[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
BARRIERS TO ENDANGERED SPECIES ACT DELISTING, PART I
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON
THE INTERIOR
OF THE
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
__________
APRIL 20, 2016
__________
Serial No. 114-94
__________
Printed for the use of the Committee on Oversight and Government Reform
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.fdsys.gov
http://www.house.gov/reform
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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
JASON CHAFFETZ, Utah, Chairman
JOHN L. MICA, Florida ELIJAH E. CUMMINGS, Maryland,
MICHAEL R. TURNER, Ohio Ranking Minority Member
JOHN J. DUNCAN, Jr., Tennessee CAROLYN B. MALONEY, New York
JIM JORDAN, Ohio ELEANOR HOLMES NORTON, District of
TIM WALBERG, Michigan Columbia
JUSTIN AMASH, Michigan WM. LACY CLAY, Missouri
PAUL A. GOSAR, Arizona STEPHEN F. LYNCH, Massachusetts
SCOTT DesJARLAIS, Tennessee JIM COOPER, Tennessee
TREY GOWDY, South Carolina GERALD E. CONNOLLY, Virginia
BLAKE FARENTHOLD, Texas MATT CARTWRIGHT, Pennsylvania
CYNTHIA M. LUMMIS, Wyoming TAMMY DUCKWORTH, Illinois
THOMAS MASSIE, Kentucky ROBIN L. KELLY, Illinois
MARK MEADOWS, North Carolina BRENDA L. LAWRENCE, Michigan
RON DeSANTIS, Florida TED LIEU, California
MICK MULVANEY, South Carolina BONNIE WATSON COLEMAN, New Jersey
KEN BUCK, Colorado STACEY E. PLASKETT, Virgin Islands
MARK WALKER, North Carolina MARK DeSAULNIER, California
ROD BLUM, Iowa BRENDAN F. BOYLE, Pennsylvania
JODY B. HICE, Georgia PETER WELCH, Vermont
STEVE RUSSELL, Oklahoma MICHELLE LUJAN GRISHAM, New Mexico
EARL L. ``BUDDY'' CARTER, Georgia
GLENN GROTHMAN, Wisconsin
WILL HURD, Texas
GARY J. PALMER, Alabama
Jennifer Hemingway, Staff Director
David Rapallo, Minority Staff Director
Bill McGrath, Interior Subcommittee Staff Director
Sharon Casey, Deputy Chief Clerk
------
Subcommittee on the Interior
CYNTHIA M. LUMMIS, Wyoming, Chairman
PAUL A. GOSAR, Arizona BRENDA L. LAWRENCE, Michigan,
BLAKE FARENTHOLD, Texas Ranking Member
KEN BUCK, Colorado, Vice Chair MATT CARTWRIGHT, Pennsylvania
STEVE RUSSELL, Oklahoma STACEY E. PLASKETT, Virgin Islands
GARY J. PALMER, Alabama
C O N T E N T S
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Page
Hearing held on April 20, 2016................................... 1
WITNESSES
Mr. Lowell Baier, Attorney at Law, Environmental Historian
Oral Statement............................................... 4
Written Statement............................................ 6
Mr. Robert Thornton, Partner, Nossaman, LLP
Oral Statement............................................... 18
Written Statement............................................ 20
Mr. Joel Bousman, Chairman, Board of County Commissioners,
Sublette County, Wyoming
Oral Statement............................................... 32
Written Statement............................................ 34
Mr. Robert Glicksman, J.B. and Maurice C. Shapiro Professor of
Environmental Law, The George Washington University Law School
Oral Statement............................................... 37
Written Statement............................................ 39
Ms. Karen Budd-Falen, Senior Partner, Budd-Falen Law Offices
Oral Statement............................................... 59
Written Statement............................................ 61
BARRIERS TO ENDANGERED SPECIES ACT DELISTING, PART I
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Wednesday, April 20, 2016
House of Representatives,
Subcommittee on the Interior,
Committee on Oversight and Government Reform,
Washington, D.C.
The subcommittee met, pursuant to call, at 1:07 p.m., in
Room 2154, Rayburn House Office Building, Hon. Cynthia M.
Lummis [chairman of the subcommittee] presiding.
Present: Representatives Lummis, Buck, Palmer, Chaffetz,
Lawrence, and Plaskett.
Also Present: Representative Zinke.
Mrs. Lummis. The Subcommittee on the Interior will come to
order.
Without objection, the chair is authorized to declare a
recess at any time.
Thank you all for being here today for this meeting of the
Interior Subcommittee of the Oversight and Government Reform
Committee.
Thank you, Mr. Chairman, of the full committee.
Chairman Chaffetz has joined us today as well as our
ranking member, Mrs. Lawrence, and we will have others join us.
We are here this afternoon to discuss barriers to the
discovery of endangered species and, hopefully, how we can
break those barriers down.
The Endangered Species Act was signed into law by President
Nixon in 1973. Its primary goal was to prevent the extinction
of imperiled plant and animal life and to recover those
populations by removing or lessening threats to their survival.
Species are considered for listing primarily through a
petition process. Anyone can file a petition, and the Fish and
Wildlife Service has 90 days to respond. If the Service
determines there's merit to the petition, they have 1 year to
either list the species, determine it is not warranted to list
the species, or that listing is warranted but precluded by
other priorities.
According to the Fish and Wildlife Service Web site, there
were 2,258 plant and animal species on the threatened or
endangered species list. According to the Service's delisting
report, 63 species have been removed from the endangered
species list. Thirty-four have been recovered, 10 have gone
extinct, and 19 species were listed in error. That's not a
great track record.
Some will argue that simply spending more money will fix
the problem, but even former Clinton and Obama administration
Deputy Interior Secretary David Hayes stated to the
Environmental Law and Policy Annual Review in 2013 that ``this
has been fish-in-the-barrel litigation for folks, who because
there's a deadline, and we miss these deadlines, and so, we've
been spending a huge amount of, in my mind, relatively
unproductive time fending off lawsuits in this arena.''
There seems to be bipartisan consensus that changes need to
be made to improve the law, which has been under siege by
litigation. ESA decisions are increasingly driven by
litigation, the threat of litigation, closed-door settlements,
and, in some cases, the whims of Federal judges. Serial
litigants flood the agency with petitions, and when the Fish
and Wildlife Service predictably fails to meet rigid statutory
timelines, they sue.
The Service eventually settles in court to set priorities
behind closed doors with the serial litigants, and the process
repeats. Such litigation does little more than benefit lawyers
and diverts time and resources away from species conservation.
What is needed is boots on the ground instead of briefcases in
the courtroom.
Flexibility for the Service needs to be accompanied by an
increased emphasis on species recovery planning as well as
increased utilization of State and local stakeholders for data
collection, habitat conservation, and the grunt work of
protecting and ultimately recovering a species.
The gunnison sage-grouse, the lesser prairie-chicken, dunes
sagebrush lizard show that States and locals have the
expertise, resources, and will to lead on species conservation.
Today, I hope to hear from our panel on how to better harness
these voluntary conservation initiatives that I believe are
critical to actually recovering species and, when we can, keep
them off the list in the first place.
Our witnesses today will talk about their efforts on
candidate conservation agreements, on habitat conservation
plans, and on efforts to overcome serial litigation.
I welcome your input and hope we can have a productive
discussion on how to improve the success rate of species
recovery and delisting. Thank you.
I now recognize Mrs. Lawrence, the ranking member of the
Subcommittee on the Interior, for her opening statement.
Mrs. Lawrence. Thank you, Madam Chair. Thank you for
holding this important hearing.
American species face challenges on many fronts, including
real estate development, energy exploration, and global climate
change. In my own State of Michigan, there are roughly 25
federally recognized endangered or threatened species,
including the Karner blue butterfly and the eastern prairie
fringed orchid, both found in or around Detroit.
But I am optimistic that all of these species can be saved.
That's because the Nation's principal statute, the Endangered
Species Act, has a remarkable track record. Ninety-nine percent
of the species that have qualified for its protections are
still with us today.
The Endangered Species Act of 1973 was a bipartisan
legislation passed by Congress and signed into law by President
Nixon. The Endangered Species Act's purpose is to conserve
species identified as endangered or threatened with extinction
and conserving the ecosystems on which they depend.
Some want to role back those protections. They point to a
low rate of delistings to indicate the failure of this
important legislation. They complain that there is too much
litigation. They support bills to sidestep the scientifically
informed regulatory process.
I think it is an unfortunate point of view and ignores the
reality. The reason species are listed for protection under the
Endangered Species Act is the inability or unwillingness of
State wildlife agencies to protect them from extinction.
I'm not saying that there cannot be differences of opinion
about the status of given species. Fortunately, the Federal law
requires that these opinions be informed by science and not
guided by political rhetoric or self-interest.
Under this administration, the Fish and Wildlife Service
has delisted 18 species, 16 due to recovery, which is success--
more than any other administration since this act was enacted
in 1973.
So, in conclusion, we should be celebrating the Endangered
Species Act, not detracting from it. And that means funding the
Fish and Wildlife Service so it can use all the tools that
Congress gave it, including voluntary candidate conservation
agreements with assurances and habitat conservation plans in
addition to formal listings.
And inadequate funding has meant long lines and excessive
delays in the agency's consideration of these various measures
at protecting the endangered or threatened species. That is a
shame but one that was created by Congress.
I thank our witnesses for appearing here today, and I look
forward to your testimony and really want you to know that I am
extremely committed to ensuring that we in America continue the
leadership in protecting all endangered or threatened species.
Thank you so much.
Mrs. Lummis. Thank you.
I will hold the record open for 5 legislative days for any
member who would like to submit a written statement.
The chair notes the presence of our colleague, Congressman
Ryan Zinke of Montana.
We're delighted you're here today. Appreciate your interest
in the topic and welcome your participation in this hearing.
I ask unanimous consent that Congressman Zinke be allowed
to fully participate in today's hearing.
Without objection, so ordered.
We will now recognize our panel of witnesses.
I'm pleased to welcome Mr. Lowell Baier, attorney at law
and environmental historian; Mr. Rob Thornton, partner at
Nossaman, LLP; Mr. Joel Bousman, chairman of the Board of
County Commissioners of Sublette County, Wyoming; Mr. Robert
Glicksman, the J.B. And Maurice C. Shapiro Professor of
Environmental Law at the George Washington University Law
School; and Ms. Karen Budd-Falen, senior partner at the Budd-
Falen Law Offices.
Welcome to you all.
Pursuant to committee rules, witnesses will be sworn in
before they testify.
Please rise and raise your right hand.
Do you solemnly swear or affirm that the testimony you are
about to give will be the truth, the whole truth, and nothing
but the truth?
Thank you. Please be seated.
Let the record reflect that the witnesses answered in the
affirmative.
In order to allow time for discussion, please limit your
oral testimony to 5 minutes. And thank you all for being
willing to come to this hearing early. This way, we have a
chance to hear from our witnesses and hopefully answer some
questions before the panel gets called to votes.
In order to allow time, we'll have your entire written
statement made part of the record. So if you choose to cut it
short, don't be worried that your remarks will not be taken
into the record.
Mr. Baier, you are recognized for 5 minutes. And welcome.
WITNESS STATEMENTS
STATEMENT OF LOWELL BAIER
Mr. Baier. Thank you, Madam Chairman, members of the
committee.
A primary incentive to litigation that's a barrier to
delisting is money. Money, money, money. It's that simple. It's
the reimbursement of legal fees.
Now, I first became interested in this topic after reading
some of my co-witness Karen Budd-Falen's writings on the 1980
Equal Access to Justice Act, which in turn led me to a 5-year
research project that resulted in my new book, just published,
which is here on the dais, or on the table, entitled ``Inside
the Equal Access to Justice Act: Environmental Litigation and
the Crippling Battle over America's Lands, Endangered Species,
and Critical Habitats.''
And I couldn't understand from my research, which is what
got me into it, how a handful of small litigation groups
masquerading under the banner of environmental stewards could
wage serial litigation wars on our Federal land management
agencies.
So I did what a good forensic investigator does; I followed
the money trail. And it led to my finding that the citizen suit
provisions in the Endangered Species Act and the 1980 Equal
Access to Justice Act pay a bevy of both in-house and outside
attorneys on retainer who parade under the title of, ``pro bono
counsel'' but are, in fact, paid handsomely for their work by
the U.S. Treasury. So the number-one incentive to litigation
that stymies delisting is money, the reimbursement of legal
fees.
Let me give you a graphic of the money trail that followed
the 2011 multidistrict litigation settlement, which expires at
the end of the next fiscal year, in 2017.
Now, this is a graphic that we created--can we get that up
on the screen? Or is it on your monitors?
There it is. No, that's not it.
Well, this is what it's--oh, there it is. Good. Good. All
right.
If you look across the top right here, right across the top
of this, you'll see a bunch of boxes up there. There are eight
boxes.
I'll wait for a moment for you all to get that in front of
you.
All right. There are a series of boxes across the top. Each
of those represents a lawsuit.
What happened is the two litigants, WildEarth Guardians and
Center for Biological Diversity, in a pincer action, literally
surrounded the Fish and Wildlife Service with these lawsuits in
different districts throughout the United States. And so, in
order to get these consolidated and dealt with in one court so
their personnel and their resources weren't stretched, the
Service consolidated them here in Washington.
And the court here then added, over on the left side--here,
right where I'm pointing--three more cases. So now we have a
total of 15 cases in front of the U.S. district court here in
the District of Columbia.
And the judge asked the parties to try to settle. They did
reach a settlement agreement in September of 2011, which we
refer to as the multidistrict litigation settlement.
Now, you would think, folks, that at that point the case is
over. It's settled, and now the Fish and Wildlife Service has a
whole order of--a calendar that they set up. 1,030 species were
now on their calendar. So, between 2011 and 2017, they had a
calendar to follow of species that they were supposed to then
make a decision on as to whether to list, delist, or not find
an appropriate listing.
And what happened was they began to work their way down
through the 1,030, over the calendar, and as they made
decisions, these two litigants continued to then sue them
because they didn't like the decision the Fish and Wildlife
Service made, whether it was to list or delist--or not delist,
but not list at all.
And so what's happened is--we had 15 cases consolidated,
and if you look at the list on the far left, these are the
challenges that they issued after September 11, each of them a
separate lawsuit. And in the middle are other lawsuits that
were generated by the settlement agreement, and on the far
right, more lawsuits.
So what the settlement did is nothing but generate a whole
series of new lawsuits. And, you know, I scratch my head. And
what's driving this? The money trail. That's what the money
trail led to.
I can see that I'm about out of time, Madam Chairman.
This litigation has undermined the work of Dan Ashe and the
Service, who were promoting cooperative conservation projects
with the States and with the private sector that put money on
the ground, boots-on-the-ground money, and not money into
lawyers' pockets. And this trail has demonstrated that their
hard work to do cooperative conservation work is being
undermined by lawsuits.
I have more, Madam Chairman.
Mrs. Lummis. Thank you, Mr. Baier. I gave you a few extra
seconds----
Mr. Baier. Oh, thank you.
Mrs. Lummis. --because it took me a while to find the
exhibit and get on track. So----
Mr. Baier. Well, thank you for your indulgence.
Mrs. Lummis. Yeah, I appreciate your preparing the exhibit.
Mr. Baier. Should I continue then?
Mrs. Lummis. You know, I think that we'll ask you
questions.
Mr. Baier. Okay.
[Prepared statement of Mr. Baier follows:]
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Mrs. Lummis. So, with that, Mr. Thornton, you are
recognized for 5 minutes.
STATEMENT OF ROBERT THORNTON
Mr. Thornton. Madam Chair, members of the committee, it's a
pleasure to be with you today. I will summarize my testimony.
I'm a partner in the Nossaman law firm, but I'm testifying
as an individual, not on behalf of the firm or its clients. But
the firm is an affiliate of the California association that's
affiliated with the National Association of Home Builders.
My testimony is based on my three decades of experience
representing both plaintiffs and defendants in Endangered
Species Act matters and focuses particularly on efforts to
delist two species, the coastal California gnatcatcher and the
valley elderberry longhorn beetle. I've left with staff some
pictures because it's always nice to have pictures to put with
descriptions.
Our view is that the best available science indicates that
neither species should be listed because neither are endangered
or threatened and that the Service's consideration of the
delisting petitions for these two species exemplifies the
barriers to delisting even in circumstances where published and
peer-reviewed studies and the Service's own status review
documenting the original grounds for listing are wrong.
I'll focus on the California gnatcatcher. The gnatcatcher
is a species--as a species, is a common Mexican bird that's
found from southern California to the tip of Baja. You have the
range map there showing the range of the gnatcatcher. There are
likely several million gnatcatchers in Mexico. The coastal
California gnatcatcher, which is the listed subspecies, is
found from southern California to El Rosario and Baja, Mexico.
The subspecies designation is important because the
petitioner for the listing, Dr. Jonathan Atwood, testified
that, ``no credible scientist would claim or has claimed that
California gnatcatchers as a species are endangered or
threatened throughout their range.''
Using 19th-century ornithology, the Service listed the
coastal gnatcatcher as a distinct subspecies in 1993 based on
two crude measurements of two physical features, the brightness
of breast feathers and the purity of back feathers. And they
took the position that the differences in these two physical
features constituted sufficient genetic distinctiveness to
justify the listing of the subspecies.
During the extensive delisting or listing debate in the
1990s, several nationally recognized scientists testified that
the data did not support this conclusion, in part because the
measurements of the two physical characteristics were based on
measurements of museum specimens, some of which had been
sitting in museum desk drawers for 100 years. After a Federal
court initially invalidated the listing, the Service relisted
the species, relying on the, what they call, morphological
data.
Now, over the next 7 years, a group of nationally
recognized scientists conducted genetic analysis of
mitochondrial DNA. Mitochondrial DNA is the DNA that we all
inherit from our mothers. And this was, at the time, the state-
of-the-art method for analyzing genetic differences among
animals.
Those studies, published in--a peer-reviewed study
published in the very well-known journal Conservation Biology
concluded that there's no material genetic differences between
any gnatcatchers throughout the entire range, its range from
southern California to the tip of Baja.
In 2010, a group of landowners petitioned the Fish and
Wildlife Service to delist the gnatcatcher based on that study.
That study--that delisting petition was denied. Essentially,
the Service said that the mitochondrial DNA evidence was not
sufficient and said that what was required was a nuclear DNA
study.
The scientists went back to the lab and in 2013 published
another study, this time based on nuclear DNA, reconfirming the
results of the prior study, that there is no significant
genetic differences and that the listing of the subspecies is
not warranted.
On behalf of several organizations, we filed a petition to
delist. The final decision on that delisting petition is still
pending. But we're concerned for, among other reasons, we filed
a Freedom of Information Act to obtain documents regarding the
Service's review of the delisting petition, and the Service is
refusing to provide us any substantive documents regarding
their external review of the delisting petition--that is, their
engagement of an outside contractor to review the delisting
petition. And they're even refusing to disclose the identity of
the individuals conducting the review, which we believe is a
violation of the Endangered Species Act.
Thank you, Madam Chair and members of the committee.
[prepared statement of Mr. Thornton follows:]
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Mrs. Lummis. I thank the witness.
Mr. Bousman, you are recognized for 5 minutes.
STATEMENT OF JOEL BOUSMAN
Mr. Bousman. Thank you, Chairman Lummis, Ranking Member
Lawrence, and members of the Interior Subcommittee.
My name is Joel Bousman. I am a rancher and county
commissioner in Sublette County, Wyoming, currently serving as
second vice president for the Western Interstate Region of the
National Association of Counties. Today, I am speaking to you
as a Sublette County, Wyoming, commissioner.
When a species is put on the Endangered Species Act list,
it's a bit like checking into Hotel California. You need to
look no further than the Great Lakes wolf to find that barriers
to delisting species are a nationwide problem with
implementation of the ESA.
At the county level, we do not deny the value of protecting
truly endangered species. But it is troubling to us that the
goal of the ESA appears to be permanent and perpetual listings
rather than species recovery. It is also troubling that the ESA
itself has created a system that incentivizes closed-door
litigation over cooperation with local governments.
Often, when we think about the ESA, we tend to think about
the Federal Government's relationship to the States. All across
the West, State game and fish agencies are the local experts.
They should be trusted with managing our wildlife
appropriately.
However, it is important to understand that the Fish and
Wildlife Service also has an obligation to consult with and
receive input from counties affected by petition listings and
regulations written as a result of those listings. Section 1533
of the ESA twice lists counties as necessary partners in the
process. While the language is clear, its overly vague
instructions let the Fish and Wildlife Service off the hook on
any meaningful coordination with counties. This is a part of
the ESA that is crying out for congressional attention.
The National Association of Counties has adopted a
permanent policy that seeks to improve the ESA by mandating
that, ``Federal agencies treat State and county governments as
cooperating agencies with full rights of coordination,
consultation, and consistency to decide jointly with the
appropriate Federal agencies when and how to list species,
designate habitat, and manage for species recovery and
delisting.''
What is it that counties have to offer that others do not?
First and foremost, what we have to offer is a broad view on
both the need for ESA listing and the effects on our counties
resulting from those listings.
By the very nature of the charge of the office, a county
commissioner must take into account the health and welfare of
their entire county--its people, land, water, and wildlife. We
have found in Wyoming that the most successful efforts of
Federal land managers on any topic have been ones that were
developed collaboratively with local governments. The best
decisions are made by people working together on the ground at
the local level.
As it is currently written, the ESA does not promote and
certainly does not require collaboration with local
governments. This is a mistake. The Fish and Wildlife Service
would benefit from a coordinated effort with local governments,
not required at this time. Such a change would create more
meaningful conservation, which should be our collective goal.
It would also help to inoculate the Fish and Wildlife Service
from the kinds of groups who appear to be more interested in
money to be made from litigation than boots-on-the-ground
species conservation.
There may have been a time in America's past when
inflexible laws were necessary to overcome cultural apathy
towards conservation, but, as has been so eloquently explained
many times by this subcommittee's chairman, America's signature
conservation laws have not kept pace with our cultural
conservation ethic.
Allowing for greater local input, understanding the custom
and culture of the local community, and an honest assessment of
socioeconomic impacts is not a threat to species viability.
Rather, it would be a help in creating regulations when they
are necessary that can be embraced at the local level. The lack
of intentional coordination with local governments is a barrier
to delisting and would be easy to remedy in looking to improve
the ESA.
Thank you, and I look forward to your questions.
[Prepared statement of Mr. Bousman follows:]
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Mrs. Lummis. I thank the witness.
And, Mr. Glicksman, you are recognized for 5 minutes.
STATEMENT OF ROBERT GLICKSMAN
Mr. Glicksman. Madam Chair, Ranking Member Lawrence, and
subcommittee members, my name is Robert Glicksman. I'm the J.B.
& Maurice C. Shapiro Professor of Environmental Law at the
George Washington University Law School, although I speak today
solely in my personal capacity. I've taught and written about
environmental and natural resources law for 35 years and am a
coauthor of the leading treatise on public natural resources
law. I appreciate the opportunity to testify today on the
Endangered Species Act.
I'll make several points.
First, as the Government Accountability Office has
recognized, the success of the Endangered Species Act cannot be
measured in delisting alone. By one account, more than 250
species would have disappeared in the U.S. during the ESA's
first 30 years if they hadn't been listed.
As of 2014, about three dozen species had been down-listed
from endangered to threatened and three times as many have been
delisted as declared extinct since the ESA's adoption. The
condition of other species is improved, though not yet enough
to justify delisting. One study found that 90 percent of
species are recovering at the rate specified by their Federal
recovery plans.
Species recovery could be slow for reasons having nothing
to do with the ESA's utility. Species are not listed until they
are already in very bad shape. It's not surprising that it may
take years or even decades to bring them back from the brink.
Some species are slow to respond to recovery efforts. They
may reproduce slowly; face ongoing, unabated threats; or
require habitat that government hasn't yet been able to secure.
Recovery efforts may hinge on unavailable information about
threats facing species or how best to mitigate them. Both the
GAO and Fish and Wildlife Service biologists have found that
ESA recovery plans play an important role in identifying
actions that scientists deem most important to recovery.
Second, resource constraints have prevented the ESA from
being even more successful in staving off species decline and
promoting recovery. Congress has long funded the ESA at levels
inadequate to enable the Fish and Wildlife Service to carry out
its responsibilities. Researchers have estimated that over the
past 15 years spending to protect listed species has covered
only about a third of the recovery needs.
A study published last month found a strong correlation
between recovery funding and trends in population levels. It
found that only about 12 percent of listed species are
receiving funding at levels prescribed by their recovery plans
but that recovery goals are 2.5 times more likely to be met for
those species than for those inadequately funded.
Congress should redress the chronic underfunding of ESA, as
Fish and Wildlife Service Director Dan Ashe has called on it to
do. He has also recommended increasing financial incentives for
species conservation by non-Federal actors. But instead of
continuing or increasing programs that assist States and
private parties in conserving listed species, Congress is
cutting or ending these effective programs. They include
programs to fund acquisition of land needed to support listed
species and to help farmers protect biodiversity on their land.
Third, some trace difficulties in ESA's implementation to
efforts by citizen groups to compel species listing through
petitions filed with the Fish and Wildlife Service or lawsuits
in Federal court. Congress has recognized the vital role that
citizens can play in helping to implement laws that protect
civil rights, voting rights, consumer protection, and the
environment.
Citizen-initiated lawsuits help ensure that individuals and
groups from across the political spectrum with a wide range of
interests can call on the Federal courts to ensure
accountability of agencies and their compliance with conditions
Congress imposed on them. Those maintain that the Fish and
Wildlife Service has been both too aggressive and not
aggressive enough in protecting species. Those who want both
less and more government intervention have consistently taken
advantage of their access to the courts.
Senator Edmund Muskie recognized decades ago that the
concept of compelling agencies to carry out their duties is
integral to democratic society. Administrative failure should
not frustrate public policy, and citizens should have the right
to seek enforcement.
Congress will authorize suits against the Fish and Wildlife
Service to enforce listing-related duties, to increase
opportunities for citizen participation in the policymaking
process, and to address concerns that political pressure might
discourage listing of deserving species. According to a
prominent ESA expert, citizen suits have played an important
role in almost every aspect of ESA implementation.
Greater funding would be one way to redress or at least
address the backlog that the Fish and Wildlife Service is
currently experiencing in responding to petitions both to list
and delist species.
I look forward to your questions.
[Prepared statement of Mr. Glicksman follows:]
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Mrs. Lummis. I thank the witness.
And, Ms. Budd-Falen, you are recognized for 5 minutes.
STATEMENT OF KAREN BUDD-FALEN
Ms. Budd-Falen. Thank you.
Chairman Lummis and Minority Leader Lawrence, honorable
members of the committee, my name is Karen Budd-Falen. I am a
fifth-generation rancher who is working to ensure that that
ranch we have in Big Piney, Wyoming, is secured for a sixth
generation. I'm also an attorney who has worked to protect our
ranching heritage, our way of life from the Federal Government
overreach, including that of the Endangered Species Act.
Chairman Lummis went through some of the numbers today, and
I think those numbers are important to understand. There are
2,258 plant and animal species listed as threatened or
endangered, 1,592 of which are located in the U.S.
Part of listing a species is also critical habitat
designation, yet only 791 of these species have critical
habitat designated. And even with that backlog, the Fish and
Wildlife Service data indicate that there is another 1,508
species that are pending for review as either listed--pending
as listing as threatened or endangered.
Today's hearing is about delisting, so we should consider
the number of species that have been delisted and recovered.
According to the Fish and Wildlife Service, that total number
is 63. Analyzing that list, the numbers of species that have
been removed because of a listing error is 19. The number that
were recovered is 34. The number that has gone extinct is 10.
And while the Obama administration is correct that it has,
``recovered more species than ever,'' part of that recovery is
based on development of recovery plans. The problem is that the
number of recovery plans has significantly been decreasing. For
example, if you look between 1990 and 1999, 843 species were
included in a recovery plan. Between 2000 and 2009, the number
of species included in a recovery plan dropped to 235, and from
2010 to today, only 177 species are included in a recovery
plan.
I would argue that there are three problems with the
delisting of species, and the number-one problem is priority.
It does appear to me that, when you look at the decrease in
species included in a recovery plan versus the increased number
of species listing, that the priority is in listing, not in
setting recovery plans to get species off the list.
When you look at the Congressional Record for the
Endangered Species Act, it talked about recovery and getting
species off the list. There is nothing in the Congressional
Record that indicated that species were supposed to get put on
a list and parked there forever.
The second problem that I see happen is that so often
recovery goals are simply not set. And that's a hard issue for
me to understand. If the Fish and Wildlife Service has enough
information to determine that the number of species is getting
close to extinct, certainly at the same time it can come up
with the converse to determine how many species we need so that
the species is protected.
And once you set forth that number and those goals, then
landowners, then States, then the Federal Government knows what
to manage for. But so often these recovery numbers and the
numbers of what to manage for are never included so that the
public doesn't know what the end goal is. And I think that that
is a barrier to getting species off the list. If we know where
we're going, we can figure out how to get there.
The third problem I see is such difficulty in developing
candidate conservation agreements with assurances or candidate
conservation agreements. Currently, only 77 CCAAs or CCAAs--
excuse me--CCAs are in existence.
I've worked on numerous of those. One of the big
differences we have in those is looking at different regions of
the Fish and Wildlife Service have completely different
policies on what is an adequate CCA or a CCAA. Look at the one
for the greater sage-grouse, which did keep the sage-grouse
from being listed, but the policies in the different regions of
the Fish and Wildlife Service on how to develop those candidate
conservation agreements were completely all over the board.
A lot of people yesterday in the hearing touted the CCAA
for the greater sage-grouse in Oregon and Washington because
they had a saying there, ``What is good for the bird is good
for a herd.'' The problem is, when you talk to those Fish and
Wildlife Service people, they will tell you that they went out
on a limb because the candidate conservation agreement looked
at the entire ecosystem, not just at the species, and when you
look at the entire ecosystem, they were able to develop a CCAA
that dealt with all of the issues and protected landowners as
well as protecting a bird. You can't do that if you're singly
focusing on the species.
The second issue that we come up with in terms of CCAAs and
CCAs is the difficulty in litigation. If you don't have enough
time in the litigation, you can't allow the policy to work.
With that, I would stand for questions. Thank you.
[Prepared statement of Ms. Budd-Falen follows:]
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Mrs. Lummis. Thank you, panel.
And I'm pleased to report that it appears that we'll be
able to complete our hearing without being interrupted by
votes. So the strategy of moving this hearing an hour earlier
has been successful, allowing this panel an opportunity to ask
questions of you, which we will begin now.
So thank you for your testimony.
And the chair will yield herself 5 minutes to begin
questioning.
Ms. Budd-Falen, how did we get to the point where the Fish
and Wildlife Service spends most of its time in court rather
than helping boots-on-the-ground recovery of species?
Ms. Budd-Falen. Madam Chairman, I think the answer to that
is, when you look at the Endangered Species Act, the only
timeframes that are included are listing timeframes. You
petition a species for listing; the Fish and Wildlife Service
is mandated to respond in 90 days. If they miss that 90-day
deadline, litigation can occur. If they meet the 90-day
deadline, then they have a 12-month finding that the Fish and
Wildlife Service has mandated on issuing. If they miss that
deadline, litigation can occur.
There are seven different places--excuse me, eight
different places in the listing process that litigation can
occur, and litigation occurs in all eight of those areas. But
if you look on the converse side, there are no mandatory
timeframes, so you can't mandate that the Fish and Wildlife
Service create a recovery plan or delist a species, because
there's no mandatory timeframe for that.
And so I think the act was set up to enforce the listing
but not give us the chance in court to enforce delisting or
recovery plans because the Fish and Wildlife Service always
prioritizes something else first.
Mrs. Lummis. Thank you.
A question for Mr. Baier. Now, in terms of the use of
litigation not just to force listings but to block delistings,
do you think in Congress in 1973 they envisioned or intended
litigation to play this role under the ESA?
Mr. Baier. No. The answer is no.
My next book is--that we're well into the research on--is
on the Endangered Species Act and its history and its
application and the flash points that we're experiencing with
it. In that research, I've been going around the country
interviewing the people that wrote that act, starting in 1972--
well, going back to 1966, the Organic Act. And I've been
talking with the folks that actually wrote this act back in
1972, 1973.
John Dingell was the floor manager. He wrote the preface
for this book. And I've asked John and I've asked many others
that were really involved with this back then about that very
question, and they just assumed delisting would happen. So I
said, why in the 1973 act does the word ``delisting'' only
appear once? The word is only in that act one time. And I said,
what were you folks thinking back then about this? And they
said, well, you know, our focus was protecting the eagle, the
condor, the iconic species in America, and that's what our
focus was.
So the whole etiology of the act, when you read it, read it
through, the systemic focus of the act is on listing, and they
just assumed delisting would occur. And they have all said
universally that if they could go back today they would've put
appropriate criteria in for delisting.
Mrs. Lummis. Thank you.
Ms. Budd-Falen, you began to describe the process to reach
a candidate conservation agreement. What are some of the ways
that the process could be improved?
Ms. Budd-Falen. I think the first way that the process
could be improved is to allow the process to look at the
ecosystem of the species rather than the species itself. I
realize that the ESA says species and the ecosystems upon which
they depend. But the litigation occurs over species listing,
and so that is the focus. I think to broaden that to look at
landscapes, at ecosystems would help.
The second thing I think we have to look at is really
focusing on making on-the-ground improvements to the land. I
think that so often these end up in big paper exercises with no
incentives for landowners to participate, that it's very
difficult to convince them to do it.
For example, if you look at the lesser prairie chicken
range-wide plan, that was actually a really good combination of
allowing oil and gas development to put up funding so that
private landowners could then protect species. That is a great
balance.
The problem with the lesser prairie chicken listing was
that the time ran out because of this litigation settlement
agreement, so the Fish and Wildlife Service said, even though
we agree with this range-wide plan, even though we think this
is a wonderful thing, we are going to not consider it and list
the species anyway. So you had litigation occur. The time just
ran out.
Mrs. Lummis. Thank you.
My time has expired, and I will now recognize the ranking
member, Mrs. Lawrence, for 5 minutes.
Mrs. Lawrence. I really appreciate the witnesses and the
different perspectives that you're bringing today.
According to the Fish and Wildlife Service and the National
Marine Fisheries Service, State agencies are the primary
protectors of endangered species. ``States possess primary
authority and responsibility for the protection and management
of fish, wildlife, plants, and their habitats.''
Too often, States are either unwilling or unable to
exercise that authority effectively. That is when the Federal
Government must step in. The reason species are listed for
protection under the Endangered Species Act is a failure of
States to protect species from extinction.
So, Mr. Glicksman, will you comment, do States have the
ability to be proactive and to implement their own conservation
efforts before a species needs to be considered for listing?
Mr. Glicksman. They do. Congress was careful in enacting
the Endangered Species Act to preserve traditional State
prerogatives in many areas in managing wildlife. The Endangered
Species Act vests the Fish and Wildlife Service and the
National Marine Fisheries Service with authority as kind of a
backstop in the event that the States don't take adequate
measures to protect wildlife species within their borders.
The statute preempts State authority only if it is in
conflict with measures adopted by the Federal Government under
the Endangered Species Act. So the States really have the first
opportunity to protect endangered species, and the Fish and
Wildlife Service will step in only in emergencies--that is,
when the species are already on the brink of extinction.
Mrs. Lawrence. Have there been cases in which the State did
fail to implement and follow through on an adequate plan to
ensure the recovery?
Mr. Glicksman. There are certainly examples of that, and
one that comes to mind is with respect to the gray wolf in
Wyoming. There you had a species that was in trouble in at
least three States--Montana, Idaho, and Wyoming. Montana and
Idaho came up with plans that adequately addressed the problems
that the species was encountering. Wyoming did not initially.
A court remanded the Wyoming plan back to the State to fix
it. The Fish and Wildlife Service ultimately approved Wyoming's
plan, but on judicial review a court concluded that the plan
was again inadequate, primarily because it did not include
binding commitments to ensure that wolf populations remained
above minimal levels specified in the recovery plan that the
State had adopted.
Mrs. Lawrence. But there's been similar examples where
delisting of wolves did not occur because judges noted a lack
of protections as a reason to not delist the wolves. So we
talked about litigation, but there also has been that role that
the State has to play. And these States have included North and
South Dakota, Iowa, and Indiana, just to name a few.
Do you believe, Mr. Glicksman, that the court was justified
in finding that the unregulated killing of wolves might
represent a real threat to their survival?
Mr. Glicksman. One of the requirements that the agency has
to take into account both in listing and delisting decisions is
the adequacy of the existing regulatory mechanisms to protect a
species.
I think the court in the gray wolf case concluded that,
among other things, the State's designation of 90 percent of
the State's territory as predator area for the wolf and its
designation of only about 10 percent of the wolf habitat as
trophy game area, in which the taking of wolves would be
regulated and restricted by the State, was inadequate. The
court felt that giving that degree of authority to hunters to
kill wolves would not be sufficient to meet the target level
specified in the plan of 10 breeding populations in 100
animals.
Mrs. Lawrence. Thank you.
Madam Chair, I yield back my time.
Mrs. Lummis. I thank the gentlelady and recognize the
gentleman from Alabama, Mr. Palmer, for 5 minutes.
Mr. Palmer. Thank you, Madam Chairman.
Ms. Budd-Falen, recently the administration has come out
with new regulations and policies for designating critical
habitats for endangered species. Could you briefly describe for
us some of the major changes these regulations create? I would
like briefly, if possible.
Ms. Budd-Falen. I believe that the new Obama changes to the
critical habitat rules between 2012 and 2016 completely turn
over the designation of critical habitat to anything within the
whim of the Fish and Wildlife Service. The new rules allow the
designation of potential critical habitat even if that habitat
does not have the primary features of the habitat.
So it basically means that any circle can be drawn on a map
and anything is now a critical habitat, which then makes it
significantly harder for private property owners and Federal
grazing permittees.
Mr. Palmer. What kind of effects would these regulations
have on Federal, State, and private landowners?
Ms. Budd-Falen. Mr. Palmer, I think that these are going to
have a significant impact. The problem is that the adverse
modification rules were also changed, which means that now a
private landowner or a State cannot adversely modify critical
habitat, which means it would slow its progress toward becoming
a critical habitat at some time in the future.
And we don't know when that future is. It could be you
can't now, you know, cut your hay meadow or you can't now graze
your field because in the next 200 years it may contain the
features necessary for some threatened or endangered species.
That's where the rub comes.
Mr. Palmer. And I'd also add that they really don't take
into account the economic cost and the burden that's imposed by
these critical habitat designations.
Ms. Budd-Falen. No. That was eliminated by the 2013 rule,
which eliminates the consideration of economic analysis.
Mr. Palmer. And it doesn't take into account the burden on
the private landowners.
Ms. Budd-Falen. No, sir.
Mr. Palmer. Let me transition here a little bit. One of my
concerns with what's going on not only with the Fish and
Wildlife and National--and the Marine Service--Marine Fisheries
Service includes the EPA, and that is this whole issue of sue
and settle, which you brought up, Mr. Glicksman.
Do you not see that as very problematic in terms of how it
undermines the State's roles, as mentioned by Mrs. Lawrence?
Mr. Glicksman. No, I don't see that as problematic. First
of all, the States can take measures to prevent species from
getting to the point that they are endangered or threatened,
and the statute wouldn't be triggered in the first place----
Mr. Palmer. Well, let me cut you off there, because I don't
think it's about how the State's taking the action in as timely
a manner as some people want it. It's more a matter of how the
statutes are implemented.
And, particularly, this prairie chicken, for instance, is a
sue-and-settle issue. It's a consent decree. And----
Mr. Glicksman. Well, courts have to approve consent
decrees. So the court won't approve a decree that it regards as
unfair or----
Mr. Palmer. That hasn't been the case. We know that there's
court shopping, judge shopping. There's collaboration between
these independent outside groups, so-called independent outside
groups, and Federal agencies to really cook up a pre-agreement
on this. So they file the suit and we don't fight it in court,
where if we fought it in court I think the outcomes might be
different.
Have you participated in any of the sue-and-settle
lawsuits?
Mr. Glicksman. I have not, no.
But I would point out that sue-and-settle techniques have
been engaged in by litigants from a variety of interests. So,
for example, there's been litigation in Utah over the scope of
R.S. 2477 rights. Litigation was brought against the Federal
Government----
Mr. Palmer. Yeah, but my point about this is that it is I
think, not only a violation of the intent of the Clean Air Act,
the Clean Water Act, the Endangered Species Act, it violates
the matching principle that States had.
I mean, there's a great piece on this in the Harvard
Journal of Law and Public Policy, and the Harvard Journal of
Law and Public Policy article basically deals with the EPA, but
I think the same principle applies.
What's going on with sue and settle is a violation of State
rights and, I think, private property rights, as well. And it's
using the courts in a very manipulative and, I think,
disingenuous way to impose these regulations on the States and
on private landowners.
Madam Chairman, I yield.
Mrs. Lummis. I thank the gentleman.
And I recognize the gentlewoman from the Virgin Islands,
Ms. Plaskett.
Ms. Plaskett. Thank you.
Mrs. Lummis. Did I pronounce that right?
Ms. Plaskett. Yes, you did. Thank you.
Mrs. Lummis. Thank you.
Ms. Plaskett. Good morning--or good afternoon to you all.
Thank you so much more your time.
Mr. Thornton, you talked about litigation that you've been
involved in and the scientific data indicating the issues
involving delisting. That's particularly interesting to me,
living in the Virgin Islands, the impediments to delisting that
you've talked about.
Can you explain some of your thoughts on why this occurs
and why it's so difficult to delist species?
Mr. Thornton. Congresswoman, I think the fundamental reason
is that, once a species is on the list, the inertia takes over
within the regulatory agency. Very difficult to have them
reverse that decision.
Frankly, the Endangered Species Act provides a lot of
regulatory authority and power to the Fish and Wildlife
Service, so I think the natural, kind of, human inclination of
a regulator is to want to retain that authority.
And once a species is listed, it develops a constituency,
usually, that become strong votes to retain that species on the
list, even when the science emerges, as it did in the case I
mentioned where we went from, frankly, 19th-century ornithology
to very sophisticated genetic testing----
Ms. Plaskett. You know, this is one time where with some of
my colleagues on the other side I tend to agree. And I agree
wholeheartedly with you as to the advocacy groups that come
around and are formed when species come on the list.
I live in the U.S. Virgin Islands, and we have enormous
impediments that are put on us with our economic development
and the growth of the territories because of the endangered
species listing and because once species are put on the list
there is almost nothing we can do to adequately satisfy the
needs of the--you know, you talked about the U.S. Fish and
Wildlife, the National Marine Fisheries Association, NOAA,
others that keep us from being able to grow our economy.
I'm often, I think unfairly, labeled by many in my
community as being against our natural resources, which I think
is in--and not an environmentalist, which I think is an unfair
label that has been put on me. I'm worried, quite frankly,
about the extinction of the people of the Virgin Islands that
are occurring because of the endangered species listing.
In August of 2014, 19 new corals were listed by the
Endangered Species Act, requiring specific ways in which we
could operate around these corals that were put on this list.
It costs us now 30-percent more to develop in the territory
because of this listing.
And that really necessitates, in some instances, developers
leaving the area entirely. We've had projects--Williams and
Punch--creating dolphins within our coral world--with Thatch
Cay. Lots of development can no longer move forward because it
takes 2 years to get a biological opinion passed by--and I see
you're shaking your head, Ms. Budd-Falen--where it takes so
long to come up with a plan that says how we're going to move
the coral so that we can have sustainable projects take place.
And I'm not just talking about resorts that are created for
visitors and people who want to come down and enjoy themselves.
We were trying to move from fossil fuel oil to propane to
reduce the cost of energy in an already exorbitant economy, and
it took almost 2 years to get the permitting requirement
because, in the time period that we put the permit, this
listing came up in August 2014 that has absolutely crippled us.
I can't imagine what occurs in American Samoa and in
Northern Marianas and Guam, where their way of life is being
absolutely shut down because of this listing that's put on
here. And the fishermen are no longer able to fish at all in
many areas because of this listing.
Ms. Plaskett. Once listed, it's almost impossible to go on
with the delisting. I know the administration has said that
they have about 28 percent that have come off of the list, but
that is entirely not enough. And they do not have aggressive
plans on how to move to delisting.
Mr. Glicksman, you talk about the States having inadequate
measures. In the Virgin Islands, we believe that we've done and
have been doing for hundreds of years a great job in preserving
our natural resource. We understand that that is the most
important resource that we have. And we are now feeling the
effects of global warming that we had nothing to do with. And
we are being penalized by the Federal Government by not
allowing us to exact plans that we believe balance the needs of
our natural resources and the needs of the people to have jobs
and food and be able to sustain themselves with this endangered
species.
Madam Chairwoman, I know that my time has expired. I guess
I really didn't have any questions in the 5 minutes that I had,
but I thought it was necessary to put on the record the
concerns of the people of the Virgin Islands and, I'm sure, the
concerns of many communities throughout the United States that
feel that there needs to be a balance between the endangered
species, which we want to keep, as well as not endangering the
lifestyles of the--what we believe are natural and fair
lifestyles of Americans living in those areas.
Thank you.
Mrs. Lummis. The gentlewoman yields back.
And I think many people share the frustrations and the
goals on a bipartisan basis of saving species, recovering
species, and have the ethic to do so but are frustrated with a
process that is actually beginning to interfere with the
ability to recover those species in an effective and timely
manner.
The chair now recognizes the gentleman from Montana, Mr.
Zinke, for 5 minutes.
Mr. Zinke. Thank you, Madam Chairman, and I appreciate the
opportunity to be on your committee.
I guess--I, you know, listened to it. One is I think we
need more scientists and less lawyers in the woods. I think
that's an overriding conclusion.
And I appreciate--I can't wait to read your book, Mr.
Baier. As a native son of Montana, I think you're aware of it.
When I looked at the sage-grouse--and I consider myself a
Teddy Roosevelt Republican. When I looked at the sage-grouse, I
talked to Director Kornze, and I asked him, why do you think
the numbers of sage-grouse are low? And it depends on where in
Montana. Now, bear in mind that Montana has the same distance
between here and Chicago plus 2 miles. His immediate answer was
oil and gas exploration. I found that somewhat ironic because,
at the time, Montana had one oil derrick. Today, we have none.
So I asked him, does the plan take into consideration
predators? We have a coyote population. We have more hawks. The
eagle population is soaring, no pun intended. The answer was
no. What about wildfires? The answer was no.
And the core of the issue was, what does a healthy
population of sage-grouse look like? Because if we're going to
target to return to a healthy population, then we should strive
to a number. As a former SEAL commander, metrics are important.
The answer was, we don't have one, but it is about habitat. And
so, if you don't know the difference between Butte and Bozeman,
then how can you manage a difference that Butte and Bozeman
have?
So I guess my question would be to Mr. Bousman. Because, as
I look at it, these collaborative efforts are so incredibly
important, that we can come together on issues. Because we all
value, I believe, endangered species, and we want to make sure
we have healthy populations, but certainly local jurisdictions
have a place in it.
So, Mr. Bousman, what level of engagement does the
Endangered Species Act require between Federal officials and
local?
Mr. Bousman. Congressman Zinke, thank you for that
question.
At this time, section 1533 of the ESA does say that
consultation will occur when deciding whether or not a species
is threatened or endangered. It also requires Fish and Wildlife
Service to give notice of any pending new regulations or
designation and invite comment from the counties.
But it does not require any defined level of cooperating
agency status or collaboration. And I guess, as a local
government official, we continually work with both land
management agencies in Wyoming--the Forest Service and the BLM.
They are required through NEPA to designate local and State
governments as cooperating agencies, and they're required to
coordinate with any local plans they have in place. That's not
true at Fish and Wildlife Service.
And I think it would be a great benefit if Congress could
change the rules a little bit in terms of Fish and Wildlife
Service and their endangered/threatened species management to
require the same level of coordination and collaboration with
local and State governments as what they do with the land
management agencies. That has proven to work fairly well when
it's taken advantage of.
And there's ways that that--it goes back to the whole idea
that the best management decisions are made at the local level,
by the local people, working together with the local Federal
agency people and the community. And it takes into account the
socioeconomic impact on the community, and it allows you to
develop a plan for the species or for the habitat that takes
into account those concerns. And it turns out to be a win-win
for everyone.
Mr. Zinke. Mr. Baier, in your book, do you estimate how
much is spent every year on litigation by both outside sources
and the agency?
Mr. Baier. The low figure is a million dollars. The high
figure is, as best I recall--I know Karen Budd-Falen published
some numbers on that, and I forget--I cannot remember off the
top of my head, but it was, I think, over $2 million.
Mr. Zinke. Is that from the agency or outside sources or
combined?
Mr. Baier. It's a combination of the fees that are paid out
by the Treasury Department--even though the law says they're
supposed to come out of the agency budget, they don't. The
Department of Justice authorizes checks being written. It comes
right out of the U.S. Treasury.
But on top of that you've got to then add the cost to the
agency of all the personnel. And that's, from talking to all of
the Fish and Wildlife Service Directors over the past years,
they estimate, for every dollar of fee that goes out, anywhere
from five to seven times that are spent in personnel costs.
Mr. Zinke. Thank you.
And thank you, Madam Chairman. I yield back the rest of my
time.
Mrs. Lummis. I thank the gentleman.
And with the committee's indulgence, we will do one more
round of questioning but 4 minutes only per person. And then I
would like to give each member of the panel 1 minute to say
anything that they wish they could have said but didn't get to
during the course of this hearing. Fair enough?
Okay. The chair recognizes herself for 4 minutes.
Mr. Bousman, do you think that the conservation ethic of
Americans has changed? Do you think that local governments,
such as yours, are willing and able to protect species like the
grizzly bear, the wolf, sage-grouse, black-footed ferret, and
other species that are within their counties?
Mr. Bousman. Congresswoman Lummis, definitely the
conservation ethic has changed at the local level. And, in my
experience in Wyoming, for example, the local people now look
to us, as their elected officials, to take into account those
sorts of things, which 20 years ago you would have never seen a
county commissioner at a hearing in Washington, D.C., talking
about these kinds of issues. The mindset has changed.
And we are in a position now, both willing and ready, to
work with our State game management agencies to point out at
the local level what the problems are. An example could be--and
we have one in our county--mule deer migration and bottlenecks
that have occurred that inhibits the mule deer from migrating
from one place to another where they spend the winter, getting
back in the summer. And we're ready and engaged in addressing
those issues.
And if we could somehow redirect a little bit the Fish and
Wildlife Service to become more of a resource for State and
local governments to say how can we help you meet the goals,
the conservation goals of a species, we could be much more
effective on the ground.
Mrs. Lummis. I commend to the panel's attention a drive
between Pinedale, Wyoming, and Jackson, Wyoming, where there
have been overpasses created over a road for antelope and
underpasses for elk and deer because the species choose
different means of access across the highways. The antelope
won't go under an underpass, whereas elk and deer will. And so
two massive overpasses were built specifically for antelope to
cross that road, thereby saving tremendous wildlife deaths on
the highway.
So I commend, Mr. Bousman, your county and your particular
involvement in these issues.
Ms. Budd-Falen, a comment was made about Wyoming's wolf
recovery plan and its adequacy. Would you care to comment on
the wolf case?
Ms. Budd-Falen. I think the most frustrating thing about
the wolf case for the people in Wyoming was the fact that that
case got litigated in Washington, D.C., rather than in Wyoming
with a Wyoming Federal district judge who knew the people, who
knew the land, who knew the State.
In fact, there was litigation in both Wyoming and
Washington, D.C., and the case got moved over to Washington,
D.C., to a judge who I don't think has any idea where Wyoming
is, which one of the square States we are. That was one of the
first problems.
I think the second problem is that, after the wolf case got
sent back to Wyoming because they didn't have a commitment, a
written commitment from the Governor, the legislature and the
Game and Fish immediately acted to put in that true, written
commitment on wolf recovery in place, but the case was over,
the court wouldn't recognize it, and then the U.S. Fish and
Wildlife Service refused to recognize it. So Wyoming tried to
fix the problem identified by the court, and it didn't help.
Mrs. Lummis. My time has almost expired, so I will yield to
the ranking member, Mrs. Lawrence, for 4 minutes.
Mrs. Lawrence. I appreciate my chairman's lesson on
antelope and elk. I had no idea, so I learned something today.
Mr. Glicksman, let's discuss the consequences that budget
cuts have had. Would you--let's talk about this. Do you agree
that a lot of the litigation is due to an agency's missed
deadlines?
Mr. Glicksman. Yes.
Mrs. Lawrence. So the Fish and Wildlife Service uses
innovative programs, but they're understaffed and underfunded
and they struggle to manage it. It's not surprising, when
funding cuts are made, you have an issue with missing
deadlines, and plaintiffs sue the agency.
What do you recommend or what would you say to Congress as
we talk about this, as we talk about the need to ensure that
our sincere efforts to protect the endangered species--that,
one hand, because they're cutting the costs and staffing of
that agency and litigation is increasing--and I agree with the
comment that was made, we need more scientists and less
litigation.
But can you comment on that? Enlighten us.
Mr. Glicksman. I would say that, to me, it seems
counterintuitive to redress a research shortage by cutting
funds still further. If the agency lacks sufficient funds to
comply with the statutory responsibilities, the solution, it
appears to me, would be to provide more funding and more staff.
In recent years, the agency has experienced about a 10-
percent decline in the levels of staffing, which obviously
would make it more difficult for it to comply with its
obligation to respond to petitions of all sorts on a timely
basis.
It would also, I think, increase the likelihood that, when
the agency does make a decision, it's not going to be as
thorough, well-considered, or take into account all
perspectives that ought to be taken into account. And it may be
that the lack of funding is responsible for failure to consult
and work rigorously with all affected interests. They just
don't have the time, the personnel, or the money to do so.
Mrs. Lawrence. I thank you.
And, Madam Chair, I just wanted to close with, when we have
an objective in a bipartisan act and we want to be able to use
the full entirety of it, that we must look at the staffing that
we have. And lack of funding leads to lawsuits. It also makes
it difficult to keep species off the endangered species list,
and it hampers the ability of the Fish and Wildlife to
adequately oversee the recovery, which is ultimately the real
barrier to delisting.
And I yield back.
Mrs. Lummis. I thank the ranking member for her time and
her participation in this hearing.
The chair now recognizes the gentleman from Arkansas, Mr.
Palmer, for 4 minutes.
Mr. Palmer. Madam Chairman, if I may, I'd like to correct
the record that I'm from Alabama.
Mrs. Lummis. Excuse me.
Mr. Palmer. That's all right. Bruce Westerman would've been
proud of it.
Mr. Thornton, you were counsel to the House Fisheries and
Wildlife Conservation Subcommittee during the congressional
consideration of the 1978 and 1979 Endangered Species Act. As
such, you have familiarity with the background and legislative
intent of these amendments and their provisions.
What is your understanding of the reason for that part of
the law that creates the distinct population segments, or DPS?
Mr. Thornton. So, Congressman, some of the problems you
might be able to blame on me, perhaps, but----
Mr. Palmer. We're not blaming anyone.
Mr. Thornton. But it's very interesting because the
distinct population segment question was controversial at the
time, and I think there was a recognition that there was a
potential for abuse of listing of distinct populations and the
inability to properly define what's a distinct population.
Just, if you'll bear with me, a little story. In the course
of the testimony during the oversight hearings in 1979, the
Fish and Wildlife Service was responding to the complaints
about the ability to list distinct population segments, and
they cited as an example of why they needed population
authority was their down-listing of the American alligator in
the southern parishes of Louisiana.
That was near and dear to the then-chair of the
subcommittee, Congressman John Breaux, who represented
southwest Louisiana and had worked for a number of years to, A,
have the State implement a management program that was
phenomenally successful in increasing the populations of
alligators and then subsequently reducing the regulations.
And, frankly, it was the case that they made to Congressman
Breaux, that we need this authority to give us more flexibility
in the statute to remove those populations from the list when
they recover, when they're not threatened----
Mr. Palmer. But that hasn't been the case, has it?
Mr. Thornton. No. In fact, unfortunately, it's worked just
the opposite, where the DPS authority is now used as a barrier.
Mr. Palmer. You mentioned the possibility of it being
abused. Do you believe it's been abused?
Mr. Thornton. I do think that, in general, the barriers
that have been created by a listing of distinct population
segments, which has increased, and now, in some of the
litigation that's occurred, the inability to delist component
parts of a broader listed species, a subspecies or a species
where it's recognized that there are individual populations
that have recovered. The courts have made it more difficult to
delist those individual segments.
Mr. Palmer. Okay.
Mr. Baier, you had a slide up during your opening remarks.
Could you please explain the second graphic exhibit in your
written statement regarding the delisting attempts for the
wolves and grizzly bears, all of which, it seems, the courts
have overturned and reversed?
Mr. Baier. Yes. Thank you, Mr. Palmer.
If you all will get that graphic in front of you, if we can
put it up.
The vagueness of the language in ESA surrounding distinct
population segments, a significant portion of a species range,
or the adequacy of existing regulatory mechanisms to manage a
species once recovered are the three areas, the three sets of
language in the act which has led to the inability to delist
the wolf, both in the Great Lakes and northern Rocky Mountains,
and pretends to do so with the Yellowstone grizzly.
What this graph does is, serially, by year, walk down
through for each of the species the delisting or down-listing
of the species by the Service and then, under each of those,
shows the delisting being reversed by a court.
And at the bottom you'll see, ``Key to the grounds for
reversal.'' There's three different grounds down there--1, 2,
and 3. And so, in this graph, you'll see in parens under each
reversal either a 1, 2, or a 3, and those show the specific
language upon which the court's decision turned to delisting.
I wish we would've put these court decisions in red, but
that's what this graph shows, is that, because of the vagueness
of the language itself, each of these cases has turned on one
of three.
Mr. Palmer. I'd just like to point out that, in regard to
the distinct population segments, it was used seven times.
I yield back.
Mrs. Lummis. I thank the gentleman and recognize the
arrival of our vice chair, the gentleman from Colorado, Mr.
Buck, who will be recognized for 5 minutes due to the fact that
he missed the first round.
Mr. Buck, you are recognized for 5 minutes.
Mr. Buck. Thank you, Madam Chair.
Ms. Budd-Falen, I had the pleasure of practicing law in
Cheyenne for a short period of time. And I remember a saying,
actually probably more outside the bar than inside the bar,
but: If there's one lawyer in town, the lawyer starves; if
there are two lawyers in town, both lawyers become very
wealthy.
I'm trying to figure out the attorneys' fees with the
Endangered Species Act and what the legal basis for those
attorneys' fees are.
Ms. Budd-Falen. The Endangered Species Act is actually paid
out under a provision in the ESA itself, which means that the
fees for that act are paid from the judgment fund, not from the
Equal Access to Justice Act.
The judgment fund allows payment for achieving part of the
goal of the litigation, whatever part of that goal might be. So
even if the goal is simply, ``Fish and Wildlife Service, you
missed a time deadline,'' that is achieving the goal of the
litigation, you get paid your attorneys' fees.
There is no cap on the hourly fee that you charge under the
judgment fund, so $500 an hour or $700 or whatever. They don't
pay Cheyenne attorneys that, but whatever the attorneys' fees
paid are, that gets paid.
I pulled the Department of Justice run sheets from 2010 to
2015 just for Endangered Species Act cases alone and found that
over $9 million was paid in attorneys' fees from 2010 to 2015
for ESA cases solely.
Mr. Buck. And so how much did the Department of Justice
recover from plaintiff's attorneys that filed frivolous
lawsuits?
Ms. Budd-Falen. None. There is no fee shifting in the
opposite direction. So if I lose a case against the Justice
Department, I don't have to pay.
Mr. Buck. One of the beauties of Wyoming is this common
sense. Does that encourage or discourage people from filing
lawsuits, when they get money if any small part of their suit
is successful but they don't have to risk anything if they are
deemed to have filed a frivolous lawsuit?
Ms. Budd-Falen. Quite honestly, Mr. Buck, I think that
there is no downside to filing this kind of litigation. I have
seen these attorneys' fees cases and these ESA cases brought by
students of Denver University Law School. We have seen these
brought by, ``nonprofit organizations.'' The attorneys' fees go
strictly back into them.
The vast majority of attorneys' fees we found is done
through a settlement agreement, so we have no idea, as the
American public, the hours charged for a particular task in the
litigation or the hourly fee charged by the attorney.
Mr. Buck. And what is the effect on the administration of
the Endangered Species Act or the administration generally in
government when individuals file lawsuits? Does it prolong the
study or effort to move forward on certain issues?
Ms. Budd-Falen. Yesterday at the hearing, Director Ashe
talked about how litigation wasn't even a consideration. He is
not getting that from his staff. The staff people on the ground
will absolutely tell you that they spend so much time preparing
for litigation, responding to Freedom of Information Act
requests, that they simply cannot do their job because all of
their hours are sucked up in litigation.
So it may not be a policy at the top, but it is killing the
regular Fish and Wildlife Service or Bureau of Land Management
or Forest Service people at the bottom of the totem pole.
Mr. Buck. And the effect is really twofold. On the one
hand, where a species should be delisted it would take much
longer, and where a species may need to be listed, at the same
time, those individuals that are burdened with paperwork don't
have the ability to go out and do their job.
Ms. Budd-Falen. That's correct. They don't have time to go
do the science and gather up the information so that they can
figure out if something needs to get off the list, or so that
they can set a recovery bar so that States and landowners can
work toward goals to get it off the list.
Mr. Buck. I appreciate your testimony.
I yield back.
Mrs. Lummis. Now I wish to ask each member of our panel to
use 1 minute each to say anything that they wish they could
have said but was not asked of them.
Mr. Baier, thank you for your testimony. You are recognized
for 1 minute if you wish to use it.
Mr. Baier. Thank you, Madam Chairman.
I wish Mr. Zinke were still here. I checked my record. He
asked me how much--Mr. Buck--how much was spent on payments
each year, what are these lawsuits costing us as taxpayers. And
I said it was over a million. I was having trouble remembering.
It's about $49 million. For fiscal years 2009 and 2010, we went
back and checked the records, and the average is about $49
million for those 2 years.
We need to have an open book. I have had to do the
research, Karen Budd-Falen has had to go back and do the
individual research to find out how much is being paid out.
And thank God, in the energy bill, the Equal Access to
Justice Act reform measure that Chairwoman Lummis has been a
champion of in the House has finally passed, and now it's in
the energy bill, which I understand was finally passed. So we
are going to get an open book, finally, so we can keep track of
this.
Thank you, Madam Chair.
Mrs. Lummis. I thank the gentleman.
Mr. Baier. And thank you for your championing this for 6
years. It's taken 6 years to get that open book finally passed.
Mrs. Lummis. I commend also to those in attendance Mr.
Baier's book, which is sitting on the dais, or on the table
next to him. It's exhaustive research and factual information
on the Equal Access to Justice Act.
Mr. Thornton, you are recognized for 1 minute.
Mr. Thornton. Madam Chair, I think what I would like to
add, that I think it's very important that Congress focus on
the issue of what constitutes best science. That was added to
the statute when I was counsel to the committee in 1978. The
thought was that it established a higher standard for the Fish
and Wildlife Service to meet. Frankly, that has not worked out
in practice, and we get into the problem of the agency relying
on the defense, ``Well, these are technical issues, and
therefore you have to defer to the agency.''
I think there has to be some standard of what constitutes
best science. One element that I spoke about in my testimony is
transparency. It seems to me that should be noncontroversial,
that there should not be hiding the data, that you shouldn't
have to file lawsuits, as I've had to do, just in order to
obtain the data, which we had to do in the gnatcatcher. You
shouldn't have to have the agency hiding behind the so-called
deliberative process exemption in the Freedom of Information
Act and refuse to provide information that is, after all, facts
that's in possession of the agency or in possession of the
agency's consultants.
And then an understanding that best science means that the
agencies are obliged to use what is the current standard in the
profession and, frankly, not rely simply on what might have
been perfectly adequate science in 1920 but is no longer.
Mrs. Lummis. I thank the gentleman for his specific
recommendations about how to improve the implementation of the
act.
Mr. Bousman, you are recognized for 1 minute.
Mr. Bousman. Thank you, Madam Chairman.
One thing that comes to my mind, to give an example, an on-
the-ground example of how local government participating with a
Federal agency can actually improve the outcome of a process
and decrease the prospects of litigation, the Forest Service 3
or 4 years ago started an analysis in the Hams Fork area in
northern Lincoln County. They wanted to do a timber management
project.
And up until that time, every time the Forest Service
seemed to propose cutting trees that might create jobs and thin
the forest and reduce the cost of fire suppression, it got
litigated. In this case, with the help from the county's
involvement and the Governor's office involvement, working with
the Forest Service in a collaborative effort, bringing in
representatives from local environmental groups whose national
group tends to litigate--by involving that local component in a
collaborative effort up front in developing this forest
management plan, that record of decision on the Hams Fork was
not litigated at all. The record of decision stood as it was
proposed.
And now we're in the process of actually putting out--
letting people bid on projects to harvest trees, make the
forest a healthier forest for all the multiple uses that use
that forest. And it's a win-win for everybody. But it required
the in-depth participation at the local level to make that
happen.
Mrs. Lummis. I thank the gentleman and commend you on your
leadership on these issues.
Mr. Glicksman, you are recognized for 1 minute.
Mr. Glicksman. Thank you.
I would like to point out first that there are costs to the
filing of frivolous lawsuits under the ESA and elsewhere.
There's a reputational cost to an attorney in a case in which a
judge says that the suit was frivolous. There are sanctions
available in the Federal Rules of Civil Procedure for bridging
frivolous lawsuits, although they're not often exercised. And
attorneys' fees are not going to be reimbursed if the plaintiff
loses.
But I wanted to end by pointing out that I think there's
common ground between me and at least some of the points of
each of my co-panelists.
So I would agree, for example, that the ultimate goal of
the statute ought to be protection of ecosystems, not
protection of individual species alone.
I wouldn't necessarily agree that we need fewer lawyers. As
a law professor, that would be against my self-interest. But I
do agree that we need more scientists, especially at the Fish
and Wildlife Service.
I agree that a recovery plan should have clear metrics that
indicate when we have met recovery goals.
I agree that policy-based decisions in natural resources
management are often best when they're a result of
collaboration among and decisions that are acceptable by all
levels of government. So I do encourage collaboration between
the Fish and Wildlife Service and lower levels of government.
And, finally, I think that one advantage of authorizing
Federal action is its capacity to act as a resource pooler. And
so the idea of the Fish and Wildlife Service providing needed
information to allow local governments to act in ways that are
beneficial to species while protecting economic interests is an
attractive one to me.
Thank you.
Mrs. Lummis. Well, I thank you, Mr. Glicksman. And we are
seeking common ground, and I believe we've found some today.
Thank you for your testimony.
Ms. Budd-Falen, you are recognized for 1 minute.
Ms. Budd-Falen. Thank you, Congresswoman.
I think that I would agree with my panelists that one of
the biggest problems we have now is that, often, we don't have
goals for how many species we need or what kind of habitat we
need. Species get put on the list without clear goals, without
clear recovery, and then States and private landowners simply
can't manage to what they don't know to manage for.
I think that if the Fish and Wildlife Service truly wants
to recover species, they need to tell us what they want or let
the States and local governments figure out what they want so
that they can manage for it. It's impossible to manage for
something if you don't have a goal.
I do think, though, that it's a little sort of disingenuous
to say, oh, States can just keep species off the list if they
just manage better for the species. The problem is you've got
all the litigation. And so, even if the species, for example in
the lesser prairie chicken case, is putting together a range-
wide plan covering five different States and 5.8 million acres,
the Center for Biological Diversity sued anyway. And the Fish
and Wildlife Service said the range-wide plan doesn't have a
chance to work, we are not going to wait for all the CCAAs in
place, we're listing it anyway.
And then we just went through 2 years of litigation where
the court finally said, Fish and Wildlife Service, you didn't
give the range-wide plan a chance to work, and so the listing
got vacated. Fish and Wildlife Service has to determine if
they're going to appeal that to the Fifth Circuit Court of
Appeals. I think their timeline is, like, another 10 days to
appeal it or not.
So that was a case where you had five States trying to do
the right thing and it got preempted by litigation. The species
ought to matter, not the litigation, and I'm afraid that's the
way it works now.
Thank you.
Mrs. Lummis. Well, this panel has exhibited great expertise
and an effort to find common ground to recover species. And
that's what we're after. And we are deeply grateful to each one
of you, who has traveled far to offer up and share your
expertise.
I'm hopeful that your wise admonitions and advice will
change the way the Endangered Species Act is used in the future
so species recovery is paramount to other considerations, as I
believe the people who envisioned the Endangered Species Act in
1973 envisioned.
So, with that, I would like to thank our witnesses for
taking the time to appear before us today. And if there is no
further business, without objection, the subcommittee stands
adjourned.
[Whereupon, at 2:43 p.m., the subcommittee was adjourned.]
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