual instances. Their testimony is riddled
with inconsistency. The Court finds that Dr. Norris' testimony, as it
has been presented in this courtroom and now in her subsequent
declaration, she may be a very reasonable person and she may be a good
scientist, she may be honest, but she has not been honest with this
Court. I find her to be incredible as a witness. I find her testimony
to be that of a zealot. And I'm not overstating the case, I'm not being
histrionic, I'm not being dramatic. I've never seen anything like it.
And I've seen a few witnesses testify. Mr. Feyrer is equally
inconsistent. Self and internally contradictory. I--and most of you,
some of you have been in these cases for 20 years. I have never seen
anything like what has been placed before this Court by these two
witnesses. And the suggestion by Dr. Norris that the failure to
implement X2 at 74 kilometers, that that's going to end the delta smelt
existence on the face of our planet is false, it is outrageous, it is
contradicted by her own testimony, it is contradicted by Mr. Feyrer's
testimony, it's contradicted by the most recent adaptive management
plan review, it's contradicted by the prior studies, it is--candidly,
I've never seen anything like it.
I'm going to start with Mr. Feyrer, and I'm going to go issue by
issue, point by point. Because, candidly, I'm going to be making a
finding in this case of agency bad faith. There is simply no
justification. There can be no acceptance by a court of the United
States of the conduct that has been engaged in this case by these
witnesses. And I am going to make a very clear and explicit record to
support that finding of agency bad faith because, candidly, the only
inference that the Court can draw is that it is an attempt to mislead
and to deceive the Court into accepting what is not only not the best
science, it's not science. There is speculation. There is primarily,
mostly contradicted opinions that are presented that the Court not only
finds no basis for, but they can't be anything but false because a
witness can't testify under oath on a witness stand and then, within
approximately a month, make statements that are so contradictory that
they're absolutely irreconcilable with what has been stated earlier.
And the Court draws the inferences of knowledge and draws the
inference of intent. Because those are intentional misstatements, they
can't be anything else. And they're made for only one purpose, they're
made for the purpose of attempting to influence the Court to decide in
a way that is misleading, confusing and the detail and the factual
complexity of this case obviously requires close scrutiny and great
effort. And if anybody had been just, quite frankly, a little bit
inattentive or a little bit less diligent than digging into and trying
to get to the bottom of every one of these assertions, it would be very
easy to simply accept these opinions with these record citations. And
when the record says the opposite of what you cite the record for, or
when the record doesn't say what you cite the record for, there's
simply an absence of the data, then that is a further misleading of the
Court. That is a further, if you will, distortion of the truth.
Chairman Broun. The Subcommittee on Investigations and
Oversight will come to order.
Good morning. Welcome to today's hearing entitled
``Endangered Species Act: Reviewing the Nexus of Science and
Policy.''
The Endangered Species Act (ESA) is one of the most
influential and far-reaching environmental laws this Nation has
ever passed. Since its passage in 1974, it has been the subject
of considerable debate--not only about its impact on our
Nation's economy, but also about its ultimate effectiveness.
Everyone wants to save species from extinction, but honest
people can have an honest debate about the most efficient and
effective way to do so. In terms of effectiveness, I believe it
would be hard to argue that the law has been anything but an
abject failure. Of the roughly 2,000 species listed as
endangered or threatened, only about one percent have actually
recovered. As a tool for advancing other special interest
policy goals, it has certainly been very influential, and I am
sure that that was not the Act's original intent.
Today's hearing will explore how the science is used to
inform policy decisions under ESA. The written testimonies
provided by our witnesses highlight major flaws in the basic
construct and implementation of the Act. Landowners are
penalized rather than rewarded for protecting habitat and
reporting populations. Dr. Wilkins writes that only with a
guarantee of anonymity will most landowners consent to having
their property surveyed for the existence of particular
species. As one example, his scientists found 28 more locations
where the dunes sagebrush lizard was found, compared to only
three previously known locations. This data was only captured
after landowners viewed Texas A&M researchers as something
other than a threat to their property rights. Professor Adler's
testimony highlights many other weaknesses in how the Act
threatens science and policy, and Mr. Vincent-Lang will provide
a state's perspective on ESA.
Recent events at the Department of Interior have also
attracted this Subcommittee's attention. On September 16, 2011,
U.S. District Court Judge Oliver Wanger of California sharply
criticized the work and testimony concerning the Delta Smelt
Biological Opinion by two federal scientists, one from the Fish
and Wildlife Service and one from the Bureau of Reclamation.
Commenting on the Fish and Wildlife Service scientist, Judge
Wanger stated ``I found her testimony to be that of a zealot.''
In further comments about the Bureau of Reclamation scientist,
he stated, ``And I am going to make a very clear and explicit
record to support that finding of agency bad faith because,
candidly, the only inference that the Court can draw is that
this is an attempt to mislead and to deceive the Court into
accepting what is not only not the best science, it is not
science.''
I am also concerned about the flood of ESA petitions and
the related litigation that could potentially challenge the
quality of the Service's work. I find it revealing that some of
the same entities that have brought lawsuits over hundreds of
species brag in their annual reports about the money that they
make from filing environmental lawsuits against federal
agencies. In its 2010 annual report, WildEarth Guardians states
that ten percent of their income came from their litigation
settlements and that they depend upon this income to ``survive
and thrive.'' I note that this so-called income is at
taxpayers' expense. Maybe supporting environmental trial
lawyers is part of the President's job plan, but I doubt that
the American people would agree that these are ``green jobs.''
Two recent court settlements require over 600 species to be
jammed through the Fish and Wildlife Service listing process
regardless of other agency priorities. I have serious concerns
about whether these listings will be made based upon science,
as they should be, or on legal expedience.
In a time of record unemployment, the Administration
continues to choose regulations over jobs. While I agree an
appropriate balance can be met, constituents in my district
need jobs, not red tape. We don't live in a vacuum and neither
should our environmental laws. Many of the witnesses before us
today have identified serious weaknesses with ESA, as well as
practical solutions that can bring about real conservation. It
is a time--it is past time actually for an overhaul of the
Endangered Species Act.
You will find in front of you packets containing our
witness panel's written testimony, biographies, and truth-in-
testimony disclosures.
I recognize myself now for an opening statement. Excuse me.
I recognize Ranking Member from Maryland, my friend, Ms.
Edwards, for her opening statement. I just did mine. Ms.
Edwards, you are recognized for five minutes.
[The prepared statement of Dr. Broun follows:]

Prepared Statement of Chairman Paul Broun

The Endangered Species Act (ESA) is one of the most influential and
far-reaching environmental laws this nation has ever passed. Since its
passage in 1974, it has been the subject of considerable debate--not
only about its impact on our nation's economy, but also about its
ultimate effectiveness. Everyone wants to save species from extinction,
but honest people can have an honest debate about the most efficient
and effective way to do so. In terms of effectiveness, I believe it
would be hard to argue that the law has been anything but an abject
failure. Of the roughly 2,000 species listed as endangered or
threatened, only about one percent have actually recovered. As a tool
for advancing other special interest policy goals, it has certainly
been very influential, but I'm not sure that was the Act's original
intent.
Today's hearing will explore how the science is used to inform
policy decisions under ESA. The written testimonies provided by our
witnesses highlight major flaws in the basic construct and
implementation of the Act. Landowners are penalized rather than
rewarded for protecting habitat and reporting populations. Dr. Wilkins
writes that only with a guarantee of anonymity will most landowners
consent to having their property surveyed for the existence of
particular species. As one example, his scientists found 28 more
locations where the dunes sagebrush lizard was found, compared to only
three previously known locations. This data was only captured after
landowners viewed Texas A&M researchers as something other than a
threat to their property rights. Professor Adler's testimony highlights
many other weaknesses in how the act treats science and policy, and Mr.
Vincent-Lang will provide a state's perspective on ESA.
Recent events at the Department of Interior have also attracted
this Subcommittee's attention. On September 16, 2011 U.S. District
Court Judge Oliver Wanger of California sharply criticized the work and
testimony concerning the Delta Smelt Biological Opinion by two federal
scientists, one from the Fish and Wildlife Service and one from the
Bureau of Reclamation. Commenting upon the FWS scientist, Judge Wanger
stated ``I find her testimony to be that of a zealot.'' In further
comments about the Bureau of Reclamation scientist, he stated

``And I am going to make a very clear and explicit record to
support that finding of agency bad faith because, candidly, the only
inference that the Court can draw is that it is an attempt to mislead
and to deceive the Court into accepting what is not only not the best
science, it's not science.''

I am also concerned about the flood of ESA petitions and the
related litigation that could potentially challenge the quality of the
Service's work. I find it revealing that some of the same entities that
have brought lawsuits over hundreds of species brag in their annual
reports about the money they make from filing environmental lawsuits
against federal agencies. In its 2010 annual report, WildEarth
Guardians states that ten percent of their income came from their
litigation settlements and that they depend upon this income to
``survive and thrive.'' I note that this so-called income is at
taxpayer expense. Maybe supporting environmental trial lawyers is part
of the President's job plan, but I doubt the American people would
agree that these are ``green jobs.''
Two recent court settlements require over 600 species to be jammed
through the Fish and Wildlife Service listing process regardless of
other agency priorities. I have serious concerns about whether these
listings will be made based upon science, as they should be, or on
legal expedience.
In a time of record unemployment, the Administration continues to
choose regulations over jobs. While I agree an appropriate balance can
be met, constituents in my district need jobs, not red tape. We don't
live in a vacuum and neither should our environmental laws. Many of the
witnesses before us today have identified serious weaknesses with ESA,
as well as practical solutions that can bring about real conservation.
It is time for an overhaul of the Endangered Species Act.

Ms. Edwards. Thank you, Mr. Chairman, and thank you for
holding the hearing and our witnesses for being here today. And
pardon my laryngitis. It will hurt you more to listen to it
than it does me to talk.
At the heart of this hearing is really about scientific
integrity and whether we plan to face the problems with science
in the management of the Endangered Species Act. I want to
begin by quoting one of our country's most famous
conservationists, President Richard Nixon. And he said,
``Nothing is more priceless and more worthy of preservation
than the rich array of animal life with which our country has
been blessed. It is a many-faceted treasure of value to
scholars, scientists, and nature-lovers alike and it forms a
vital part of the heritage we all share as Americans.'' And I
do share that sentiment. I just want to remind everyone that
President Nixon said those words on the occasion of signing
into law the Endangered Species Act of 1973.
Part of the reason I share that quote is because protecting
wildlife and protecting nature from destruction used to be a
bipartisan cause, but unfortunately, my Republican colleagues
no longer see eye to eye with their party's former President.
And let us make no mistake about it--the Endangered Species
Act, when it is allowed to work, protects wildlife from utter
destruction.
But since 1973, protection of wildlife has increasingly
become with the ``liberal cause.'' And what is most disturbing
about this is that since 1973, we have learned so much about
the benefits of biodiversity and the value of healthy
ecosystems and the value that that provides to people. And as I
look in this room, we do see the portrait of my friend, former
Chairman here, Sherry Boehlert, who is a Republican, who was a
proud environmentalist. I was a colleague of his on the Board
of the League of Conservation Voters, and it really saddens me
that he may have been one of the last of his kind in the
Republican Party.
The focus of today's hearing seems to be on attacking the
integrity of agency scientists with little help from former
U.S. District Court Judge Oliver Wanger's inflammatory opinion
in the Delta Smelt case from last month. In the wake of that
widely reported decision, the Judge appears to have backtracked
on his over-the-top comments, and I think that his extreme
language was misguided and efforts to attack the credibility of
agency scientists also misguided. The evidence of the past
decade show that the real scientific integrity at issue at our
federal agencies generally and the Fish and Wildlife Service
specifically has been political meddling with the agency
science. I hope our group of witnesses can speak to that
problem.
And I want to thank you, Chairman Broun, for calling such a
superb panel for that purpose. Present on today's panel you
also have a former Bush Administration Assistant Secretary
Craig Manson, who was mentioned 155 times in a 2008
investigative report by the Department of Interior Inspector
General. The then-Interior Inspector General Earl Devaney was
looking into allegations of misconduct by Mr. Manson's Deputy,
Julie McDonald. To quote just a small portion of the Inspector
General's memorandum, he noted, ``McDonald's zeal to advance
her agenda has caused considerable harm to the integrity of the
ESA program and to the morale and reputation of Fish and
Wildlife, as well as potential harm to individual species. Her
heavy-handedness has cast doubt on nearly every ESA decision
issued during her tenure. Of the 20 decisions we reviewed, her
influence potentially jeopardized 13 ESA decisions. McDonald's
conduct was backed by the seemingly blind support of former
Assistant Secretary for Fish and Wildlife and Parks, Judge
Craig Manson. Judge Manson so thoroughly supported McDonald
that even when a known error in a federal register notice--
which was caused by McDonald's calculations--was brought to
Manson's attention, he directed that notice to be published
regardless of the error.''
If I am not mistaken, Mr. Chairman, I believe that the Fish
and Wildlife witness we have today here, Craig Frazer, was the
very person who brought the aforementioned error to the federal
register notice to Mr. Manson's attention. And how was he
rewarded for trying to correct the error? Mr. Manson
transferred him out of the Agency. Thankfully, one of Mr.
Manson's successors had the good sense to rectify this abuse
conduct with respect to Mr. Frazer, a dedicated public servant
who just wanted to get the correct information published and
not simply spit out whatever was politically expedient. He is
back at the Department and I am happy to see him here today
before us in an official capacity, and I look forward to his
very candid testimony today.
And with that, Mr. Chairman, I would yield.
[The prepared statement of Ms. Edwards follows:]

Prepared Statement of Ranking Member Donna Edwards

I would like to thank Chairman Broun for holding this hearing, and
also thank our witnesses for being here today. At its heart, this
hearing is about scientific integrity and whether we face problems with
science in the management of the Endangered Species Act.
I'd like to start off by quoting one of our country's most famous
conservationists, President Richard Nixon:

``Nothing is more priceless and more worthy of preservation than
the rich array of animal life with which our country has been blessed.
It is a many-faceted treasure, of value to scholars, scientists, and
nature lovers alike, and it forms a vital part of the heritage we all
share as Americans.''

I share that sentiment.

President Nixon said those words on the occasion of signing into
law the Endangered Species Act in 1973.
I share that quote because protecting wildlife and protecting
nature from utter destruction used to be a bipartisan cause.
Unfortunately, my Republican colleagues no longer see eye to eye with
their Party's former president. Let's make no mistake about it, the
Endangered Species Act, when it is allowed to work, protects wildlife
from utter destruction.
However, since 1973, protection of wildlife has increasingly become
associated with ``the liberal cause.'' What's most disturbing about
this is that since 1973 we've learned so much about the benefits of
biodiversity and the value healthy ecosystems provide to people.
As I look up, I see the portrait of Chairman Sherry Boehlert, a
Republican, and a proud environmentalist. It truly saddens me that he
may have been the last of his kind . . .
The focus of today's hearing seems to be on attacking the integrity
of agency scientists, with a little help from former U.S. District
Court Judge Oliver Wanger's (pronounced: Wayne-jer) inflammatory
opinion in the Delta Smelt case from last month. In the wake of that
widely reported decision, Judge Wanger appears to have backtracked on
his over-the-top comments.
I think Judge Wanger's extreme language was misguided, and efforts
to attack the credibility of agency scientists are also misguided. The
evidence of the past decade has shown that the real scientific
integrity issue at our Federal agencies generally, and the Fish and
Wildlife Service specifically, has been political meddling with agency
science. I hope our group of witnesses can speak to that.
I have to thank you, Chairman Broun, for calling such a superb
panel for just that purpose. Present on today's panel you have a former
Bush Administration Assistant Secretary, Craig Manson, who was
mentioned 155 times in a 2008 Investigative Report by the Department of
Interior Inspector General. The then-Interior IG, Earl Devaney, was
looking into allegations of misconduct by Mr. Manson's Deputy, Julie
MacDonald. To quote just a small portion of the Inspector General's
Memorandum, he noted that:

``MacDonald's zeal to advance her agenda has caused considerable
harm to the integrity of the ESA program and to the morale and
reputation of the FW, as well as potential harm to individual species.
Her heavy-handedness has cast doubt on nearly every ESA decision issued
during her tenure; of the 20 decisions we reviewed, her influence
potentially jeopardized 13 ESA decisions. MacDonald's conduct was
backed by the seemingly blind support of former Assistant Secretary for
Fish and Wildlife and Parks, Judge Craig Manson. Judge Manson so
thoroughly supported MacDonald that even when a known error in a
Federal Register notice, which was caused by MacDonald's calculations,
was brought to Manson's attention, he directed that the notice be
published regardless of the error.''

If I'm not mistaken Mr. Chairman, I believe that the Fish and
Wildlife witness we have here today, Gary Frazer, was the very person
who brought the aforementioned error in the Federal Register notice to
Mr. Manson's attention. And how was he rewarded for trying to correct
this error? Mr. Manson transferred him out of the agency. Thankfully,
one of Mr. Manson's successors had the good sense to rectify this
abusive conduct with regard to Mr. Frazer, a dedicated public servant
who just wanted to get the correct information published, and not
simply spit out whatever was politically expedient. He is back at the
Department and I am happy to see him here before us today in an
official capacity.
The DOI Inspector General found that during Julie MacDonald's
tenure she had ``bullied, insulted, and harassed the professional staff
of FWS to change documents and alter biological reporting,'' disclosed
nonpublic information to private sector sources including to lobbyists,
and participated in the editing process for a species for which she had
a potential personal financial conflict of interest. All of this was
done with Mr. Manson's unwavering support.
The Chairman has repeatedly asked about the status of the Obama
Administration's science integrity policy. I am sure you join me in
finding satisfaction from the fact that the Department of Interior has
put a final policy in place. But the reason such a policy was even
needed was because of conduct during the prior Administration by
political appointees such as Mr. Manson.
If Mr. Manson's tenure at Interior was all that we had to look
forward to covering in today's hearing, this would be a great
opportunity. However, we also have a witness from the State of Alaska
who can explain to the Subcommittee his State's unique new policy which
says that once the state takes a position, such as on an endangered
species issue, state scientists must advocate that position--regardless
of the facts--or face punishment. That sort of gag rule is precisely
the kind of thing that I am sure the Chairman wants to make sure the
Obama Administration does not condone in its own agencies and this is
something we can certainly both agree on.
So I look forward to a spirited discussion today, and expect that
by the end of this hearing we will all have some newfound respect for
the difficult environment our Federal agency scientists work in--and
perhaps some state scientists too--to try and do the right thing, day
in and day out, while getting attacked from the outside, and sometimes
from within.
I yield back Mr. Chairman.

Chairman Broun. Thank you, Ms. Edwards.
If there are Members who wish to submit additional opening
statements, your statements will be added to the record at this
point.
At this time I would like to introduce our panel of
witnesses: Gary Frazer, Assistant Director, Endangered Species,
U.S. Fish and Wildlife Service; Professor Jonathan Adler of
Case Western Reserve University School of Law, the Honorable
Craig Manson, General Counsel, Westlands Water District;
Douglas Vincent-Lang, Special Assistant, Alaska Department of
Game and Fish; Dr. Neal Wilkins, Director of Texas A&M
Institute of Renewable Natural Resources; and Dr. Francesca
T.--is it Grifo? Grifo, okay, Union of Concerned Scientists.
As our witnesses should know, spoken testimony is limited
to five minutes each, after which the Members of the Committee
will have five minutes each to ask questions. Your written
testimony will be included in the record of the hearing. It is
the practice of the Subcommittee on Investigations and
Oversight to receive testimony under oath. Do any of you have
an objection of taking an oath?
Everybody sits there staring at me. I like to see their
heads either move from side to side or something. So
everybody--no one has an objection to taking an oath, is that
correct? Okay.
Let the reflect--record reflect that all witnesses are
willing to take an oath as reflected by their shaking their
head from side to side.
You also may be represented by counsel. Do any of you have
counsel with you here today? Again, okay, Judge Manson, you
have--okay, very good. Thank you.
Let the record reflect that none of the witnesses have
counsel.
If all of you would please now stand and raise your right
hand.
Judge Manson, you don't have to do that. Please raise your
right hand.
Do you solemnly swear to affirm to tell the whole truth,
nothing but the truth, so help you God?
Let the record reflect that all the witnesses participating
have taken the oath.
I now recognize our first witness, Mr. Frazer. You have
five minutes.

STATEMENT OF MR. GARY FRAZER,

ASSISTANT DIRECTOR, ENDANGERED SPECIES,

U.S. FISH AND WILDLIFE SERVICE,

DEPARTMENT OF THE INTERIOR

Dr. Frazer. Good morning, Chairman Broun, Ranking Member
Edwards, and Members of the Subcommittee. I am Gary Frazer,
Assistant Director for the Endangered Species Program within
the U.S. Fish and Wildlife Service. I appreciate this
opportunity to discuss how the Service carries out its duties
related to listing, delisting, consultation, and recovery of
species under the Endangered Species Act.
This job has never been easy, and it grows more difficult
every day. We are facing an extinction crisis. The nature of
this work often results in strongly held views on all sides and
frequent challenges to our decisions. In the face of all that,
we believe that the Service does an excellent job of making
decisions that are scientifically sound, legally correct,
transparent, and capable of withstanding challenge.
The ESA provides a critical safety net for America's native
fish, wildlife, and plants. And we know it can deliver
remarkable successes. Since Congress passed this landmark
conservation law in 1973, the ESA has prevented the extinction
of hundreds of imperiled species across the Nation and promoted
the recovery of many others.
Our Nation's rich diversity of fish, wildlife, and plants
symbolizes America's wealth and promise. The ESA represents a
firm commitment to protect and preserve our natural heritage
out of a deeply held understanding of the direct link between
the health of our ecosystems, the services they provide, and
our own well-being.
The ESA directs that determinations on whether to list any
species as endangered or threatened must be made solely on the
basis of the best scientific and commercial data available. The
term ``best scientific and commercial data available'' means
those data that are available at the time the Service makes a
listing determination, and the Act also establishes a schedule
under which the Service must make those determinations. We do
not have the luxury of waiting for all the information we might
want. Rather, we have to make timely decisions based on the
information that is available.
A full description of the procedures used for identifying
candidate species, responding to petitions to lists, and making
listing and delisting decisions is provided in my written
statement.
The workload associated with carrying out our listing
activities has for many years exceeded the resources available
to the Service. Therefore, a substantial backlog of listing
actions has accumulated.
The Service recently developed a six-year work plan for the
Listing Program through mediated settlement agreements with two
of the Service's most frequent plaintiffs. The Service will
systematically review and address the needs of more than 250
species that are currently candidates for protection under the
ESA to determine if they should be listed as threatened or
endangered species. The Service will make listing
determinations for each species, carefully reviewing scientific
information and public comments before deciding whether listing
is still warranted and, if so, whether to designate the species
as threatened or endangered. Each and every listing proposal
will be subject to independent peer review and public comment.
Service decisions under the Endangered Species Act are
sometimes controversial, and there have been cases in the
recent past where the scientific underpinning of the Service's
decisions has been subject to high-level independent scientific
review. My written statement describes several such reviews,
but I will note one in particular.
In 2008, the Service issued a jeopardy biological opinion
to the Bureau of Reclamation regarding the Continued Long-Term
Operation of the Central Valley Project and State Water Project
and included a reasonable and prudent alternative to protect
delta smelt and their habitat. The scientific information that
the Service used in the 2008 Central Valley Project opinion has
now been reviewed by five separate independent peer review
processes, including a 2010 review by a National Research
Council panel. While these reviews identified elements of the
opinion that might have been handled differently or justified
more thoroughly, they all largely affirmed that the Service
used the best available scientific information and applied that
information in a conceptually sound and scientifically
justified manner.
The science underlying the Service's Central Valley Project
opinion is also the subject of ongoing litigation. With regard
to recent comments made by former U.S. District Judge Oliver
Wanger, we fully believe that--we firmly believe that wise
decisions about the future of the Bay Delta must be guided by
our best available science. The Department stands behind the
consistent and thorough work that our scientists from the
Service and the Bureau of Reclamation have done on the Bay
Delta over many years.
We also believe that when questions arise regarding the
integrity of scientific work, it is important to resolve them
swiftly, independently, and decisively. We disagree with Judge
Wanger's comments last month, and we recognize and appreciate
his effort to clarify those comments before his retirement.
Still, we believe it is important that we follow the
Department's standard procedures for reviewing questions of
scientific integrity, so that we can resolve them definitively
and provide the due process that our affected scientists
deserve.
Therefore, the Department has instructed the Scientific
Integrity Officers of the Service and the Bureau of Reclamation
to retain independent experts to evaluate the allegations made
by Judge Wanger.
In closing, Mr. Chairman, I would like to emphasize the
importance the Service places upon having a science-driven,
transparent decision-making process in which the affected
public can participate effectively. Thank you for your interest
in endangered species conservation and ESA implementation and
for the opportunity to testify. I would be happy to answer any
questions that you and other Members of the Subcommittee might
have. Thank you.
[The prepared statement of Mr. Frazer follows:]

Prepared Statement of Mr. Gary Frazer, Assistant Director,
Endangered Species, U.S. Fish and Wildlife Service

Good morning Chairman Broun, Ranking Member Edwards, and Members of
the Subcommittee. I am Gary Frazer, Assistant Director for the
Endangered Species program within the U.S. Fish and Wildlife Service
(Service).
Mr. Chairman, I appreciate this opportunity to discuss how the
Service carries out its duties related to listing, delisting,
consultation on, and recovery of species under the Endangered Species
Act (ESA). Our procedures, some prescribed by statute and others by
agency regulations or policies, are all focused upon ensuring that our
decisions are objective, based on the best available science, and made
in the open with peer review and public participation throughout.
The Service is committed to making the ESA work in the eyes of the
public, the Congress, and the courts so as to accomplish its purpose of
conserving threatened and endangered species and protecting the
ecosystems upon which they depend.
This job has never been easy, and it grows more difficult every
day. We are facing an extinction crisis. With the pace and extent of
environmental change threatening the continued existence of more and
more of our Nation's biological wealth, we must manage limited
resources to carry out our mission. The nature of this work often
results in strongly held views on all sides and frequent challenges to
our decisions through the administrative, judicial, and political
process. In the face of all that, we believe that, overall, the Service
does an excellent job of making decisions that are scientifically
sound, legally correct, transparent, and capable of withstanding
challenge.
In this context, the following principles provide the foundation
for the administration of our listing and delisting activities:
decisions based on the best available science; independent peer review
of decisions; public participation throughout the decision-making
process; and understandable and transparent decisions.

Success in the Endangered Species Act

The ESA provides a critical safety net for America's native fish,
wildlife, and plants. And we know it can deliver remarkable successes.
Since Congress passed this landmark conservation law in 1973, the ESA
has prevented the extinction of hundreds of imperiled species across
the nation and has promoted the recovery of many others--like the bald
eagle, the very symbol of our Nation's strength. Well-known examples
include the recovery of the American alligator and brown pelican.
Likewise, in August of this year, the Service delisted the Tennessee
purple coneflower, the culmination of another Service-facilitated
alliance of multiple diverse partners coming together to achieve the
unified goal of recovery for an endangered plant species.
Success under the ESA is not only defined by removal of species
from the list of endangered and threatened species. The fact that
relatively few observed extinctions have occurred in the United States
during the last four decades represents a significant benchmark of
success of the ESA. The ESA has been successful in stabilizing
endangered and threatened species by promoting conservation programs
that are designed for their recovery. For instance, the Service and
Eglin Air Force Base have worked together to address threats to a small
native streamfish on the base, the Okaloosa darter, and this year the
Service was able to downlist the fish from endangered to threatened.
Partnerships with the States, Tribes, and the agricultural community
are supporting the spectacular ongoing recovery of the black-footed
ferret, once believed to be extinct but re-discovered 30 years ago and
now reestablished in 10 experimental populations. A less familiar but
equally impressive example is that of the Kemp's ridley sea turtle,
increasing from fewer than 300 females nesting in 1985 to more than
6,000 females nesting in recent years.
Our Nation's rich diversity of fish, wildlife, and plant resources
symbolizes America's wealth and promise. The ESA represents a firm
commitment to protect and preserve our natural heritage out of a deeply
held understanding of the direct link between the health of our
ecosystems, the services they provide and our own well-being.

Science, Peer Review, Public Participation and the 2011 Scientific
Integrity Policy

Section 4(b)(1)(A) of the ESA directs that determinations as to
whether any species is an endangered or threatened species must be made
``solely on the basis of the best scientific and commercial data
available.'' The term ``best scientific and commercial data available''
means those data that are available at the time the Service makes a
listing determination, and the provisions of section 4 of the ESA
establish the schedule under which the Service must make
determinations. The careful evaluation of scientific evidence is
fundamental to the assessment of species for listing or delisting under
the ESA. We do not have the luxury of waiting for all the information
we might want; rather, we have to make timely decisions based on the
information that is available, and our scientists and managers have
done an exceptional job under those circumstances. Maintaining and
increasing the capacities of our employees to access and analyze
scientific information is, and will be, a key to our success.
Our joint Fish and Wildlife Service/National Marine Fisheries
Service (NMFS) ``Policy on Information Standards Under the Endangered
Species Act,'' published in the Federal Register on July 1, 1994 (59 FR
34271), provides criteria, establishes procedures, and provides
guidance to our field biologists and managers regarding the use of
scientific information in our decision-making process.
This ``Policy on Information Standards'' requires our biologists
and managers to ensure that the information we use is reliable and
credible, and represents the best data available; to impartially
evaluate information that conflicts with existing positions or
decisions of the Service; to document their evaluation of the available
scientific and commercial data; to use primary and original sources of
information as the basis for recommendations, where consistent with the
ESA and our obligation to use the best information available; and to
conduct management-level reviews of the documents developed by staff
biologists to verify and assure the quality of the science used in the
decision-making process.
To further ensure that sound science underlies our decisions, the
Service and NMFS established a joint ``Policy for Peer Review in
Endangered Species Act Activities,'' published in the Federal Register
on July 1, 1994 (59 FR 34270). This policy works to ensure that
independent peer review is incorporated throughout our listing and
recovery programs in a manner that complements, but does not circumvent
or supersede, other established public participation processes.
In recognition of the unique capability of State fish and wildlife
agencies to assist in implementing all aspects of the ESA, the Service
and NMFS developed a joint ``Policy Regarding the Role of State
Agencies in Endangered Species Act Activities,'' also published in the
Federal Register on July 1, 1994 (59 FR 34275). This policy recognizes
that States possess broad trustee authorities over fish, wildlife, and
plants and their habitats within their borders, as well as scientific
data and valuable expertise on the status and distribution of such
species and habitats. The policy requires the Services to solicit State
agency expertise and participation in a broad range of activities,
including determining which species should be included on the list of
candidate species; conducting population status inventories and
geographical distribution surveys; responding to listing petitions,
preparing proposed and final listing and delisting rules; and designing
and implementing recovery efforts.
The Executive Order 13175 of November 6, 2000, on government-to-
government relations with Native American tribal governments also
requires us to consult with Tribes on matters that affect them.
Consistent with this and our Federal trust responsibilities, we consult
to the extent possible with Indian Tribes having tribal trust
resources, tribally owned fee lands, or tribal rights that might be
affected by ESA activities. State and Tribal capacity supported through
programs like the State and Tribal wildlife grants, is a key ingredient
in longterm effectiveness.
In addition to our own policies, the Service follows the
Administrative Procedure Act (APA) (5 U.S.C. 551 et seq.) rulemaking
process for listing actions. All the information we rely upon in making
our listing decisions is available for public review and comment. Under
section 553 of the APA, Federal agencies must publish proposed rules in
the Federal Register; give interested parties an opportunity to
participate in the rulemaking by allowing them to submit written data,
views, or arguments, with or without opportunity for oral presentation;
after considering all comments received, publish final rules in the
Federal Register and include a concise general statement of their
purpose; and allow at least 30 days following publication of a final
rule before it becomes effective, except in certain cases.
In December 2000, Congress required Federal agencies to publish
their own guidelines for ensuring and maximizing the quality,
objectivity, utility, and integrity of information that they
disseminate to the public (44 U.S.C. 3502). The statutory language
containing this requirement is included in the Information Quality Act
(IQA) (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; HR 5658)).
The Office of Management and Budget (OMB) published guidelines pursuant
to the IQA in the Federal Register on February 22, 2002 (67 FR 8452),
directing agencies to address the requirements of the law. In a May 24,
2002, Federal Register notice (67 FR 36642), the Department of the
Interior issued Department-wide guidelines and instructed bureaus to
prepare specific guidelines for implementing the IQA within the context
of their individual missions. The Service issued its initial
Information Quality Guidelines in October, 2002 and updated guidelines
were put into effect in August 2007. The Service's Information Quality
Guidelines provide criteria, establish procedures, and provide guidance
to ensure that our decisions are based on the best scientific data
available. The Information Quality Guidelines establish Service policy
and procedures for reviewing, substantiating, and correcting the
quality of information it disseminates to the public.
In February 2011, Interior Secretary Ken Salazar announced the
establishment of a new policy to ensure and maintain the integrity of
scientific and scholarly activities used in Departmental decision-
making. This policy is based on the principles found in Secretarial
Order 3305, which called for the development of the policy and was
guided by the Office of Science and Technology Policy memo issued in
December 2010, and was in response to the politicization of science
during the last Administration. As part of the implementation of the
new policy, Secretary Salazar appointed Dr. Ralph Morgenweck, the U.S.
Fish and Wildlife Service's Senior Science Advisor, to serve as the
Department's first Scientific Integrity Officer.
The ESA, the APA, and the policies and regulations governing our
listing and delisting activities ensure that States, Tribes, other
agencies, and the public have ample opportunity to participate in our
listing and delisting actions. These established processes ensure that
the public can participate fully in listing and delisting decisions. In
addition, the requirement that the Service maintain and make available
the administrative record in support of its decisions brings to bear an
open and transparent decision-making process.

The Listing Process

Listing under the ESA becomes necessary when a species declines, or
threats to it increase, to the point where it is in danger of
extinction throughout all or a significant portion of its range (an
``endangered species '') or it is likely to become endangered in the
foreseeable future (a ``threatened species ''). The Secretary is
required to list or reclassify a species if, after reviewing the
species' status using the best scientific and commercial data
available, it is found that the species is endangered or threatened
because of any one or a combination of the following factors:

the present or threatened destruction, modification, or
curtailment of its habitat or range;

overutilization for commercial, recreational, scientific,
or educational purposes;

disease or predation;

the inadequacy of existing regulatory mechanisms; and

other natural or manmade factors affecting its continued
existence.

There are two processes the Service follows to identify species in
need of listing. The first is the candidate assessment process, which
is initiated by the Service. The second is a petition process, which is
available to the public.
Part of the Service's Candidate Conservation program is the
candidate assessment process, through which the Service identifies
species of fish, wildlife, and plants that may be at risk and in need
of protection under the ESA. To identify candidate species, we use our
own biological surveys, including status surveys conducted for the
purpose of candidate assessment. We also use information from State
Natural Heritage Programs, other Federal and State agencies,
knowledgeable scientists, and public and private natural resources
organizations.
Each year, the Service publishes in the Federal Register the
Candidate Notice of Review (CNOR). The CNOR identifies the species that
we believe are candidates for listing under the ESA. The CNOR lists
those species previously identified as candidates, species for which
petitions have resulted in ``warranted but precluded'' findings, as
discussed below, during the prior year, and other species that appear
to warrant listing under the ESA. When we identify a species as a
candidate for listing, we have sufficient scientific information
available to support a proposed rule to list the species as a
threatened or endangered species. However, preparation of the proposed
rule is precluded by higher-priority listing actions.
We publish the CNOR, make individual candidate assessment forms
available to the public, and solicit additional information about the
status of candidate species, the threats they face, and conservation
actions that are being implemented that may benefit the species. We
accept information from the public about candidate species at any time.
We use the public's comments in the preparation of listing rules for
the highest priority candidates, in determining the listing priority of
candidate species, and in determining whether species continue to
warrant candidate status. In addition, publication of the list of
candidate species provides important information about potential
listings that can be used by planners and developers.
The CNOR also serves to explain to the public our long-standing
science-based priority system for adding species to the list, which was
published in the Federal Register on September 1, 1983 (48 FR 43098-
43105). Each candidate species is assigned a listing priority number
(LPN), based on the immediacy and magnitude of the threats faced by the
species and on its taxonomic distinctiveness. The candidate assessment
forms, which are available to the public upon request, document our
reasons for assigning a particular LPN to each candidate species. We
use the LPN to prioritize listing actions. Species with lower LPNs are
given a higher priority for action.
The second process for identifying species that may warrant listing
is the petition process. Section 4 of the ESA allows any interested
person to petition the Secretary of the Interior either to add a
species to, or remove a species from, the lists of threatened and
endangered species.
Upon receipt of a petition, the Service must respond, within 90
days when practicable, with a finding as to whether the petition
provides substantial scientific or commercial information indicating
that the petitioned action may be warranted. If the Service determines
that the petition did not provide such substantial information, the 90-
day finding concludes the petition review process. However, if the
Service determines that the petition does provide substantial
information, the Service initiates a status review and issues an
additional finding within 12 months of the receipt of the petition.
There are three possible outcomes of the ``12-month finding'': 1)
listing is not warranted, and no further action is taken; 2) listing is
warranted, and a listing proposal is promptly prepared; or 3) listing
is warranted, but immediate action is precluded by higher priority
actions. A ``warranted but precluded'' finding is made on the basis of
the species' listing priority number and the listing workload. In such
cases, preparation of a listing proposal is delayed until higher
priority actions are completed, and the species is added to the list of
candidate species and included in the next CNOR.
Our listing and delisting actions are rule-makings, published in
proposed and final rule form in the Federal Register, and leading to
revisions to Title 50, Part 17 of the Code of Federal Regulations. Once
a proposal is published, the Service must allow for a public comment
period on the proposal; provide actual notice of the proposed
regulation to appropriate State, tribal, and local government agencies;
publish a summary of the proposal in a newspaper of general circulation
in areas where the species occurs; and hold a public hearing, if
requested (see 16 U.S.C. Sec. 1533(b)(5)). The Service's implementing
regulations require that the public comment period on a listing
proposal be at least 60 days long (see 50 C.F.R. Sec. 424.16(c)(2)).
Since public participation is so important to effective conservation
efforts, the Service will often hold multiple public hearings and
extend the comment period beyond the minimum required by the law and
regulation.
We always solicit independent peer review of our listing proposals,
and incorporate comments and recommendations that we receive. We have
found such peer review to be a valuable element of the decision-making
process.
The Service reviews petitions, adds species to the list,
reclassifies species from threatened to endangered, and designates
critical habitat using funds appropriated specifically to our Listing
Program for these purposes. (Delisting and reclassification from
endangered to threatened are part of the recovery process and are
funded through the Recovery program.) The workload associated with
these listing activities has for many years exceeded the resources
available to the Service for listing actions. Therefore, a substantial
backlog of listing actions has accumulated.

Multi-District Litigation Settlements for the Listing Program

The Service recently developed a six year work plan for the Listing
Program through mediated settlement agreements with two of the
Service's most frequent plaintiffs, and we now expect to be able to
address the backlog of species awaiting final determinations for
protection under the Act. For the first time in years, the wildlife
professionals at the Service will have the opportunity to use our
objective listing priority system to extend the safety net to those
species most in need of protection, rather than having our work
priorities driven by the courts.
The Service will systematically, over a period of six years, review
and address the needs of more than 250 species now on the list of
candidates for protection under the ESA, to determine if they should be
added to the Federal Lists of Endangered and Threatened Wildlife and
Plants. All of these species were previously determined by the Service
to warrant being proposed for listing, but action was deferred because
of the need to allocate resources for other work. The Service will make
listing determinations for each species, carefully reviewing scientific
information and public comments before deciding whether listing is
still warranted and, if so, whether to designate the species as
threatened or endangered. Each and every listing proposal will be
subject to public review and comment.
The listing work plan will also provide predictability and
certainty to landowners and State and local governments, providing time
for States and landowners to engage in conservation programs and for
agencies to develop management plans. The Service has developed a
variety of tools and programs to encourage conservation efforts for
listed and candidate species that are compatible with the objectives
and needs of landowners with listed and candidate species on their
lands. These tools include Habitat Conservation Plans, Safe Harbor
Agreements, and Candidate Conservation Agreements that provide
regulatory assurance; technical assistance; and a grants program that
funds conservation projects by private landowners, states, and
territories.

Science Information Standards for Consultation and Recovery

The best available scientific information is also the foundation of
our consultation and recovery activities under the Act.
One of the most important and effective tools available to recover
endangered and threatened species is the consultation process
prescribed by section 7 of the ESA. We engage in consultation with
other federal agencies to assist them in meeting their obligation to
avoid taking any action that would be likely to jeopardize the
continued existence of a listed species or that would destroy or
adversely modify designated critical habitat for a listed species.
Similar to section 4, section 7 requires that the best scientific data
available be employed in conducting consultations. This requirement was
reinforced, made more specific, and extended to cover preparation and
implementation of recovery plans in the joint policy issued on July 1,
1994 (59 FR 34271). The requirement is extremely important in these
contexts because consultations and recovery plans often determine how
action agencies will contribute to recovery and avoid unacceptable risk
to listed species.
The conduct of consultation under section 7 of the ESA is
prescribed in regulations (50 CFR part 402) and further guided by a
Consultation Handbook developed in partnership with the National Marine
Fisheries Service. The Service is a field-based organization, and most
local consultations are conducted by field offices with geographic
responsibility for the area in which an action is to occur. However,
the field offices operate under the oversight of our regional offices,
and the authority to issue draft or final biological opinions that find
that an action is likely to jeopardize the continued existence of a
listed species or destroy or adversely modify its designated critical
habitat is delegated no lower than the Regional Directors, our senior
career managers in the field. In addition, our established procedures
require that the Director be notified in advance of issuance of a
jeopardy or adverse modification opinion.
Recovery of threatened and endangered species is the process by
which their decline is reversed, and the threats to their survival are
removed, so that their long-term survival in the wild can be ensured.
The goal of the recovery process is to restore listed species to a
point where they are secure, self-sustaining components of their
ecosystems, no longer require the protections of the ESA, and can be
delisted.
For almost all species, a recovery plan is essential as a road map
for the recovery process. A first step in the process is to identify
the participants of a recovery team that will work to craft the
recovery plan for a listed species. To guide our actions during the
recovery process, the Service uses our May 1990 ``Policy and Guidelines
for Planning and Coordinating Recovery of Endangered and Threatened
Species'' and the following 1994 joint FWS/NMFS policies:

Policy for Peer Review of ESA Activities - incorporates
independent peer review into recovery actions, including the writing of
recovery plans;

Policy on Information Standards - directs that the best
available scientific and commercial information be used when
determining what actions are needed to recover species; and

Policy on Recovery Plan Participation and Implementation
(published in the Federal Register on July 1, 1994 (59 FR 34272) -
directs the Service to solicit the participation of State, Tribal, and
Federal agencies, academic institutions, private individuals, and
economic interests when determining the recovery actions needed to
recover species.

The last policy directs the Service to diversify the areas of
expertise represented on a recovery team, develop multiple species
plans when possible, minimize the social and economic impacts of
implementing recovery actions, and involve representatives of affected
groups and provide stakeholders the opportunity to participate in
recovery plan development.
Because the Service bases our recovery decisions on the best
available scientific information, we seek to involve experts in these
decisions and include them on recovery teams. Therefore, when we
initiate the recovery planning process for a listed species, we
endeavor to identify experts on the species and its habitat, as well as
the most knowledgeable individuals on land use and land management
within the range of the species.
Once a draft recovery plan is prepared, a notice of availability is
published and comments are solicited from the public. Today, it is not
unusual for the Service to receive hundreds, sometimes thousands, of
comments on a single plan. These comments come from a wide range of
interests: from advocates for the environment to private citizens who
are worried about what effects the recovery of the species may have on
their livelihoods.
The Service uses the recovery team to consider each comment on a
recovery plan, and, where needed, incorporate the comments into the
final recovery plan. A record of how comments on a recovery plan are
considered is kept and made available for public review. When a final
recovery plan has been completed and approved by the Service's
appropriate Regional Director, it is made available to all interested
parties. A Notice of Availability is published in the Federal Register
and the Service ensures that all of the identified concerned public is
aware of the completion of the plan. In addition, notices are often
placed in newspapers throughout the range of the species.

The Delisting Process

The process of delisting species uses the same scientific rigor and
full public participation process as the process for listing species.
The Service regularly assesses the criteria listed in the recovery plan
that are used as a target to estimate when a species may have
sufficiently recovered to be reclassified as either a threatened
species (recovered from being endangered) or as a fully recovered
species and removed from the list of species protected by the ESA.
Likewise, the most recent scientific and commercial data, after
undergoing peer review, are used to assess the current status of the
species. Often, the factors used to determine whether a species has
recovered include the species' population size, recruitment, stability
of habitat in terms of habitat quality and quantity, the degree to
which habitat areas are connected to one another, and the control or
elimination of the threats that led to the need to list the species.
As already mentioned during the previous review of the listing
process, the public has the opportunity to petition the Service to
delist a species at any time. Likewise, as already discussed, the
petition will trigger a process where the petition is first reviewed
for presenting substantial information, and, if it passes that test,
within 12 months the action requested in the petition will be assessed,
using the best available scientific and commercial data. If it is
judged that the petitioned action is warranted, the Service will move
to propose delisting the species, unless that rulemaking is precluded
by other higher priority actions.
Outside of the petition process, as recovery of a species
progresses, the recovery team is often requested to assess the evidence
that the species may no longer meet the definition of an endangered
species or threatened species, including consideration of evidence that
it has reached the goals identified for its recovery. Again, the best
available scientific and commercial data are used, along with the
opinions of experts on the species, its habitat, and land management
practices. If the species no longer meets the definition of a
threatened species or an endangered species, then a proposal to
downlist or delist the species will be prepared.
As is the case for the process of listing a species, a proposal to
delist or reclassify a species is published in the Federal Register and
announced in selected newspapers throughout the range of the species.
The Service schedules public meetings during the comment period so that
all of the concerned public will have the opportunity to provide
comments on the proposed action. All comments are carefully considered
and a record, available to the public, is kept on the decisions made
with respect to the comments.
If, after this process, it is determined that a species has
recovered sufficiently to merit delisting or reclassification, then a
final decision is made and published. A determination that a species
has fully recovered will result in the species being removed from the
list of species protected by the ESA.

Independent Scientific Review of Service Decisions

Service decisions under the Endangered Species Act are sometimes
controversial, and there have been several cases in the recent past
where the scientific underpinning of the Service's decisions has been
subject to independent scientific review.
The U.S. Fish and Wildlife Service and the National Marine
Fisheries Services listed wild Atlantic salmon in eight Maine rivers
under the ESA as endangered in November 2000. Critics of the decision
argued that a distinct ``wild'' genetic identity for salmon no longer
existed because of artificial stocking and the resultant interbreeding.
The controversy in Maine that accompanied the ESA listing led Congress
to request the National Research Council's (Council) advice on the
science relevant to understanding and reversing the declines in Maine
salmon populations. The charge to Council's Committee on Atlantic
salmon in Maine included an interim report that focused on the genetic
makeup of Maine Atlantic salmon populations, which was published in
January 2002. The report validated the science behind the Services'
listing action in Maine and the need for recovery, stating strong
evidence of genetic distinctiveness. The charge for the final report,
published in December 2003, included a broader look at factors that
have caused Maine's salmon populations to decline and the options for
helping them to recover. The U.S. Fish and Wildlife Service and the
National Marine Fisheries Service are actively working with partners to
alleviate threats to salmon recovery in Maine.
In 2001, the Departments of the Interior and Commerce enlisted the
National Research Council for evaluation of the scientific analysis
leading to the jeopardy biological opinions written by the Service and
the National Marine Fisheries Service on operations of the Klamath
Water Project. The Council found strong scientific support for all
components of the Service's biological opinion, except for one measure
relating water quality to water levels in Klamath Lake, which was based
on professional judgment. The Council recognized that agencies charged
with ESA responsibilities must sometimes use expert professional
judgment when the scientific information needed to inform a decision is
lacking or inconclusive.
In 2008, the Service issued a jeopardy biological opinion to the
Bureau of Reclamation regarding the Continued Long-Term Operation of
the Central Valley Project and State Water Project (CVP/SWP opinion)
and included a reasonable and prudent alternative that required what is
called a ``fall action'' to protect delta smelt and their habitat. The
scientific information that the Service used in the 2008 CVP/SWP
opinion has now been reviewed by five separate independent peer review
processes, including a 2010 review by a National Research Council
panel. While these reviews identified elements of the opinion that
might have been handled differently or justified more thoroughly, they
all largely affirmed that the Service used the best available
scientific information and applied that information in a conceptually
sound and scientifically justified manner within the biological
opinion.

Litigation Challenging the Service's Central Valley Project and State

Water Project Biological Opinion

The science underlying the Service's CVP/SWP opinion is also the
subject of ongoing litigation. With regard to recent comments made by
former U.S. District Judge Oliver Wanger, we firmly believe that wise
decisions about the future of the Bay Delta must be guided by the best
available science. The Department stands behind the consistent and
thorough work that our scientists, in this case from the Service and
Bureau of Reclamation, have done on the Bay Delta over many years.
Their expertise and professionalism remain vital to the success of our
efforts to meet the co-equal goals of improving water reliability and
restoring the health of the Bay Delta.
We also believe that, when questions arise regarding the integrity
of scientific work, it is important to resolve them swiftly,
independently, and decisively. We disagree with Judge Wanger's comments
last month, and we recognize and appreciate his effort to clarify those
comments before his retirement. Still, we believe it is important that
we follow the Department's standard procedures for reviewing questions
of scientific integrity, so that we can resolve them definitively.
Therefore, the Department has instructed the scientific integrity
officers of the Service and the Bureau of Reclamation to retain
independent experts to evaluate the allegations made by Judge Wanger.

Conclusion

In closing, Mr. Chairman, I would like to emphasize the importance
the Service places upon having a science-driven, transparent decision-
making process in which the affected public can participate
effectively. The Service remains committed to conserving America's fish
and wildlife by relying upon the best available science and working in
partnership to achieve recovery. Our scientists and managers continue
to do an exceptional job, under increasingly difficult circumstances,
of using the best available scientific information to make decisions
that comply with the law, can withstand challenge and thus can be
trusted by the public we serve.
Thank you for your interest in endangered species conservation and
ESA implementation, and for the opportunity to testify. I would be
pleased to respond to any questions you and other Members of the
Subcommittee might have.

Mr. Broun. Thank you, Mr. Frazer, and I appreciate you
staying within your five minutes.
Judge Manson, I now recognize you for five minutes.

STATEMENT OF HON. CRAIG MANSON, GENERAL COUNSEL, WESTLANDS
WATER DISTRICT

Mr. Manson. Thank you, Mr. Chairman.
Mr. Chairman, Congresswoman Edwards, Members of the
Committee, I appreciate the opportunity to appear here before
you today on this most important subject. I will note that most
of my biography is in my written statement. I would like to add
to that, however, that I grew up in a community of scientists
and I have the greatest respect for scientists. I took pride in
the work of the people at the Fish and Wildlife Service and the
National Park Service whom I oversaw during my tenure as
Assistant Secretary.
I am also pleased that Professor Jonathan Adler is here
because he is one of the most cogent and organized voices on
issues of science and policy in academia today. So if you don't
want to believe me, believe him, because as I note in my
written testimony, my writings which are meager compared to his
and my testimony has been criticized or critiqued in hundreds
of law review and scholarly articles, and his has been largely
praised. So please pay attention to his testimony.
Now, the issue of science and policy in the ESA I compare
in my written testimony to the push-me, pull-you that was the
fictional species that Dr. Doolittle discovered in the first
book written about Dr. Doolittle. It is described as having no
tail but two heads that pulled in opposite directions, and
sometimes that is the way science and policy are with respect
to the ESA.
I want to summarize my written testimony in about five
points, but I will depart from those points to comment since I
was named specifically in Congresswoman Edwards' opening
statement to address that issue as a matter of fact. I found it
curious that the Inspector General of the Department of the
Interior took two years after I had left the Department to come
ask me anything about any of those cases. I found it
interesting that during the time that any of these things were
happening, no one approached me and asked me any questions
about any of those things. And so it made me suspect of their
motives and calls into question--in my mind at least--their
integrity.
Now, I want to talk about the incident with Gary Frazer.
Gary was the one who brought to my attention a flaw in a rule
that we were issuing, and I appreciated that very much. The
problem was one of litigation. I was faced with one of two
choices: either not publish the rule and be found in contempt
of Federal Court, or publish the rule with the inaccurate
information and then republish an amended rule, which is what
we did. We published an amended rule with the correct
information. So we made the deadline imposed by the Federal
Judge, were not held in contempt, and got the accurate
information out there in any event.
But let me go back to my five points. First, there are
distinct rules for science and policy in the ESA and some
scientists, lawyers, and policymakers misunderstand the
relationship between policy and science in ESA decision-making.
We make not scientific decisions but science-informed decisions
in the ESA and our science must be of the highest quality in
order to do that.
My second point is that we have to stop pretending that the
ESA is not a politicized statute. It is. If it were not, this
Committee would not be holding this hearing. It obviously is
because it deals with the economics and the property rights of
individuals and these are constitutional rights protected by
our great charter.
The third point I want to make is that there has to be some
accountability for everyone involved in the system from
political appointees through scientists, and it is the job of
the executive branch to oversee the work of its employees, and
that is what happens in most cases that some have misconstrued
as political interference.
Finally, the ESA decision context presents a poor fit
between science and policy, according to Professor J.B. Rule,
and one reason for that is the imposition of the regulatory
scheme immediately upon the making of a scientific finding. In
my written testimony I describe how that might be fixed, and I
would be glad to answer questions about that or any other
matter that comes before the Committee while I am here today.
[The prepared statement of Mr. Manson follows:]

Prepared Statement of The Honorable Craig Manson, General Counsel,
Westlands Water District

Chairman Broun, Congresswoman Edwards, and Members of the Subcommittee:

My name is Craig Manson. I am a specialist in law and public
policy, currently serving as General Counsel to the Westlands Water
District in California's Central Valley. Westlands is the largest
agricultural water agency in the United States. Prior to my present
appointment in May 2010, I was a professor at the Capital Center for
Public Law and Policy at University of the Pacific, McGeorge School of
Law in Sacramento, California. I taught administrative law, natural
resources law, and public policy development, among other things. I
held that position from January 1, 2006 to April 30, 2010.
From February 19, 2002, until December 31, 2005, I served as
Assistant Secretary for Fish and Wildlife and Parks in the United
States Department of the Interior. I oversaw the National Park Service
and the United States Fish and Wildlife Service. I had responsibility
for policy oversight of a number statutory programs, including the
Endangered Species Act (ESA).
Immediately prior to my service as Assistant Secretary of the
Interior, I was a Judge of the Superior Court of California in the
County of Sacramento.
From 1993 to 1998, I was the General Counsel of the California
Department of Fish and Game. The department implements the California
Endangered Species Act and coordinates with the federal government
concerning the state's responsibilities under the federal Endangered
Species Act.
I have published articles in a number of journals, including
Environmental Law (published by Lewis & Clark Law School, Portland,
Oregon), the Texas International Law Journal, the Duke University
Environmental Law & Policy Forum, the Environmental Law Institute's
Environmental Law Forum and others.
As Assistant Secretary of the Interior, I testified before
congressional committees on numerous occasions and spoke to
professional groups many times about the Endangered Species Act. My
writing and testimony has been cited, quoted, or criticized, for better
or for worse, in hundreds of scholarly publications.
Today the committee reviews the nexus between science and policy in
the Endangered Species Act. This is an issue of overriding importance
for both the conservation of species and for the property rights of
individuals across the nation. Unfortunately, it is a question that is
neither new nor unique. Since the beginning of the age of federalized
environmental activity in the late 1960s and early 1970s, science and
policy have seemingly behaved like that rarest of all species, the
Pushmi-pullyu, discovered by the multi-lingual fictional naturalist,
Dr. Doolittle. \1\
---------------------------------------------------------------------------
\1\ ``They had no tail, but a head at each end, and sharp horns on
each head. They were very shy and terribly hard to catch. The
[Africans] get most of their animals by sneaking up behind them while
they are not looking. But you could not do this with the pushmi-pullyu-
because, no matter which way you came towards him, he was always facing
you.'' H. Lofting, The Story of Doctor Dolittle--Being the History of
His Peculiar Life at Home and Astonishing Adventures in Foreign Parts,
Never Before Printed, p. 81 (New York: Frederick A. Stokes & Co., 1920
[Tenth Printing Nov. 1922])
---------------------------------------------------------------------------
The Pushmi-pullyu science-policy approach to the ESA and other
environmental statutes raises fundamental issues for resolution. In the
last six months, Members of both apolitical parties in both the House
and the Senate have strongly criticized the Fish and Wildlife Service
and the National Marine Fisheries Service for using ``bad science'' in
important decisions. Most recently, a federal judge excoriated not just
an agency, but two individual scientists by name for misleading the
court. The judge said that the scientists were engaged in an attempt to
mislead and to deceive the court into accepting what is not o only not
the best available since, it's not science.'' He went on to say that
``There can be no acceptance bay court of the United States of the
conduct that has been engaged in in this case by these witnesses.''
Clearly there is a problem with the manner in which science is
being applied in significant matters involving the ESA. I now offer my
view of the issues and a scheme for resolution.

1. Some scientists, lawyers, and policymakers misunderstand the
relationship between science and policy in ESA decision-making. A good
amount of this misunderstanding springs from certain statutory language
itself. In describing the process of determining whether a species is
``threatened'' or ``endangered,'' section 4 of the statute says:

The Secretary shall make determinations required by subsection
(a)(1) of this section solely on the basis of the best scientific and
commercial data available . . .

16 U.S.C. Sec. 1533(b)(1)(A).

The use of the term ``solely'' has led to the belief that there is
no room for anything but a scientific basis for listing decisions.
There is, under this belief, no space to be given over to policy
decisions. Indeed, perhaps this interpretation of this part of the
statute is correct.
But this interpretation has over time been exaggerated into two
other ``beliefs'' that are demonstrably incorrect. The first fallacy is
that all listing decisions are purely the purview of field scientists,
the closer to the bottom of the organization, the better. The second
fallacy is that all decisions having to do with the ESA are safeguarded
against so-called ``political interference.''
The wrong-headedness of the first fallacy is apparent in the
statute itself. The statute does not commit listing decisions to the
primary investigating biologist in the field. The statute commits those
decisions to the Secretary. While some degree of delegation is
expected, as long as the Secretary or the Secretary's designee has made
a listing decision based on the best available science, the decision is
valid. The Secretary has the power to determine in the first instance
what constitutes the best science available to the Secretary. And in
doing so, the Secretary or the Secretary's designee may disagree with
scientists in the field. Science managers may direct science staff to
go back and ``do it over'' if those managers believe the ``best
science'' has not been used. They have not only the power, but the
obligation to do so.
The second fallacy is also belied by that statute itself. Not all
ESA decisions are off-limits to considerations of policy. For example,
section 4(b)(2) of the ESA deals with the designation of critical
habitat, said by some to be one of the most important features of the
act. However, section 4(b)(2) requires that the Secretary in
designating critical habitat

tak[e] into consideration the economic impact, the impact on
national security, and any other relevant impact, of specifying any
particular area as critical habitat. The Secretary may exclude any area
from critical habitat if he determines that the benefits of such
exclusion outweigh the benefits of specifying such area as part of the
critical habitat, unless he determines, based on the best scientific
and commercial data available, that the failure to designate such area
as critical habitat will result in the extinction of the species
concerned.

16 U.S.C Sec. 1533(b)(2).

Even the listing portion of section 4 requires that the decision-
maker

tak[e] into account those efforts, if any, being made by any
State or foreign nation, or any political subdivision of a State or
foreign nation, to protect such species, whether by predator control,
protection of habitat and food supply, or other conservation practices,
within any area under its jurisdiction; or on the high seas.

16 U.S.C. Sec. 1533(b)(1)(A).

So what is the lesson here? It is that the ESA requires science-
informed decisions and not merely scientific decisions.

2. Some scientists, lawyers and policy-makers do not understand
the different functions of science and policy. As I and Professor Adler
and others have said, science is observational and thus seeks to tell
us ``what is,'' ``what was,'' and occasionally ``what might be.''
Policy is the determination of the body politic as to how it desires to
act, given the observed conditions. The infinite political options in
the face of certain conditions are not to be dictated by scientists but
by those given such authority by law.

3. Some scientists, lawyers and policymakers fail to comprehend
Renault's Other Surprise: \2\ The ESA is a Politicized Statute.
---------------------------------------------------------------------------
\2\ Rick: How can you close me up? On what grounds?. Captain
Renault: I'm shocked, shocked to find that gambling is going on in
here. [ A croupier hands Renault a pile of money]. Croupier: Your
winnings, sir. Captain Renault [sotto voce]: Oh, thank you very much.
[aloud] Everybody out, at once! Casablanca (1942)

That the ESA is a politicized statute is no surprise to any but the
most naive. In fact, the ESA did not involve politics, this committee
would not be holding this hearing.
The ESA is necessarily politicized because it involves the
protection of certain natural resources at the expense of private
property, economic activity, and other natural resources. Although not
intended by the drafters, implementation of the ESA has become a win-
lose adversarial process. The politicization of the ESA began at its
inception and has carried on through every Administration and Congress
since then.
To say that the ESA is politicized is really to make no more than
the point that there are competing policy decisions to be made, whether
we recognize that or not. In fact, all sides need to stop pretending
that the ESA can be administered in a politically neutral fashion.
later in this testimony, I suggest a solution that will serve to put
the political decisions in proper context. There are several types of
political influence that are involved in ESA implementation; some are
proper and others are improper.

``Political Interference'' Generally

Shortly after I became Assistant Secretary, a Member of Congress
summoned me and the then-director of the Fish and Wildlife Service to
his office. In his district was a large military base that had been
closed under the BRAC process. Businesses and local governments were
interested in seeing the reuse process move quickly. The Congressman
(who to my knowledge had no biological training) \3\ complained that
the Fish and Wildlife Service was ``holding up the process'' by
demanding ``too many studies'' and ``too much mitigation'' for
potential impacts to threatened and endangered species. The Congressman
asked us to get the Service to ``cooperate'' with the other parties.
---------------------------------------------------------------------------
\3\ I believe he sold automobiles before being elected to public
office.
---------------------------------------------------------------------------
We left having promised the Member no more than that we would
``look into'' the matter.
Such contacts by Members of Congress with the Secretary, the Deputy
Secretary, the Assistant Secretary, and the Service Director are quite
common. I regard such contacts as ``political contacts'' since they
involve a Member of Congress and appointees of the President. Such
contacts generally are not improper. Members of Congress have a
legitimate role in seeing that the Executive Branch is doing its job in
a general sense and more specifically in not disadvantaging the
Member's constituents. \4\
---------------------------------------------------------------------------
\4\ Curiously, this particular Member, endorsed by the Sierra Club,
and with a 100% rating from the League of Conservation Voters, believed
that what he was doing might be improper. As we left his office, he
said ``You know, if I heard of any other Member having this
conversation, I'd be all over them. But, hey, it's my district, you
understand?''
---------------------------------------------------------------------------
What would make this type of contact improper? In this case, the
Member essentially asked that we review the science and the application
of the science in the particular case. If the Member had asked us to
change the Service's science based solely on political considerations,
that would be improper. If we in fact ordered the Service to change its
science solely on political considerations, that would be improper.
Neither occurred in this case.

Political Interference--the Executive Branch

An issue that receives much attention in the press is the alleged
political interference by Executive Branch political appointees. The
story usually alleges that an appointee ``with no scientific training''
edited a scientific document or changed a scientific conclusion
produced by the career staff. These stories are usually wrong on
several counts.
First, the appointees in the Executive Branch have the right and
the duty to oversee the work of the career staff. This means more than
simply rubber-stamping the work product of the career staff. \5\ Since
the decisions under the ESA have regulatory effect, these decisions
must be supported by substantial evidence. It is important that before
any document is given effect by the signature of the Secretary, the
Assistant Secretary or the Director, that it be reviewed at all levels
to ensure that its conclusions are supported by the evidence. If a
conclusion is not supported by the evidence presented, that conclusion
cannot and should not be stated. It is completely appropriate for
appointees to review documents in this manner. One need not be a
biologist to conduct that sort of review. In fact, judges do this all
of the time in a variety of fields. This does not constitute political
interference.
---------------------------------------------------------------------------
\5\ Within days of becoming Assistant Secretary, I held a staff
meeting of both appointees and career staff. I told them, among other
things, paraphrasing a well-known Washington lawyer, ``I'm the
Assistant Secretary here. I'm not a potted plant.'' I didn't expect any
member of the staff to be a ``potted plant'' either.
---------------------------------------------------------------------------
Furthermore, ``many ESA decisions involve questions of biological
science for which the available scientific database is either sparse or
inconclusive.'' J.B. Ruhl, The Battle Over ESA Methodology, Envt L.
(Mar 2004). In such cases, it is not improper for an appointee to
challenge the gap-filling by agency scientists. The struggle in this
respect between scientists and agency policymakers is nothing improper
or nefarious, but rather expected, as Professor Ruhl explains.
In fact, the Constitution of the United States demands protection
of private property from arbitrary, capricious, and otherwise unlawful
actions by agents of the government. The Executive Branch's officials
have an oath-taken duty to ensure that private property and other
liberties are preserved.
Second, it is alleged that appointees impose the policy views of
the administration. This by itself is not improper.

[A]n agency to which Congress has delegated policy-making
responsibilities may, within the limits of that delegation, properly
rely upon the incumbent administration's views of wise policy to inform
its judgments. While agencies are not directly accountable to the
people, the Chief Executive is, and it is entirely appropriate for this
political branch of the Government to make such policy choices--
resolving the competing interests which Congress itself either
inadvertently did not resolve, or intentionally left to be resolved by
the agency charged with the administration of the statute in light of
everyday realities.

Chevron USA Inc. v. Natural Resources Defense Council,

467 U.S. 837, 865-66 (1984), per Stevens, J.

Furthermore, it is not improper for an appointee to inquire whether
there exists science which supports the Administration's view of a
particular problem or issue. Where competing scientific views exist, it
is not improper for an appointee who oversees an agency to select or
direct that science be used which more nearly aligns with the
administration's policy views.
Finally, it is not improper for an appointee to state the
Administration's policy view and direct that science which supports
that view be found.
It would be improper, having been told that no science exists to
support the Administration's policy view, for an appointee to
nonetheless implement that view when that statute requires ``the best
available science'' as the basis for the decision.

Science, Law and Policy

What about science? What of the complaints of scientists that their
work is edited or disregarded? There are several answers to this.
First, there has been no scientifically valid study of this issue. The
studies that have been done rely on recycled anecdotal data. But
assuming that there are valid complaints in this area, the following
should be noted.
First, no organization in the world takes as its final position a
``first draft'' produced at its lowest level. There's a reason that
there are levels of review-recall, no potted plants. This may difficult
for some to accept.
Second, what passes for science in the ESA context frequently
consists of little more than literature search, especially with respect
to listing of species. That's because the Fish and Wildlife Service has
virtually no research capacity and few Ph.d. scientists in the field.
As a result, many ``scientific'' documents rely on the interpretation
and policy leanings of their authors. In that event, policymakers are
entitled to use their judgment about how the document will be
presented.
Third, as Professor Ruhl has noted, ESA decision contexts present a
poor fit between science and policy. Ruhl says that the law often
requires scientists to answer questions that don't make sense to them.
When scientists and policymakers don't understand each other, then
chaos and strife will reign in their relationships.
The ESA exists at the confluence of science, law, and policy. It is
not a purely scientific decision scheme. Nonetheless, its decision
contexts must be science-informed. They also may be policy-informed and
this must not be mistaken for improper or unlawful political influence.

4. In the present Administration, political apathy rules. As I
have previously explained, there is an obligation for the Executive
Branch to supervise the work of its employees. And as I have explained,
this can be done within the law. In the present Administration,
political apathy, rather than political interference, reigns. This
attitude is just as bad as and perhaps worse than alleged political
interference. Leaving the policy decisions to the foot-soldiers with no
direction can only lead to catastrophe. That's what has happened in one
of the most important and sensitive issues of the day--the San
Francisco Bay Estuary. No effective policy oversight led the federal
judge to castigate the two government scientists. And time and time
again, the accountable officials in Washington have sought to duck
their responsibilities, even when taken to task by Members of Congress.

5. The ESA Contains a Structural Flaw Which Exacerbates Hostility
Toward Science. The ESA imposes it regulatory scheme immediately upon
the listing of a species or the designation of critical habitat. That's
why all the major fights are about the science and why scientist-
advocates are so strident in their views even if their science is poor.
The statute, in an effort to minimize strife over science, has in fact
significantly heightened it. The view that neutrally applied science is
an effective method to solve political issues is a relic of the
nineteenth century which was thoroughly discredited in the twentieth
century.

We need to return to the notion that science can tell us what is,
while policy determines what ought to be done. To do that, the listing
decisions should be de-coupled from the automatic, discretion-less
application of regulation. That would require Congressional action.
Additionally, the quality of science would be vastly improved and court
litigation sharply reduced if the Secretary was required to make
listing determinations by formal-rulemaking under the Administrative
Procedure Act.
Thank you for inviting me on this important topic. I am available
for any questions the committee may have.

Chairman Broun. Thank you, Judge.
I now recognize our next witness, Mr. Vincent-Lang, for
five minutes.

STATEMENT OF MR. DOUGLAS VINCENT-LANG,

SENIOR BIOLOGIST, ALASKA DEPARTMENT

OF FISH AND GAME

Mr. Vincent-Lang. Good morning, Mr. Chair, Ms. Edwards,
Committee Members. Thank you for the invitation to speak with
you today.
Species in Alaska have increasingly become targeted for
listing based solely on speculated risks such as climate change
despite their currently healthy status. This is best
exemplified by the decision of the U.S. Fish and Wildlife
Service to list polar bears as threatened species worldwide.
Polar bears are listed based on models that hypothesize that
climate change will result in a decline of sea ice habitats and
a speculation that lost sea ice habitat will threaten currently
healthy populations with extinction by midcentury. This listing
was made despite the fact that the worldwide polar bear
population remains at all-time record numbers. Furthermore,
many underlying critical assumptions and hypotheses in the
models went untested.
Alaska disagrees that the Act should be used as a
precautionary tool to list currently healthy species based
solely on model results of future threats such as climate
change. The State is challenging this listing and the precedent
it is setting. The National Marine Fisheries Service recently
proposed to list ringed seals, which number between three to
seven million based on the same modeling approach, an action we
are also opposing. Ultimately, what species could not be
listed?
It is apparent to us that the Act is being used by federal
agencies to gain control over landscapes and seascapes rather
than to arrest species extinction. We do not believe Congress
intended the Act to be used in this manner, nor do we believe
Congress intended the Act to be used by federal agencies to
wrest control of currently healthy populations from state
management authority.
Another issue is a threshold question regarding when it is
necessary to list a species. In the past, species were listed
based on relatively high risk of extinction within the near-
term future. Recently, however, federal agencies have begun
extending the period of foreseeable future into the more
distant future, yet retaining low risk of extinction
probability. This raises the question as to whether species
that have low risk of extinction within the immediate future
should be precautionarily listed. It also raises the question
as to how far into the future can population trends be
reasonably predicted. Finally, what is a reasonable level of
extinction risk?
We are concerned with how recovery goals are being
established and used in Section 7 consultations also. For
example, the recovery goal for delisting Steller sea lions in
western Alaska numbers over 100,000 animals. This is far higher
than simply needed to remove the risk of extinction in our
opinion. However, despite the fact that the population
currently is numbering over 73,000 animals and growing overall
across its range, the National Marine Fisheries Service has
released a new Biological Opinion that found that fishing in
some areas of the western Aleutians is jeopardizing the stock
and adversely modifying its habitat and has adopted new
closures and restrictions to fishing. These closures are
economically devastating to local economies and raise
environmental justice concerns.
The State raised serious questions regarding the
foundational science associated with this decision. The
National Marine Fisheries Service did not conduct an
independent review of their work, which would have highlighted
the analytical shortcomings the State identified. In fact, a
subsequent independent analysis substantiated many of the
scientific concerns identified by the States and affected
users.
This raises a question as to whether recovery goals are
being set too high. Should recovery goals reflect the number
required to remove the risk of extinction or to a number higher
that represents some level of historical abundance? Should
recovery plans contain non-population objectives that must be
achieved--for example, greenhouse gas emission targets?
Another concern is the manner in which the two Services
identify subspecies or Distinct Population Segments for listing
under the Endangered Species Act. In 1973, Congress had no way
to predict the genome of several plants and animals could
actually be mapped. We know now enough about genetics to detect
even the most subtle differences not just between species but
individuals within given species. Couple this knowledge with
the ability to use the Endangered Species Act to list
``subspecies'' and ``distinct population segments'' and every
local population with slight geographic or genetic differences
or population at the edge of species' range become candidates
for ESA listings, regardless of their overall abundance of the
species.
Alaska is also concerned with how critical habitat is being
designated. Following its decision to list the polar bear as a
threatened species, the U.S. Fish and Wildlife Service listed--
designated a vast area of Alaska and its offshore areas as
critical habitat. The area designated is the largest ever
designated for a species and encompasses an area larger than
the size of California. The designated habitat includes any
place a polar bear might roam during its life. This is a
dramatic deviation from previous critical habitat designations
where specific areas of critical importance were only
designated. The State and others are challenging this
designation as well as what we believed were serious
underestimation of the economic impacts associated with this
designation.
Finally, when Congress--when passing the Act, Congress
clearly identified a unique role for States and all Endangered
Species Act decisions. This role is contained in Section 4(i)
of the Act. This section clearly grants States a place at the
table in all ESA decisions, including the application of
science in these decisions. Unfortunately, States are not being
given equal deference on science during implementation of the
Act. Instead, the Services are increasingly using their
deference to discount valid questions raised by States on
federal interpretation of science. They are also using their
deference as a basis for their defense of flawed science. We
believe States should have equal deference in science in all
ESA decisions.
Thank you for the opportunity to testify and I look forward
to any questions you may have.
[The prepared statement of Mr. Vincent-Lang follows:]

Prepared Statement of Mr. Douglas Vincent-Lang,
Senior Biologist, Alaska Department of Fish and Game

Thank you for the invitation to speak with you today. My name is
Doug Vincent-Lang. I am a Special Assistant to the Commissioner of the
Alaska Department of Fish and Game (ADF&G).
Today I would like to address concerns the State of Alaska has with
the application of science in several recent Endangered Species Act
(ESA) decisions in Alaska. Congress passed the ESA as a tool to ensure
that species would not become extinct. The act was meant as the
ultimate safeguard and has been used successfully to prevent species
extinctions where species were in significant decline and facing
immediate risk of extinction, and when the threats to the species'
survival were imminent and easily identifiable and manageable. It is a
goal we all should support. It is one Alaska supports.
An example of the successful application of the ESA in Alaska was
the Aleutian Canada (Cackling) Goose. These geese were in precipitous
decline. The main threats were identified to be predation by foxes and
loss of overwintering habitat. The threats were addressed and the
species recovered and was removed from the ESA, notably without
designation of critical habitat.
Recent ESA actions, however, have caused concern about how the ESA
is being applied in Alaska. Species in Alaska have increasingly been
targeted for listing based solely on speculated risks such as climate
change, despite currently healthy and stable numbers. This is best
exemplified by the decision by the U.S. Fish and Wildlife Service
(USFWS) to list the polar bear as a threatened species worldwide. The
polar bear was listed as a threatened species based on habitat envelope
models that hypothesized that climate change will result in a decline
of sea-ice habitats, and on speculation that lost habitat will threaten
currently healthy populations with extinction by mid-century. This
listing was made despite the fact that the polar bear population
remains at all-time record numbers, despite past sea ice loss which
should have caused population declines if the models are right, and
despite that many underlying hypotheses and assumptions in the models
were and remain untested.
The decision to list polar bears was based largely on ``habitat
envelope models''. These models use present-day species-habitat
relationships to speculate on the potential distributions and viability
of species under future climate conditions. The utility of these
models, however, to assess species viability is questionable.
Predictions of species responses based solely on projected changes in
the quantity and quality of suitable habitat are likely to be
inaccurate because they fail to account for important ecological
processes that influence extinction. Furthermore, shifts and
contractions of suitable habitats do not easily translate into
viability assessments or extinction risks. Consequently, these models
have increasingly come under question by a wide range of experts,
especially when they are applied into the distant future (those beyond
about 15 years).
In the case of the polar bear, the USFWS used a habitat envelope
model to assess the future viability of polar bears based on changing
habitat and its carrying capacity related to changing ice conditions.
In short, the model predicted the amount of sea ice habitat that would
be lost due to a warming climate and used this to speculate upon the
future viability of polar bear populations into the distant future (in
this case 45 years) based on potential loss in habitat.

In our review of this model we raised several concerns including, but
not limited to:

1. A declining trend in habitat may not correlate to a decrease in
numbers unless polar bears are at carrying capacity throughout their
range. If bears are not at their carrying capacity, they could lose a
significant portion of their habitat and not suffer any loss in numbers
or viability. This critical assumption was not tested or verified by
the USFWS. In fact, recent data has shown that it is not likely valid.
Polar bears sampled in the Chukchi Sea, an area that has experienced
the greatest amount of sea ice loss in the Arctic, have demonstrated
they are not under nutritional stress and do not have reduced survival.

2. The model assumed that polar bear numbers would decrease in
response to lower observed survival rates in recent years associated
with increased loss of sea ice. However, in their analysis the USFWS
only used five years of recent data despite historic data being
available dating back to the 1980s. These data showed that about one-
third of the years between 1986 and 2006 had survival less than those
required to sustain the population, yet the population over this period
actually grew or remained stable, strongly suggesting that the
assumption about ice loss and survival is not valid. Simple hind-
casting of the model to verify this assumption should have been
performed.

Despite the fact that the USFWS candidly acknowledged the
weaknesses in their models, the District Court for the District of
Columbia stated in its upholding of the USFWS's decision to list the
polar bear that it is ``bound to uphold the agency's determination that
the polar bear is a threatened species as long as it is reasonable,
regardless of whether there may be other reasonable, or even more
reasonable, views''. The State believes this grants too much deference
to a federal agency's interpretation of fundamentally flawed analyses.
The State continues to believe that the science does not justify the
listing of polar bears and is appealing this decision. There is little
evidence that polar bears are threatened with extinction now or within
the near term foreseeable future.
Alaska disagrees that the ESA should be used as a precautionary
tool to list currently healthy species based solely on model results of
future threats such as climate change. The State is challenging this
listing and seeking to overturn it and the precedent it is setting. The
National Marine Fisheries Service (NMFS) recently proposed to list
ringed seals, which number between 3-7 million, based on this same
modeling approach, an action we are also opposing. Ultimately, what
species could not be listed?
It is apparent to us that the ESA is being used by federal agencies
to gain control over landscapes and seascapes, rather than to arrest
species extinction. We do not believe Congress intended the act to be
used in this manner. Nor do we believe Congress intended the Act to be
used by federal agencies to wrest control of currently healthy
populations from state management authority. We also believe it is
imperative that underlying assumptions within models be tested before
they are used to list a species.
Another issue is a threshold question regarding when it is
necessary to list a species. In the past, species were listed based on
relatively high risks of extinction within the near term future (10-20
years). Recently, however, federal agencies have begun extending the
period of ``foreseeable future'' into the more distant future, yet
retaining low risks of extinction probability. An example is the beluga
whale in Cook Inlet. The NMFS listed the beluga whale as an endangered
species based on modeling that showed that the population had a greater
than 1% chance of going extinct beyond 50 years. Put another way, the
models predicted that the population had more than a 99% of NOT
becoming extinct within the next half century. Their decision to list
was partially based on modeled extinction probabilities. The NMFS
actually modeled, and used as a basis for their decision, extinction
probabilities for these whales out to 300 years based on a 12-year data
base. Alaska is challenging the decision to list beluga whales in Cook
Inlet as endangered. We feel the decision is unjustified given the low
risk of immediate extinction and questions related to the validity of
modeling extinction risks out to 300 years based on 12-year data sets.
This raises the question as to whether species that have low risks
of extinction within the immediate future should be listed at all. It
also raises the questions as to how far into the future can population
trends be reasonably predicted- ten years, 50 years, 100 years, or 300
years? Finally, what is a reasonable level of extinction risk- 1%, 10%,
20%, or 25%?
We are also concerned with how recovery goals are being established
and used in Section 7 consultations. For example, the recovery goal for
delisting Steller sea lions in western Alaska numbers over 100,000
animals. This is far higher than needed simply to remove the risk of
extinction. However, despite the population currently numbering over
73,000 animals and growing overall across its range, the NMFS has
released a new Biological Opinion (BiOp) that found that fishing in
some areas of the western Aleutians is jeopardizing the stock and
adversely modify its habitat, and has adopted new closures and
restrictions to fishing in the western Aleutians. These closures are
economically devastating to local economies and raise environmental
justice concerns.
The conclusion that fishing is affecting the western stock of
Steller sea lions was based on speculation, not hard facts. Let's look
at the scientific data upon which the NMFS based their jeopardy and
adverse modification:

1. The western stock of Steller sea lions as a whole is recovering
and is not in jeopardy at this time. This stock is growing at a rate of
1.4% per year and now numbers over 73,000 animals. As noted in the BiOp
itself ``Since 2000, the decline has ceased and in most sub-regions the
wSSL population is increasing.''

2. Recovery objectives established by the 2008 Steller Sea Lion
Recovery Plan are not being violated; rather the current status of the
stock achieves the criteria established by the Recovery Plan. To
achieve recovery, the plan criteria dictate that the population trend
in any two adjacent sub-regions cannot be significantly declining. In
fact, the data show that no two adjacent sub-regions are significantly
declining: one area does show a decline, but it is not possible to
determine if this decline is significant. The plan also dictates that
the population trend in any one sub-area cannot have declined by more
than 50%. The data show that the population in one sub-region, the
Western Aleutians, has declined, but at a rate less than 50%.

3. The primary rationale for the positive jeopardy and adverse
modification finding is that the Atka mackerel and Pacific cod
fisheries are causing ``nutritional stress'' to Steller sea lions.
There is little sound evidence, however, that nutritional stress is
causing the slower-than-desired rate of recovery in the western
Aleutians, and the scant available evidence is extremely weak. For
example, of the 17 possible life history indicators identified to
assess nutritional stress for which the NMFS has data to evaluate, only
one indicator showed a positive relationship: reduced birth rate. The
remaining 16 biological indicators showed a negative relationship.
These negative findings included emaciated pups, reduced pup body size,
reduced pup weight, reduced growth rate, reduced pup survival, reduced
juvenile survival, reduced adult survival, reduced overall survival,
reduced pup counts, reduced non-pup counts, changes in blood chemistry,
and increased incidence of disease. And even the reduced birth rate
relationship should be viewed with caution given the lack of life
history data for sea lions in the western Aleutians. Low birth rates
could be attributed to factors other than nutritional stress, for
example, predation. Other recent data, collected by the ADF&G and
funded by cooperative research monies from the NMFS, confirms that
first-year Steller sea lions pups in the western stock show no evidence
of poor body condition. This is yet another source of data that calls
into question the Service's unproven and untested nutritional stress
theory, on which their onerous Reasonable and Prudent Alternative is
based. In addition, other NMFS funded research demonstrates out-
migration of branded Steller sea lions that move between the western
and eastern Steller sea lion stock boundaries, which calls into
question the assertion in the BiOp that there is no cross-migration
between the two stocks.

4. The case for restrictions for Pacific cod as an important prey
species for Steller sea lions in the western Aleutians is tenuous at
best and the basis for its inclusion in the Reasonable and Prudent
Alternatives and interim final rule is unjustified. Information
available to assess sea lion diets in the western Aleutians is
extremely limited. Only 46 total scat (feces) samples are available,
and within that limited sample, 94% of the scat samples collected
contained no cod at all. Information to assess the extent of sea lion
feeding ranges is also extremely limited. The primary justification for
the expansive closures in the western Aleutians is the foraging
behavior of 3 juvenile males, which may not be representative of all
Steller sea lions, particularly adult females, the population component
most critical for determining population trends.

5. While it may be theoretically possible for commercial fisheries
to adversely impact the prey field of Steller sea lions, the data are
very inconclusive. Studies funded by the NMFS, but largely ignored in
the BiOp, reveal that correlations between Steller sea lion population
growth and fishing intensity over time and space indicate no
significant relationship, much less a negative relationship.

6. The biomass of both Pacific cod and Atka mackerel were
increasing under the prior management regime, thus negating the need
for the drastic changes implemented by the NMFS. As a result, the
management measures imposed by the final Reasonable and Prudent
Alternatives are not consistent with the most recent 2010 biomass
estimates for either Pacific cod or Atka mackerel, which were not
considered in the BiOp and Reasonable and Prudent Alternative analysis
even though they were available before the final BiOp was signed. These
most recent (November 2010) biomass surveys for these two species show
increasing biomass in the western Aleutians, even to levels sought as
targets in the Reasonable and Prudent Alternative.

7. Finally, even accepting as true the false conclusion that
fishing is negatively affecting Steller sea lions in the western
Aleutians, the BiOp presented no information demonstrating that this
effect is adversely modifying critical habitat as a whole for the
western stock, as required under the ESA.

In summary, there is simply insufficient scientific evidence to
conclude that fishing is causing any nutritional stress and thus
jeopardy to western Steller sea lions and adverse modification of their
critical habitat, much less any level of effect that would require
immediate implementation of corrective actions at this time.
Alaska submitted extensive comments identifying these foundational
science issues, as well as regarding issues with the process used by
the NMFS to reach their decision. We do not believe that the NMFS
adequately considered the State's concerns. Instead, they strongly
relied on their deference to justify their conclusions.
In reaching their conclusion, the Service failed to conduct an
independent review of their work, as is normally undertaken and which
we believe would have highlighted these shortcomings. In fact, a
subsequent independent analysis contracted by the States of Alaska and
Washington substantiated many of the scientific concerns identified by
affected users.
Another example is the northern sea otter. In this case, the USFWS
recommended threshold for delisting is 103,417 otters. We question
whether a population of over 100,000 sea otters is really necessary
before delisting can occur. We note that the recovery objective for the
southern sea otter is much lower (the average population must exceed
3,090 for three years) and appears aimed at removing the risk of near
term extinction rather than attainment of long term recovery to some
historic level of abundance or supportable carrying capacity.
This plan also includes an ecosystem based criteria. This criterion
states that ``sea otters must be sufficiently abundant to either
maintain, or bring about, a phase shift to the kelp-dominated state.''
So not only must sea otter number over 100,000, but kelp must be also
be restored, before delisting could occur. We believe it is
inappropriate to establish criteria which stipulate that listed species
(in this case sea otters) could not be delisted, despite the fact that
they had attained a desired population goal, unless an ecosystem goal
(in this case a target level of kelp forests) is also restored. This is
beyond the scope of species recovery.
Finally, the criterion which states that ``All known threats are
being adequately mitigated'' is problematic. All populations face a
multitude of threats that potentially impact their growth rate in
varying degrees throughout time. The key question is whether the
overall impact of the threats in combination is negatively impacting
over species viability. If the population is meeting its desired growth
rate, the influence individual threats have is somewhat irrelevant.
Inclusion of criteria for single threats allows such criteria to be
used as de facto veteos on down- or delisting decisions regardless of
overall population health. As such, it is inappropriate to include
specific criteria for each known threat that could prevent down- or
delisting if overall the population is meeting stated growth rate
objectives.
In total, these recovery goals and their application raise the
question as to whether recovery objectives are being set too high.
Should recovery measures reflect the required number required to remove
the risk of extinction, or be set to a number that represents some
level of historic abundance or full recovery? Can threats ever be
completely removed? Should recovery plans contain non-population
objectives that must be achieved (e.g., greenhouse gas emission
targets)? We believe that ESA recovery goals and objectives should
appropriately be designed to remove the risk of extinction in the near
future, not fully recover the population to some level of past
abundance or supportable carrying capacity. Once the threat of
extinction in the near term foreseeable future is removed, the species
should be delisted and ESA protections should be removed.
Another concern is the manner in which the two Services identify
subspecies or Distinct Population Segments for listing under the ESA.
In 1973, Congress had no way to predict that the genome of a several
plants and animals could actually be mapped. We now know enough about
genetics to detect even the most subtle differences between not just
species, but individuals within a given species. Couple this knowledge
with the ability to use the ESA to list ``subspecies'' and ``distinct
population segments'', and every local population with slight
geographic or genetic differences, or populations on the edge of the
species' range become candidates for ESA listing, regardless of the
overall abundance of the species.
Alaska is also concerned with how critical habitat is being
designated. Following its decision to list the polar bear as a
threatened species, the USFWS designated a vast area of Alaska and its
offshore areas as critical habitat. The area designated is the largest
ever designated for a species, and encompasses an area larger than the
State of California. The habitat designated includes any place a polar
bear might roam during its life. This is a dramatic deviation from
previous critical habitat designations where specific areas of critical
importance to recovery were designated. The State and others are
challenging this designation as well as to what we believed was a
serious underestimation of the economic impacts associated with the
designation.
With respect to the economic impacts, the USFWS's Final Economic
Impact Analysis for the critical habitat designation did not adequately
consider the relevant factors as required under the ESA. Among other
things, the Service specifically failed to adequately consider:

The economic impacts of the additional ESA Section 7
consultations or portions of consultations and project requirements and
modifications that the adverse modification of critical habitat
standard imposes;

The economic impact of the additional costs of
litigation, project delay, project slippage, deferred production or
closure, uncertainty and risk (The Service stated that ``potential for
indirect impacts, such as litigation, uncertainty, and project delays
is real'' but failed to analyze such impacts); and,

The economic impact to the oil and gas industry,
construction and development, and commercial shipping and marine
transportation. Specifically, the Final Economic Impact Analysis did
not include a regional economic impact analysis of reduced oil and gas
activity or an assessment of the economic impacts of critical habitat
designation on commercial shipping and marine transportation.

The area designated includes the largest areas of potential oil and
gas deposits in the United States and are of economic importance to the
State as well as of strategic importance to the Nation. The designation
puts the area under federal control and opens all permit decisions to
potential litigation and delay.
Finally, when passing the Act Congress clearly identified a unique
role for states in all Endangered Species Act decisions. This role is
contained in Section 4(i) of the Act. This section clearly grants
states a place at the table in all Endangered Species Act decisions,
including the application of science in these decisions. Unfortunately,
states are not being given equal deference on science during the
implementation of the Act. Instead, the Services are increasingly using
their deference to discount valid questions raised by states on federal
science. They are also using their deference as a basis of their
defense of flawed science. We believe that states should have equal
deference on science during all ESA decisions.
In closing, these examples point to how recent application of the
ESA has stretched the original intent of this well intentioned Act. We
are challenging what we believe is unsound science application as well
as unwarranted applications of the Act hoping to bring it back to its
original intent. We believe there needs to be increased scientific
rigor applied in ESA decisions. We also believe that there needs to be
limits placed on the amount of deference granted to federal agencies in
ESA decisions. States should have equal deference. We welcome
legislation to fix the act. We believe reform is needed and the time is
now.
Thank you for the opportunity to speak with you.
Chairman Broun. Thank you, Mr. Vincent-Lang. I appreciate
your testimony. I love your State, too. I have had the
opportunity to visit there and hunted brown bear, sheep, moose
and caribou. It is a wonderful place.
I now recognize our next witness, Dr. Wilkins. You are
recognized for five minutes, sir.

STATEMENT OF DR. NEAL WILKINS, DIRECTOR,

TEXAS A&M INSTITUTE OF RENEWABLE

NATURAL RESOURCES

Mr. Wilkins. Mr. Chairman, Members of the Committee, thank
you for putting attention to this important issue.
I work as a Professor of Wildlife Science at Texas A&M
University where I also direct two research institutes that are
part of AgriLife Research and Extension, part of our Land Grant
University System. I have spent much of the last 20 years
dealing with endangered species science and endangered species
conservation.
Science and its application to conservation has progressed
substantially since the Endangered Species Act first passed,
which was in the Nixon Administration, but the Act has not had
any substantial change since the Reagan Administration. Around
that time, the Service began using science-specific information
to guide the process for considering candidates to the
Endangered Species List, but this approach was never added to
the law. Therefore, the Service is still required to review
every new listing petition within 12 months, regardless of what
we really know about the species.
The result is the well known backlog of pending decisions,
litigation, and court orders. The Service has made some strides
in implementing ESA through development of habitat conservation
plans, mitigation banking, safe harbors, and some newer market-
based incentives like recovery credit systems. These
innovations have helped advance the science for implementing
the Act, but these are not enough.
There are still significant barriers to the use of reliable
science in guiding endangered species policy and decision-
making. By not deferring to States' efforts, we miss some
important opportunities for more effective conservation actions
than the one-size-fits-all protections under ESA.
The case of the dunes sagebrush lizard provides some good
lessons. In December of 2010, the Service released a proposal
to list this species which had previously been a candidate for
listing starting in 1982. The lizard's listing proposal caught
many off guard and created a lot of attention as the listing
threatened to impact oil and gas development in the Permian
Basin of West Texas. Our research group at Texas A&M quickly
fielded a large team that in 1 month collected more information
on the species range in Texas than had been collected in the
previous 40 years. Such swings in attention and activity occur
when the program is driven by lawsuits.
On a high note, the Endangered Species Taskforce in Texas,
a group that was recently put together by our state
legislature, quickly developed a conservation plan for the
lizard that is now in the federal register for review. It shows
that some of the options for deferring ESA recovery actions to
the States can make some sense.
The golden-cheeked warbler is another good example of how
ESA policy can drift unmoored from science. This songbird was
believed to number less than 32,000 birds when it was listed as
endangered in 1992. Our recent surveys across private
ranchlands in 35 counties in Texas demonstrated that there were
likely greater than 200,000 males of this species in its
breeding range. This new information differs widely with what
is currently in the official record, so there is some real
resistance to making decisions on this new information as it
could pose a risk for a lawsuit.
The deadline-driven process often requires the Service to
use some unreliable information that is presented in a petition
as best-available science. And once that information is on the
official record, it is tough to counter when scientists finally
generate better information on the species.
As we have seen in the case of Rocky Mountain wolves and
other species, it is possible to recover species biologically
and fail to acknowledge this bureaucratically because the law
is in the way. There are at least four things we can do about
this.
Number one, we need to require a standardized, independent
peer review of scientific information used in the listing
process. Current peer reviews are inconsistent and really not
independent. With adequate peer review, we might avoid locking
in on whatever information is available at the time as
persistent truth regardless of its quality or subsequent
discoveries.
Second, we can clear the backlog of listing petitions by
authorizing the ESA listing process to work according to a
science-based priority system instead of a 12-month deadline.
Twelve-month deadline means the Service will often accept
speculation and other unreliable information as best science. A
science-based priority system would return these decisions to
field science and an open public process.
As a third recommendation, we can separate the listing and
recovery functions of the ESA by delegating recovery planning
to the States as an option.
Finally, you can incentivize species recovery by linking
the delisting process to reaching recovery goals. Recovery
goals mean something and they ought to be acted upon.
This remains an important topic and deserves some action. I
thank you again for giving it your attention.
[The prepared statement of Mr. Wilkins follows:]

Prepared Statement of Dr. Neal Wilkins, Director,
Texas A&M Institute of Renewable Natural Resources

Chairman Broun, Ranking Member Edwards, and Members of the
Subcommittee, my name is Neal Wilkins. I am director of the Texas A&M
Institute of Renewable Natural Resources and the Texas Water Resources
Institute. I am also a Professor of Wildlife Science at Texas A&M
University. Thank you for the opportunity to appear before you today to
emphasize the importance of using more reliable science in the
implementation of the Endangered Species Act. Before joining the
faculty of Texas A&M in 1998, I spent six years directing the
endangered species and environmental compliance programs for a large
private forest landowner in the Pacific Northwest. For much of my
career--and specifically in the past two decades--I have worked to
apply science to endangered species issues.
Working through Texas AgriLife Research, our Texas A&M scientists
are deeply engaged in research and monitoring of ESA-listed species and
the candidates for such listing. Under contract from the U.S. Fish &
Wildlife Service, my team has performed the science assessments for
rangewide status reviews for golden-cheeked warblers and black-capped
vireos. Our scientists have long-term research projects on species
ranging from endangered Key deer in Florida to willow-flycatchers in
the desert Southwest. We lead large multi-stakeholder efforts to
provide for the conservation and recovery of species that depend upon
the Edwards Aquifer for their survival while simultaneously providing
reliable water supplies for San Antonio, Texas. Over the past year, our
science group expanded ranks to include a team of freshwater mussel
specialists that is already doing groundbreaking science on several
species that are proposed for listing throughout the streams and river
systems of Texas. We also have a research team that leads the research
and monitoring efforts for the dunes sagebrush lizard--a species whose
proposed listing as endangered and its potential implications for oil
and gas development, became a subject of widespread national media
coverage throughout this summer. This work keeps me constantly engaged
in the space between science, policy and decision-making for managing
related to the ESA.
Using science to conserve species has become more difficult over
the last 20 years because although science and management have
improved, the Endangered Species Act has not been updated. The last
major change to ESA was the addition of the experimental population
designation, which allowed the specific science for a species to guide
its reintroduction. Around that same time, the Service began using
species-specific science to guide the process for considering adding
new species to list, but this approach has never been added to the law.
Therefore, the Service is still required to review every potential new
listing within 12 months regardless of the specifics of what we know
about the species. The result is the well-known backlog of pending
decisions, litigation, and court orders.
During the last 20 years, the Service has made great strides in
considering the specific science of land management by entering into
Habitat Conservation Plans. But, for lack of changes to ESA, the
Service has not been able to apply this same approach to evaluating the
conservation efforts of states, even when those state efforts are more
effective and less costly than one-size-fits-all protections under ESA.
Applying good science to endangered species issues has always been
tough, but it seems to be getting tougher. The U.S. Fish & Wildlife
Service faces some steep challenges in its lead role in administering
the Endangered Species Act. Lawsuits and threats of lawsuits cause
agency staff to be constantly on-guard, and this affects the
administration of the ESA at all levels. For managing endangered
species issues, the Service is now forced to focus so much on process
and procedure that the use of reliable science has suffer. In my
testimony today, I want to focus briefly on three interrelated topics:

Barriers to collecting reliable information on species
status

Inadequate scientific information used for listing
decisions

Inconsistent use of peer-reviewed science for ESA
decision-making

I will conclude with some recommendations for a fresh look at some
reforms that would improve the use of science in guiding ESA policy and
decision-making.

Barriers to collecting reliable information on species status.

In its annual report to Congress, the Service describes the status
of species listed under ESA as stable, declining, or improving. For the
reports from 1988 to 2002, it did not have information to assess status
for about 40% of the species listed. Much of this information could be
collected, but is not, because of denied access of scientists to
private lands. Many private landowners simply fear that allowing
scientists to access their property for endangered species surveys
could create a regulatory burden and constrain their economic land use.
And they have a good point--the threat. \1\
---------------------------------------------------------------------------
\1\ For a discussion, see Wilkins, N. 2011. ``Improving the ESA's
Performance on Private Lands'' in Rebuilding the Ark: New Perspectives
on Endangered Species Act Reform, ed. J.H. Adler. The AEI Press,
Washington, D.C., 56-80.
---------------------------------------------------------------------------
How do we get beyond this? With some of our work, we have created
data confidentiality agreements so that site-specific information we
collect is not made public. These data confidentiality agreements have
created some disputes with individual Service biologists and groups
that would like to know about site-specific endangered species
information--but by protecting this information we have been able to
access millions of acres of private lands for scientific information
that would have otherwise not been collected. We are able to report the
overall results of our work--it is only the detailed locations of site-
specific information that remains confidential.

The dunes sagebrush lizard. In December, 2010 the Service
issued a proposed rule to list the dunes sagebrush lizard as
endangered. This lizard is a habitat specialist that lives only in sand
dune outcrops dominated by shinnery oak (a low-growing species of oak).
For the lizard's four county range in West Texas, it was known to
recently occur at only three locations. After the proposed listing, we
conducted an intensive three to four week systematic survey of
available habitats in Texas, resulting in an additional 28 locations
for the species--most of which were previously undocumented. The
collection of these data required our research crew of 14 wildlife
biologists to get access to numerous private ownerships. Very few of
those property owners would have allowed access if, in fact, we had not
been able to provide them with some confidence that we would not
release site-specific information from their property to the U.S. Fish
& Wildlife Service.
This lizard has been considered a candidate for ESA listing since
1982. The fact that more scientific information was collected in a 3-4
week period than in the previous 39 years speaks volumes about the
barriers to encourage the collection and use of good science.
The Texas surveys were actually funded by members of the Texas Oil
& Gas Association once they realized that scientific information could
drive the development of a Texas Conservation Plan for the species. The
Texas Conservation Plan for the dunes sagebrush lizard, prepared by an
Interagency Task Force on Economic Growth and Endangered Species, is a
serious conservation effort that conserves important habitats while
allowing for greater regulatory certainty for oil and gas development
as well as agricultural land use. Participants in the plan hope that it
will either help avoid the species' listing or support an incidental
take permit if the species is eventually listed. While the dune
sagebrush lizard is not yet listed, the plan nevertheless provides for
contributions to species recovery throughout the species' range in
Texas. This is an excellent example of a state-level action that is
likely to result in a net conservation benefit to the species and
provide some tangible benefits to the plan's participants should the
species actually become listed.

There are two additional lessons illustrated here:

1. By instituting some simple reforms that allow separation of
site-specific data from regulatory oversight, we could make huge long-
term gains in collecting the scientific information needed to
adequately assess species status.

2. When given the incentive, the state-based groups can work
directly with affected property owners, industry, conservation groups
and other public agencies to create conservation plans that get buy-in
from a wide range of stakeholders.

Inadequate scientific information used for listing decisions.

A determination that a species is warranted for threatened or
endangered status under ESA--a ``listing'' decision--is supposed to be
based entirely on scientific merit. There are times when the bright
line of scientific merit is not as clear as it sounds. This stems from
two main reasons. First, when it comes to gaining reliable knowledge
about rare species, the science does not always lead to consensus. In
other words, real science and real scientists can legitimately
disagree. Over time, the scientific process tends to solve these
disagreements. The second reason is that decisions can be made on
material that is selective or intentionally slanted to make a case for
a particular decision--this can be the case when special interest
groups submit information.

Treating pre-existing information as authoritative science. Once a
decision for listing a species is made, there is enormous resistance to
reconsidering any of the ``best available science'' used to make the
original decision. For many species, the information presented in the
original status review is more influential than information later
gathered, even if the later information is of higher quality. There are
several reasons for this, one being that any new scientific evidence
that might challenge or question the existing status of a species may
require a large bureaucratic response. Information published as part of
the original listing petition tends to have a strong incumbent
advantage over any new information that might challenge the basis for a
prior decision--this is not how science is supposed to work.

The golden-cheeked warbler. When it was listed as endangered in
1992, the golden-cheeked warbler was thought to have been reduced to a
population size of less than 32,000 individuals. Most of the species'
potential breeding habitat is on private lands across 35 counties in
central Texas. Until recently, there had been no systematic surveys to
determine species status across private ranchland. Beginning in 2008,
researchers from Texas A&M began a systematic survey to estimate the
species' population. Using confidentiality agreements with private
ranchers, this research team accessed hundreds of private ranches. The
surveys of suitable habitat and succeeding analyses demonstrated that
there were likely more than 200,000 male golden-cheeked warblers across
the species' breeding range.

This effort demonstrated the flaws in the original information
used to support listing of the golden-cheeked warbler. As you might
expect, the results were controversial. Even though some of the results
had already been accepted for peer-review publication, the U.S. Fish &
Wildlife Service required an independent peer-review process to
determine if the work could be considered ``best available science.''
Our researchers involved in this work are well-published and serious
scientists who focus their efforts on experimental design, survey
methodology, statistical analyses, and interpretation of results to
gain more reliable knowledge of species status, ecology, and management
implications--so they welcomed the peer review.

Even following a largely positive peer review, there continues to
be some resistance by the Service to using the new information on
golden-cheeked warblers. There is external pressure on the Service to
discredit the new information, and it is likely that any decision to
reconsider the endangered status of golden-cheeked warblers would
result in a lawsuit. Status reviews, compliance, consultation and
recovery programs for individual species are generally managed by a
small group of staff biologists who work closely together. The threat
of controversy, increased scrutiny, and lawsuits can put a chill of
resistance to accepting new scientific evidence that challenges the
basis for previous decisions. \2\
---------------------------------------------------------------------------
\2\ For a discussion see McCleery, R.A., R.R, Lopez, N.J. Silvy.
2007. Transferring research to endangered species management. Journal
of Wildlife Management. 71(7):2134-2141.

Decoupling some of the functions under ESA administration would
likely result in less entrenchment and more reliable use of new science
---------------------------------------------------------------------------
for endangered species management.

Incumbent information in an overburdened system. The listing
process has recently been driven by large multi-species petitions and
legal action from advocacy groups seeking multiple listings. This flood
of listing petitions eliminates efforts by the Service to conduct a
rational science-driven process for prioritizing listing decisions. In
evaluating the scientific evidence for these listings, the Service
tends to simply accept the information as presented, particularly when
evaluating the petitions for little-known and cryptic species. Consider
this example from a recent 90-day finding from the petition seeking a
listing decision on over 400 species in the southeastern US.

``Due to the large number of species reviewed, we were only
able to conduct cursory reviews of the information in our files and the
literature cited in the petition. For many of the narrowly endemic
species included in the 374 species, we had no additional information
in our files and relied solely on the information provided in the
petition and provided through NatureServe.'' \3\
---------------------------------------------------------------------------
\3\ Federal Register Vol. 76, No. 187:59836-59862

When information like this is published in a 90-day finding, it is
more likely to find its way into a 12-month status review and
ultimately become part of the foundation for a listing proposal. This
is another case of pre-existing information gaining undeserved
authority simply because it was all that could be used at the time, not
---------------------------------------------------------------------------
because it was reliable.

Using speculation as best available science. At times, what is
presented as ``best available science'' is not always good enough for
decision-making. This is certainly the case when speculation is
mistaken for good science. When listing decisions are driven by the
petition process, the speculations of scientists are often used to
support the petition.

The recent 12-month finding for five species of freshwater mussels
that live in the rivers and streams of central Texas provides a good
example of the use of speculation as best available science. The bulk
of the information used to support the petition--and ultimately used to
support the finding--originated from a collection of un-reviewed agency
reports. While these reports did contain some valuable information,
they lacked standard detail on methods for data collection and they
reported mainly on opportunistic surveys at bridge sites and
reservoirs. The reports made observations and offered speculation on
why certain species might be absent from a site--these speculations,
once cited in the petition, were then interpreted as fact in the 12-
month finding. These species of freshwater mussels may have indeed
suffered reductions and might actually deserve a determination of
endangered--but the current record relies on speculation that may turn
out to be unreliable. Scientists speculate about cause and effect all
the time--this is part of the scientific process. Speculation is how
hypotheses are posed; and those hypotheses are then tested by
collecting data. But treating speculation as science is a mistake--and
it weakens the credibility of ESA determinations.

Inconsistent use of peer-reviewed science for ESA decision-making

By subjecting their methods, results and conclusions to the
scrutiny of other experts in the field, scientists maintain standards
and ultimately improve the reliability of their findings. Reliable
information for many species is often scarce, lacking, contradictory
and/or not easily interpreted. The only remedy is subjecting status
reviews to an independent, more consistent, and transparent expert
peer-review. Status reviews that support listings and other ESA
decisions should be developed using reliable information--some of which
may be from peer-reviewed science.
Too often, the ``science'' included in citizen listing petitions is
directly relied upon in the 90-day findings and is then codified as
``fact'' by the time the 12-month review is completed. The 12-month
reviews are sometimes subjected to ad hoc and informal peer reviews
that may amount to no more than an email distribution of the document
with informal comments received. This would not pass as an independent
peer-review process in any other situation.

Conclusions

In conclusion, the effectiveness of the ESA could be improved
through improving the use of science. Specific reforms that could
insure better use of science include:

Require a standardized independent peer-review of
scientific information used in the listing process. The science for
inclusion in the 12-month status review deserves the greatest scrutiny;
and it is that information that tends to gain a special status once
published in the federal register. There has been recent action by the
Service to conduct peer-review. The current peer reviews are not
independently administered; and they tend to ignore the biggest
question of all: Is the available science substantial enough to support
a decision?

Clear the backlog of multi-species listing petitions by
authorizing the ESA listing process to work according to science-based
priority system instead of a 12-month deadline. The requirement to
decide on each petition within 12 months often forces the Service to
accept substandard scientific information or disregard species that are
a higher priority. Such a deadline also forces listing decisions into
the courts. A science-based priority system would return these
decisions to field science and an open public process.

Separate the listing and recovery functions of the ESA by
delegating recovery planning to the states as an option. This
separation would create an incentive to drive recovery programs with
the most reliable science and policy innovations, supporting a more
effective recovery effort. This would also remove some barriers
blocking access to private lands thus increasing the amount of
information available for informing recovery actions

Incentivize species recovery by linking the delisting
process to reaching recovery goals. This would accelerate the recovery
process and provide additional incentives for research and monitoring
efforts that could contribute to the science-base for listed species.

In the end, if the ESA is to meet its goals there will need to be
reforms that result in more appropriate use of reliable science to
inform policy.
Thank you for the opportunity to speak with the Committee about
this important topic.
Chairman Broun. Thank you, Dr. Wilkins. As a Georgia
Bulldog, I want to welcome you and Texas A&M to the SEC.
Mr. Wilkins. We hope to do well in there.
Chairman Broun. Welcome. Join the toughest football league
in the country.
Mr. Wilkins. Yes, sir.
Chairman Broun. Mr. Adler, you are recognized for five
minutes.

STATEMENT OF MR. JONATHAN ADLER, PROFESSOR,

CASE WESTERN RESERVE UNIVERSITY SCHOOL OF LAW

Mr. Adler. Thank you, Mr. Chairman, Congresswoman Edwards,
and Members of the Subcommittee, for the invitation to testify
this morning regarding the nexus of science and policy under
the Endangered Species Act.
I have submitted a longer written statement for the record
and I want to stress two key points in my oral remarks. First,
it is important to distinguish between questions of science and
questions of policy. And second, the Act itself puts undue
pressure on scientific inquiry. If we are concerned about
scientific integrity in conservation decision-making, we have
to do something about the structure of the Act and the
pressures it puts upon scientific decision-making.
As to the first point, the political debate over the use of
science under the Endangered Species Act tends to obscure the
dividing line between science and policy, and as a consequence,
undermines the development of more effective and equitable
conservation strategies. Species conservation efforts are
heavily dependent upon science. Biological research is
necessary to inform species conservation decisions, but species
conservation is not and indeed cannot be a purely scientific
exercise. Whether a given species is at risk of extinction may
be a scientific question but what to do about it is not. The
likelihood that habitat loss or the introduction of an invasive
species will compromise a species' chance of survival in the
wild is a question that can be answered by science.
On the other hand, how we should interpret incomplete or
ambiguous data, what conservation measures to adopt to address
threats to a given species, and at what cost, are policy
questions. Science can and indeed must inform all such
inquiries, but science alone does not tell us what to do and we
don't serve the goals of species conservation when we pretend
otherwise. Debates over conservation policy are often dressed
up as debates over conversation science, and this hampers our
ability to reach policy consensus and obscures what is really
at stake.
Where science is used, it is important to ferret out
instances of real scientific misconduct and science
politicization. Agency personnel and others should not be
permitted to distort or misrepresent scientific findings,
whatever the purpose. And when true science abuse occurs, it
should be exposed and corrected and those responsible should be
disciplined, but it is also important to understand that not
all disputes over science-related questions are truly disputes
about science. And further, it is important to understand how
the structure of the Act itself contributes to the
politicization and manipulation of science and how it creates
incentives that compromise the scientific integrity of
conservation decisions.
It is now widely recognized and well documented that the
Endangered Species Act itself creates perverse incentives that
discourage species conservation, particularly on private land.
What is less well understood is that these same provisions in
the Act, the same regulatory structures places pressure on
science and can discourage the discovery and collection of
needed scientific information about potentially imperiled
species, again, particularly on private land.
Just as the threat of land-use regulation discourages the
creation or maintenance of species habitat, the threat of such
regulation discourages private landowners from disclosing
information and cooperating with scientific research on their
land. Landowners are increasingly reluctant to allow biologists
and other researchers onto their land to survey species
populations and conduct other research out of fear of
regulatory constraints that could follow the discovery of a
rare animal or plant.
Yet information about the location and status of species
populations is essential to the development of effective
species recovery plans. The lack of more complete data on
endangered species and their habitat greatly complicates
species conservation efforts. Yet the Act itself compromises
our ability to know which species are in most need of help and
where they may be most endangered, and the Act itself often
causes us to know far less about a species than we should
before adopting regulatory measures or other constraints on
productive economic activity.
And this is a particularly severe problem because we know
that the vast majority of species that are listed rely upon
private land for habitat. And so the Act is discouraging our
ability to know what species are on private land and what
condition they are in. The Act itself is tying one hand behind
our back in dealing with the majority of species that we are
concerned about. And this is particularly important because we
have what economists refer to as an information asymmetry.
Private landowners are in a much better position to know what
is on their land and what condition it is in than biologists,
the Fish and Wildlife Service, or research universities. If
they can't work together and if the Act discourages them from
working together, we will have a hard time developing
conservation plans and environmental strategies that will
actually work.
It is the structure of the Act that does this, just as it
is the structure of the Act that makes scientific judgments
such as the decision to list a species extremely consequential.
When you list a species, certain regulatory measures kick in
automatically and can form the basis of private citizen suits
to force additional regulatory controls, and as a consequence,
warring factions devote substantial resources to influencing
scientific outcomes. This makes science abuse and
politicization all but inevitable.
Safeguarding science requires statutory reforms that will
insulate scientific judgments from policy decisions and lower
the stakes of listing decisions. More broadly, we need to make
saving endangered species more important than saving the
Endangered Species Act as it is currently written.
Thank you again for the opportunity to present my views on
this important subject, and I am willing to answer any
questions this Committee may have. Thank you.
[The prepared statement of Mr. Adler follows:]

Prepared Statement of Mr. Jonathan Adler,
Professor, Case Western Reserve University School of Law

Thank you, Mr. Chairman and Members of this Subcommittee, for the
invitation to testify regarding the nexus of science and policy under
the Endangered Species Act. My name is Jonathan H. Adler, and I am the
Johan Verheij Professor of Law and Director of the Center for Business
Law and Regulation at the Case Western Reserve University School of
Law, where I teach several courses in environmental, administrative,
and constitutional law.
I particularly appreciate the opportunity to testify today about
the Endangered Species Act (ESA). I have researched and written on
environmental law and policy for over twenty years, and have conducted
a significant amount of research on the ESA and species conservation
generally. My work on the ESA includes an award-winning article, Money
or Nothing: The Adverse Environmental Consequences of Uncompensated
Land-Use Controls, 49 BOSTON COLLEGE LAW REVIEW 301 (2008), and a
recently published book, Rebuilding the Ark: New Perspectives on
Endangered Species Act Reform (AEI Press, 2011). I've drawn upon this
work in preparing this testimony.
The ESA is among the nation's most important and powerful
environmental laws. It is also a source of great conflict and
controversy. There is little question that species conservation is an
important and worthwhile endeavor. Regrettably, there are many reasons
to question whether the ESA effectively serves that goal. The Act has
likely helped prevent some species from going extinct, but the Act
endeavors to do more. There is very little evidence the Act helps
species recover from the brink of extinction and increasing evidence
that the ESA itself creates incentives that undermine sound
environmental stewardship and politicize scientific inquiry.
The listing of individual species, the designation of critical
habitat and the implementation of conservation measures often prompt
fierce legal and political battles. Sound science is often a casualty
in these conflicts as the combatants twist and manipulate the available
scientific evidence to support predetermined policy preferences.
Activists on all sides claim that ``sound science'' supports their
respective positions, and scoff at the ``junk science'' relied upon by
the other side. In actual fact, what often divides the respective camps
is not a devotion to science, but sharply divergent policy preferences
dressed up in scientific garb. The political debate over the use of
science under the ESA tends to obscure the dividing line between
science and policy and undermines the development of more effective and
equitable conservation strategies.
Species conservation efforts are heavily dependent upon science.
Biological research is necessary to inform species conservation
decisions. But species conservation is not--and cannot be--a wholly
scientific exercise. Whether a given species is at risk of extinction
may be a scientific question, but what to do about it is not. The
likelihood that habitat loss or the introduction of an invasive species
will compromise a species chance of survival in the wild is a question
that can be answered by science. On the other hand, what conservation
measures should be adopted to address such threats, and at what cost,
are policy questions. Whether reducing the chance that given species of
fish will go extinct is worth limiting water use or imposing other
regulatory controls is not a question science can answer. Science can--
indeed, must--inform such inquiries, but science alone does not tell us
what to do. Nonetheless, debates over conservation policy are often
dressed up as debates over conservation science, hampering our ability
to reach policy consensus and obscuring what is really at stake.
The addition of an imperiled species to the list of endangered and
threatened species should be a relatively routine matter driven by
scientific considerations. Unfortunately it is not. A proposal to list
a species often signals the onset of fierce political and
administrative battles in which true scientific concerns are
subordinated to policy objectives. One reason for this is that the
scientific determination that a given species is threatened or
endangered triggers non-discretionary regulatory requirements.
Therefore, the surest way to control a policy outcome is to control the
science. Activists on all sides recognize this fact, which is why
activists spend so much time trying to influence the scientific
conclusions.
It is important to ferret out instances of scientific misconduct
and science politicization. Agency personnel should not be permitted to
distort or misrepresent scientific findings, whatever the purpose. The
ends of species conservation and environmental protection do not
justify distorting scientific inquiry. Nor does a desire to alleviate
the regulatory burdens faced by landowners, businesses, and workers in
resource-dependent industries. When science abuse occurs, it should be
exposed and corrected, and those responsible should be disciplined. But
it is also important to understand how the structure of the Act
contributes to the politicization and manipulation of science and
creates incentives that compromise the scientific integrity of
conservation decisions.
It is now widely recognized that the ESA creates perverse
incentives that can discourage species conservation on private land.
What is less well understood is that the same regulatory provisions of
the act can discourage the discovery and collection of needed
scientific information about potentially imperiled species,
particularly on private land.
The reason the ESA creates perverse incentives against species
conservation is that the Act effectively penalizes the owners of land
upon which endangered species depend. Under Section 9 of the act, it is
illegal for a private landowner to engage in activities that could
``harm'' an endangered species, including habitat modification, without
first obtaining a federal permit. Knowing violations can lead to fines
of up to $25,000 and even jail time. As a practical matter, the law
requires private landowners to obtain permission from the FWS before
modifying endangered species habitat on their own land.
Such regulations can reduce private land values and antagonize
private landowners who might otherwise cooperate with conservation
efforts. Writing in Conservation Biology, a group of wildlife
biologists observed that ``the regulatory approach to conserving
endangered species and diminishing habitats has created anti-
conservation sentiment among many private landowners who view
endangered species as economic liabilities.'' \1\ They further
explained:
---------------------------------------------------------------------------
\1\ Martin B. Main, Fritz M. Roka, and Reed F. Noss, Evaluating
Costs of Conservation, 13 CONSERVATION BIOLOGY 1263 (1999).

Landowners fear a decline in the value of their properties because
the ESA restricts future land-use options where threatened or
endangered species are found by makes no provisions for compensation.
Consequently, endangered species are perceived by many landowners as a
financial liability, resulting in anticonservation incentives because
maintaining high-quality habitats that harbor or attract endangered
species would represent a gamble against loss of future opportunities.
\2\
---------------------------------------------------------------------------
\2\ Id. at 1265.

As the late Sam Hamilton, former Director of the Fish & Wildlife
Service, observed in 1993, when he oversaw FWS efforts in Texas: ``The
incentives are wrong here. If I have a rare metal on my property, its
value goes up. But if a rare bird occupies the land, its value
disappears.'' \3\
---------------------------------------------------------------------------
\3\ Betsy Carpenter, ``The Best-Laid Plans,'' U.S. News & World
Report (Oct. 4, 1993), at 89.
---------------------------------------------------------------------------
The effect of the ESA on private landowners, and the incentives it
creates, are important because a majority of listed species rely upon
private land for some or all of their habitat. In some cases, such
regulations may even encourage landowners to destroy or degrade
potential habitat on their land. It is not illegal to modify land that
might become endangered species habitat some day in the future, nor are
landowners required to take affirmative steps to maintain endangered
species habitat.
There is increasing empirical evidence that the perverse incentives
created by the ESA are undermining species conservation efforts and
compromising scientific inquiry. Several recent empirical studies
document how the ESA undermines effective conservation on private land.
One study found that private landowners engage in preemptive habitat
destruction when the presence of endangered red-cockaded woodpeckers
places landowners at risk of federal regulation and a loss of their
timber investment. \4\ Providing habitat for a single woodpecker colony
could cost up to $200,000 in foregone timber harvests. To avoid the
loss, those landowners at greatest risk of restrictions were most
likely to harvest their forestlands prematurely and reduce the length
of their timber harvesting rotations. The ultimate consequences of this
behavior were potentially significant in that it resulted in a loss of
several thousand acres of woodpecker habitat, a major habitat loss for
a species dependent upon private land for its survival.
---------------------------------------------------------------------------
\4\ See Dean Lueck and Jeffrey Michael, Preemptive Habitat
Destruction under the Endangered Species Act, 46 JOURNAL OF LAW AND
ECONOMICS 27 (2003).
---------------------------------------------------------------------------
A second study involving the red-cockaded woodpecker similarly
found that ``regulatory uncertainty and lack of positive economic
incentives alter landowner timber harvesting behavior and hinder
endangered species conservation on private lands.'' \5\ This study
further found that ``a landowner is 25% more likely to cut forests when
he or she knows or perceives that a red-cockaded woodpecker cluster is
within a mile of the land than otherwise.'' This study concluded that
``the ESA has a strong negative effect on the habitat'' of the red-
cockaded woodpecker and the effect appears to be substantial.
---------------------------------------------------------------------------
\5\ See Daowei Zhang, Endangered Species and Timber Harvesting: The
Case of Red-Cockaded Woodpeckers, 32 ECONOMIC INQUIRY 150 (2004).
---------------------------------------------------------------------------
The perverse incentives of the ESA unfortunately do not only affect
the woodpeckers and other species dependent upon private timberland. A
third study published in Conservation Biology found that listing a
species could discourage landowners from participating in conservation
efforts. \6\ Based on surveys of private owners of habitat for the
Preble's Meadow jumping mouse, this study found that a substantial
percentage of landowners would respond to a species listing by making
their land less hospitable for it, and that ``the efforts of landowners
who acted to help the Preble's were cancelled by those who sought to
harm it.'' This led the study's authors to conclude that ``as more
landowners become aware that their land contains Preble's habitat, it
is likely that the impact on the species may be negative.''
---------------------------------------------------------------------------
\6\ See Amara Brook et al., Landowners' Responses to an Endangered
Species Act Listing and Implications for Encouraging Conservation, 17
CONSERVATION BIOLOGY 1638 (2003).
---------------------------------------------------------------------------
These studies, combined with numerous anecdotal accounts, taken
together, provide powerful evidence that the ESA has the potential to
discouraging species conservation on private land. Worse, they suggest
that the net effect of the ESA on private land could be negative.
Recent administrations have sought to offset these effects through
various cooperative conservation programs designed to encourage
voluntary conservation efforts and provide landowners with greater
regulatory certainty. Insofar as these initiatives have been effective,
however, they have effectively deactivated the ESA' regulatory
provisions.
The punitive nature of the ESA's restrictions on private land not
only undermine conservation, they also appear to be undermining the
science upon which successful species conservation efforts depend. This
occurs in two ways. First, landowners are increasingly resistant to
allowing biologists and others onto their land to conduct research,
survey species populations and the like out of fear that regulatory
constraints could follow the discovery of a rare animal or plant.
Second, because the listing of a species as endangered automatically
triggers regulatory consequences, there are substantial stakes up for
grabs when a listing decision is made, leading to efforts to control
the outcome, without regard for the science.
Just as the threat of land-use regulation discourages the creation
or maintenance of species habitat, the threat of regulation discourages
private landowners from disclosing information and cooperating with
scientific research on their land. \7\ The aforementioned Conservation
Biology study of the effect of listing the Preble's Meadow jumping
mouse on landowner behavior found that more landowners would refuse to
give biologists permission to conduct research on their land to assess
mouse populations, out of fear that land-use restrictions would follow
the discovery of a mouse on their land, than would allow such research.
\8\ Yet information about the location and status of species
populations is essential to the development of effective species
recovery plans. The lack of more complete data on endangered species
and their habitat greatly complicates species conservation efforts. \9\
This, again, is a particularly severe problem because so many
endangered and threatened species rely upon private land. Due to
information asymmetries, if private landowners do not allow researchers
on their land, important scientific information about potentially
imperiled species may never be discovered.
---------------------------------------------------------------------------
\7\ Stephen Polasky & Holly Doremus, When the Truth Hurts:
Endangered Species Policy on Private Land with Imperfect Information,
35 JOURNAL OF ENVIRONMENTAL ECONOMICS AND MANAGEMENT 41 (1998).
\8\ Brook, et al.
\9\ See Jason F. Shogren, Rodney B. W. Smith, & John Tschirhart,
``The Role of Private Information in Designing Conservation Incentives
for Property Owners,'' in Species at Risk: Using Economic Incentives to
Shelter Endangered Species on Private Lands 217 (Jason F. Shogren ed.,
2005) (noting that ``imperfect information'' complicates conservation
efforts).
---------------------------------------------------------------------------
The structure of the ESA also creates tremendous pressure to twist
or distort scientific research. The decision to list a species can have
substantial regulatory consequences. The ESA may require that decisions
to list endangered and threatened species are determined by the ``best
available'' scientific evidence. Yet there is ample empirical evidence
that political and other non-scientific factors influence listing
decisions. Species that were more ``charismatic''--that is that are
more ``warm and fuzzy'' and those more politically popular--were more
likely to be listed and to receive funding. \10\ Other recent studies
have found that the political and environmental attitudes of
legislators on relevant congressional committees appear to influence
listing decisions as well. \11\ These findings should not surprise.
Listing decisions can force the federal government to adopt various
regulatory measures with significant economic consequences. With so
much at stake, it would be surprising if political and other factors
did not influence listing decisions.
---------------------------------------------------------------------------
\10\ See, e.g., Deborah Dawson & Jason Shogren, An Update on
Priorities and Expenditures under the Endangered Species Act, 77 LAND
ECONOMICS 527 (2001); Andrew Metrick & Martin L. Weitzman, Conflicts
and Choices in Biodiversity Preservation, 12 JOURNAL OF ECONOMIC
PERSPECTIVES 21 (1998).
\11\ See, Bonnie Harllee, Myungsup Kim, and Michael Nieswiadomy,
Political Influence on Historical ESA Listings by State: A Count Data
Analysis, 140 Public Choice 21 (2009).
---------------------------------------------------------------------------
Given the structure of the ESA, various interest groups seek to
manipulate the listing process so as to trigger or preempt the
imposition of land-use restrictions. Property owners who own potential
habitat for a given species are likely to oppose listing of the species
so as to prevent regulation of their land. \12\ Opponents of
development are likely to take the opposite view. Interest group
activity also appears to influence how quickly species move through the
ESA listing process. \13\ Interest group opposition to species listing
proposals increases as listings threaten development. \14\ At the
extreme, this has produced incentives to manipulate the scientific
evidence supporting species listing.
---------------------------------------------------------------------------
\12\ See Barton H. Thompson, Jr., The Endangered Species Act: A
Case Study in Takings and Incentives, 49 STANFORD LAW REVIEW 315, 350
(1997).
\13\ See Amy Whritenour Ando, Waiting to Be Protected under the
Endangered Species Act: The Political Economy of Regulatory Delay, 42
JOURNAL OF LAW AND ECONOMICS 52 (1999)
\14\ See Amy Whritenour Ando, Economies of Scope in Endangered-
Species Protection: Evidence from Interest Group Behavior, 41 Journal
of Environmental Economics and Management 312 (2001); see also Amy
Whritenour Ando, Do Interest Groups Compete? An Application to
Endangered Species, 114 PUBLIC CHOICE 137 (2003) (finding interest
group involvement in species listings increases with the expected costs
and benefits of such listings).
---------------------------------------------------------------------------
Delay in the listing of a species can benefit those landowners and
economic interests would have borne the costs of the ESA's regulatory
limitations. At the same time, it can be harmful to conservation. \15\
Delay in listing a species increases the opportunity for landowners to
respond to the perverse incentives created by the Act. It also deprives
biologists, environmental groups, conservation-minded landowners, and
others of the information that a given species is in need of assistance
if it is to survive.
---------------------------------------------------------------------------
\15\ See Ando, Waiting, at 34 (``Long delay in the addition of a
species to the endangered species list can reduce the likelihood that
the species will escape extinction; species have even been thought to
have become extinct while waiting for final action from the agency.
Thus, delay diminishes the benefits of a listing. It also reduces the
costs.'').
---------------------------------------------------------------------------
Groups opposing development or resource extractive industries also
have an incentive to manipulate the listing process and identify
potentially endangered species that can serve as a proxy for their
other goals. Environmentalist groups have acknowledged that some
species listings are sought out of a desire to control land use. For
example, Andy Stahl of the Sierra Club Legal Defense Fund acknowledged
that ``the ultimate goal'' of litigation to list the northern spotted
owl was ``to delay the harvest of old growth forests so as to give
Congress a chance to provide specific statutory protection for those
forests.'' According to Stahl, the owl was a ``surrogate'' that could
ensure ``protection for the forests'' under the ESA. \16\ The spotted
owl litigation was not without its environmental costs, however. In
order to respond to environmentalist lawsuits, the FWS was forced to
divert resources from more pressing needs, compromising overall
recovery efforts. \17\ This does not appear to be an isolated instance,
as the pattern of environmentalist litigation challenging FWS listing
decisions does not appear to align with species conservation
priorities.
---------------------------------------------------------------------------
\16\ Quoted in Ike C. Sugg, Caught in the Act: Evaluating the
Endangered Species Act, Its Effects on Man and Prospects for Reform, 24
CUMBERLAND LAW REVIEW 1, 53, n335 (1993).
\17\ See Marco Restain and John M. Marzluff, Funding Extinction?
Biological Needs and Political Realities in the Allocation of Resources
to Endangered Species Recovery, BIOSCIENCE (Feb. 2002), at 175.
---------------------------------------------------------------------------
Insofar as such litigation sets listing priorities, it threatens to
divert resources away from those species most in need. According to the
FWS, it has spent ``essentially all'' of its listing appropriations on
litigation-related and administrative costs. \18\ As Professor Katrina
Wyman of NYU has explained, ``the FWS has lost control over the listing
process as decisions about whether to list species are largely made in
response to citizen petitions for listing and litigation.'' \19\ Both
environmentalist groups and development interests wage legal wars over
the listing and delisting of individual species as a proxy for fights
over policy and regulatory priorities.
---------------------------------------------------------------------------
\18\ Katrina Miriam Wyman, Rethinking the ESA to Reflect Human
Dominion Over Nature, 17 NYU ENVIRONMENTAL LAW JOURNAL 490, 497 (2008).
\19\ Id. at 496.
---------------------------------------------------------------------------
The ESA's current regulatory structure both discourages
conservation and compromises conservation science. One possible remedy
for this problem, suggested by Professor Wyman is ``decoupling'' the
listing decision from mandatory conservation measures. \20\ This would
release the pressure to manipulate listing decisions and enable federal
agencies ``to develop protections tailored to the needs of each species
and its circumstances.'' At present, however, the ESA's ``protections''
are triggered once a species is listed, irrespective of their value for
that particular species. Decoupling would also make species listing
decisions less contentious and monumental, and reduce the time and
expense it takes for such decisions to be made. FWS biologists would be
able to focus on getting the science right, and devote less time
responding to litigation. While it would still make sense for listing
to trigger a legal obligation for the FWS to develop a conservation
strategy and recovery plan, it would not force the imposition of
specific regulatory controls. This would mean that outside
organizations would no longer be able to use endangered species as a
proxy for other battles. As Professor Wyman explains, ``One of the
advantages of decoupling the listing of a species from decisions about
how it should be protected is that there should be greater room for
developing creative measures tailored to species' needs and
circumstances.'' \21\
---------------------------------------------------------------------------
\20\ Id. at 516.
\21\ Id. at 519.
---------------------------------------------------------------------------
Finally, I think it is worth stepping back and looking at the
overall record of the ESA. Congress enacted the ESA in 1973. Since that
time, approximately 2,000 species of plants and animals, foreign and
domestic, have been listed as ``endangered'' or ``threatened.'' \22\
The express goal of the ESA is to recover listed species so that they
no longer need the Act's extraordinary protections. Yet in nearly forty
years, this goal has been reached with scarcely over one percent of
listed species. As of this month, the U.S. Fish & Wildlife Service
reports that only 48 species have been removed from the list of
endangered and threatened species. \23\ Of these, only 22 are deemed to
have recovered. Of the remaining 26 species, 17 were delisted due to
data errors of one sort another, such as a mistaken taxonomic
classification or undercounting of a species' population, and nine were
delisted because they are believed to have gone extinct. In other
words, fewer listed species have been recovered than have been delisted
because they went extinct or never should have been listed in the first
place.
---------------------------------------------------------------------------
\22\ See U.S. Fish & Wildlife Service, Threatened/Endangered
Species `Box Score,' available at http://ecos.fws.gov/tess_public/pub/
Boxscore.do (accessed Oct. 11, 2011).
\23\ See U.S. Fish & Wildlife Service, Delisting Report, available
at http://ecos.fws.gov/tess_public/pub/delistingReport.jsp (accessed
Oct. 11, 2011).
---------------------------------------------------------------------------
The above statistics may actually overstate the Act's relative
effectiveness at recovering species. In addition to the nine species
that were delisted because the FWS believes they went extinct, there
are another 28 listed species believed to have gone extinct that have
yet to be delisted. \24\ In addition, at least 42 additional species
have gone extinct awaiting listing under the Act. \25\ Looking at FWS
recoveries, some recovered species saw their status improve for reasons
wholly unrelated to the ESA. In other cases, as the GAO has reported,
species have been delisted before their respective recovery criteria
have been met. \26\
---------------------------------------------------------------------------
\24\ Martin Miller, ``Three Decades of Recovery,'' Endangered
Species Bulletin, vol. 28, no. 4 (July/Dec. 2003), 4.
\25\ D. Noah Greenwald, Kieran F. Suckling, and Martin Taylor,
``The Listing Record,'' in The Endangered Species Act at Thirty, Volume
1: Renewing the Conservation Promise, Dale D. Goble, J. Michael Scott,
& Frank W. Davis eds. (Washington, D.C.: Island Press, 2006), 51.
\26\ See U.S. Government Accountability Office, Endangered Species
Act Decision Making, GAO-08-688T (May 21, 2008), at 20-22.
---------------------------------------------------------------------------
As I stated at the outset of my testimony, species conservation is
an important goal. Serious efforts are necessary to stem the loss of
biological diversity and to reconcile our nation's environmental
aspirations with other social goals. Whether or not this committee
accepts my policy recommendations, I hope all Members recognize that
substantial reform is necessary, both to insulate scientific research
from political pressures, as well as to advance the cause of species
conservation more generally. Saving endangered species should be more
important than saving the Endangered Species Act.
Thank you again for the opportunity to present my views on this
important subject, Mr. Chairman. I hope that my perspective has been
helpful to you, and will seek to answer any additional you might have.
Chairman Broun. Thank you, Mr. Adler.
Dr. Grifo, you are recognized for five minutes.

STATEMENT OF DR. FRANCESCA T. GRIFO, SENIOR SCIENTIST

AND DIRECTOR, SCIENTIFIC INTEGRITY PROGRAM, UNION OF CONCERNED
SCIENTISTS

Dr. Grifo. Chairman Broun, Ranking Member Edwards, and
Members of the Committee, thank you for the invitation to
participate in this hearing. My name is Francesca Grifo, and I
am a Senior Scientist and Director of the Scientific Integrity
Program at the Union of Concerned Scientists, a leading
science-based non-profit working for a healthy environment and
a safer world.
I come here today with 30 years of training, research,
teaching, and policy experience, a passion for the natural
world, and a mother's concerns about her children's future. One
of the great strengths of the Endangered Species Act is its
foundation in robust scientific principles. Objective
scientific information and methods should be used in protecting
species. The habitat needs of endangered species should be
scientifically well informed and the standard of best-available
science must rely on impartial scientific experts. Actions have
consequences with wide-ranging implications and we need to
understand that and that means science--making observations,
asking questions, analyzing results.
Unfortunately, under the previous Administration, the
science of the Endangered Species Act was attacked and it
happened at every stage of the process--90-day findings to
listing to recovery plans to the designation of critical
habitat and even delisting, affecting more than 80 species. One
might say so what? Except an emerging body of research is now
uncovering a hugely important range of benefits of biodiversity
for human health. In a broad sense, most ecosystem services
such as water purification and food provision have a direct or
indirect impact on our health. But ecosystems also provide more
specific benefits. Plants and bacteria are well recognized key
sources of new medicines and other important links include
benefits for mental health and the complex influence of the
natural environment on the spread of infectious diseases.
Many links between biodiversity and health remain unknown,
but there is a growing body of evidence that disturbances to
ecosystems may have large consequences for human well being.
Thus, protecting biodiversity, both the number of species and
the structure of communities helps minimize undesirable or
expensive or unintended impacts on our health.
Furthermore, three-quarters of Americans participate in
active outdoor recreation each year and spend money, create
jobs, and support the local--support the economies of local
communities when they do. The number of New Englanders who
participate in trail-based recreation annually is greater than
the combined attendance for all 81 Boston Red Sox games--home
games. An active outdoor recreation--and the outdoor active
recreation economy employs five times more Americans than Wal-
Mart, the world's largest private employer.
The ESA works. Less than one percent of listed species have
gone extinct since 1973, while ten percent of candidate species
still waiting to be listed are gone. In addition to the
hundreds of species that the Act has protected from extinction,
listing has contributed to population increases or the
stabilization of populations for at least 35 percent of listed
species, and perhaps significantly more, as well as the
recovery of such signature species as the Peregrine falcon.
While complete recovery has been realized for just two
percent of the species listed, given the precarious state of
most species when listed, this represents significant progress.
Arguably, the most notable success of the Endangered Species
Act is that listed species improve in status through time. More
species are down-listed than the converse. More species
transition from stable to improving than the converse.
The science advisor asked agencies to tackle the issue of
scientific integrity, and the Department of the Interior was
the first out of the box to do so. While they are well on their
way to creating a culture of accountability and scientific
integrity, we look forward to learning more about their
ambitious plans for training, the progress of the Scientific
Integrity Officers, and their forthcoming revised peer review
and communications policies, and we expect them to be good.
Science cannot be a mask behind which decision-makers can
do anything that special interests or ideology might dictate.
The rightful place for science is as the basis of broad
participatory and transparent conversations about how to solve
the challenges we face. It is not okay to say the science made
me do it while changing the science to justify policy
decisions.
Thank you for your interest in endangered species
conservation and for the opportunity to testify. I am happy to
respond to questions you or other Members of the Committee may
have.
[The prepared statement of Dr. Grifo follows:]
Prepared Statement of Dr. Francesca T. Grifo, Senior Scientist and
Director, Scientific Integrity Program, Union of Concerned Scientists

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Appendix I

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Chairman Broun. Thank you, Dr. Grifo.
And I thank the panel for you all's testimony. Reminding
Members that the Committee rules limit questioning to five
minutes, the Chair at this point will open the round of
questions. The Chair recognizes himself for five minutes.
Mr. Frazer, in your testimony you state that the joint Fish
and Wildlife Service and National Marine Fisheries Service
policy on information standards under the Endangered Species
Act issued in 1994 requires your biologists and managers to
``ensure that the information that we use is reliable and
credible and represents the best data available.'' Do you
believe the work of federal scientists on the Central Valley
Project and the State Water Project Biological Opinion in
California adhere to the standards outlined in this policy? And
if so, how do you respond to a Federal Judge stating that the
testimony of these two employees were so contradictory and
inconsistent that it amounted to deliberate deception and bad
faith on the Department--on the part of the Department of
Interior?
Dr. Frazer. Mr. Chairman, we do believe that our Biological
Opinion was based on the best available scientific information.
As I stated in my opening statement, it has been through five
separate independent peer reviews, one by a National Research
Council panel. We disagree with Judge Wanger's
characterizations, but we are taking it as a serious allegation
and we are using our scientific integrity policy to thoroughly
investigate that and determine whether there is any basis for
his statements. We do note and appreciate that he sought to
clarify those statements in a following hearing that he held
the week after.
Chairman Broun. Okay. Your testimony states, ``the
Department is seeking independent experts to evaluate the
allegations.'' Will these experts be independent of the Service
and the Bureau of Reclamation, independent of the Department,
or independent of the Administration?
Dr. Frazer. We have an existing contract to go to an
outside party to enlist independent experts to be able to
conduct this review, and they will provide a report to the
Scientific Integrity Officers of the Fish and Wildlife Service
and the Bureau of Reclamation.
Chairman Broun. How will you ensure that the experts have
sufficient independent scientific expertise and investigative
backgrounds?
Dr. Frazer. Through--our scientific integrity policy of the
Department lays out the process for conducting such reviews and
we will be--we have developed a statement of work that lays out
the qualifications and requirements of the parties that will be
involved.
Chairman Broun. Do you believe the Inspector General should
be involved in this inquiry?
Dr. Frazer. The Department's science integrity policy and
the Services' procedures don't have a role for the Inspector
General in these sorts of things. This is part of our
management structure within the Department and the Fish and
Wildlife Service.
Chairman Broun. Will the final report be made public?
Dr. Frazer. The report will be provided to the Science
Integrity Officers of the two bureaus and they will determine
whether there is any basis for any sort of action. If there is
an action, it would be a conduct issue and it would be the
personnel and human resources policies of the agencies that
would be brought into play, and that would be the basis of
determining whether that report would be made public.
Chairman Broun. Well, I hope it is made public. Have you
all seen Judges in--utilize their own political philosophy and
bend and try--in making decisions on ESA determinations?
Dr. Frazer. There are many different Judges and many
different opinions, and I am not one that spends much time
trying to analyze any philosophy behind those rules so----
Chairman Broun. Well, I think we have seen in many
instances where Judges have used their own political
philosophies have bent to affect how they judge things and not
entirely independent and I wonder in this case whether that
might be so.
Dr. Wilkins, the Endangered Species Act requires listing
determinations to be made purely based on best available
science. Are policy decisions ever made while conducting
science and do scientists make choices and decisions in the
course of their work?
Mr. Wilkins. That is a great question and there is a lot of
nuances there. So I am in the business of training scientists,
and that means we teach them to think. And in addition to
research methodologies and statistical methods and
interpretations of scientific data, we teach them how to test
policy, how to develop policy innovations, how to determine the
implications of policy. So there are policy questions and there
are policy implications that intentionally become part of
scientific work. I think that is appropriate and it is mostly
appropriate because that is the only way to know the difference
between objectivity and when you are using a particular policy
preference to shade or distort your scientific findings. And so
that ends up being the only way to maintain objectivity and
integrity I believe is to know the difference and to know the
difference of when you are presenting science versus when you
are presenting policy implications. We just simply need to ask
questions in such a way as to best inform management through
our science, and management is a form of policy.
Chairman Broun. Thank you, Dr. Wilkins. My time has
expired.
I now recognize Ms. Edwards for five minutes.
Ms. Edwards. Thank you, Mr. Chairman. And again thank you
to the witnesses.
Dr. Grifo, I would like to turn to you. I wonder if you
have some assessment of--during Mr. Manson's tenure at the
Interior Department that one of the most egregious examples of
politicization of science occurred, could you provide the
Committee a thumbnail account of what happened during his
tenure and in the years immediately after he left service in
2005?
Dr. Grifo. Sure. I mean I think, you know, there were many,
many, many species that were interfered with. I think what was
going on was the modus operandi--if you will forgive that
expression--was really--there were three things, and it was
really Ms. McDonald who was at the core of these issues. She
consistently called field biologists in the field, used foul
language, bullied them, was incredibly abusive. You don't have
to believe me; it is in the IG report. That was one thing. I
think the second was that she sent internal Department of the
Interior documents out to various places, to an online gaming
friend and to the Farm Bureau in California and other places.
But the third which I think is the most incredible is that she
changed scientific results. If we look at Gunnison sage-grouse,
Gunnison's prairie dog, white-tailed prairie dog, roundtail
chub, bull trout, marbled murrelet, Arizona bald eagle,
tabernaemontana, delta smelt, I could go on and on. It is a
very long list. But what I find the most remarkable are the
times that she did it and tracked changes in a Word document
and we were able to obtain through FOIA requests and other
means those documents with her changes that were clearly, you
know, scientific edits in those documents. So I don't know how
much more, but I could obviously talk for a while.
Ms. Edwards. Thank you. I appreciate that, Dr. Grifo. And I
just wonder if you know how many ESA listings had to be
withdrawn in the wake of the IG's finding on Ms. McDonald's
misconduct?
Dr. Grifo. There were investigations into a number of
species. You know, some were revised but not all.
Ms. Edwards. Thank you.
Mr. Frazer, I wonder if you can add any insight into how
much work had to be redone at Interior after Mrs.--Ms. McDonald
resigned?
Dr. Frazer. At the request of the Deputy Secretary at the
time, the Service reviewed determinations that had been made
and concluded that there were eight listing determinations,
either petition findings or listing determinations or critical
habitat designations that warranted revisiting and the Service
revisited all of those and revised those determinations.
There were other cases in which there have been merits
challenges that were filed and we either lost those cases or we
determined that we didn't have a defense and had to take them
back and redo those. And I don't have a comprehensive list of
all of those right now.
Ms. Edwards. Thank you, Mr. Frazer.
And now I would like to turn to Judge Manson. I noticed in
your opening statement that you actually challenge the
integrity of the IG, which strikes me because if that is--you
know, if that is in question, then I think we have some other
questions.
But I would like to know whether the actions that you
supported ended up costing the government a significant amount
of money in having to redo studies and legal findings due to
Ms. McDonald's direct interference. She was your employee.
Mr. Manson. First of all, I did not challenge the integrity
of the IG. I meant to challenge the integrity of those who
brought into question some of those activities during the time
that I was there and the time that I subsequently was a law
professor for 4 years.
Ms. Edwards. But Judge Manson, you are aware of the rework
that had to be done at the--within the Department because of--
--
Mr. Manson. I am aware of some of----
Ms. Edwards. Let me finish--because of Ms. McDonald's
conduct, and it is estimated that it may have cost at least
hundreds of thousands of dollars. That is taxpayer money that
that cost. Do you have a disagreement with that estimate? Is it
too low? Is it too high? Is it just about right? Can you put a
price on what that mismanagement under your tenure cost the
American taxpayer?
Mr. Manson. I have no way of putting a price on something
that I don't regard as mismanagement.
Ms. Edwards. Well, the IG--I mean whether you regard it
that way or not, I mean the Inspector General certainly
regarded it as mismanagement enough to question the integrity
of dozens and dozens of scientific-based--what we thought was
scientific-based research at the Department. And so I would
urge you if you have some other estimate of that cost that you
would please submit for our record because we would like to
stack it up against the IG's conclusions.
Mr. Manson. I am not----
Ms. Edwards. And with that, I--my time has expired. Thank
you.
Chairman Broun. Thank you, Ms. Edwards.
I now recognize Dr. Benishek for five minutes.
Dr. Benishek. Thank you, Mr. Chairman.
Like all my other colleagues in this room today, I
routinely hold town hall meetings throughout my district, and a
few months ago I was approached by one of my constituents as I
left the town hall and he was holding a very large garbage bag
and asked if I would like to take a look. This was Mr. John
Koske of Bessemer, Michigan. And Mr. Chairman, the bag held the
carcass of a cat from his farm that had been killed by a grey
wolf. And he confronted me with this picture that came out of
it. The town hall was pretty shocking. I would like to submit a
copy of this photo for the record.
Chairman Broun. So ordered.
[The information appears in Appendix II.]
Dr. Benishek. Unfortunately, farmers are not the only--
pardon me?
Chairman Broun. So ordered.
Dr. Benishek. Thank you.
Unfortunately, farmers are not the only constituents with
grey wolf problems. I receive letters from families with family
pets who have been killed by wolves in their own backyards.
Hunters in my district feel threatened by the wolf as they have
no recourse against the animal. It worries me that many of my
constituents feel that they can no longer enjoy the outdoors
due to an out-of-whack wolf population.
The most recent study completed by the Michigan DNR early
this year indicated a minimum of 687 wolves in Northern
Michigan. The goal for recovery in Michigan was 200 wolves. The
Fish and Wildlife Service, Michigan DNR, and my constituents
all agree that the wolf should be delisted in Michigan.
Mr. Frazer, can you speak to the science that impacted the
Service's decision to begin this process?
Dr. Frazer. Wolves are originally listed under the
Endangered Species Act back in the '70s after they had been
persecuted in the lower 48 States by elements of the former
Fish and Wildlife Service at--when times and societal values
were different. At that point, wolves existed in the lower 48
only in Northern Minnesota. We have we believe successfully
recovered wolves. We have a proposal to delist wolves. In the
western Great Lakes out right now we intend and expect to make
a final determination on that by the end of this calendar year.
We believe in the wolves in the western Great Lakes have
recovered and it is appropriate to have them again managed by
the States.
Dr. Benishek. Have there been any political issues that
have impacted this process?
Dr. Frazer. No, sir.
Dr. Benishek. Mr. Frazer, would your agency ever consider
giving a partial or a state waiver to the ESA?
Dr. Frazer. I am not sure what you mean by a state waiver.
Dr. Benishek. Well, to allow the States to manage the
population without--I mean at this point in time.
Dr. Frazer. We work within the authorities we have under
the Act and there are certainly ways in which States can assume
management lead for listed species. In the northern Rocky
Mountains, the States of Idaho and Montana had approved
management plans for wolves that allowed them under our
experimental population rules to essentially be the lead
management agency----
Dr. Benishek. Thank you.
Dr. Frazer. --to administer the Act.
Dr. Benishek. Mr. Manson, the political fight over the
delta smelt has been wrapped up in environmental terms but what
about the impact of these rules on your users? I mean how are
California farmers and other water users impacted by the
restrictions that have been contemplated?
Mr. Manson. Well, the Court found in 2009 that there were
severe economic and social dislocations as a result of the
application of the 2008 Biological Opinion. That included
unemployment, it included a loss of crops, it included even
things that go so far as foreclosures of homes in the Central
Valley, so the impact has been quite severe.
And I would like to say with respect to Judge Wanger, he is
a neutral Judge who has ruled against water users and ruled in
favor of environmental interests at times and ruled against
environmental interests at other times and in favor of water
users. And I sat in the courtroom at each of the hearings at
which the witnesses testified and as a former litigator and a
former Judge myself, I was appalled at the testimony that was
given and I believe that his characterization of that testimony
was correct.
Dr. Benishek. Thank you very much.
Mr. Chairman, I yield back my time.
Chairman Broun. Thank you, Dr. Benishek.
I now recognize Mr. Miller for five minutes.
Mr. Miller. Thank you, Mr. Chairman.
The reason we have these hearings is to build a factual
record for conduct--for decisions before Congress, whether they
be about legislation or about funding. And the Chairman is
correct in his opening statement--there can be honest
disagreements between honest people but frequently the question
comes down to what to believe and that comes down to who to
believe. So questions about the credibility of the people who
testify before us is entirely proper just as it is in court. I
have raised questions before about the financial interests that
have been undisclosed by witnesses at other hearings before
this Subcommittee and others. There has been vehement criticism
of those questions by Members of the majority, but we just
heard today in the Chairman's opening statement questions about
the credibility of environmentalists, of environmental group
because their income came in part from litigation that they
pursued over ESA decisions.
Again, going to credibility of witnesses or credibility of
scientists, the Chairman questioned in his opening statement or
quoted some District Court Judge in California I have never
heard of as saying that a scientist's testimony was the
testimony of a zealot, that the Agency had acted in bad faith
and attempted to mislead and deceive the Court. I don't know
anything about that Judge at all. The Chairman's testimony
suggested that that must be the gospel truth if it was a Judge
saying it, but then he went on in questions and said that
Judges use their own political philosophies instead of fact-
finding. So it appears that it is--I mean I think we should
properly consider the credibility of witnesses, whether they
have an interest, whether they--you know, that is not to say
that everybody--anybody who is consciously lying but where we--
what our financial interests are has a tendency to color what
we think. And that is something we should properly ask.
And also instances of conduct. Judge Manson, there have
already been questions about the Inspector General's report. I
think, Mr. Chairman, that report should properly be part of the
record today and I would like to move it into evidence of the
hearing as part of the record.
Chairman Broun. Without objection, so ordered.
[The information appears in Appendix II]
Mr. Miller. Mr. Manson, Ms. Grifo said that most of the
conduct was by Julie McDonald. The findings--not allegations--
findings of the Inspector General are pretty striking, that she
did in fact consciously edit findings of the--about the--under
the ESA, that many were set aside, two were apparently set
aside by courts as arbitrary and capricious, and that she had
improperly disclosed confidential information within the
agency, outside of the agency, and on and on, and found that
you had--when you were interviewed, there were no--you had no
criticisms at all of her conduct. Do you still have no
criticisms at all of her conduct?
Mr. Manson. I have no criticisms of her conduct.
Mr. Miller. Have you kept in touch with her? Do you know
what she is doing now?
Mr. Manson. I do.
Mr. Miller. What is she doing now?
Mr. Manson. She is a consultant.
Mr. Miller. And do you continue to have professional
relationships with her?
Mr. Manson. From time to time.
Mr. Miller. Has she done any work for Westlands?
Mr. Manson. She has.
Mr. Miller. Okay. Has she done any work recently for
Westlands?
Mr. Manson. I don't know that.
Mr. Miller. You are counsel for Westlands, right?
Mr. Manson. Yes, but I--she doesn't do legal consulting.
Mr. Miller. Okay.
Mr. Manson. I don't know the last time she did anything
specifically for Westlands.
Mr. Miller. All right. Can you tell me what the Center for
Environmental Science Advocacy and Reliability is?
Mr. Manson. Yes, that is a nonprofit organization that I
began while I was a law professor at McGeorge School of Law.
Mr. Miller. Okay. And are you the Executive Director of
that now?
Mr. Manson. I am.
Mr. Miller. Are you compensated for that?
Mr. Manson. No, I am not.
Mr. Miller. You are--okay. You act entirely as a volunteer
in that?
Mr. Manson. Yes.
Mr. Miller. All right. What is the funding for CESAR?
Mr. Manson. It comes from donors of all sorts, and as I
understand the law, the donors' lists may remain confidential.
Mr. Miller. All right.
Mr. Chairman, I will yield back my last 30 seconds.
Chairman Broun. Okay. Thank you, Mr. Miller.
The--now, I will yield the Chairman of the whole committee,
Mr. Ralph Hall. Chairman Hall, you are recognized for five
minutes.
Chairman Hall. I will not use my five minutes.
I want to inquire of Mr. Vincent-Lang. The Fish and
Wildlife Service's testimony mentions that the Policy Regarding
the Role of State Agencies in Endangered Species Act
Activities. This policy recognizes that States possess broad
trustee authority over fish, wildlife, plants, and their
habitats within their border as well as scientific data and
valuable expertise on the status and the distribution of such
species and habitats. Can you tell us a little about your
experience with this policy?
Mr. Vincent-Lang. Well, the policy I think is well
intentioned. However, it has been----
Chairman Hall. I don't know that I agree with you to start
with, but go ahead.
Mr. Vincent-Lang. Well, I think it is well intentioned
because it is trying to define a role of States into the ESA
process. However, it has been applied very inconsistently. Our
experience in Alaska is that we are being treated really no
differently than any other stakeholder in the ESA decision
processes. We find this kind of out of the compliance with the
policy. This said, there is an effort underway to reevaluate
this policy and we welcome this and look forward to having the
value and roles of States recognizes in the ESA processes in a
formalized and consistent process for getting the States'
management programs put into place.
I might add that States are well positioned to manage
currently healthy populations and the threats facing them. We
have an excellent history and the tools necessary to manage
species and the threats facing them under our jurisdiction.
This ranges from sustainable harvest programs to habitat
protections for habitats that are under threat. In Alaska we
have an excellent history in our short 50-year statehood no
species have gone extinct underneath our trust
responsibilities.
Chairman Hall. I thank you. We read your testimony. I
admired it, thought it was--maybe my offhand remark to you at
the beginning I would have to withdraw that. I thank you.
I have to withdraw a lot of things I say nowadays.
Dr. Wilkins, your testimony indicates that the State
efforts are more effective and less costly than one-size-fits-
all protections under ESA. I surely agree with that. Would you
like to explain that for the record and what efforts are more
effective and cost-efficient?
Mr. Wilkins. Certainly. It is good to see you,
Representative Hall.
We know the state agencies and state government, at least
in my experience and in the experience of several others has a
set of science resources that simply aren't available to our
federal agencies, not the least of which are the research
extension and outreach components of our State Land Grant
University Systems, our ability for state government to
mobilize forces and mobilize taskforces. We saw an example of
that in Texas just this last year. In fact, if recovery goals
were optionally deferred to the States, I am sure that in many
instances, we would find state-level recovery plans that would
be scientifically reliable, science-based, and actually deliver
greater performance on the Act at a lesser cost than the way
recovery plans are administered at present, sir.
Chairman Hall. I thank you, sir.
And I yield back my time, Mr. Chairman, and I thank you.
And thank you for having the hearing.
Chairman Broun. Thank you, Mr. Chairman.
I now recognize Mr. McNerney for five minutes.
Mr. McNerney. Thank you, Mr. Chairman.
I want to thank the witnesses for your testimony this
morning.
My first question goes to Honorable Manson. As you may
know, I represent a large portion of the San Joaquin Delta,
which is the most important estuary on the West Coast. A
healthy Delta supports jobs for thousands of farmers and
fisherman, small businessmen, and last week I met with senior
officials from the Bay Delta Conservation Plan, which included
a representative from the Westlands District. And I have to say
what I heard was absolutely unacceptable. I cannot accept a
massive canal or tunnel that would severely degrade the water
quality for the entire Delta.
So in your opening statement you mentioned the
constitutional rights, including property rights, and I believe
that we all agree with that. So I have a simple question for
you. Do you think it is okay to use people's lands, to steal
their water, and destroy their livelihoods without their
consent?
Mr. Manson. Well, certainly not.
Mr. McNerney. Thank you.
Mr. Manson. But I think the issue of Bay Delta is one that
is going to require a lot of cooperation from a lot of
different entities. The water users have funded a great deal of
the planning and the habitat conservation aspects of the Bay
Delta plan and have not invaded and stealing anyone's land or
water.
Mr. McNerney. So then by building massive tunnels in the
Delta where people who live there are adamantly opposed and are
not included in the discussion and have been excluded from the
process, is that okay? And that is what has happened. Those are
the facts.
Mr. Manson. Well, I can't speak to the larger Bay Delta
process. There are many moving parts to it, many of which we
don't participate in. We are looking for a stable, reliable
water supply from the Delta and along with that we have funded
investigation--scientific investigations into conservation
efforts in the Bay Delta region.
Mr. McNerney. So you are looking for a stable water supply,
for example, with 15,000 CFS tunnel that would cause tens of
millions of dollars in agricultural losses in the Delta.
Mr. Manson. There is no specific plan at this time.
Mr. McNerney. That is one of the proposals that has been
advocated by Westlands and do you think it is appropriate for
the federal, state, and local agencies to sign agreements to
fund the BDCP without any input from the Delta residents, which
has happened?
Mr. Manson. Well, I don't know that that has happened, but
I will take your word for it.
Mr. McNerney. Okay, thank you.
My next question is for Gary Frazer. The decline of the
Delta ecosystem has important human implications, as you may
know. Poor water quality is a severe threat to local farmers,
and following record water diversions in the 2008 and 2009
periods, the California Salmon Fishery collapsed costing
thousands of jobs. The Central Valley Project Improvement Act
required the Interior to double wild salmon populations by
2002, but unfortunately, we saw the opposite happen; salmon
declined. Doesn't the federal law require us to do more not
less to protect the Delta ecosystem and the jobs that it
supports?
Dr. Frazer. Congressman, I am afraid that I am not an
expert on that particular authority and that program, but I
would be very happy to get back to that specific question in--
for the record.
Mr. McNerney. Okay, thank you.
Dr. Wilkins, I appreciate your thoughtful testimony
actually. You are actually proposing things that might make
sense. Under scrutiny, I don't know yet. But you have been
involved for a number of years with the projects at Ft. Hood,
Texas, which is a major Army installation. This program has
been reported as having very--been very successful in
protecting habitat for the golden-cheeked warblers while also
allowing flexibility to the Army to conduct the exercises they
require.
Mr. Wilkins. Yes.
Mr. McNerney. I believe this is known as a recovery credit
system. Can you talk a little bit about what you have been
doing at Ft. Hood and is that a model that could be used in
other locations?
Mr. Wilkins. Yes, sir, I can. And it is a model that could
be used in other locations. The recovery credit system at Ft.
Hood was a proof of concept. Essentially, we demonstrated that
we could get flexibility for training on a major defense
installation through those actions that might disturb or take
endangered species habitat on the installation. There was
contracts that were let with private landowners who had habitat
on their properties to maintain and enhance that habitat to
more than offset any degradation to habitat that might occur on
a defense installation. Therefore, there was a net benefit to
recovery for that species in that exchange so that we had a
better set of progress towards the recovery efforts on private
lands with private ranchers in Central Texas which, 20 years
ago, would have been unheard of, sir.
Mr. McNerney. All right, thank you. I yield back.
Chairman Broun. Thank you, Mr. McNerney.
The Chair now recognizes Ms. Adams for five minutes.
Mrs. Adams. Thank you, Mr. Chair.
Mr. Frazer, in the view of the Administration, does the
USFWS consider state-run wildlife management plans an important
component of the ESA and species recovery?
Dr. Frazer. We do. We view the State Fish and Wildlife
Agencies as special partners in endangered species conservation
while--before species are listed, they are the agencies that in
almost all cases have the management authority Fish and
Wildlife implants. We recognize the partnership as so important
that under the leadership of former Director Sam Hamilton and
current Director Dan Ashe, we are participating in a specific
task force--Fish and Wildlife Service, National Marine
Fisheries Service, and State Fish and Wildlife agencies to grow
and strengthen the collaborative partnership, and that can
certainly include working together on recovery planning, more
importantly, on conservation of species before they actually
decline to the point----
Mrs. Adams. So it is an important component?
Dr. Frazer. Very important.
Mrs. Adams. If a State specifically incorporates hunting as
a part of their management plan, what is the Administration's
position on the use of hunting as a management tool for species
recovery?
Dr. Frazer. The Act lays out a very narrow exception for
the use--or for the allowance of regulated taking in the
concept of conservation. So to the extent that we have had case
law on application of hunting or trapping programs, it is not
one that gives us a whole lot of latitude, but it is something
we continue to explore in appropriate circumstances.
Mrs. Adams. Can you please provide what scientific criteria
USFWS uses to determine the likelihood of a species being at
risk of extinction over a 50-year period or a 300-year period?
Please provide the specific criteria to justify such lengthy
timelines. Do you have that with you?
Dr. Frazer. We don't have specific criteria----
Mrs. Adams. Can you provide that?
Dr. Frazer. You are referring I believe to what and how we
determine what is foreseeable future in determining whether a
species is a threatened species?
Mrs. Adams. Do you have specific criteria for that?
Dr. Frazer. No, we do not.
Mrs. Adams. So how do you determine?
Dr. Frazer. On the basis of the best available scientific
information at the time of the listing determination.
Mrs. Adams. Mr. Chair, I would like to have them for the
record bring forth that kind of information to the Committee.
Chairman Broun. Ms. Adams, we are going to allow them to
answer any written questions--or ask them to answer any written
questions, so you should be able to get that information.
Dr. Frazer. Congresswoman, we certain lay that out in
detail every time we interpret that phrase in the context of a
listing determination, so we could certainly----
Mrs. Adams. So it is different for each time as you go
along?
Dr. Frazer. It is.
Mrs. Adams. Okay. USFWS recently settled lawsuits with
litigants WildEarth Guardians and Centers for Biological
Diversity to make the decisions on hundreds of species within
an agreed-upon timeline. Can you please explain how this
settlement comports with the ESA as written given that it
appears to remove any opportunity for public input or comment,
including that of outside scientists and experts in the study
of species under consideration?
Dr. Frazer. The settlement simply resolved outstanding
deadline litigation that was facing the Service. We were not
meeting the deadlines that were laid out in the Act.
Mrs. Adams. So does it stop--because it appears to stop any
input from the public, any comments from the public, experts?
Dr. Frazer. Absolutely not. As I said in my written
statement, we will be making listing determinations through the
rulemaking process with public notice and comment on all of our
proposals, independent peer review. They will go through the
standard process that has extensive opportunity to public
engagement.
Mrs. Adams. Well, the two settlements recently in Alaska,
the USFWS agreed to dates after which the Service will no
longer be able to consider certain species to--in Alaska to be
candidate species. Were the State of Alaska and its wildlife
biologists consulted in the decision on how to prioritize these
species for these settlements' imposed deadlines?
Dr. Frazer. I am not--I don't know what circumstances you
are referring to.
Mrs. Adams. Okay. Well, we will have to submit that so you
can give us the answer to that.
Dr. Frazer. We would be happy to respond for the record.
Mrs. Adams. Because I would like to know if the State was
considered.
You state in your testimony that we are facing an
extinction crisis, yet later on in your testimony you say that
ESA is a success because ``relatively few observed extinctions
have occurred in the United States during the last 4 decades.''
If that is the case, where is the crisis you are talking about?
Dr. Frazer. The Endangered Species Act was set up as a
safety net. We extend the provisions of the Act to----
Mrs. Adams. I am asking where the crisis is.
Dr. Frazer. It is on the number of species that are at risk
of being lost from our Nation's biodiversity.
Mrs. Adams. Would you not agree that your statements kind
of contradict each other?
Dr. Frazer. I don't believe that they do contradict.
Chairman Broun. Thank you, Ms. Adams.
The Chair now recognizes Mr. Tonko for five minutes.
Mr. Tonko. Thank you, Chairman Broun.
Welcome to our panelists. I appreciate your input.
I have here an Anchorage Daily News article from May 25 of
I believe 2008 entitled, ``Email Reveals State Dispute over
Polar Bear Listing.'' And I ask that it be made part of the
record, Mr. Chair.
Chairman Broun. Without objection, so ordered.
[The information appears in Appendix II]
Mr. Tonko. Thank you.
The articles reports allegations that State scientists were
not all in agreement over then-Governor Palin's decision to
have the State oppose listing the polar bear as endangered.
This story is interesting to me because of a new policy of your
new Governor, Governor Parnell. That policy states, ``Once a
department position or policy is established, employees must
present or adhere to such a position or policy when
representing the Alaska Department of Fish and Game whether
directly or through use of its affiliation or resources.'' In
plain English, this indicates that once the State denies that a
species is endangered, as the State has with the polar bear and
beluga whale, State employees including scientists cannot be
involved in any program or study that is built on an assumption
that they are endangered. All a scientist can do, in my
opinion, is repeat the State's position regardless of facts.
I would like to enter, Mr. Chair, an Anchorage Daily News
article from June 6 of this year on this policy at this point
in the record.
Chairman Broun. Without objection, so ordered.
[The information appears in Appendix II]
Mr. Tonko. Thank you.
This policy has had immediate consequences. The National
Marine Fisheries Service, NMFS, has removed two Alaska State
scientists from the Cook Inlet Beluga Whale Recovery Team
because the state policy directly conflicts with the purpose of
the scientific panel.
Now, Mr. Vincent-Lang, you have been quoted in the Alaska
press as supporting this new policy. Is that accurate? Do you
support this policy?
Mr. Vincent-Lang. Through the Chair, Mr. Tonko, yes, I do
support the policy. I think the policy is meant to encourage
frank and open discussion regarding how the state position is
set up, but once we have that state position defined, I think
it is our responsibility then as an agency to have a single
position so that the public isn't confused about that position
and we are clearly articulating it. Nothing in that policy
though prohibits an honest and open debate about how we are
going to reach a position.
Mr. Tonko. But I could lead to non-scientists making that
policy where there was suggestion that there was not--there
wasn't scientific support for some of the administrative
decisions.
Mr. Vincent-Lang. Well, as you can probably understand even
in your own staff there is probably a wide range of views on
any single issue. I think it is the responsibility of the
leadership of the Department to take all those divergent views
and come up with a single position that best reflects our
agency's position. We did that, and in the case of the polar
bear article, there was a single individual that had a
different perspective than the entire leadership of the
Department.
Mr. Tonko. Um-hum.
Mr. Vincent-Lang. In the case of the Cook and the beluga
whale, we asked our biologists to simply represent those views
when they were participating in the recovery panel. And we
offered them the opportunity if they didn't want to do that to
participate in that panel on their own separate from the
Department.
Mr. Tonko. Now, Mr. Vincent-Lang, given that the policy
requires state employees to articulate no position but the
State's position, could even tell us here today under oath if
you disagreed with that policy without potentially facing
employment consequences back home?
Mr. Vincent-Lang. If I disagreed with that policy?
Mr. Tonko. Um-hum.
Mr. Vincent-Lang. Well, I don't. I agree with the policy
so----
Mr. Tonko. To Dr. Grifo, you have been following scientific
integrity issues for many years and head up UCS's project on
this subject. Do you have any comment that you would share with
this panel as to--that you would want to make about the State
of Alaska's policy regarding its state scientists on scientific
panels?
Dr. Grifo. Yes, thank you. I mean I find this policy to be
extremely troubling. I am not aware that when you become a
scientist and gain state employment that you give up your First
Amendment rights. I mean I think the Federal Government and the
scientific integrity policies and the communication policies
that we are working on within those call for a personal views
exception where a scientist may stand up and be very clear that
they are now expressing their own personal view and not the
view of the agency. I also believe that it is incredibly
important in these conversations to capture dissenting
opinions. Everyone isn't going to agree and I think sometimes
we think, oh, that confuses the public and it is hard, but I
think it is okay to have those dissenting opinions represented
in the record.
Mr. Tonko. Um-hum. Now, with dissenting opinions----
Chairman Broun. The gentleman's time has expired.
Mr. Tonko. Okay.
Chairman Broun. I thank the witnesses for you all's
valuable testimony and the Members for their questions.
The Members of the subcommittee may have additional
questions for the witnesses and you can ask those and Ms. Adams
can, too. And we ask all of you to please respond to those in
writing. The record will remain open for two weeks for
additional comments from Members.
The witnesses are excused and the hearing is now adjourned.
And thank you all.
[Whereupon, at 11:35 a.m., the Subcommittee was adjourned.]

Appendix I:

----------

Answers to Post-Hearing Questions

Responses by Mr. Gary Frazer, Assistant Director,
Endangered Species, U.S. Fish and Wildlife Service

Questions submitted by Chairman Broun

Q1. How often is the precautionary principle the basis of a listing
decision? If two competing scientific views exist, does the U.S. Fish
and Wildlife Service (USFWS) determine that the ``best available
science'' is the one that allows for greater protection?

A1. We never use the precautionary principle as the basis of a listing
decision unless ordered to do so by a court. In our view, the
precautionary principle has no applicability on the preliminary
question as to whether a species is in fact threatened or endangered.
Instead, as the Act requires, we make listing determinations according
to the statutory definitions of ``threatened species'' and ``endangered
species,'' considering the factors and standards found in section
4(a)(1) and (b)(1). Likewise, we also do not use section 4(b)(1)'s
requirement that listing determinations be based solely on the best
scientific and commercial data available as a justification for picking
whichever of competing view allows for greater protection. There is
often limited or conflicting data available when we make decisions. We
use our professional judgment and expertise to review the data to come
to what we conclude is the most accurate, not necessarily the most
protective, outcome.

Q2. USFWS's testimony alludes that when the Service makes a
``warranted, but precluded'' finding to a listing petition, it is based
on a prioritization of resources. What scientific information is used
to make these prioritizations? How do you determine that one species
deserves protection now, but another is precluded from protection?

A2. In determining whether a proposal will be developed for a species
that warrants listing under the ESA or if the development of that
proposal is precluded by other higher priority listing actions, the
Service considers primarily two factors: (1) the listing priority of
the species based on the Service's 1983 ``Endangered and Threatened
Species Listing and Recovery Priority Guidelines'' (LPN guidelines) and
(2) budgetary and staff resources available to work on the action. The
LPN guidelines established a priority ranking system from one to 12
that takes into consideration scientific information related to the
taxonomic classification of a species, the magnitude of threats to the
species, and the immediacy of threats to the species. Species most at
risk (LPN of 1) are considered by the Service to be the top priority
species for which a proposal to list will be developed once budgetary
and staff resources are available. Species for which a warranted-but-
precluded determination has been made are considered ``Candidate
Species.'' The statuses of Candidate Species are reviewed on an annual
basis and their priority rankings are updated as appropriate.

Q3. What science was used in the Service's settlement agreement for
the six year work plan? Is it feasible to make an informed, scientific
decision about the protection status of 250 species in six years?

A3. The scientific information used in developing the work plan was
related to the status of each of the Candidate Species and their
priority ranking per the LPN guidelines (discussed in response to
question 2) when the species were initially determined to be candidates
and as part of the annual review of Candidate Species. The Service
carefully considered the workload associated with making informed,
science-based decisions about the species outlined in the workplan,
ensuring that robust peer review and public comment will take place
before any decision is made. We are confident that we can complete the
workplan, assuming that we are able to maintain the level of funding
and staffing we have had available in recent years.

Q4. What does the term ``best available science'' mean to USFWS? Does
the Service ensure that all science used is peer-reviewed? Can the
Service use ``gray'' data, or unconfirmed information, as ``best
available science'' if nothing else exists?

A4. The phrase ``best available science'' means a consideration of all
relevant known scientific and commercial information available when
making a determination. The Service considers a wide range of
information in its decision-making process including peer-reviewed
published literature, ``gray'' data, traditional ecological knowledge,
empirical information, and other types of information. It is the
responsibility of the Service to consider all of this information,
assess its scientific reliability, and use it appropriately and
transparently in making its decision. The weight we give information in
making listing determinations takes into account indications of
reliability, such as peer review.

Q5. In your opinion, what percentage of listings is initiated from
Federal scientists and what percentage of listings are initiated due to
petitions? What is the difference in the quality of the science
generated by Federal scientists versus outside groups?

A5. Over the last ten years the Endangered Species Listing Program has
been driven, in a large part, by litigation and petitions. Greater than
90 percent of listing determinations during that timeframe were
initiated through the public petition process. The quality of petitions
varies greatly--some are wholly inadequate, while some are every bit as
impressive as the work conducted by our own biologists. However, the
same data standards and rigorous process of evaluating the best
scientific information available are used when determining whether a
species warrants listing regardless of whether the action was initiated
through a petition or by Service scientists.

Q6. Would the Service support reforming the petition process to
prohibit the mass listing petitions that have become commonplace in
recent years? Has the Service evaluated the quality of science used in
those listing determinations?

A6. The Service does not have a position on reforming the petition
process to prohibit mass listing petitions. The Service evaluates the
science provided in large listing petitions, such as the one related to
404 aquatic species in the Southeastern United States, as it would any
other petition. In addition, the Service reviews the information in its
files about the petitioned species to complete its 90-day finding.
Ultimately, the Service makes individual findings for each species as
it would with individually-petitioned species.
The same data standards and rigorous process of evaluating the best
scientific information available, conducting peer review, and
soliciting public comment are used when determining whether a species
warrants listing regardless of whether the action was initiated through
a petition or by Service scientists.
In the recent multi-district litigation, the Service and two of the
most frequent plaintiff groups (WildEarth Guardians and the Center for
Biological Diversity) entered into two separate but complementary
settlement agreements. One settlement agreement limits the number of
species that can be petitioned by the Guardians during the six year
workplan. The other settlement agreement provides for various
consequences that will be triggered if the Center exceeds a specified
number of deadline-related lawsuits in any given year. Together, these
two plaintiffs have submitted the majority of petitions in recent
years. As a result, we expect the number of petitions will decrease
notably. Furthermore, in accordance with the President's Executive
Order to review and evaluate government regulations and to provide for
a more balanced listing program that still allows for public
participation, the Service is considering a variety of ideas for
increasing the effectiveness and efficiency of many programs, including
the petition process.

Q7. What percentage of the Service's Endangered Species Act listing
budget is expected to be used on completing the work required by the
settlement agreements? Will this preclude the Service from working on
other species that might have a higher priority?

A7. The multi-district settlement agreements allow some flexibility in
our rulemaking commitments. The percentage of our budget that is
expected to be used on completing work required by the settlement
agreements is contingent on our appropriation level. While our highest
priority is to fulfill our commitments under these settlement
agreements, which will comprise the majority of our work, these
commitments will not preclude us from addressing emergency listing
actions that may arise during that time. In addition, if we determine
that compliance for the settlements would prevent us from working on
crucial, high-priority listing actions, we could seek modification of
the settlement, either with the agreement of the plaintiffs or from the
court.

Q8. What is the Service planning to do with any new listing petitions
filed during the process of complying with the settlement agreements?
Would they be placed on the candidate species list until the settlement
work is completed?

A8. Because the multi-district litigation settlement agreements limit
the number of species that can be petitioned by or incentivizes
restraint on the part of the plaintiffs during the six year workplan,
as these plaintiffs represent a large contingent of all our listing
requests we expect the number of petitions will decrease notably. We
intend to complete 90-day findings for those petitions that we receive
over the course of the six year workplan. However, the degree to which
we are able to make additional 12-month findings on new petitions will
depend on our progress in implementing our workplan and funding and
staffing available. To the extent that we identify additional species
that warrant listing during the six year workplan, but are not
emergency listing actions, we anticipate that in most cases they would
be added to the candidate list at least until completion of the
workplan.

Q9. USFWS's testimony highlights that the Endangered Species Act
requires decisions to be made ``solely on the basis of the best
scientific and commercial data available'' under deadlines imposed by
the Endangered Species Act. However, these deadlines are policy
choices, not scientific ones. How would science be impacted if your
agency was given more time to review available data? What if it had six
months to make an initial determination instead of only 90 days?

A9. No matter the time frame allotted for an initial determination for
a petition finding, there is always the potential for workload to
overwhelm the resources available. If resources were kept consistent
with funding and staffing in recent years, we have forecasted an
ability to handle our existing workload (as outlined by the six year
workplan) within the existing statutory 90-days for initial
determination on petitions and 12-months for a species status review in
a thorough and scientifically defensible manner.

Q10. USFWS's testimony notes that the reason for the deferral of
action related to ``warranted but precluded'' listings was ``because of
the need to allocate resources for other work.'' To what other work is
the testimony referring? Did species protection suffer as a result of
this diversion of resources?

A10. The other work to which the testimony is referring is work that
was court-ordered or related to other settlement agreements, in
addition to work on other higher priority candidate species with lower
LPNs. These activities are not a result of a diversion of resources,
but rather a direction of limited resources to the highest priority
activities. Furthermore, the high volume of deadline-related litigation
required the Service to work on initial 90-day and 12-month petition
findings to the exclusion of listing determinations for existing
candidate species. These factors were a motivation behind the multi-
district litigation settlement agreements, which outline a plan for
making listing decisions on the current list of candidates, and will
also reduce new deadline litigation cases and the number of new
petitions. These factors were also the motivation for the petition
subcap language the Administration requested and the Congress included
in the Interior appropriations bill.

Q11. How much in legal fees does the U.S. government expect to pay in
the two recent settlements with WildEarth Guardians and the Center for
Biological Diversity? How is this amount determined?

A11. The amount of any fees awards is subject to ongoing and
confidential settlement negotiations between the Department of Justice
(DOJ) and both plaintiffs. The two settlement agreements resolved
thirteen separate lawsuits that were consolidated in these MDL
proceedings, and the parties are currently attempting to settle the
fees-related claims for all of these lawsuits. Because the parties'
fees-related negotiations are complex and ongoing, it is not possible
to estimate the amount of any fees awarded at this time. If the parties
are unable to agree on the amount of any fees awards, the court will
determine the appropriate amount. As you are aware, in such cases, the
prevailing party is entitled to recover its additional costs for
litigating the amount of the award, should the parties be unable to
reach agreement.

Q12. The USFWS has a practice of denying ESA ``enhancement of survival
permits'' for the importation of endangered species trophies,
regardless of the fact that the Service has admitted that hunting of
certain foreign species and importation by U.S. hunters of the trophies
of those species enhances the survival of those species. [68 Fed.Reg.
49512 (Aug. 18, 2003)]
How does the Service scientifically justify the denial of
such permits, and how does the Service reconcile the denial with its
statutory obligation to encourage foreign governments to conserve their
species? [Endangered Species Act, 16 U.S.C. Section 1537]

A12. The Service believes that a properly managed, scientifically based
hunting program can provide benefits to certain species in the wild.
The Service is supportive of hunting programs that stimulate stronger
conservation for both game and non-game species. Consequently, we issue
hundreds of import permits every year for trophies of species that are
listed as threatened. However, not all hunting programs are identical,
nor do they all provide a benefit to the hunted species, particularly
endangered species.
All applications received by the Service are reviewed on a case-by-
case basis using the best available scientific and commercial
information. Requests to import endangered species, whether a hunting
trophy or scientific specimen, are evaluated based on the issuance
criteria established in our regulations (50 CFR 17.22(a)(2)) to
determine whether the importation of the specimen would enhance the
propagation or survival of the species. For hunting trophies, we are
particularly interested in determining if the species is being managed
according to sound scientific principles and professionally accepted
management practices, including whether legal hunting is effectively
controlled at sustainable levels and illegal hunting is being
effectively controlled or eliminated, and whether the hunting program
provides a benefit to the species. Benefits can be direct--by
generating funds that support the management program--as well as
indirect, such as by providing economic benefits to local communities
so that they support the protection and maintenance of the species.
To date, with the exception of bontebok, which are successfully
managed on South African ranches and game reserves, we have not been
able to find that the killing of an animal listed as an endangered
species through sport hunting provides sufficient enhancement to
overcome the loss of the animal from a population that, by definition,
is currently in danger of extinction. However, species with a listing
status of threatened would not have so high a threshold for
enhancement, thus increasing the likelihood we could allow the import
of trophies obtained through well-managed sport hunting program.
The Service's statutory obligation to encourage foreign governments
to conserve their species is accomplished through various measures and
is not limited to authorizing the import of hunting trophies. For
example, the Service may provide grants that support the development of
management programs for species, including anti-poaching measures,
which may eventually lead to the improvement of the status of the
species and the possibility that we could then allow the import of
trophies. Permit denials often result in consultations between the
Service and the foreign government to provide them guidance on where
improvements are needed to allow trophies to be imported into the
United States. This generally means achieving a consistent level of
protection and management across countries and across species, often
within the same geographic region (e.g., southern Africa).

Q13. Listing Decisions and Recovery Plans are required to undergo peer
review. Are Consultations and Biological Opinions also required to
undergo peer review?

If they are not required to undergo peer review, should
assessments and BiOps that have such a significant impact on land-use
be required to undergo peer review?

If they are required to undergo peer review, is that
peer review conducted by an external body, or by other agency staff?

If they sometimes undergo peer review, how does the
agency determine when to seek peer review, and how does the agency
determine whether the peer review will be internal or external?

A13. The Service generally does not incorporate independent peer review
in section 7 activities, including biological opinions. All Service
biological opinions undergo internal management review before they are
distributed to the action agency. The extent of internal review varies
and depends largely on the degree of complexity or controversy of the
proposed Federal action as well as the extent of any scientific
uncertainty. Biological opinions that conclude the proposed action is
likely to jeopardize the continued existence of any listed species must
be reviewed and approved by a Regional Director. Biological opinions
that conclude the proposed action is not likely to jeopardize the
continued existence of any listed species must be reviewed and approved
by Field Office supervisors.
The statute and our implementing regulations focus our efforts on
providing timely consultation and biological opinions to Federal action
agencies to help them satisfy their obligations under the ESA without
unnecessarily delaying their decisions. The statute specifies that
consultation is to be concluded within 90 days of initiation, and that
the Federal agencies (the action agency and the Service) may extend
this timeline by mutual agreement. However, the statute further
specifies that when an applicant is involved, the Federal agencies may
not extend the consultation for more than 60 days without the consent
of the applicant. The implementing regulations further specify that the
Service is to deliver its biological opinion within 45 days of the
conclusion of consultation, which means that consultations are expected
to be completed in 135 days, unless extended. Such a timeline does not
lend itself to conducting external peer reviews.
In unusual situations, the Service and the Federal action agency
may choose to conduct a peer review of a biological opinion. The
decision to undertake such a review is generally based on the
complexity and level of controversy as well as the extent of any
scientific uncertainty regarding the effects of the action and is only
implemented with the mutual agreement of the Service and the Federal
action agency. The decision to undertake such a review requires the
Federal action agency to accommodate the additional time commitment and
to handle the expense and logistics of the peer review.

Q14. What efforts will you and your agency undertake to investigate
the actions of USFWS employee Jennifer Norris, accused of providing
false or misleading testimony before Judge Wanger? How long is this
investigation expected to take? Will outside individuals be brought in
to undertake this investigation or will it only be conducted by agency
personnel? If so, please list the individuals that will be involved in
the investigation along with their affiliations and titles. Will the
investigation results be made public?

A14. We firmly believe that wise decisions about the future of the Bay
Delta must be guided by the best available science. The Service stands
behind the consistent and thorough work that our scientists have done
on the Bay Delta over many years. Their expertise and professionalism
remain vital to the success of our efforts to meet the co-equal goals
of improving water reliability and restoring the health of the Bay
Delta.

A14. We also believe that, when questions arise regarding the integrity
of scientific work, it is important to resolve them swiftly,
independently, and decisively. The Service has taken the comments by
Judge Wanger very seriously and treated as allegations of scientific
misconduct under the Department of the Interior Manual 305 DM 3
Integrity of Scientific and Scholarly Activities. The Service retained
a contractor, Atkins North America, to engage a panel of independent
reviewers who are external to both the Service and Bureau of
Reclamation to evaluate the testimony and declarations made to the
court by Dr. Norris. The panel was asked to determine whether the
testimony and declarations made to the court were appropriately based
upon the extensive scientific record on this issue. The panel produced
a report which has been evaluated by the Service's Scientific Integrity
Officer. The panel found that, although certain of the judge's
questions could have been answered more clearly, Dr. Norris committed
no wrongdoing or misconduct, and her testimony fell within the well-
established norms and standards of acceptable scientific conduct. The
Service's Scientific Integrity Officer, therefore, found that there is
no indication that Dr. Norris violated the Department's Scientific and
Scholarly Integrity Policy. The same is true with respect to a Bureau
of Reclamation scientist, Frederick Feyrer, who was also criticized by
Judge Wanger.

Questions submitted by Representative Sandy Adams

Q1. The two recent ESA Settlements with WildEarth Guardians and Center
for Biological Diversity commit the USFWS to various deadlines over the
next six years for the 251 species currently on the candidate species
list and other species. For each of these species, the Service has
agreed either to (1) decide a listing is not warranted or (2) propose a
rule to list the species. [CBD Settlement, para. B.3; WEG Settlement,
para. 2] The settlement agreements therefore prohibit the Service from
making ``warranted but precluded'' findings for any of the existing
candidate species and other species subject to the settlements.

How can the Service deprive itself of the authority
Congress gave it to make a ``warranted but precluded'' finding,
including for the 251 species currently on the candidate species list?

How can the Service know now, scientifically speaking,
that at the time it reaches each of the settlement-imposed deadlines,
it will not be faced with species with higher listing priorities that
would necessitate a continued ``warranted but precluded'' finding for
the species that are the subject of the settlement agreements?

A1. The Service has already determined that the 251 species on the
candidate list, many of which have been candidates for a decade or
more, warrant a listing proposal under the ESA. However, until such
time as we propose listing each of these species, we will be re-
certifying our ``warranted but precluded'' finding for each relevant
species each year in the Candidate Notice of Review. The six year work
plan and the negotiated settlement agreements will reduce the amount of
deadline litigation and the number of petitions filed. This will allow
the Service to reclaim a greater measure of control over our listing
activities, to resolve our backlog of listing actions in a timely and
cost-effective manner, and to focus our limited resources on the
species most in need of ESA protection. With relatively few exceptions,
the settlement agreements allow the Service to use our biologically
based listing priorities to schedule our work, so that the highest
priority species will proceed to listing determinations first. We also
purposely reserved the discretion and capability to handle emergency
listing needs during the course of this workplan.

Questions submitted by Representative Randy Neugebauer

Q1. What percentage of the dunes sagebrush lizard's potential habitat
has the USFWS studied in the process of analyzing Federal protection
status of the species? How can you be sure of the science behind the
lizard's status without studying the entire land area that will be
affected by the regulation?

A1. The best available scientific information at the time of our
listing proposal indicated that the lizard is found only in the
shinnery oak sand dunes in southeastern New Mexico and west Texas.
While a majority of the lizard's habitat has been surveyed, portions of
suitable habitat on private lands have not been surveyed due to access
issues. Note that the best-available-science standard of the ESA
requires us to make determinations in the absence of perfect
information. The best available science indicates that the shinnery oak
sand dunes habitat has suffered significant losses over recent years,
which contributed to our decision to propose the lizard for listing.
On December 5, 2011, the Service published in the Federal Register
a six month extension of the final determination of whether to provide
protection under the ESA for the lizard. The Service is taking this
action in order to solicit additional scientific information and public
comment before making any final listing determinations regarding the
agency's proposal. Publication of this announcement will reopen the
comment period on the proposed rule to list the species (published on
December 14, 2010) for 45 days. In addition to the original comment
period associated with the publication of the proposed rule, we held
two public meetings in April 2011 and reopened the comment period to
accept additional public comments. That comment period closed on May 9,
2011.
Public comments received since the publication of the proposed rule
have expressed concerns regarding the sufficiency and accuracy of the
data related to the lizard's status and trends in New Mexico and Texas.
The Service has received new survey information for the lizard in New
Mexico and Texas and an unsolicited peer review study on our proposed
rule. During the 45-day comment period, the Service is soliciting input
from concerned governmental agencies, the scientific community,
industry, or any other interested party concerning the proposed rule in
light of the concerns raised to date and the additional information the
Service has received.

Q2. Do you have baseline population estimates for the dunes sagebrush
lizard? Just because a lizard is no longer found at a specific site
where it once lived, does that mean that that particular lizard has
died, or could it have migrated to a different location? What does the
USFWS consider to be a viable population number for the lizard, and how
do you come to that conclusion?

A2. Populations of lizards vary over time due to a number of factors
such as the abundance of invertebrates (prey), drought, or the
availability of mates. It is true that the absence of lizards does not
mean that lizards have died, but it does mean that they are no longer
found at a given site, or are at such low numbers that they are
undetected. The Sias and Snell study, which determined that lizards
were less abundant adjacent to oil and gas development, was completed
in areas where lizards were still present. Areas within oil fields
where lizards were not present were excluded from the study. It is
reasonable to expect that lizards will be found in areas where habitat
remains, and not be found in areas where suitable habitat no longer
exists. The proposed rule does not define a viable population for the
lizard, but makes a direct connection to the availability of habitat
and the lizard's persistence.
As previously noted, comments received since the publication of the
proposed rule have expressed concerns regarding the sufficiency and
accuracy of the data related to the lizard's status and trends in New
Mexico and Texas. Therefore, in consideration of the disagreements
surrounding the lizard's status, the Service is extending the final
determination for six months in order to solicit scientific information
that will help to clarify these issues. The Service has also opened
another 45-day comment period on the proposed rule that began on
December 5, 2011. The Service welcomes any scientific information
available that is relevant to the question.

Q3. The petition filed by the Center for Biological Diversity and the
Chihuahuan Desert Conservation Alliance in May 2002 to list the sand
dune lizard as threatened or endangered relied upon studies performed
by the University of New Mexico's Department of Biology in the mid-
1990s. That petition clearly ignored parts of the studies that conflict
with the petition's goals. For example, the population of the lizard in
areas where oil wells were present was found to have increased by a
factor of 2.4 from 1996 to 1997, compared to an increase by a factor of
1.6 where wells were absent. The reports also conceded that the lizard
continues to live in areas where there have been oil fields in
existence for over 40 years. If we are talking about threats to the
lizard, how can you justify moving forward with this listing in the
face of scientific evidence that contradicts the popular view that
human activity such as oil drilling is responsible for killing off the
species? Do you have a response to the data and studies referenced
above?

A3. As mentioned previously, populations of lizards vary over time due
to a number of factors such as the abundance of invertebrates (prey),
drought, or the availability of mates. For this reason, the authors
(Sias and Snell) compared surveys each year independently. There were
periods during the study where lizards were more abundant at a
developed site, but throughout the five year study, the researchers
found statistically significant differences between the developed and
undeveloped sites. The statistical evidence allowed the authors to
conclude the relationship between the abundance of lizards at developed
and undeveloped sites could not be explained by chance.
As previously noted, comments received since the publication of the
proposed rule have expressed concerns regarding the sufficiency and
accuracy of the data related to the lizard's status and trends in New
Mexico and Texas. Therefore, in consideration of the disagreements
surrounding the lizard's status, the Service is extending the final
determination for 6 months in order to solicit scientific information
that will help to clarify these issues. The Service has also opened
another 45-day comment period on the proposed rule that began on
December 5, 2011. The Service welcomes any scientific information
available that is relevant to the question.

Q4. Do you have baseline population estimates for the lesser prairie
chicken? What percentage of the lesser prairie chicken's potential
habitat has USFWS studied?

A4. Scientifically sound historical baseline population estimates are
not available. Instead the Service has relied on the best scientific
knowledge of species experts as reported in the scientific literature.
From these accounts we can determine, with some confidence, the
historically occupied range and estimated abundance of lesser prairie-
chickens. Knowledgeable sources considered the lesser prairie-chicken
to be abundant to common in the late 1800s. One source estimated that
as many as two million lesser prairie-chickens may have existed in
Texas alone at that time. By the 1930s, the species had begun to
disappear from areas where it had been considered abundant--populations
were nearly extirpated from Colorado, Kansas, and New Mexico, and were
markedly reduced in Oklahoma and Texas. In the mid-1960s, the total
rangewide population was estimated to be between 36,000 to 43,000
individuals.
The fish and game agencies in each of the five States where the
lesser prairie-chicken occurs conduct surveys for the lesser prairie-
chicken. In all five States, survey routes are established throughout
much if not all of the known range of the lesser prairie-chicken. While
the actual amount of known range sampled by each route is small, the
surveys provide an index of the status of the lesser prairie-chicken,
by State, over the entire range. The methodology is useful in
documenting long-term trends but is limited in its ability to reliably
estimate population numbers. Recently, the States received funding to
implement aerial surveys for lesser prairie-chickens, which may provide
more reliable indicators of population status, but these surveys have
not yet been completed rangewide.

Q5. How effective have volunteer conservation agreements with private
land owners and industries been in protecting the habitats of the dunes
sagebrush lizard and the lesser prairie chicken? Does USFWS take these
options into account when conducting scientific studies of mitigation
strategies?

A5. Conservation agreements are in place in three of the five lesser
prairie-chicken States. In Texas, there are currently 17 enrolled
ranches in a Candidate Conservation Agreement with Assurances (CCAA),
representing 199,781 acres in 8 counties. In New Mexico, there are
currently 34 oil-gas companies enrolled in the Candidate Conservation
Agreements (CCA) for a total of 574,763 mineral acres enrolled. In
addition, 34 New Mexico ranchers have enrolled in the CCA and CCAA,
representing 1,353,924 enrolled acres. An approved CCAA has been
developed with a single landowner in the State of Kansas. Oklahoma,
under the leadership of the Oklahoma Department of Wildlife
Conservation, is currently developing a CCAA. As in all species, the
Service does consider the agreements when conducting research, or
implementing conservation measures for the lesser prairie-chicken or
dunes sagebrush lizard.
Responses by The Honorable Craig Manson,
General Counsel, Westlands Water District

Questions submitted by Chairman Paul Broun

Q1. In your professional opinion, what percentage of listings are
science-based and what percentage of listings are policy or politically
driven?

A1. In my experience, each listing decision has a varying degree of
science supporting that decision. Generally, it is often the perceived
sufficiency, or lack thereof, of objective scientific support for a
particular decision that leads to controversy. In addition, each
listing decision requires the decision-maker to:

tak[e] into account those efforts, if any, being made by any State
or foreign nation, or any political subdivision of a State or foreign
nation, to protect such species, whether by predator control,
protection of habitat and food supply, or other conservation practices,
within any area under its jurisdiction; or on the high seas.

16 U.S.C. Sec. 1533(b)(1)(A).

Q2. There seems to be a concern that a balance needs to be struck when
designating critical habitat for protected species. What type of
science is used to determine the critical habitat?

A2. Under the Endangered Species Act, ``the best scientific and
commercial data available'' is required to be used for determining
critical habitat. 16 U.S.C. Sec. 1536(a)(2). As I indicated in my
testimony before this Committee, section 4(b)(2) requires that the
Secretary in designating critical habitat:

16 U.S.C Sec. 1533(b)(2).

Congress provided this power of exclusion to allow the Secretary to
make informed decisions regarding the comparative value of designating
critical habitat with the consequences of doing so, precisely to ensure
a balance was struck between a wide variety of policy values and
species protection.

Q2. Would ending the outside petition process better allow the U.S.
Fish and Wildlife Service to focus its attention on species that need
the most help instead of species that may be more ``charismatic'' than
others?

A2. No, I believe that when used appropriately, the outside petition
process is an important tool in protecting endangered species. In the
past, Congress amended the ESA as a reaction to the failure of the
Service to promptly make key decisions by including mandatory time
limits for making decisions. In some instances, the Service has been
unable, or unwilling, to meet the time limits that are in current law.
Congress may choose to evaluate the merits or adequacy of the existing
time limits contained within the ESA.

Q4. Given your unique experience dealing with all sides of the
Endangered Species Act, how would you improve the Act?

A4. As an initial matter, any changes to the ESA should be in
relatively small bite-size pieces in order to make them manageable.
Moreover, as I mentioned in my testimony before this Committee, we need
to return to the notion that science can tell us what is, while policy
determines what ought to be done. To do that, the listing decisions
should be de-coupled from the automatic, discretion-less application of
regulation. That would require congressional action. Additionally, the
quality of science would be vastly improved and court litigation
sharply reduced if the Secretary was required to make listing
determinations by formal-rulemaking under the Administrative Procedure
Act.

Q5. Please define and explain Consultations and Biological Opinions,
or ``BiOps?'' How do Consultations and BiOps impact proposed federal
projects and activities? Can they have a significant impact?

A5. Section 7(a)(2) of the ESA requires Federal agencies to ensure, in
consultation with, and with the guidance of either the Secretary of the
Interior or the Secretary of Commerce, based on ''the best scientific
and commercial data available,'' that their proposed actions will not
be ``likely to jeopardize the continued existence of any [listed]
species or result in the destruction or adverse modification of the
critical habitat of such species.'' 16 U.S.C. Sec. 1536(a)(2) (2010).
In general, once an action agency has made the determination that a
proposed action ``may effect'' a listed species or its critical
habitat, the formal consultation requirement is triggered, and the
federal action agency provides a biological assessment to the
consulting agency (U.S. Fish and Wildlife (FWS) or National Marine
Fisheries Service (NMFS)) and then looks to the consulting agency for
advice and guidance. Section 7(b)(3)(A) of the ESA requires that the
consulting agency provide the action agency with a ``written statement
. . . detailing how the agency action affects the species or its
critical habitat. If jeopardy or adverse modification is found, the
Secretary shall suggest those reasonable and prudent alternatives which
he believes would not violate subsection (a)(2) and can be taken by the
Federal agency or applicant in implementing the agency action.'' 16
U.S. C. Sec. 1536(b)(3)(A). Once the action agency receives the
written statement, commonly referred to as a ``biological opinion'',
consultation is complete and, ``it remains the responsibility of each
Federal agency to insure that it is in compliance with section 7(a)(2)
and that it has established an administrative record for a given
activity which demonstrates such compliance.'' Interagency Cooperation-
Endangered Species Act of 1973, 51 Fed. Reg. 19,926, 19,956 (June,
1986).
As seen in the instance of a small fish in the Sacramento-San
Joaquin Delta in California, the delta smelt, a biological opinion can
have a significant impact on the human environment. On December 15,
2008, FWS issued and Reclamation conditionally accepted a biological
opinion concerning the effects of the operations of the Central Valley
Project and the State Water Project (collectively the ``Projects '') on
the delta smelt. The biological opinion called for a drastic reduction
in the amount of water that the Projects could deliver to its
customers. In May 2010, a Federal District Court in California found
that implementation of the 2008 biological opinion caused rampant
unemployment, increased poverty and hunger, and damage to prime
agricultural land. The Consolidated Smelt Cases, 717 F.Supp.2d 1021
(E.D. Cal. 2010).

Q6. How does science inform a Consultation or BiOp? Does the agency
conduct new science, or simply review existing literature?

A6. The ESA exists at the confluence of science, law, and policy. It is
not a purely scientific decision scheme. The ESA requires science-
informed decisions, not merely scientific decisions. Science can tell
us what is, while policy determines what ought to be done.
Under the ESA, a federal agency's action must be based on ``the
best available scientific and commercial data available.'' 16 U.S.C.
Sec. 1536(a)(2).

Questions submitted by Ranking Member Donna Edwards

Q1. You stated at the hearing that, ``I found it curious that the
Inspector General of the Department of the Interior took two years
after I had left the Department to come ask me anything about any of
those cases. I found it interesting that during the time that any of
these things were happening, no one approached me and asked me any
questions about any of those things. And so it made me suspect of their
motives and calls into question--in my mind at least--their
integrity.''
In response to a later question you clarified that you were not
suggesting that the IG lacked integrity, but that you ``meant to
challenge the integrity of those who brought into question some of
those activities during the time that I was there and the time that I
subsequently was a law professor for 4 years.''
On November 22, 2005, Secretary Norton announced that you had
submitted your resignation as Assistant Secretary for Fish and Wildlife
and Parks. According to a Department of Interior release, that
resignation was to be effective December 31, 2005. Staff have checked
with the Department of Interior Inspector General's office. They
indicate that they received allegations about the misconduct of your
Deputy, Julie MacDonald, on April 11, 2006. You were interviewed in the
course of that investigation within a few months of its opening. In
short, it was a matter of months after you left your position before
you were swept up into the first investigation of Julie MacDonald.
Do you wish to clarify your claims to the Subcommittee regarding
how long it took for the Interior staff to complain to the IG about
misconduct and for IG investigators to approach you regarding Ms.
MacDonald's activities?

A1. No.

Q2. In your oral testimony you stated, ``Now, I want to talk about the
incident with Gary Frazer. Gary was the one who brought to my attention
a flaw in a rule that we were issuing, and I appreciated that very much
. . . `` Your comments then went on to explain why you ordered an
erroneous rule to be published in the Federal Register. However, you
did not address the other element of this incident that had been
referenced in my opening statement. You did not discuss your role in
having Gary Frazer sent to USGS as a liaison, removing him from his
post at Fish and Wildlife where he had been trying to stop some of Ms.
MacDonald's more egregious conduct. The Inspector General's report
documents this incident with some care.

Did Julie MacDonald ever communicate to you that Gary
Frazer (either by name or title) was trying to interfere or oppose some
of her efforts at the Department?

Did Julie MacDonald ever communicate with you in any
way about having Frazer removed from his post at the Fish and Wildlife
Service?

If you appreciated Mr. Frazer's bringing Ms.
MacDonalds error to your attention ``very much,'' why did you
participate in removing Gary Frazer from the Fish and Wildlife Service?

Do you believe that a high-profile removal and
reassignment of a Fish and Wildlife staffer widely known to have been a
roadblock to Ms. MacDonald's conduct on ESA issues would have no impact
on staff perceptions of the probability of retaliation if they complain
about Ms. MacDonald's misconduct so long as you were the Assistant
Secretary?

A2. Mr. Frazer was reassigned, not removed. It is my understanding that
by entering the Senior Executive Service Mr. Frazer decided he wanted
to be within a class of employees that could be appropriately
reassigned based upon the needs of the agency, subject to certain
procedural requirements.
Ms. MacDonald, as Deputy Assistant Secretary for Fish, Wildlife,
and Parks, had no line authority to make personnel decisions over Fish
and Wildlife Service employees.

Q3. Your testimony regarding internal complaints at Interior and the
Inspector General's investigation is somewhat ambiguous. You seem to
suggest that no employee or staff member of the Department of the
Interior ever approached you to bring any complaints regarding Ms.
MacDonald's conduct on Endangered Species Act issues to your attention.
Did no one ever complain about Ms. MacDonald's conduct?

Did you ever receive complaints or information that
would lead you to believe the Pacific Legal Foundation or any other
private party had received internal Departmental documents from Ms.
MacDonald that would be considered pre-decisional or deliberative?

Did you ever approve Ms. MacDonald providing internal
Departmental documents that would be considered deliberative or pre-
decisional to an outside party?

Did you ever provide internal Departmental documents
that would be considered deliberative or pre-decisional to an outside
party?

Did you ever receive complaints or information about
Ms. MacDonald's personal conduct, often described as abusive, with
other members of the staff?

Did you ever receive complaints or information about
Ms. MacDonald's communicating with science staff in the field
challenging their findings or ordering them to change their findings?

A3. I do not recall receiving complaints regarding Ms. MacDonald's
conduct, except that she set high expectations of staff. The remainder
of the question is vague and ambiguous in that no definition of
``predecisional'' or ``deliberative'' is set forth. I would note that
the Assistant Secretary for Fish and Wildlife and Parks ``is authorized
to exercise all of the authority of the Secretary . . . `` 209 DM 6
[DOI Departmental Manual, Part 209, section 6]. Thus, it was up to me
to determine what was ``predecisional'' or ``deliberative.''
Furthermore, to the extent that these terms, ``predecisional'' or
``deliberative,'' are intended by the questioner to refer to documents
covered under what is known as ``Exemption 5'' of the Freedom of
Information Act, 5 USC Sec. 552 (b) (5), it must be understood that
Exemption 5 exempts documents from mandatory disclosure and does not
prevent an authorized official to disclose such documents in an
exercise of the official's discretion. This interpretation is fully
compatible with President Obama's 2009 Memorandum for Heads of
Agencies, Subject: Freedom of Information Act.

Q4. Between the time Ms. MacDonald was hired by you in 2002 and the
time you left the Department you promoted her--ultimately she became
Deputy Assistant Secretary--and participated in awarding her at least
one significant bonus. The Department's Inspector General documented
Ms. MacDonald's misconduct in painful detail based on multiple
witnesses in three reports. How is it possible that you could not have
known of any element of the misconduct by the Deputy Assistant
Secretary--a member of your staff who was personally close to you?

A4. While there have been many statements made concerning Ms.
MacDonald, it is important to note that Ms. MacDonald brought a
defamation action against the Center for Biological Diversity (CBD)
regarding certain allegations it made concerning her conduct at
Interior. It is my understanding that CBD settled this lawsuit and
posted an apology to Ms. MacDonald on its website.

Q5. I asked you about the costs of setting right the consequences of
mismanagement that occurred during your time at the Department and due
to subsequent activity by Ms. MacDonald. You seemed to suggest you did
not agree with the Inspector General's conclusions about mismanagement
or the IG conclusions regarding the minimal costs of that
mismanagement, which they place in the hundreds of thousands of
dollars--at a minimum. Please explain why you do not accept those
conclusions and why you believe the cost estimate is inaccurate.

A5. I have no way of knowing what the purported costs are and have no
personal insight into the costs after I left the Department of the
Interior.

Questions submitted by Representative Brad Miller

Q1. In your testimony to the Committee you admitted that Ms. MacDonald
has done work as a consultant to Westlands. Please provide to the
Committee information regarding when Ms. MacDonald has worked for
Westlands, what issues she has worked on and the amount of remuneration
that Westlands has provided for those services. Response: Ms. MacDonald
does not have a consulting contract with Westlands. It is my
understanding that Westlands has a consulting contract with National
Environmental Strategies (NES). It is also my understanding that Ms.
MacDonald has worked with NES.

Q2. Did Ms. MacDonald provide any assistance to you in preparing your
written testimony for the Subcommittee's hearing? Did she compose any
or all of it in draft or final form; edit the testimony, review the
testimony, provide comment on the testimony or any other service
associated with the testimony? Response: No.

Q3. You indicated to the Committee that you established the Center for
Environmental Science Advocacy and Reliability. Can you please specify
when you established the Center? Response: I established CESAR in 2008
while I was a law professor at University of the Pacific, McGeorge
School of Law. It was intended to be an ancillary resource for my
scholarly research.

Q4. Has Ms. MacDonald done any work for CESAR, either paid or unpaid?
If the answer is yes, please indicate the time frame of her work and
the issues or products she has provided to CESAR. Response: CESAR
benefits from a wide range of volunteer work from a number of members
of the community. Ms. MacDonald has not been paid for any work
associated with CESAR.

Q5. The Pacific Legal Foundation (PLF) is identified as representing
CESAR in at least one legal action that the staff could find. Please
provide a record of the history of the Pacific Legal Foundation acting
to represent or support the work of CESAR. Identify all cases, either
current or past, in which PLF has provided representational services to
CESAR.

A1-5. PLF represented CESAR concerning a petition before the U.S. Fish
and Wildlife Service under 16 U.S.C. Sec. 1533(b)(3)(D), In the Matter
of the Petition to Rescind Critical Habitat for the Perdido Key beach
mouse under the Endangered Species Act.
Responses by Mr. Douglas Vincent-Lang,
Senior Biologist, Alaska Department of Fish and Game

Questions submitted by Chairman Paul Broun

Q1. Your testimony highlighted the role states can and should have in
Endangered Species Act (ESA) decisions. Please provide some examples of
how a greater state role could impact the ESA process and properly
protect endangered species without burdening American jobs?

A1. States have the primary trustee responsibility for fish and
wildlife and their habitats. As such, states hold significant expertise
on their trust resources and their conservation. Given this, states are
in an excellent position to inform all ESA process decisions, from
listing decisions to biological opinions to recovery planning to
delisting/uplisting/down-listing decisions.
Recognizing this, when passing the Endangered Species Act Congress
clearly identified a unique role for states in all Endangered Species
Act decisions. This role is contained in Section 4(i) of the Act. This
section clearly grants states a place at the table in all Endangered
Species Act decisions. Congress' intent is recognized by the Services
in their Interagency cooperative policy regarding the role of State
agencies in Endangered Species Act initiatives, which was recently re-
affirmed by the Services.
Despite these recognitions, states are not being given equal
deference in the implementation of the ESA. Instead, the Services are
increasingly using their deference to discount valid questions raised
by states on ESA decisions. They are also using their deference as a
basis of their defense of flawed science. It is imperative that states
be granted equal deference during all Endangered Species Act decisions.
These actions would conserve and recover listed species without
burdening American jobs.

Q1. Alaska is viewed as a state with unique economic development
challenges. How will the broad scale of the recently imposed polar bear
habitat protection area hurt the economy of your state and put jobs at
risk? In addition, how will these protections impact our nation's
ability to reduce the use of imported oil from volatile regions of the
world?

A2. The United States Fish and Wildlife Service's (the ``Service'')
designation of 187,157 square miles of polar bear critical habitat, an
area larger than California, the third largest state in the United
States, is unprecedented. Nine percent of the final critical habitat
designation covers lands owned by the State of Alaska. The State's
legal title and regulatory interests extend to its offshore submerged
lands and waters, which include significant portions of the designated
polar bear critical habitat. The area designated includes the largest
areas of potential oil and gas deposits in the United States and are on
economic importance to the State as well as of strategic importance to
the Nation. The designation puts the area under federal control and
opens all permit decisions to potential litigation and delay.
The designation of polar bear critical habitat interferes with
Alaska's management of its own oil and gas resource lease sales and the
development of mitigation measures for those lease sales. Specific
activities affected by the polar bear critical habitat designation
include oil and gas leasing in and adjacent to Alaska including the
proposed Beaufort Sea Area-wide 2009 Oil and Gas Lease Sale and the
North Slope Area-wide 2008 Oil and Gas Lease Sale. These dates refer to
the original date of the final best interest finding for the area-wide
sales issued by the Director of the Division of Oil and Gas. These are
geographic and site-specific examples of oil and gas leasing in the
Beaufort Sea and North Slope planning areas that will be affected by
the Service's polar bear critical habitat designation, as well as more
generally areas that are the subject of the Alaska Department of
Natural Resources' current five-year plan for area-wide oil and gas
lease sales for the Beaufort Sea and North Slope planning areas
scheduled for 2011, 2012, 2013, 2014, and 2015. Additionally, State
activities concerning existing pipelines (including the TransAlaska
Pipeline); roads; other industry and local infrastructure projects are
similarly affected by the polar bear critical habitat designation. The
State's own oil and gas leasing activities, together with the federal
offshore oil and gas leasing activities, are important to the State's
operations, management, and income--both for wildlife management
(including the polar bear) and other purposes-due to the royalty and
tax revenue the activities generate and because throughput from the
TransAlaska Pipeline system provides income and economic benefit to the
State of Alaska and its citizens as well as being strategically
important to the nation.
The Service's continuous imposition of overlapping critical habitat
designations on the map of Alaska makes it increasingly difficult for
Alaska's native entities, economic interests, and the State itself to
delineate permissible activities and act in the best interests of
Alaska. Of notable concern is the contiguous band of critical habitat
along the entire Alaskan coastline from the Canadian border to
Kuskokwim Bay, which includes an area from 0-3 miles of state waters.
This inserts a federal overlay that will require mitigation and
conservation protections and conditions developed and approved by the
federal government in State waters. This could significantly impact oil
and gas development within the area of critical habitat designation.
The polar bear critical habitat designation is especially
detrimental to Alaska's interests because the designation imposes
additional injury through ESA requirements, especially in the Section 7
consultation process, that constrain the destruction or adverse
modification of critical habitat. These are requirements that have no
analog under the MMPA or pre-ESA listing programs to which polar bear
management and conservation may have been subject, and are in addition
to the requirement in the Section 7 consultation process for federal
agencies to ensure that their actions are not likely to jeopardize the
continued existence of the polar bear. The critical habitat
considerations in the Section 7 consultation process will hinder and
increase costs associated with projects of significant potential
economic value to the State of Alaska and the nation.

Q3. The U.S. Fish and Wildlife Service (USFWS) testimony states that
the ESA has been a success? Do you agree or disagree? Why?

A3. Let there be no doubt that we should everything in our power to
prevent the extinction of species facing imminent and addressable
threats in the near future. It would be irresponsible to not take the
necessary actions to prevent extinction.
While the extinction a small number of species have been prevented
by their listing, the ACT has a dismal record in terms of preventing
species extinction and recovering species to the point that they can be
removed from protection under the Act. Less than 1% of the species
listed have been removed as recovered. Given this record, it is hard to
agree that the Act has been a success.
We believe reform is needed to improve the Act. Specifically, we
recommend the following:

Make designation of critical habitat discretionary.
Only allow a species to be listed if the factor can be
addressed by the ESA
Define foreseeable future and acceptable level of risk.
Provide specific guidance on when and how the Services
can designate Distinct Population Segments and/or subspecies.
Relax requirement for 90-day findings and 12 month status
reviews.
Define recovery as the number necessary to remove
extinction, not to fully recover the species and its habitat.
Disallow recovery goals aimed at ecosystem restoration--
keep the goals focused on species recovery.

Questions submitted by Ranking Member Paul Tonko,

Q1. Mr. Vincent-Lang, in response to a question from Mr. Tonko, you
testified that:

`[I]n the case of the Polar bear article, there was a single
individual that had a different perspective than the entire leadership
of the department.''

However, the attached email indicates that at least three
individuals from within the Division of Wildlife Conservation agreed
with the conclusions of the USGS studies relied upon by the Federal
Government to list the Polar bear as threatened. This email also seems
to suggest that these individuals were the primary individuals within
your department responsible for reviewing the science behind the USGS
studies.
Can you please explain this apparent discrepancy with your sworn
testimony in front of the Committee? In addition, can you also please
confirm that due to the State of Alaska's communications policy, the
three individuals noted in this email would be prohibited, under threat
of dismissal, from publically airing their findings that the science
behind listing the Polar bear was sound.

A1. I misunderstood the question being asked, my apologies. Mr. Tonko
is correct that three individuals performed cursory reviews of the USGS
reports. They did not, however, as acknowledged in the aforementioned
email perform ``in-depth reviews'' of the reports.
Upon further discussion with these staff, it became evident that
because the reviews were not in-depth, their reviews may have not been
through enough to assess methods and analytical approached in the depth
required to ascertain the validity of the primary conclusions and
inferences made in the reports.
To provide additional insights into the reports, other professional
scientists in the Department were asked to perform in-depth reviews.
These reviews identified significant methodology and analytical issues
that raised concern over the validity of the report conclusions. The
final comments represented the combined review of the Department. As
such it represents the combined expertise of the entire Department,
rather than that of a select few individuals.
Individuals are free to provide all opinions in the development of
a state position. However, once that position is developed and
finalized, all employees are expected to portray the state position
when acting in their official capacity. Talking with other state and
federal agencies, this is commonplace practice.
I note that the Service in their Court filings on litigation over
this listing decision acknowledged many of the science issues raised by
the state.

Questions submitted by Representative Sandy Adams

Q1. The USFWS recently settled lawsuits with the Wild Earth Guardians
and the Center for Biological Diversity. In the two settlements, the
Service agreed to dates after which the Service will no longer be able
to consider certain species in Alaska to be candidate species. Were the
State of Alaska and its wildlife biologists consulted in the decision
on how to prioritize these species for these settlement imposed
deadlines?

A1. No, states, including Alaska, were excluded from the settlement
talks with Wild Earth Guardians and the Center for Biological Diversity
on the candidate species list. States had much to inform these
discussions in terms of ongoing work and conservation efforts. This
knowledge was not brought forward to inform these talks because states
were prohibited from entering into the talks.
Specifically for Alaska, we were planning to conduct research on
Kittlitz's murrellets that would have provided key information to
inform a status review on this species. However, because the State was
excluded from these talks we were not able to bring this information
into the talks. The settlement agreement scheduled this review for
2013. As a result, the State has cancelled its research as the data
analysis would not be complete before the start of the status review.
If we had been involved in the settlement talks, this information could
have informed the talks.
It is imperative that states be granted automatic intervener status
for all lawsuit involving species within their jurisdictions.

[GRAPHIC] [TIFF OMITTED] T0590.052

Responses by Dr. Neal Wilkins, Director,
Texas A&M Institute of Renewable Natural Resources

Questions submitted by Chairman Paul Broun

Q1. You stated in your testimony that although science and management
approaches have improved over the last 20 years, the Endangered Species
Act (ESA) has not been updated to reflect these improvements. What
improvements have been made in the past two decades that the ESA in its
current format hinders from use?

A1. The science of wildlife conservation and management has advanced
considerably over the past two decades. One of the most notable science
advancements is the ability to develop accurate models for predicting
species occurrence, abundance and changes over time. This is aided
considerably by the technological progress in remote sensing and image
processing. Models and our ability to use them with computer processing
are more site-specific, accurate and meaningful than could have been
imagined 20 years ago. So, for many species we can predict the overall
outcome of a combination of habitat change and human activities. These
modeling approaches have stimulated real advancements in habitat
conservation planning--but they have also allowed us to more easily
grasp the relationships between incentives and trade-offs that can
benefit species conservation. The potential applications of wildlife
science & management are now at the point where we can more readily
account for trade-offs and efficiently apply market-based approaches
for achieving species recovery. But we first need some changes in
policy.
The incidental take prohibition of ESA (Section 9)--which is the
tip of the spear for implementing the Act on private lands--is focused
on the take of individuals, and this focus on protecting individuals is
often at the expense of conserving an entire population. This is an
antiquated approach. Section 9 of the ESA could be revised to give more
specific guidance for allowing broad exemptions from incidental take
prohibition. Modifications to the ESA could allow exemptions for
combined actions that demonstrate a net benefit to a species'
population, even if this might cause harm to one or more individual
organisms. This action alone would further stimulate the application of
science and technology to achieve recovery benefit for many of those
species that are currently listed under ESA.

Q2. You also stated that pre-existing information is viewed as the
``best available'' science, even if new information is collected. Is
there a provision in the ESA that creates a hurdle for new scientific
evidence being weighed as much as the existing information? How are
competing scientific views resolved?

A2. By the ESA not requiring independent peer review for establishing
the ``best available science'' individual service personnel are allowed
to make their own determinations. As a result, when those same
personnel are challenged for prior decisions, they have no well-
established procedure for inclusion of new information. In other words,
by not requiring a standardized independent peer review process, the
ESA indirectly creates a hurdle for new scientific evidence being
consistently weighed as much as existing information. In the end,
competing scientific views are resolved through collecting information
to test both views. A standardized peer-review process would guard
against selective use of information.

Q3. Your testimony indicated that there is a disincentive for private
landowners to provide access to scientists. The rationale is that if a
species were found, their land would be severely impacted. Would a
requirement that all such populations census be anonymous help better
identify populations that have been overlooked?

A3. Yes. Like any other information, we have found that private
landowners are more likely to allow access for scientific work if they
have the option to have their identity and location held confidential.
Until the disincentive of the incidental take prohibition of Section 9
is resolved, it makes sense for individual states to allow information
collected for scientific purposes to be shielded from public
information requests.

Q4. What is your view of the quality of scientific work submitted
through listing petitions filed by outside groups? How does the quality
of science submitted by outside groups seeking a listing compare to
that developed by the U.S. Fish and Wildlife Service (USFWS) or state
agencies?

A4. My views are based on the recent trend of activist organizations
preparing most listing petitions. Overall, there seems to be a pattern
of selective use of information in building a case for listing a
species in many of the petitions prepared by outside groups. In some
cases, the reliability of information is not revealed--and in other
cases it is only opinion and anecdotal observations that are cited as
scientific authority. Given the glut of listing petitions, the Service
is simply not able to do any of their own work in checking the
scientific validity of many of these petitions.
I cannot comment on the comparison of outside petitions to those
prepared by the Service or state agencies as recently there are very
few proposals from the Service that have not been petitioned by an
outside group. However, the oversight of professional wildlife
biologists--i.e., those Certified by The Wildlife Society--would
provide an additional safeguard on the reliability and completeness of
science included in listing petition process. The Service, and most
state agencies, do have professional wildlife biologists on staff or
available to them.

Q5. Would mandatory outside peer review help improve the quality of
the science used by federal agencies? Would it be practical? What types
of scientific work should be peer reviewed?

A5. Yes. In my view, mandatory peer review should be used to review the
science used in listing, de-listing, and other critical ESA decisions.
Yes it would be practical--especially if the Service sought the aid of
The Wildlife Society or other professional organizations in the design
and implementation of the process.

Q6. In your professional opinion, what percentage of listings are
science-based and what percentage of listings are policy or politically
driven?

A6. I am sorry, but I am not able to directly speculate on the
percentages. However, as there certainly are some politically driven
listings--and many of these are of great impact--there should be some
attention spent on minimizing these. And they impact not only local
economies but they serve to discredit the ESA and its purpose.

Q7. There seems to be a concern that a balance needs to be struck when
designating critical habitat for protected species. What type of
science is used to determine the critical habitat?

A7. I do not have enough specific experience with designations of
critical habitat to have recognized any pattern regarding the use of
science.

Q8. Would you support ending the use of outside listing petitions?
Would this benefit the ESA listing process?

A8. Outside listing petitions probably serves a purpose for engaging
the public in the ESA. However, the artificial deadlines for decisions
on outside petitions should be removed in favor of a science-based
priority process. This would probably serve to greatly reduce the
number of outside petitions, as it appears that the recent flood of
outside petitions is contingent upon the ability to file lawsuits in
response to the Service's inability to meet a deadline for considering
the petition.

Q9. The USFWS testimony states that the ESA has been a success? Do you
agree or disagree? Why?

A9. I disagree. The ESA was intended to promote the recovery of
imperiled species. As I recently reviewed in detail \1\, the listing of
a species under ESA has not only proved to be largely ineffective, but
it is often detrimental to the very species that is listed. The ESA has
been successful in creating public dialogue on endangered species; it
has perhaps been successful in creating a safety net that has kept a
few species from becoming further imperiled. But it has not been
successful in meeting its primary goals. We can do better.
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\1\ Wilkins, N. 2011. ``Improving the ESA's Performance on Private
Lands'' in Rebuilding the Ark: New Perspectives on Endangered Species
Act Reform, ed. J.H. Adler. The AEI Press, Washington, D.C., 56-80.

Q10. How does science inform a Consultation or BiOp? Does the USFWS
conduct new science, or simply review existing literature? If USFWS
conducts new science, is it always peer-reviewed? If it is not, do you
---------------------------------------------------------------------------
think it should be? Is this practicable?

A10. In my experience, the Service rarely conducts new science for
informing a Biological Opinion. The research and monitoring for a BiOp
is routinely conducted by a proponent in order to gain information to
support their Biological Assessment. Also, the Service may require
specific research and monitoring as part of the ``reasonable and
prudent measures'' of the Biological Opinion A Biological Assessment
informs the Service's Biological Opinion (BA)--and new science is often
presented in a BA, but it is mostly conducted by consultants or
university researchers.
The science used to support a Biological Opinion should come mostly
from the peer-reviewed body of science, but it may not be practical to
require that the site-specific research and monitoring done to support
a specific federal action be subject to an independent peer-review
process prior to its use for decision-making on all projects.
Again, it is the use and interpretation of science in status
reviews, recovery plans, and listing decisions that is most important.
For federal projects requiring a Biological Opinion, it may not be
practical to require peer review in all cases. That said, for projects
for which the decisions might have a significant impact--either
economically or ecologically--it may be important to subject the
Biological Opinion to an outside peer review process.
Responses by Mr. Jonathan Adler, Professor,
Case Western Reserve University School of Law

Questions submitted by Chairman Paul Broun,

Q1. Your testimony indicated that charismatic species are more likely
to be listed and receive federal funding. Since the U.S. Fish and
Wildlife Service (USFWS) has been inundated by hundreds of listing
petitions filed by outside groups, would one solution be to either give
priority to agency originated listed actions or to simply ban outside
petitions all together?

A1. There are good reasons to allow outside groups and individuals to
petition the FWS to list species as threatened or endangered. Among
other things, researchers and conservationists who work in the field
are more likely to discover or become aware of endangered and
threatened species than government officials working within the agency.
The petitioning process allows the FWS to take advantage of the
dispersed ecological knowledge held by those engaged in species-related
research or conservation efforts around the country.
The problem is that some groups and individuals have an incentive
to list species for reasons other than environmental conservation.
Because the listing of a species can trigger the imposition of
regulatory controls under the ESA, there is an incentive for those
opposed to land or resource development to seek to list species that
can be used as a proxy for their anti-development goals. It also
creates an incentive to skew the relevant science in favor of a listing
decision, and increases conflict over listing decisions. Just as anti-
development groups make seek to see species listed, pro-development
groups have an incentive to oppose species listings. This places
pressure on the listing decision, and often leads to litigation--
litigation that is a further drain on FWS resources, which in turn
causes further delays in future listing decisions.
The best way to address this problem is to insulate the listing
process from the regulatory process. Decoupling the listing decision
from the ESA's regulatory provisions would eliminate the incentive to
use species listings as a weapon in fights over land and resource
development, lessen the pressure on listing decisions, reduce interest-
group involvement in (and litigation over) listing decisions, and make
it easier for the FWS to focus on the underlying scientific questions.

Q2. Is it fair to say that the Endangered Species Act has been used to
promote policy goals separate from species preservation? If so, what
can Congress do to prevent this?

A2. Unfortunately, some activist groups have used the Endangered
Species Act as a weapon against resource use and development.
Specifically, some environmentalist groups sue to force the imposition
of greater regulatory restrictions on land-use and other economic
activities, preventing the FWS and other government agencies from
basing their enforcement and implementation decisions on ecological
concerns. The best way to address this would be to disarm the various
regulatory triggers within the act through which outside groups can use
federal courts to direct ESA implementation and enforcement. This can
be done by decoupling the listing decision from the imposition of
specific, mandatory regulatory measures and granting the FWS greater
flexibility in developing recovery plans and greater ability to rely
upon non-regulatory conservation strategies.

Q3. The USFWS testimony states that the ESA has been a success? Do you
agree or disagree? Why?

A3. I do not believe the ESA has been a success. The express goal of
the act is to ``recover'' species listed as ``threatened'' or
``endangered,'' and yet as of October 2011 fewer than 50 of the
approximately 2,000 listed species have been delisted, and only 22 of
these were classified as recoveries by the FWS. If anything, this
overstates the Act's relative success, as the recovery of many of these
species had little if anything to do with the Act. For example, several
bird species listed as recoveries were helped by the banning of
widespread DDT use, but this was done in 1972, one year before the ESA
was enacted, let alone enforced.
As I discuss in my book, Rebuilding the Ark, the ESA may be
credited with preventing the extinction of some species, but it is also
responsible for creating incentives against species and habitat
conservation on private land. This is significant because most listed
species rely upon private land for some or all of their habitat.
Further, as one recent study concluded, those species listed as
endangered are less likely to be improving than those listed as
threatened, despite the increased regulatory ``protection'' the former
receive. While there is evidence that spending on recovery plans can
help listed species, there is little evidence the Act's current
regulatory structure does much to help those species in greatest need.

Q4. Your work on the ESA highlights some of the perverse incentives
created by the restrictions that accompany a listing decision. Please
describe ways to create positive incentives for species protection?

A4. Before the ESA, or any other statute, can create effective positive
incentives for species conservation, the perverse incentives which
discourage species conservation must be reduced, if not eliminated. The
most effective ways to do this would be to reduce the economic
consequences of listing decisions and habitat determinations for
private landowners. This can be accomplished by decoupling the listing
decision from the imposition of land-use restrictions under Section 9
and the application of Section 7 consultation requirements to programs
that impose limitations on private land use. It can also be
accomplished by creating greater flexibility within Section 9, so as to
allow the FWS the ability to adopt other conservation measures in lieu
of land-use controls, or by providing compensation to landowners for
the imposition of land-use restrictions. In terms of developing
effective incentive programs, I would recommend looking at the success
of voluntary, incentive-based programs such as Partners for Wildlife
and the North American Waterfowl Management Plan, as these programs
have managed to conserve substantial acreage in a cost-effective
manner.

Appendix II

----------

Additional Materials Submitted for the Record

Submitted statement for the record by Representative Randy Neugebauer

Thank you, Chairman Broun, for holding this important hearing to
examine the science behind the Endangered Species Act and the
protection of certain species under that law. Such listings have
profound impacts on jobs, economic development, and industrial
capabilities across the country. Two species that are being considered
for an endangered listing, the dunes sagebrush lizard and the lesser
prairie chicken (LPC), have habitats in my district. If protected under
the Endangered Species Act, my district and other surrounding areas
will see oil production, wind development, agricultural production, and
transportation improvements severely limited. Decisions of this
magnitude require the utmost consideration and sound scientific
evidence, and I am not convinced the proper care has been taken to
guarantee this.
In a May joint hearing before the House Agriculture Committee and
Natural Resources Committee, I asked then acting-Director Gould of the
U.S. Fish & Wildlife Service (USFWS) about how the science behind the
potential listing of the dunes sagebrush lizard. In response, he said,
``I am not familiar with. the science behind the lizard you are
referring to.'' To begin with, this lack of familiarity with a major
listing is troubling. I am hoping that Mr. Frazer can provide greater
insight into this particular case because I am concerned that the Fish
& Wildlife Service is not making decisions based on accurate science,
but rather to avoid lawsuits from environmental organizations.
According to an Associated Press article from April 28, 2011, ``Neither
environmentalists nor federal wildlife managers have population
estimates for the lizard but they point to distribution studies that
show about a quarter of sites where the lizard was once found are no
longer occupied.'' This lack of data and seemingly assumptive science
is troublesome considering that roughly 20 percent of America's
domestic oil production occurs in this region where the lizard may
live. It is no small matter to list a species that could potentially
halt that production, which would kill thousands of jobs and make our
country even more dependent on foreign oil.
This issue is also important in the potential decision to classify
the lesser prairie chicken an endangered. The projected habitat regions
of the LPC in Texas alone contribute an estimated $28 billion to our
nation's economy and accounted for 350,000 jobs in 2009. Industries
that would be affected by LPC being listed include wind energy,
agriculture, oil and gas, and transportation. In an effort to prevent
habitat loss for the LPC, Texas agreed to a Candidate Conservation
Agreement with Assurances (CCAA) with USFWS in 2006. The CCAA
encourages beneficial habitat management activities among private
landowners on a voluntary basis. These efforts should be taken into
consideration and should be studied as potential mitigation techniques
for habitat loss. In the state of Oklahoma, about $23.5 million has
already been spent in the last five years to protect the lesser prairie
chicken. These efforts should not be overlooked.
In general, I am concerned that we are disrupting enormous amounts
of economic productivity for species we may know too little about.
Attempting to list species without knowing even its very basic
biological characteristics is absolutely unacceptable. This lack of
sound evidence could result in killing thousands of jobs and billions
of dollars in economic activity before anyone can even prove that harm
is truly being done. I believe the standard of science here may not be
good enough. If the ``best available data'' doesn't actually include
population statistics or does not tell us if the numbers have increased
or declined in the past ten years, I do not see how this ``best
available data'' is sufficient to justify making such momentous
decisions.
Photograph submitted for the record by Representative Dan Benishek

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United States Department of the Interior, Office of Inspector General's
``Report of Investigation: The Endangered Species Act and the Conflict
between Science and Policy,''
submitted for the record by Representative Brad Miller

The full version of the report can be found at: http://www.doioig.gov/
Article entitled, ``Email Reveals State Dispute Over Polar Bear
Listing,'' submitted for the record by Representative Paul Tonko

Article entitled, ``State Policy Leads Beluga Team to Remove Alaska
Scientists,'' submitted for the record by Representative Paul Tonko

The Delta Smelt Cases, San Luis & Delta-Mendota Water Authority,

et al. v. Kenneth Lee Salazar, et al., 09-CV-407, Reporter's Transcript

of Proceedings, September 16, 2011

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