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STATE AND LOCAL EFFORTS TO 

PROTECT SPECIES, JOBS, 

PROPERTY, AND MULTIPLE 

USE AMIDST A NEW WAR ON 

THE WEST PART 1 AND 2 

OVERSIGHT FIELD HEARING 

BEFORE THE

COMMITTEE ON NATURAL RESOURCES 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

Wednesday, September 4, 2013 (Part 1), in Casper, Wyoming 

Wednesday, September 4, 2013 (Part 2), in Billings, Montana 

Serial No. 113–49 

Printed for the use of the Committee on Natural Resources 

( 

Available via the World Wide Web: http://www.fdsys.gov 

or 

Committee address: http://naturalresources.house.gov 

(II) 

COMMITTEE ON NATURAL RESOURCES 

DOC HASTINGS, WA, Chairman 

PETER A. DEFAZIO, OR, Ranking Democratic Member 

Don Young, AK 

Louie Gohmert, TX 

Rob Bishop, UT 

Doug Lamborn, CO 

Robert J. Wittman, VA 

Paul C. Broun, GA 

John Fleming, LA 

Tom McClintock, CA 

Glenn Thompson, PA 

Cynthia M. Lummis, WY 

Dan Benishek, MI 

Jeff Duncan, SC 

Scott R. Tipton, CO 

Paul A. Gosar, AZ 

Rau ́l R. Labrador, ID 

Steve Southerland, II, FL 

Bill Flores, TX 

Jon Runyan, NJ 

Mark E. Amodei, NV 

Markwayne Mullin, OK 

Chris Stewart, UT 

Steve Daines, MT 

Kevin Cramer, ND 

Doug LaMalfa, CA 

Jason T. Smith, MO 

Eni F. H. Faleomavaega, AS 

Frank Pallone, Jr., NJ 

Grace F. Napolitano, CA 

Rush Holt, NJ 

Rau ́l M. Grijalva, AZ 

Madeleine Z. Bordallo, GU 

Jim Costa, CA 

Gregorio Kilili Camacho Sablan, CNMI 

Niki Tsongas, MA 

Pedro R. Pierluisi, PR 

Colleen W. Hanabusa, HI 

Tony Ca ́ rdenas, CA 

Steven A. Horsford, NV 

Jared Huffman, CA 

Raul Ruiz, CA 

Carol Shea-Porter, NH 

Alan S. Lowenthal, CA 

Joe Garcia, FL 

Matt Cartwright, PA 

Vacancy 

Todd Young, Chief of Staff 

Lisa Pittman, Chief Legislative Counsel 

Penny Dodge, Democratic Staff Director 

David Watkins, Democratic Chief Counsel 

(III) 

CONTENTS 

Page 

Hearing held on Wednesday, September 4, 2013, Part 1 ..................................... 1 

Statement of Members: 

Daines, Hon. Steve, a Representative in Congress from the State of 

Montana ......................................................................................................... 5 

Hastings, Hon. Doc, a Representative in Congress from the State of 

Washington .................................................................................................... 2 

Lamborn, Hon. Doug, a Representative in Congress from the State of 

Colorado ......................................................................................................... 3 

Lummis, Hon. Cynthia M., a Representative in Congress from the State 

of Wyoming .................................................................................................... 4 

Statement of Witnesses: 

Hendry, Robert L., Vice Chair, Natrona County Board of Commissioners, 

Lysite, Wyoming ........................................................................................... 6 

Prepared statement of ............................................................................... 8 

Lally, Meghan O’Toole, Sheep and Cattle Rancher, Savory Wyoming ........ 31 

Prepared statement of ............................................................................... 33 

Meyer, Jeff, Managing Partner, Sweetwater River Conservancy, Alcova, 

Wyoming ........................................................................................................ 28 

Prepared statement of ............................................................................... 30 

Taylor, Rene ́e C., Owner, Taylor Environmental Consulting LLC, Casper, 

Wyoming ........................................................................................................ 22 

Prepared statement of ............................................................................... 24 

Wharff, Robert A., Executive Director, Wyoming Sportsmen for Fish and 

Wildlife, Evanston, Wyoming ....................................................................... 15 

Prepared statement of ............................................................................... 17 

(V) 

CONTENTS 

Page 

Hearing held on Wednesday, September 4, 2013, Part 2 ..................................... 49 

Statement of Members: 

Cramer, Hon. Kevin, a Representative in Congress from the State of 

North Dakota ................................................................................................ 57 

Daines, Hon. Steve, a Representative in Congress from the State of 

Montana ......................................................................................................... 54 

Hastings, Hon. Doc, a Representative in Congress from the State of 

Washington .................................................................................................... 50 

Lamborn, Hon. Doug, a Representative in Congress from the State of 

Colorado ......................................................................................................... 52 

Lummis, Hon. Cynthia M., a Representative in Congress from the State 

of Wyoming .................................................................................................... 53 

Statement of Witnesses: 

Cebull, Brian R., Billings, Montana ................................................................ 71 

Prepared statement of ............................................................................... 73 

Galt, David A., Executive Director, Montana Petroleum Association, 

Helena, Montana ........................................................................................... 65 

Prepared statement of ............................................................................... 66 

Knox, Matt, Board of Directors, Fergus County Farm Bureau, 

Representing Montana Farm Bureau Federation, Winifred, Montana .... 62 

Prepared statement of ............................................................................... 63 

Robinson, Lesley, County Commissioner, Phillips County, Malta, 

Montana ......................................................................................................... 59 

Prepared statement of ............................................................................... 60 

White, Kerry, Executive Board Member, Citizens for Balanced Use, 

Bozeman, Montana ....................................................................................... 81 

Prepared statement of ............................................................................... 83 

Whiteman, Channis, Member of the Crow Tribe, Equipment Operator, 

Cloud Peak Energy, Crow Agency, Montana .............................................. 77 

Prepared statement of ............................................................................... 80 

Additional material submitted for the record: 

Bullock, Hon. Steve, Governor, State of Montana, Letter Submitted for 

the Record ...................................................................................................... 56 

(1) 

OVERSIGHT FIELD HEARING ON STATE AND 

LOCAL EFFORTS TO PROTECT SPECIES, 

JOBS, PROPERTY, AND MULTIPLE USE 

AMIDST A NEW WAR ON THE WEST PART 1 

Wednesday, September 4, 2013 

U.S. House of Representatives 

Committee on Natural Resources 

Casper, Wyoming 

The committee met, pursuant to call, at 9 a.m., in Wyoming Oil 

and Gas Conservation Commission, 2211 King Boulevard, Casper, 

Wyoming, Hon. Doc Hastings [Chairman of the committee] presiding. 

Present: Representatives Hastings, Lummis, Lamborn, and 

Daines. 

The CHAIRMAN. The House Committee on Natural Resources will 

come to order. The committee is meeting today to hear testimony 

on the hearing entitled State and Local Efforts to Protect Species, 

Jobs, Property, and Multiple Use Amidst a New War on the West. 

By way of introduction, I am Congressman Doc Hastings, and I 

live in Washington, in Washington State. I call it the real Washington. I spend part of my time every year back in Washington, 

DC, and my district runs throughout central Washington, and we 

are very familiar with the impacts of the Endangered Species Act 

in the Northwest. We are constantly at odds with it. Twenty years 

ago, Washington State as a whole was a—I won’t say beneficiary 

but maybe a victim of the spotted owl. So I am familiar with that, 

and I am very pleased to be here in Casper, Wyoming today. 

Before we start today’s hearing, I want to recognize my colleague 

and your congresswoman from Wyoming, Cynthia Lummis. 

Cynthia? 

Mrs. LUMMIS. Well, thank you, Mr. Chairman. 

I am so delighted that the Natural Resources Committee Chairman, Doc Hastings, has chosen to be here today, along with my colleagues, Representative Doug Lamborn of Colorado—welcome, 

Doug—and our neighbor Steve Daines from Montana. We are really 

pleased that you have chosen Casper and our State of Wyoming as 

one of the sites for this important field hearing. 

Being that this is a congressional hearing, we are going to begin, 

as we do every session with the House of Representatives, with the 

posting of the colors and Pledge of Allegiance. So please join me in 

standing to recognize the Natrona County High School Mustang 

Battalion, who will post the colors; and Mr. Stan Low, a great 

American, who will lead us in the Pledge of Allegiance. 

[Pledge of Allegiance.] 

Mrs. LUMMIS. Well, thank you, Mustang Battalion; and thank 

you, Stan Low, for your service to our country and for being here 

today and leading us in the Pledge of Allegiance. 

2 

I now recognize City Council President Paul Meyer for a few welcoming words. 

[No response.] 

Mrs. LUMMIS. Not here. And on his behalf I will just say welcome, and I yield back to the Chairman. 

The CHAIRMAN. With that, the way congressional hearings are 

held are typically we have opening statements by the Members 

and, of course, we will hear from the panel. Following hearing from 

the panel, there will be a round of questions from members of the 

committee. 

We do have a timeframe because we have to go to Montana for 

a hearing up there, so we have to be out of here just before 11:00. 

If everything works well, we will do that. 

I now recognize myself for my opening statement. 

STATEMENT OF THE HON. DOC HASTINGS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WASHINGTON 

The CHAIRMAN. Today the Committee on Natural Resources continues its important oversight of the Endangered Species Act, with 

the goal of hearing specifically from an array of interests directly 

affected by the Endangered Species Act, and by that we mean 

States, local governments, sportsmen, and private property owners. 

I am pleased to be here in Casper, Wyoming this morning with 

Congresswoman Lummis and my two colleagues, one from Montana, one from Colorado. Congresswoman Lummis and I are cochairmen of the ESA Working Group. The Working Group is made 

up of Members from around the country who understand the need 

to carefully examine the Endangered Species Act. It is an act that 

has not been reauthorized for 25 years, and yet in that 25 years 

the lack of reauthorization in the roughly 15 years before that, the 

recovery rate of those species that are listed was 2 percent or less. 

Already, this Working Group has received hundreds of comments 

from individuals seeking improvements to the ESA. In addition to 

this morning’s hearing, later today the committee will be in Billings, as I mentioned, to hear from affected individuals there. In 

the coming weeks, the ESA Working Group will hold additional forums to ensure broader input from all States affected by this law. 

Ramped-up ESA listings, previously the 2011 settlement and executive orders, and actions by litigious groups, are wreaking havoc 

on people affected by the ESA, and that includes multiple use of 

lands that were designed for multiple use, rural economies, energy 

development, and even some States’ own species conservation activities. Rather than ensuring the Federal Government cooperates 

with States to the maximum extent practicable on major actions affecting land and water within the States’ borders, this administration is allowing ‘‘sue and settle’’ to dictate how Federal agencies 

prioritize endangered species listings. 

When species such as the grizzly bear, the gray wolf, or the dune 

sagebrush lizard are deemed healthy enough to be removed from 

the ESA list, States face more lawsuits from agenda-driven groups, 

blocking or delaying efforts that balance species conservation efforts with other important economic and recreational priorities. 

While the Interior Department’s announced proposal a few months 

ago to de-list the gray wolf is encouraging, I have a healthy skepVerDate Mar 15 2010 10:53 Nov 05, 2014 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 Z:\00 FULL COMMITTEE\00SE04 1ST SESS PT. 1&2\85208.TXT MARK
3 

ticism about when they will follow through on this long overdue decision and allow States to finally manage their wolves. 

I am also very troubled that, despite clear legal authority to the 

contrary, last week this administration finalized an Executive 

order that will effectively shut out Congress, shut out the States 

and the American public from knowing the true costs of ESA listings and critical habitat designations that was intended by the law. 

Already, hundreds of thousands of acres of private property have 

been included in habitat designations that will dramatically impact 

the future value and multiple uses of those lands. 

For example, the Canadian lynx habitat designation includes 

more than 16 million acres, including 8.5 million acres of private 

property. The Fish and Wildlife Service itself acknowledges that 

this could result in a loss of more than $2.3 billion in development 

revenues. 

Serious questions remain about the lack of data and science supporting the measures the BLM, the Bureau of Land Management, 

and the Fish and Wildlife Service claim are needed for the greater 

sage grouse in 11 Western States. Even though significant State 

and local resources are being devoted for the sage grouse, in Wyoming alone, the BLM has altered, delayed or denied literally hundreds of oil and gas leases, mining and grazing permits, water 

pipelines and power transmission lines, and weed control projects— 

I get exhausted just talking about that—due to the sweeping sage 

grouse plans. 

Rather than force a massive land grab to meet arbitrarily set 

court deadlines, successful State, local and private species conservation efforts need to be encouraged and given a chance to succeed. Allowing the fate of species to be increasingly decided by Federal bureaucrats, lawyers or Federal judges is not working and undercuts the intent or the purpose of ESA. 

So I look forward to hearing from our witnesses today and having a robust discussion on ways that this 40-year-old law can be 

improved for species and people. In addition to the testimony from 

our witnesses, we also want to hear from everybody else who may 

be impacted by the ESA. So I encourage anybody that is sitting 

here and obviously not testifying to go online and visit our ESA 

Working Group at esaworkinggroup.hastings.house.gov and submit 

whatever comments to the Working Group. 

Now I would like to allow my colleagues to make brief opening 

statements. Everything we do in Congress is done by seniority, and 

Mr. Lamborn is next senior on the committee, so we will hear from 

him next. 

STATEMENT OF THE HON. DOUG LAMBORN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF COLORADO 

Mr. LAMBORN. Thank you, Mr. Chairman, and I appreciate your 

efforts putting together the hearings we are going to have today 

and being a leader in this area of endangered species and the other 

important issues that the Natural Resources Committee works on. 

I want to thank Cynthia Lummis also. She is a leader in the field 

of resources and energy in our committees in Congress, especially 

here on the Natural Resources Committee, and she has taken leadership in this area of the Endangered Species Act, and I appreciate 

4 

that. It is an act that was well intended and has many good purposes and intentions, but I think it has been prone to some abuse 

on the part of those who want to shut down development, shut 

down the access of energy in the name of preserving species. 

We all want to make sure that our heritage of species are all protected and even restored, but we have a balance to reach, and I 

think we can reach that balance. The example of the Preble’s 

Meadow jumping mouse comes to mind. That is a little critter that 

is found in Colorado and Wyoming and other places, but it has a 

unique status of when you go north of the State line, into Wyoming, it is not a threat or endangered, but if you go south it is. 

Animals don’t recognize State lines. So, to me, that was an arbitrary distinction on the part of the—I believe it was the Fish and 

Wildlife Service. And yet it has had a very expensive impact in Colorado. 

Developments up and down the front range in Colorado are much 

more expensive if there is evidence that the Preble’s Meadow jumping mouse has a home there. And yet there is science that says it 

is a sub-species. It belongs to the Bear Lodge jumping mouse family and is not a separate species in and of itself. The science is kind 

of mixed, and you can find contrary studies. And yet we have tried 

and tried and tried to get the ear of the Federal agency, and they 

really don’t want to listen to us. 

So I am looking forward to the people who are going to be testifying today. I am going to yield back because I want to make sure 

our schedule keeps moving, but I do look forward to the give-andtake we are going to have and learning more about this critical 

issue. 

Mr. Chairman, I yield back. 

The CHAIRMAN. Thank you, Mr. Lamborn. 

Mrs. Lummis is next. 

STATEMENT OF THE HON. CYNTHIA M. LUMMIS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WYOMING 

Mrs. LUMMIS. Well, again, I want to thank the Chairman and all 

of you for attending this hearing today. 

The ESA is a subject that needs attention, having its authorization lapse more than 25 years ago. This hearing is appropriately 

timely and centered in a part of the country that has been ground 

zero, the West, for development of the ESA’s policies. 

During the first half of the 20th century, this Nation had bountiful and almost unlimited natural resources that were in some ways 

exploited in a manner that caused great concern for the American 

people, such that during the second half of the 20th century the 

command and control, big government and litigious policy by courtroom rather than policy by Congress seemed to dominate the manner in which natural resource policy was implemented. 

I am an advocate for 21st century conservation, a very new and 

different conservation ethic that recognizes sound science, recognizes our ability to have finite resources but utilize them in a 

smart, scientifically based way using private sector principles and 

voluntary efforts that actually create a better environment for species, for clean air, clean water, for business, for jobs, and for the 

5 

American experience of recreationists, sportsmen, and people who 

use natural resources as their source of a livelihood. 

I think this morning we are going to hear examples of how that 

could be the case. We have people on the ground here in Wyoming 

who are implementing the 21st century conservation ethic and 

plowing new ground, creating new policies without the government’s heavy hand dictating it. In fact, it is going to percolate up 

from a local level to the policymaking level. 

So I am very excited about the prospects of Wyoming being, as 

it frequently is, a leader in natural resource policy in a way that 

sets an example for the rest of the Nation and, indeed, the rest of 

the world. I am looking forward to our panelists discussing some 

of those very innovative, cutting-edge new ideas for implementing 

the 21st century conservation ethic, including the Endangered Species Act and how it can move forward and advance a better environment for species and mankind, and I deeply appreciate your testimony here today. 

Thank you, Mr. Chairman. I yield back. 

The CHAIRMAN. I thank you very much for your statement. 

And last but certainly not least, I recognize our colleague, new 

colleague from Montana, Mr. Daines. 

STATEMENT OF THE HON. STEVE DAINES, A REPRESENTATIVE 

IN CONGRESS FROM THE STATE OF MONTANA 

Mr. DAINES. Thank you, Mr. Chairman. It is good to be here with 

our southern neighbor, Wyoming. Welcome. 

I am grateful to be here because the Endangered Species Act 

poses a challenge for my home State of Montana, as well as my colleagues here who represent Western States. 

I am a fifth-generation Montanan. I am an avid and passionate 

outdoorsman and sportsman, like most Montanans are, but I also 

recognize the need to keep that balance with jobs. I don’t think 

they are mutually exclusive. I think we can have both. In fact, we 

like to say in Montana, we like to work well so I can play, with 

the quality of life that we have. 

But I believe the ESA should not be focused primarily on listing 

the species. It should be focused on recovering the species. We have 

that example certainly with the gray wolf that Idaho, Montana and 

Wyoming, other States have encountered. We were happy in Montana seeing the gray wolf finally de-listed in 2011. In fact, I got a 

wolf tag in my pocket. We know how to manage predators in Montana. And I know that Wyoming’s de-listing of the wolf is important, as well. 

Our communities are safer now. Our ag and properties can be 

better protected from the gray wolf. 

Chairman Hastings, Representative Lummis and the other members of the committee are hoping that the FWS will finalize its decision to de-list the wolf in the lower 48 States. 

But besides the gray wolf, the grizzly bear poses a risk to resource development safety in our communities in Montana. 

And finally, I continue to keep a close eye on the Federal Government as the BLM moves forward with their safety routes conservation planning. Unfortunately, without reforming the ESA, again 

getting back to what it was designed to do is to recover the species, 

6 

it has turned into a dream for litigants. I think the trial lawyers 

probably win more than anybody else in this process. In fact, Deputy Interior Secretary David Hayes, out-going Deputy Secretary, 

recently declared that critical habitat designations related to the 

ESA have been ‘‘fish in the barrel litigation for folks.’’ 

The proposed plan by BLM has the potential to significantly impact our ag, our oil and gas, our timber, fishing, hunting, and multiple use industries. We will be hearing about these challenges in 

my home State this afternoon. We will have this same hearing up 

in Billings. 

But thanks again for having me. I look forward to hearing the 

testimony. I yield back my time. 

The CHAIRMAN. I want to thank my colleagues for their opening 

statements. Now we will turn to our panel of five. 

You were asked by the committee to submit written statements, 

and your entire statement will appear in the record. What I would 

like you to do is to try to hold your oral comments to 5 minutes. 

In front of you we have a little machine there that is our timing 

lights. The green, yellow and red, they are kind of self-explanatory. 

The way it works, when the green light comes on, it means your 

time has started and you are doing very, very well. When you get 

to the yellow, that means you have used 4 minutes of your 5. And 

then when it gets to red, that means your 5 minutes are up. Obviously, we want you to complete your thoughts, but keep your oral 

comments within that time period and allow us to have more interaction at the end of the period. 

So with that, our first witness is Mr. Robert Hendry, Vice Chair 

of the Natrona County Board of Commissioners from Lysite. 

Mr. Hendry, you are now recognized for 5 minutes. 

STATEMENT OF ROBERT L. HENDRY, VICE CHAIR, NATRONA 

COUNTY BOARD OF COMMISSIONERS, LYSITE, WYOMING 

Mr. HENDRY. Thank you, Mr. Chairman, Representative 

Lummis, and members of the committee. My name is Rob Hendry, 

and thank you for the opportunity to testify on the crucial issue of 

Endangered Species Act reform. I am a County Commissioner right 

here in Natrona County, so welcome to Casper. 

Together with my wife and two sons, we own and manage Clear 

Creek Cattle Company, a fourth-generation family ranch. I am 

past-president of the Wyoming Stock Growers Association, a livestock industry association that is represented in Wyoming since 

1872, and I currently serve on the Agriculture, State and Public 

Lands and Water Resources Committee of the Wyoming County 

Commissioners Association. While the Wyoming Stock Growers and 

the Wyoming Commissioners Association concur with these remarks, they are my own. 

I want to share with the committee some financial impacts on 

the State of Wyoming that ESA has had. These include grizzly 

bears and wolves. In 2012, we had approximately 1,000 head of cattle killed. We had the value of $742,000; 1,500 head of sheep killed, 

at a value of $273,000. These are dollars that can’t roll over in our 

community. 

If the little impacts of the Preble’s Meadow jumping mouse in 

southeastern Wyoming and northern Colorado, this questionable 

7 

sub-species which has been de-listed in Wyoming and then re-listed 

as a result of litigation is one of them. For example, when an 

aquatic species is listed, the laws and restrictions put upon water 

rights can have a major impact on both agricultural enterprises 

and land value. 

Further, the listing of plant species often leads to private land 

value loss or private land value loss or reduction in public land 

grazing. 

The ESA is 40 years old. It can be characterized like an overaged truck. It serves a very useful purpose, but it is in bad need 

of repair. I would like to offer a few thoughts on how we can fix 

ESA in a meaningful manner. 

The first objective of the ESA should be to foster species management to avoid listing, to have the acknowledgement that this cannot be accomplished solely through Federal regulations. You have 

to work with land owners, industry, State and local governments 

to enhance species and habitat, and I can think of no better way 

than Wyoming’s sage grouse core area strategy. 

It is often said that the cost of filing a petition is no more than 

a 48-cent stamp. We believe that listing a petition should be required to include a reasonable amount of peer-reviewed science significant to support the claim and available scientific data on its 

historic range within North America. 

In reviewing and issuing the finding of a properly filed petition, 

the Service should be required by law to consult with State wildlife 

agencies operating within current and historic range. 

And when the Service determines that a listing of threatened or 

endangered is warranted, the delineation and designation of crucial 

habitat should be clearly in the recovery criteria and should accompany the listing. 

The designation of crucial habitat should always have an analysis on the impact of other wildlife and plant species that it may 

affect. 

It should have a clear, distinct population segment established in 

the legislation so that it is not subject to re-definition and not subject to political science but subject to sound science. 

The role of the 4(d) rule should be expanded to ensure that it will 

always have a reasonable take of a species in the course of normal 

human activity. 

And when a species is listed with the establishment of a clear recovery criteria, citizens have certain knowledge of knowing that 

when the criteria have been met, then de-listing will automatically 

occur. 

Finally, the opportunity of litigation that comes to the Service’s 

limited human and financial resources, while imposing huge, often 

immeasurable costs on the private sector and the revenues of the 

State of Wyoming. 

In closing, let me emphasize the real and measurable social and 

economic impacts of the ESA on ranchers and local governments. 

The energy, tourism, agricultural industry is the three-legged stool 

that provides a robust, healthy economy. It provides good-paying 

jobs in Wyoming, and it helps us pay our bills and put money away 

for a rainy day. Thank you. 

[The prepared statement of Mr. Hendry follows:] 

8 

PREPARED STATEMENT OF ROBERT L. HENDRY, VICE CHAIR, NATRONA COUNTY

BOARD OF COMMISSIONERS, LYSITE, WYOMING

Mr. Chairman, Representative Lummis and members of the committee, I am Rob 

Hendry from Lysite, Wyoming. Thank you for the opportunity to present testimony 

on the critical issue of Endangered Species Act (ESA) reform. I am a Natrona County Commissioner. Together with my wife and two sons, we own and manage Clear 

Creek Cattle Company, our fourth-generation family ranch. I am the past President 

of the Wyoming Stock Growers Association and I currently serve on the Agriculture, 

State and Public Lands and Water Resources Committee of the Wyoming County 

Commissioners Association. WCCA represents the elected commissioners of Wyoming’s 23 counties. WSGA has represented Wyoming’s livestock industry since 1872. 

While the WCCA and the WSGA concur with these remarks, they are my own. 

I wish to offer insight on two points: First, that the current implementation regime for the ESA creates too much uncertainty by way of its varied application, 

which creates headaches for the landowner while providing no sure foundation for 

the successful conservation of our Nation’s most vulnerable species; and second, 

while the ESA has been interpreted to ensure the preservation of species ‘‘whatever 

the costs,’’ it does not necessarily mean that solutions cannot be obtained via a 

working collaboration between industry, environmental non-profit organizations, private landowners, the individual States, and the Fish and Wildlife Service (Service) 

to minimize those costs. 

The State of Wyoming has over 50 percent of Federal public land commingled 

with private lands. There are currently 17 listed and candidate plant and animal 

species in Wyoming. As demonstrated by the attached maps (See Exhibit 1) for 

these species indicating the areas for which section 7 consultation is required under 

the ESA, virtually every acre of our State is directly impacted by the ESA. These 

impacts include the economic impacts on Wyoming’s key industries of energy, tourism, and agriculture; loss of revenues to State and local governments; and changes 

to the customs and culture of our citizens. 

Although the ESA as adopted by Congress in 1973 explicitly precluded the consideration of economic criteria in species listing, Congress soon recognized the potentially devastating economic impacts and responded in 1978 with the provision under 

section 4 that allows the Secretary to ‘‘take into consideration the economic impact, 

. . . and any other relevant impact, of specifying any particular area as critical 

habitat.’’ While this was an important step, several challenges remain. 

First, because the designation of critical habitat often occurs much later than the 

listing, significant economic impacts often occur prior to or absent the designation 

of critical habitat. Second, there is no well-developed nor widely accepted toll for 

measuring the economic impacts to the private sector and to local governments. 

While the Federal Government’s forthcoming rule regarding the simultaneous disposition of its economic analysis upon the designation of critical habitat is welcome, 

the absence of factors in the proposed incremental analysis creates ambiguity where 

there is little room for it. Moreover, the absence of factors gives significant deference 

to the Secretary, which raises concerns that any economic analysis undertaken will 

be prejudiced by flavor of the day political machinations and not the kind of longterm strategic analysis required. Distinguished University of Wyoming Professor 

Jason Shogren noted this in a paper that he published on ‘‘Economics and the Endangered Species Act.’’ 

‘‘The best measure of economic loss is opportunity cost—the foregone opportunities due to restrictions on the use of property due to listings, designation of critical habitat, and recovery plans. Opportunity costs include the 

reduced economic profit from restricted or altered development projects including agriculture production, timber harvesting, minerals extraction, and 

recreation activities; wages lost by displaced workers who remain unemployed or who are re-employed at lower pay; lower consumer surplus due 

to higher process; and lower county property and severance tax revenue.’’ 

Professor Shogren focused on the lack of national data to measure the impact of 

the ESA on economic growth, as well as to measure direct private expenditures driven by the ESA. 

I want to share with the committee some of the financial impacts of the ESA on 

Wyoming agriculture. Too often an uninformed public assumes the economic impacts are limited to the costs of predation by large carnivore species including the 

grizzly bear and the currently delisted gray wolf. Reported losses of livestock in Wyoming to these two species in 2012 included approximately 1,000 head of cattle with 

a value of $742,000 and 1,500 head of sheep with a value of $273,000. While these 

numbers may seem relatively insignificant in relation to a $1 billion industry, it is 

9 

important to recognize that these losses fall disproportionately on producers in those 

areas inhabited by these protected species. The impact of these species is even 

greater in other areas for which economic data is lacking. These include: 

1. Direct impacts of grizzly bear and gray wolf activity on livestock weight gains; 

2. Additional labor and equipment costs associated with livestock protection and 

predation deterrence; 

3. Reductions and/or restrictions placed on public land grazing due to the presence of grizzly bears or gray wolves; 

4. Compliance with food storage, carcass disposal and other regulatory burdens; 

5. Difficulty of finding employees who are willing to tend livestock in grizzly bear 

occupied areas; and 

6. Diminished value of grazing permits and private grazing lands in bear and 

wolf occupancy areas. 

At the other end of the spectrum from the grizzly bear is the tiny but impactful 

Preble’s Meadow Jumping Mouse found only in southeastern Wyoming and northern 

Colorado. This questionable subspecies, which has been delisted in Wyoming then 

relisted as a result of litigation, has burdened agriculture with: 

1. Restricted ability to clean irrigation ditches; 

2. Restrictions on changes in agricultural practices under the 4(d) rule; 

3. Real time costs of continued participation in numerous public and industry 

meetings held to address mouse issues due to the fact that many of our agricultural producers do not have hired labor, and therefore time away from the 

farm/ranch directly impacts ranch work and profitability; and 

4. Direct cost of ranchers who have employed biologists or environmental consultants to conduct studies to counter the evidence on habitat and mouse classification presented by the USFWS. 

I merely offer the grizzly bear, gray wolf, and preble’s jumping mouse as specific 

examples. Comparable costs to agricultural producers can be traced to many of the 

other listed animal species. For example, when aquatic species are listed, loss of, 

or restrictions upon, water rights can have a major impact on both the agricultural 

enterprise and on land values. Further, the listing of plant species often leads to 

reduced private land values and loss or reduction in public land grazing permits. 

The response of Federal land management agencies to the presence of listed or 

candidate species often goes far beyond the specific requirements of the ESA. Allow 

me to provide a very recent example. In 2012, the U.S. Forest Service initiated a 

section 7 consultation with the Fish and Wildlife Service (Service) on livestock grazing on a complex of nine allotments on the Bridger-Teton National Forest. The outcome was a biological opinion that authorized the lethal removal of no more than 

three female grizzly bears over the next three grazing seasons. This summer the 

Wyoming Game and Fish, in consultation with the Service, removed two female 

bears that were habitual killers of cattle. Following removal of the second bear, the 

U.S. Forest Service advised the permittees that, if a third female grizzly was lethally removed, they would require that all livestock be removed from these allotments. While this threat has been withdrawn at this time, it is indicative of the 

pressure faced by Wyoming ranchers. 

Let me now turn to one of the most challenging and costly impacts of the ESA 

to the ranching industry—incessant litigation. When I became President of the Wyoming Stock Growers Association in 1999, for example, one of my first actions was 

to establish a Litigation Fund. At that time, WSGA had served our industry for over 

125 years without having to engage in litigation to protect our members’ interests. 

Since 1999, however, WSGA has expended several hundred thousands of dollars in 

defending its members’ private property rights and Federal grazing permits from 

challenges by groups that believe environmentalism takes place in the courts, such 

as Centers for Biological Diversity and Western Watersheds Project, as opposed to 

groups who are interested in making meaningful impacts on the ground. Furthermore, these challenges are typically premised, in whole or in part, on purported 

threats to listed species. 

The costs associated with litigation are not limited to the State and the associations I represent today alone. According to the Department of Justice, it spent more 

than $15 million on attorney fees for alleged violations of the ESA in just the past 

4 years. Even more shocking is the following: In fiscal year 2011, the Service, spent 

over 75 percent of its $20.9 million listing and critical habitat budget responding 

to litigation alone. That leads me to question the underlying efficacy of the ESA in 

its current form. These precious resources should not be spent in the courts. This 

is money that could be spent on enhancing our land and wildlife habitat, instead 

of paying lawyers and clogging the court system. 

10 

Compounding the litigation issue is that the ESA lacks any certainty in its status 

review and the delisting processes. The result of these ambiguities is, again, litigation. The grizzly bear has been delisted and relisted due to litigation. The gray wolf 

was delisted, relisted, and is now threatened by litigation to relist again in Wyoming. The preble’s jumping mouse was delisted, then relisted by way of litigation. 

The bottom line is that when the listing of an iconic species such as the Greater 

Sage Grouse is determined by the Service as not warranted, these groups just come 

back again through litigation until finally reaching their objective of securing a listing. A listing of the Greater Sage Grouse will cripple our State and local economies. 

In the end, all of these potential economic pitfalls and encumbrances, in their aggregate, have a negative economic and cultural impact on Wyoming’s counties. I can 

speak on behalf of all County Commissioners in Wyoming that no elected official 

wants to see the destruction of a species, especially when practicable, workable alternatives are obtainable. Too often conservation and economic development are 

held to be mutually incompatible. Perhaps that is the flavor of the day in Washington, but in Wyoming we have proven time and again the effectiveness of collaboration to obtain real, workable solutions to the issue at hand. Whether it is Hydraulic Fracturing, Sage Grouse Core Area Development or Carbon Sequestration, Wyoming has continually demonstrated its willingness to take the lead and to work with 

myriad Federal and State agencies, local government, as well as private parties to 

develop solutions that not only minimize detrimental impacts to our most vulnerable flora and fauna, but also encourage sustainable economic growth in Wyoming. 

Essentially, the ESA can be compared to the ranch pickup that is 40 years old. 

It still serves a very useful purpose, but badly needs a tune-up. I would like to offer 

a few thoughts as to where one might begin to reform the ESA in a meaningful 

manner: 

1. The first objective of the ESA should be to foster species management that 

avoids listing. There needs to be acknowledgment that this cannot be accomplished solely through Federal regulation. It is best accomplished when landowners, industry, and State and local governments are motivated to 

proactively act to enhance a species and its habitat. I have found no better 

example of this than the leadership that Wyoming has exhibited in protecting 

and enhancing the sage grouse through its Core Area Development program; 

2. It is often said that ‘‘The cost of filing a listing petition is no more than a 

48 cent stamp.’’ We believe that a listing petition should be required to include a reasonable amount of peer-reviewed science sufficient to support a 

claim that the subject of the petition is a distinct species or subspecies and 

a description of available scientific data on its current and historic range 

within North America. A listing petition should only be valid for a single species or subspecies and, in turn, a legal challenge to a 90-day or 12-month finding should be limited to that specific species or subspecies; 

3. In reviewing and issuing a finding on a properly filed petition, the Service 

should be required by law to consult with State wildlife agencies operating 

within the current and historic range; 

4. When the Service determines that a listing as threatened or endangered is 

warranted, the designation of critical habitat and the delineation of clear recovery criteria should be required to accompany the listing. The designation 

of critical habitat should include an analysis of the impact on other wildlife 

or plant species that may be affected; 

5. A clear definition of ‘‘distinct population segment’’ should be established in 

legislation so that it is not subject to ‘‘redefinition’’ by subsequent solicitors 

as it has been in the past; 

6. The role of the 4(d) rule should be expanded to assure that it will support reasonable ‘‘take’’ of species in the course of normal human economic activity; 

7. When a species is listed with the establishment of clear recovery criteria, citizens should have the certainty of knowing that, when those criteria have been 

met, delisting will automatically occur; and 

8. Finally, the opportunity for litigation that consumes limited the Service’s 

human and financial resources while imposing huge, often immeasurable, 

costs on the private sector and the revenues of State and local governments 

must be stemmed. 

In closing, let me again emphasize the real, often immeasurable social and economic impacts of the ESA on ranchers and local governments in a State such as 

Wyoming that is natural resource dependent for its economy and its culture. The 

energy industry, tourism industry and agricultural industry is the three legged stool 

that provides a robust and healthy economy. These industries provide good paying 

jobs for Wyoming citizens. They also help us pay our bills and put money in the 

11 

bank for a ‘‘rainy day’’. As it is currently implemented, the ESA is too far reaching 

in its impacts on both the species it seeks to protect and the lives that it impacts 

to allow so many of these impacts to be left to the regulatory and judicial processes. 

After 40 years, the need for greater Congressional direction is abundantly clear and 

that should be that the conservation of species is necessarily best accomplished by 

those closest to the resource. 

Thank you for the opportunity to appear before you today. I look forward to answering questions. 

JOINT WCCA/WSGA EXHIBIT I 

FWS FEDERALLY LISTED, PROPOSED AND CANDIDATE SPECIES IN WYOMING AREAS

SUBJECT TO SECTION 7 CONSULTATION

Contents 

Wildlife 

• Greater Sage-grouse (Candidate) 

• Yellow-billed Cuckoo (Candidate) 

• Colorado River Fish (Endangered) 

• (Bonytail, Colorado Pikeminnow, Humpback Chub, Razorback Sucker) 

• Kendall Warm Springs Dace (Endangered) 

• Platte River Species (Endangered) 

• (Interior Least Tern, Pallid Sturgeon, Piping Plover, Western Prairie Fringed 

Orchid, Whooping Crane) 

• Wyoming Toad (Endangered) 

• Black-footed Ferret (Endangered, Experimental) 

• North American Wolverine (Proposed) 

• Canada Lynx (Threatened) 

• Grizzly Bear (Threatened) 

• Preble’s Meadow Jumping Mouse (Threatened) 

Plants 

• Fremont County Rockcress (Candidate) 

• Whitebark Pine (Candidate) 

• Blowout Penstemon (Endangered) 

• Colorado Butterfly Plant (Threatened) 

• Desert Yellowhead (Threatened) 

• Ute Ladies’-tresses (Threatened) 

Please Note, All Information Can Be Found At: http://www.fws.gov/wyominges/ 

Pages/Species/Species_Endangered.html. 


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The CHAIRMAN. Thank you very much, Mr. Hendry. 

I will recognize now Mr. Robert Wharff, Executive Director of the 

Wyoming Sportsmen for Fish and Wildlife, from Evanston, Wyoming. 

Mr. Wharff, you are recognized for 5 minutes. 

STATEMENT OF ROBERT A. WHARFF, EXECUTIVE DIRECTOR, 

WYOMING SPORTSMEN FOR FISH AND WILDLIFE, EVANSTON, WYOMING 

Mr. WHARFF. Thank you, Honorable Chairman Hastings, Representative Lummis, and members of the Natural Resources Committee. I go by Bob Wharff, unless my mom is yelling at me. I do 

appreciate the opportunity to appear before the Natural Resources 

Committee today and testify about sportsmen concerning the State 

and local efforts to protect species, jobs, property, and multiple use 

amidst a new war on the West. I have some materials that are in 

a packet, Mr. Chairman, and with your permission, I would request 

that those materials are entered into the record. 

The CHAIRMAN. Without objection, they will be part of the record. 

Mr. WHARFF. Thank you, Mr. Chair. 

My testimony will focus mainly on two species which are most 

likely to impact Wyoming sportsmen and hunters which come here 

seeking the adventure of a lifetime. In Wyoming, we have seen 

both the grizzly bear and the gray wolf meet and maintain recovery 

objectives. Both of these species have been removed from Federal 

protections, and both have been re-listed as a result of the courts 

being used by litigants to maintain protections when these species 

have met and continue to exceed recovery goals. 

While both of these species have followed similar paths, they 

both have taken different paths to get where we are today. 


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In the packet that I handed out, Mr. Chairman, there is a map, 

and just for brevity because I don’t feel like doing this for 5 minutes, you will see a map that I was able to take from the Game 

and Fish Department. It shows Yellowstone National Park. The red 

boundary shows the recovery zone. The purple boundary shows 

what they identified as simple grizzly bear habitat, and the little 

blue dots are capture locations where the Game and Fish Department capture grizzly bears and either relocate them, or in some instances those animals were euthanized. 

I think this does highlight a flaw within the Endangered Species 

Act, and that is that wildlife management is not an exact science. 

Multiple fabrics can and do influence responses from our vast wildlife resources. The very nature of the beast, the grizzly bear, so to 

speak, is its ability to surmount and overcome challenges they face 

in the untamed Wild West. 

I am going to go on and talk about wolves, and I really would 

ask the committee to read through this on your travels up to Billings, because I am just going to touch it light. There is a lot of 

material in here. There is an article in here that I really would encourage you to read when you have time. It is one that we published in our quarterly publication. 

But for brevity’s purpose, I think this speaks volumes. If you look 

at this map, this map shows the distribution of Rocky Mountain 

health in the world. This map shows Shiras moose distribution. 

You guys can probably barely even see that in the green. There is 

another one that shows that the blue is Big Horn. The red shows 

distribution of gray wolves. 

Now, I am going to depart from my presentation. It speaks volumes. Why are we putting our carriers at risk to protect a species 

that is anything but threatened? It was brought in as a non-essential experimental population, and it has been treated with kid 

gloves, and we were promised it would not have local impacts. I 

can tell you I have a lot of friends in Wyoming that would tell you 

they are lucky to be here today. 

I have included a statement. Unfortunately, he addressed it to 

the State of Wyoming, Mr. Chair. I hope you guys would still consider that even if we are not all from here. But it is a personal 

comment from an individual that runs a family business, and he 

talks directly about the impacts, his experience due to the impacts 

of wolves and grizzly bears on his personal business. 

I think that the wolf also highlights another problem caused by 

the ESA and the manner in which it is implemented. Ultimately, 

it is Wyoming and the citizens of this State that will be tasked and 

burdened with the cost of maintaining and sustaining this recovery 

of non-essential experimental population of gray wolves found within its borders. Yet, a court far removed from the area may, in fact, 

decide how Wyoming and its citizens will live with a species that 

we have recovered. 

And just, Mr. Chairman, I have a point in my comments. I know 

that the Working Group had asked a series of questions. I did answer those for the committee. I am not going to bother since it is 

recorded here. 

I did also capture some possible solutions. Just for brevity, I do 

think one of the things that I see lacking is I believe that the 

17 

States are better suited to manage wildlife. That is what they do, 

and I think they do it well. I think we probably shouldn’t look 

away so we can make them more of an even partner with the U.S. 

Fish and Wildlife Service under the Endangered Species Act. 

One of the other points is single species management. This simply doesn’t work. Mr. Chairman, we have not seen it yet, but at 

some point in time we are going to see species advocates given protections either from the Migratory Bird Treaty, and an example of 

that is the raven. I think we are starting to see that ravens are 

having a far greater impact on our sage grouse populations than 

anybody had foreseen, and I do think those are critical factors that 

we have to address in how do we resolve these conflicts. 

Unfunded Federal mandates, I know we have gone over that a 

little bit. Fiscal Year 2012, Mr. Chairman, Wyoming contributed 

$1.7 million just to grizzly bear management. Of that, the Federal 

portion was $126,000. I don’t feel that is a very fair or admirable 

sharing of the responsibilities. Government accountability and 

human health and safety, those are all factors, Mr. Chairman. 

And since I am out of time, I will stop there. Thank you for this 

opportunity. 

[The prepared statement of Mr. Wharff follows:] 

PREPARED STATEMENT OF ROBERT A. WHARFF, EXECUTIVE DIRECTOR, WYOMING

SPORTSMEN FOR FISH AND WILDLIFE, EVANSTON, WYOMING

Honorable Chairman Hastings, Representative Lummis and members of the Natural Resources Committee, 

I appreciate the opportunity to appear before the Natural Resources Committee 

and testify in behalf of sportsmen, concerning ‘‘State and Local Efforts to Protect 

Species, Jobs, Property and Multiple Use Amidst a New War on the West’’. 

I have some materials that I will give to the committee which I have obtained 

from individuals which wanted their story to be told but due to time constraints, 

I will not be able to cover all of them. With your permission I would request these 

materials be added to the record. 

My testimony will focus on the two species which are most likely to impact Wyoming’s Sportsmen and our non-resident hunters which come here seeking the adventure of a lifetime! 

We have seen both the grizzly bear and the gray wolf meet and maintain recovery 

objectives. Both of these species have been removed from Federal protections and 

both have been relisted as a result of the courts being used by litigants to maintain 

protections when these species have met and continue to exceed recovery goals. 

While both of these species have followed similar paths, they both have taken different paths to get us where we are today. 

GRIZZLY BEARS

Grizzly bears remain an icon of the Untamed Wild West. In 1975, grizzly bears 

were given Federal protections to allow their numbers to increase and to ensure 

that they had room to roam. Throughout this entire process, wildlife biologists were 

continually developing and modifying techniques designed to afford some level of 

comfort in stating the obvious; grizzly bear numbers were increasing. As those numbers continue to increase, it is only natural to expect that you will see greater conflicts between this magnificent animal and the humans which reside in proximity 

to their recovery areas. 

I have provided you with a map as I believe the visual speaks volumes as to the 

successfulness of efforts to protect and restore grizzly bears to a sustainable population. You can see the recovery area outlined in red, the identified and accepted 

suitable habitat outlined in purple. The blue dots identify 2012 Capture Location 

Sites. The continued expansion of grizzly bears is a good sign that we have healthy 

and robust populations of bears; however, it also demonstrates the fact that we will 

most assuredly continue to see an increase in human/bear conflicts. We have recently seen about 4–5 incidents this year and hunters have yet to enter the remote 

areas in pursuit of their quarry. Just 2 years ago, we saw two people in Wyoming 

18 

that lost their lives to grizzly bear encounters and a few more that were injured 

but survived the ordeal. Most of these incidents resulted in the grizzly bears (if they 

could be found and confirmed the perpetrator) ultimately forfeiting their lives as 

well. 

In 2012, within Wyoming but excluding National Parks, there were 28 known or 

probable human-caused mortalities of grizzly bears. A known mortality occurs when 

the carcass of the bear is found and a probable mortality denotes that no carcass 

was found but the bear is believed to have sustained an injury that would result 

in the death of the animal. Cubs-of-the-year whose mother is a known mortality is 

considered probable mortalities. In 2012, 4 cubs-of-the-year were counted as probable mortalities but the WY G&F report didn’t identify in which category they occurred. 

According to the WY G&F report; 3 grizzly bears died from Natural causes, 11 

were killed in self-defense, 12 were removed by agency personnel, 1 was killed after 

being struck on a highway and 1 was mistakenly killed by a black bear hunter. 

Of the 12 removed by agency action; 5 were removed due to livestock depredation, 

6 were removed due to property damage and human food rewards and 1 individual 

was removed because it had become extremely habituated to humans. 

The report also noted that 5 of the 12 bears removed by agency personnel occurred outside of the Suitable Habitat Boundary. Several of the reported self-defense mortalities and the mistaken identification by a hunter are currently under 

investigation. 

I mention this information for two reasons; first, I believe too many people believe 

that ESA protections prevent the death of grizzly bears; and second, grizzly bears 

are a human health and safety issue that often are not given adequate consideration. 

Grizzly bears were delisted at the request of the USFWS and this decision was 

based upon the best available science but the agency tasked with making the decision as to whether or not threats have adequately been addressed and recovery 

goals obtained and sustained over a considerable period of time. Litigants were able 

to successfully obtain court orders to trump this decision and grizzly bears have 

once again been placed under Federal protections. 

It appears as though, given the time the USFWS, has been able to collect scientific data that demonstrates the perceived threats were there but that grizzly 

bears are able to switch to alternative food sources and will continue to maintain 

and sustain themselves at recovery level objectives. 

This does highlight a flaw within the ESA; wildlife management is not an exact 

science. Multiple factors can and do influence behavior and responses from our vast 

wildlife resources. The very nature of the beast, so to speak, is of its ability to surmount and overcome challenges they face in our Untamed Wild West. 

GRAY WOLVES

The gray wolf is an entirely different tale to be told. 

Gray wolves were first listed as threatened and endangered in the lower 48 States 

in 1974. In 1978, saw the reclassification of the Gray Wolf in the United States and 

Mexico, with the determination of Critical Habitat in Michigan and Minnesota. In 

1994, under a specially created and newly established classification; Nonessential 

Experimental Population of gray wolves were defined and brought into what is now 

known today as the Northern Rocky Mountain (NRM) Distinct Population Segment 

(DPS). The DPS designation was adopted in 2003, when wolves in the NRM had 

obtained and maintained recovery objectives for 3 consecutive years. 

The primary three States contained with the NRM DPS are Idaho, Montana and 

Wyoming. All three States presented the USFWS with their preferred gray wolf 

management plans. It is not surprising for me to see that when you look at the official USFWS Web site the Nonessential Experimental Population Segment is now 

only mentioned as an Experimental Population. Words do matter and it is important 

as you look at the ESA and how it has morphed into something far different than 

its original intended purpose. 

It is important to understand that initially, these three States were collectively 

tasked with recovering this Nonessential Experimental Population of Gray Wolves 

within this specific geographical region known as the NRM DPS. Wolf experts were 

asked to review all three State wolf management plans to determine if collectively, 

they would allow for gray wolves to be maintained and sustained. Some expressed 

concerns about Wyoming’s plan but ultimately 10 out of the 11 experts stated that 

gray wolves would be maintained and sustained under all 3 unique State plans. It 

wasn’t long however until Wyoming and its plan was placed under closer scrutiny. 

Wyoming’s plan was and remains a plan that would contain wolves to areas of the 

19 

State where they have suitable habitat and are the least likely to get into conflict 

with current and well established uses that Wyoming citizens desire to maintain. 

Wyoming was first isolated by the other two States and the USFWS in an attempt 

to force Wyoming to reconsider the plan adopted by its citizens. In 2005, we saw 

for the first time, actions that were applied to Idaho and Montana. Both States were 

awarded greater management flexibility under the newly established 10(j) rules of 

the ESA. 

In 2008, we saw the USFWS remove the NRM DPS from Federal protections and 

saw the implementation of the 10(j) rules which were afforded only to Idaho and 

Montana. The importance of this step was that now States and tribes with approved 

USFWS plans were now able to better address ‘‘unacceptable impacts’’ to wild 

ungulate populations. Wyoming was excluded from this reprieve for our wild 

ungulates because the USFWS was unwilling to accept Wyoming’s wolf management 

plan. Because Wyoming had made changes to our plan during the 2007 legislative 

session, Wyoming was included in the recommendation to remove Federal protections; however, the 10(j) ruling allowing for greater management flexibility to protect our wild ungulate populations was NOT available or afforded to Wyoming. 

In 2009, Wyoming was once again treated differently than the other States within 

the NRM DPS. The USFWS, who actually helped Wyoming modify its 2007 plan to 

conform to their requested changes, once again declined in 2009 to defend Wyoming’s plan and claimed it did not contain an adequately regulatory mechanism for 

the purpose of the ESA. 

Wyoming was once again forced to defend the legitimacy of their wolf management plan and wolf management decisions were once again turned over to the 

courts. 

In 2011 we saw the final delisting of the NRM DPS, excluding Wyoming. 

In 2012 we finally saw the delisting of gray wolves for Wyoming; however, that 

action was challenged in two different District courts outside the State of Wyoming. 

One of those courts has remanded authority back to the Wyoming District court; 

while the other, located in Washington, DC seeks to determine whether or not Wyoming should have the ability to manage wolves according to their wolf management 

plan. 

This also highlights another problem caused by the ESA and the manner in which 

it is implemented, for it is ultimately Wyoming and the citizens of this State that 

will be tasked and burden with the costs of maintaining and sustaining this recovered Nonessential Experimental Population of gray wolves found within its borders; 

yet, a court far removed from the area impacted may decide how Wyoming and its 

citizens will live with a species they have recovered. 

The ESA working group created by the Natural Resource Committee has asked 

for an open and honest discussion and seeks to answer the following questions: 

How is ESA success defined? 

This is one of the major problems within the ESA. To some success is simply the 

listing of a species; to others, success is not achieved until a listed species is once 

again removed from Federal protections. 

Here is a story recently ran on FOX5 news from Las Vegas, NV about the Desert 

tortoise. 

http://www.fox5vegas.com/story/23256865/desert-tortoise-faces-threat-from-its-ownrefuge#.UhunqKDj_WE.gmail. 

DESERT TORTOISE FACES THREAT FROM ITS OWN REFUGE

For decades, the vulnerable desert tortoise has led a sheltered existence. 

Developers have taken pains to keep the animal safe. It’s been protected from 

meddlesome hikers by the threat of prison time. And wildlife officials have set the 

species up on a sprawling conservation reserve outside Las Vegas. 

But the pampered desert dweller now faces a threat from the very people who 

have nurtured it. 

Federal funds are running out at the Desert Tortoise Conservation Center and officials plan to close the site and euthanize hundreds of the tortoises they’ve been 

caring for since the reptiles were added to the endangered species list in 1990. 

Officials expect to put down more than half the 1,400 tortoises at the research 

and holding facility in the coming months in preparation for closure at the end of 

2014. 

Is this success? 

How do we measure ESA progress? 

20 

I believe this is another problem within the ESA as no current process requires 

an assessment or process to determine if progress is being made. The ESA, some 

would argue, is more about stopping progress than it is about protecting species. 

Listing is a well-defined and relatively simple process; whereas, removing a species 

from Federal protection is anything but defined. Often, in Wyoming, we have seen 

the goal posts moved once a species has met recovery goals and new bench marks 

have been established. 

Is the ESA working to achieve its goals? 

The first paragraph in your email introduction states clearly: ‘‘The Endangered 

Species Act (ESA) was created four decades ago in 1973 to preserve, protect and recover key domestic species. Since that time, over 1,400 U.S. domestic species and 

sub-species have been listed. Most species remain on the list and hundreds more 

could potentially be added within just the next 2 years.’’ It would appear as though 

the mission of the ESA has continued to expand without ever having actually 

achieved many of its goals. 

Is species recovery effectively prioritized and efficient? 

With a recovery rate of around 1 percent for species listed as threatened or endangered; clearly, it would cause the common person to conclude that the ESA is flawed 

and anything but efficient. It would also appear as though the purpose has expanded beyond preserving, protecting and recovering key domestic species to include 

all species. 

Does the ESA ensure the compatibility of property and water rights and 

species protection? 

It would appear as though more weight is given to species protection over that 

of property and water rights. I know of local businesses which have been negatively 

impacted by indirect impacts associated with continued protections of recovered species. The town of Dubois, Wyoming has probably suffered more than any other town 

in Wyoming. 

Is the ESA transparent, and are decisions open to public engagement and 

input? 

The ESA has definitely become much more than transparent. Some organizations, 

it would appear, have been able to turn the ESA and some species into a cash cow. 

Decisions are open to the public and input is readily obtained; however, it would 

appear as though nothing carries as much weight as litigation. This in turn causes 

the public to lose faith in the process and I believe puts species more at risk because 

the public is pushed aside by those who benefit from species listing. Notice I said 

listing not recovery of the species. Once a species is delisted or removed from Federal protections, it can no longer be a cash cow. 

Is litigation driving the ESA? Is litigation helpful in meeting ESA goals? 

As a member of a group that has been forced to turn to litigation in order to get 

fair consideration of Wyoming’s wolf management plan I can state that litigation is 

necessary at times. However, I do wonder whether or not litigation is driving the 

ESA. Unfortunately, as I stated earlier, I believe some organizations attempt to stop 

delisting from occurring as recovered species don’t seem capable of generating 

money as do species which remain listed and under current threats, whether those 

threats are real or imagined. 

What is the role of State and local government and landowners in recovering species? 

I believe it was the intent of those who created the ESA to involve State and local 

government as well as private landowners; however, I believe their role has been 

greatly diminished due to the lack of understanding of the powers they have under 

the ESA. Landowners should be more involved with recovery efforts as successful 

recovery efforts are more likely to occur if landowners and affected communities 

rally around threatened or endangered species. 

Are changes to the ESA necessary? 

Yes, I believe that the ESA is in need of some changes. 

Possible Solutions 

States should be given equal status with the USFWS and decisionmaking powers 

should be equally shared between the Secretary of Interior and Governor of each 

respective State. 

21 

States are better suited to manage our wildlife resources than the U.S. Fish and 

Wildlife Service (USFWS). States are already paying the costs for species recovery. 

States are better suited to work collectively with effected communities and assess 

and understand the actual economic impacts. The USFWS adds complexity to the 

process and allows litigants to search for courts that are far removed from the impacted areas and thus easier to manipulate. 

One need only look at how the wolf delisting has occurred in Wyoming to see an 

exact example of the debacle the ESA has become. From the very beginning Wyoming has been thwarted from implementing a plan the people of Wyoming desired. 

It is ultimately Wyoming citizens which will ensure that the species remains recovered. It is the Wyoming citizens which have been obligated to shoulder the cost; 

both indirectly and directly. It is our wildlife resources which are being sacrificed 

on the altar of wildlife worshipers because some would prefer to feed wild animals 

rather than allowing Wyoming’s citizens to be fed via our own wildlife resources. 

It is Wyoming’s citizens which are faced with the possibility that someone else may 

determine our fate. 

Couple this with the fact that Wyoming is spending on average $1 million a year 

managing grizzly bears even though this species has surpassed recovery goals, was 

delitsed in 2007 only to be relisted by people that are not tasked with paying the 

management costs nor forced to live daily with the potential threat of a grizzly bear 

encounter. The USFWS orders the destruction of several grizzly bears every year 

yet hunting them is unacceptable. The truth is that sportsmen were and remain the 

first conservationists. We put our money where our mouths are, so to speak. 

Single Species Management Does Not Work 

Congress needs to amend the ESA to stopped single species management from 

trumping management of the whole ecosystem. One of the problems within the ESA 

is that it forces one species to take a higher priority over the complete ecosystem 

and other species within it. There are a lot of examples of how good intentions have 

led to bad outcomes simply because by protecting one species we have altered the 

natural balance. If something is NOT changed soon, we will soon see species being 

listed as a direct result from species which Congress has either protected via treaty 

or granted protections under the ESA. 

Wildlife populations are highly variable. By granting protections to some species, 

the ESA is potentially causing some species to be maintained at much higher densities than would have naturally occurred. This in turn may be causing significant 

impacts to species from increased competition for food, space and water. It also may 

cause some species to be more at risk of predation since some species appeared to 

have been more migratory in the past, are now becoming year round residents. An 

example of this would be raven’s (protected under the Mexican Bird Treaty) and 

sage grouse (a species currently under threat of listing). 

Unfunded Federal Mandates 

The ACT states; encouraging the States and other interested parties, through 

Federal financial assistance and a system of incentives, to develop and maintain 

conservation programs which meet national and international standards is a key to 

meeting the Nation’s international commitments and to better safeguarding, for the 

benefit of all citizens, the Nation’s heritage in fish, wildlife, and plants. 

The ESA is costing States millions of dollars. In Wyoming, grizzly bears have 

a price tag of approximately $1 million per year. The USFWS has contributes 

llllll per year toward grizzly bear management costs. 

What recourse currently exists for States to recuperate the costs of a listed species? As I stated earlier, the States are task with both the burden and cost of protecting a listed species; yet, the ESA is protecting that species for the entire Nation. 

More needs to be done to understand the actual costs of the ESA to affected States. 

Government Accountability 

The USFWS also needs to be held accountable for commitments they make. Wyoming was told that wolves would have no economic impact to the State; yet, countless people have been impacted by the Nonessential Experimental Population of 

gray wolves foisted upon the State. People should not be told there will be no economic impact and then left to suffer under continued protections of a recovered species. How is the USFWS held accountable for statements they make at the onset 

to listing a particular species? It appears as though they can make any statement 

and then simply walk away once the process has started. 

Human Health and Safety 

Human health and safety also seems to be something that needs to be added to 

the ESA. As the grizzly bear distribution map I presented shows, grizzly bears are 

22 

expanding beyond their Primary Conservation area and their identified suitable 

habitat. This will continue to cause an increase in human/grizzly bear conflicts. Is 

it acceptable for the USFWS to put human lives at risk? Can we honestly state that 

the constitutional guarantee that no person or class of persons shall be denied the 

same protection of the laws that is enjoyed by other persons or other classes in like 

circumstances in their lives, liberty, property, and pursuit of happiness when only 

a very few States subject their citizens to the risk of a grizzly bear encounter we 

continually endure in our State? 

Another issue is with regards to diseases associated with Nonessential Experimental Population of Gray Wolves; Echinococcus granuioslis (E.g.). I have included 

a letter from the USFWS to an individual which had contacted U.S. Senator John 

Barrasso (R–WY). While the letter is meant to dispel concerns about this tapeworm, 

it also leaves some questions unanswered. How much more at risk are those which 

live in close proximity to wolves than those which live elsewhere? Once again, are 

we as westerners being exposed to threats that other U.S. citizens are not? It appears that more research should have been conducted prior to gray wolves being introduced. Congress needs to ensure that the ESA cannot continue to create different 

classes of people nor put human lives at risk by exposing them to threats imposed 

upon them by the continued protection of recovered species. 

The Congress finds and declares that the United States has pledged itself as a 

sovereign state in the international community to conserve to the extent practicable 

the various species of fish or wildlife and plants facing extinction, pursuant to— 

(A) Migratory bird treaties with Canada and Mexico; 

(B) The Migratory and Endangered Bird Treaty with Japan; 

(C) The Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere; 

(D) The International Convention for the Northwest Atlantic Fisheries; 

(E) The International Convention for the High Seas Fisheries of the North Pacific 

Ocean; 

(F) The Convention on International Trade in Endangered Species of Wild Fauna 

and Flora; and 

(G) Other international agreements. 

How do the grizzly bear, wolf, and other species discussed here today fit into the 

international intent of the ACT? 

We are the envy of the World because of our abundant and rich wildlife resources. 

Thanks for your time and service in the U.S. House of Representatives and for 

the opportunity to provide my thoughts and comments pertaining to the ESA and 

its impact on Wyoming’s Sportsmen and Sportswomen. 

The CHAIRMAN. I want to let you know that I can give a little 

time, but a little time. 

Mr. WHARFF. Thank you again. 

The CHAIRMAN. Thank you for your testimony. 

I would now like to recognize Ms. Rene ́e Taylor, owner of Taylor 

Environmental Consulting here in Casper. 

Ms. Taylor, you are recognized for 5 minutes. 

STATEMENT OF RENE ́ E C. TAYLOR, OWNER, TAYLOR 

ENVIRONMENTAL CONSULTING LLC, CASPER, WYOMING 

Ms. TAYLOR. OK. I want to thank the committee for inviting me 

here this morning. I have a small consulting business here in Casper, and I have been active in the environmental industry one way 

or the other for the last 30 years, and with the ESA directly. 

I will explore some of the frustrations that I have seen and felt 

with the ESA and the impact it has on effective species conservation, jobs, property, and multiple use based on my experience with 

the Preble’s Meadow jumping mouse and the greater sage grouse. 

Frustrations with the ESA generally fall into three categories, 

the selective use of data and research, ESA decisions driven by litigation and settlements, and the lack of consideration for public 

participation and conservation actions. 

23 

In August, you heard from Dr. Ramey about the data requirements of the act. ESA decisions are to be based on the best available data, not outcomes that are founded on data that is unavailable and therefore cannot be tested or replicated. 

Similarly, we see the ever-increasing use of predictive modeling 

to determine outcomes well into the future. However, the Service 

never tests these models to determine if they are real-world, accurate situations. Instead, the Service deems them accurate and demands conservation action based on them. 

Selective use of peer and non-peer-reviewed literature is also an 

issue to us. The agencies tell us that all information used for decisionmaking must be peer reviewed. However, in agency decisions 

we often see select non-peer-reviewed materials, including gray literature, alongside peer-reviewed works, while data provided by industry or private parties is often ignored. 

Moving conservation targets are also an issue for us. The mitigation bar is continually being revised as a result of ‘‘emerging information.’’ We never allow an ESA or conservation decision to play 

out long enough to see if the findings were correct or if the applied 

mitigations actually work. 

Agency response to our concerns is that the sky is falling and we 

must do whatever we can to conserve the species if we do not act 

immediately. This is not sound science. 

Section 4 of the ESA contains timeframes for completing the various statutory phases of the listing. If the Service actually adhered 

to these timeframes, the vast majority of the litigation could be 

avoided. 

Settlements between a plaintiff and the U.S. Fish and Wildlife 

Service are generally crafted in a vacuum and targeted toward the 

outcomes desired by the plaintiff. The potentially affected parties— 

States, tribes, landowners, business entities, et cetera—should be, 

must be included in these deliberations. We saw the outcome of 

this closed process again last week with the settlement between the 

Service and the Center for Biological Diversity regarding the Mexican wolf in Arizona and New Mexico. 

Settlements between the Service and plaintiffs, such as that in 

2011 with Wild Earth Guardians and the Center for Biological Diversity, which requires the Service to reconsider listing decisions 

and to specify the timeframes within which they should do so, not 

only allows the plaintiffs to set the agency’s priorities but takes 

staff away from more pressing conservation issues such as agreements with landowners and States who are trying to work within 

the act and the associated regulatory systems. 

Litigation-driven outcomes end up with decisions being made by 

individual judges on information provided by often special-interest 

select experts. Judges are not supposed to be making scientific decisions within the ESA. 

Local and State conservation efforts are ignored or co-opted by 

negotiated settlements, and Section 6 of the ESA directs the Service to work with States and to accept applicable and appropriate 

State conservation programs. 

Because of the lack of time, I am going to skip a whole lot relative to the Preble’s Meadow jumping mouse, but please be assured 

that this is a perfect example of what is wrong with the ESA, and 

24 

litigation dragging outcomes. This mouse should not be listed in 

the State of Wyoming. Sorry about Colorado. 

[Laughter.] 

Mr. LAMBORN. Apology accepted. 

[Laughter.] 

Ms. TAYLOR. The greater sage grouse is another example of 

things going awry. The State of Wyoming has done its job through 

its MOU with the Fish and Wildlife Service, BLM and the other 

States to enact conservation planning for the greater sage grouse 

in its State and on a local and statewide basis. Because of what 

I will call the conservation NGO’s don’t like our conservation plan, 

and they don’t like the fact that the Service does not list species, 

they constantly take the species to court, where Judge Winmill is 

directing the Service and the BLM in how they are to do their sage 

grouse decisions. This is not appropriate. 

A significant portion of the range is a huge deal. That is how the 

Service was forced to vacate its de-listing of the Preble’s Meadow 

jumping mouse, because the significant portion of the range policy 

that was in service was vacated, and Wyoming could get sucked 

into a sage grouse conservation program through listing because 

there is no significant portion of the range policy. 

The fact that you have this strong, stable sage grouse population 

and conservation practices that work should not punish you by 

being listed. You should be rewarded by not being listed. 

The State of Wyoming and its conservation partners, its citizens, 

have worked for 10 years to come up with a viable conservation 

plan. 

Thank you, sir. 

[The prepared statement of Ms. Taylor follows:] 

PREPARED STATEMENT OF RENE ́ E C. TAYLOR, OWNER, TAYLOR ENVIRONMENTAL

CONSULTING LLC, CASPER, WYOMING

I will explore the frustration with the ESA and the impact it has on effective species conservation, jobs, property and multiple use using two species I am very familiar with; Preble’s meadow jumping mouse and greater sage-grouse. 

Our frustrations with ESA generally fall into three categories, (1) selective use of 

data and research, (2) ESA decisions driven by litigation and settlements and (3) 

lack of consideration for public participation and conservation actions: 

• In August, you heard from Dr. Ramey about the data requirements of the Act, 

‘‘the best scientific and commercial data available.’’ ESA decisions are to be 

made based on the best available data, not outcomes that are founded on data 

that is unavailable and therefore the outcomes cannot be replicated and the 

data cannot undergo additional testing through the scientific method. 

• Similarly, we see the ever-increasing use of predictive modeling to determine 

outcomes well into the future; however, the Service never tests these models 

in a real word situation to determine if the modeled outcomes are accurate. 

Instead the Service deems them accurate and demands conservation action 

based on them. 

• Selective use of peer and non-peer reviewed literature by agencies (i.e. FWS 

and BLM). We are told by FWS that all information used in their decisionmaking must be peer reviewed; there is nothing in the act about only peer 

reviewed materials being considered. However, in agency decisions we often 

see select non-peer reviewed materials, including gray literature, being cited 

alongside peer reviewed works. While data provided by industry is often ignored. 

• Moving conservation targets: The mitigation bar is continually being revised 

as a result of emerging information. We never allow an ESA/conservation decision to play out long enough to see if the findings were correct or if applied 

mitigations work. Our response is always ‘‘the sky is falling and the species 

25 

is going to blink out’’ if we do not act immediately. Mother Nature does not 

react like that. • Section 4 of the ESA contains timeframes for completing the various statutory 

phases of species listing. If the Service actually adhered to these timeframes 

the vast majority of the litigation could be avoided, it is the slipping of these 

requirements that provides the opportunity for settlements that leave other 

interested and potentially affected parties out of the loop. • Settlements between a plaintiff and the USFWS are generally crafted in a 

vacuum and targeted toward the outcomes desired by the plaintiff. The potentially affected parties (States, tribes, landowners, business entities, etc.) must 

be included in these deliberations. We saw this again last week with the settlement between the Service and the Center for Biological Diversity regarding 

the Mexican wolf in Arizona and New Mexico. • Settlements between the Service and plaintiffs, such as that in 2011 with 

Wild Earth Guardians and Center for Biological Diversity, which requires reconsideration of species listing decisions and specifying the timeframes within 

which to do so, not only allows the plaintiff to sets the agencies priorities but 

takes staff away from more pressing issues such as conservation agreements 

with landowners and States who are trying to work within the act and associated regulatory system. • Litigation driven outcomes with decisions being made by individual judges 

based on information provided by often special interest selected ‘‘Experts,’’ 

during settlement hearings/conferences. 

• Local and State conservation efforts are ignored or co-opted by ‘‘emerging 

science,’’ negotiated settlements and litigation. Section 6 of the ESA directs 

the Service to work with States and to accept applicable and appropriate 

State conservation programs, among other things. 

1. Preble’s Meadow Jumping Mouse (PMJM or Zapus hudsonius preblei) 

(a) 1998—Listed in Colorado and Wyoming, listing was preceded by significant 

trapping effort in Colorado but only one trapping event in historical range of 

the species in Wyoming. 

(b) 1999—a private landowner in SE Wyoming came forward to conduct an extensive trapping program in the historical range and in habitats that were ‘‘similar’’ to those where the subspecies was found in Colorado. Resulting in the 

capture of 33 individuals, 24 more than the Wyoming historical record. 

(c) FWS gathers a ‘‘Recovery Planning Team’’ which meets extensively for the 

next 5 years with no measurable outcome. 

(d) June 2003—FWS designates critical habitat in Wyoming and Colorado for the 

subspecies. 

(e) December 2003—Dr. Ramey determines the PMJM is not a unique subspecies. 

(f) December 2003—State of Wyoming filed their first petition to delist. 

(g) February 2005—FWS publishes proposal to delist PMJM in Wyoming. 

(h) 2006—Dr. King (USGS) determines the PMJM is a unique subspecies. 

(i) FWS enters into a hand selected peer review panel process to ‘‘evaluate’’ the 

genetics work completed by Drs. Ramey and King; FWS ‘‘Peer Review’’ panel 

is initiated on two occasions. 

(j) Sept. 2006 (through Oct. 2007)—Wyoming files notice of intent to sue FWS 

over non action on the 2005 petition to delist. 

(k) 2008—Delisted in Wyoming. 

(l) 2009—Petition filed by Center for Native Ecosystems, followed by a court 

order, to re-instate regulatory protections for PMJM in Wyoming based on 

issues related to the definition of ‘‘significant portion of the range’’ (SPR). 

(m) August 2011—to comply with the Court Order the PMJM is re-listed in Wyoming based on vacating the FWS policy on SPR. 

(n) December 2011—the Service and National Marine Fisheries Service notice of 

draft policy regarding application of SPR; the Service has yet to finalize the 

rule defining this critical piece of the act, which would allow them to list species only where they are at greatest risk. 

(o) May 2013—Again, (from the 2011 settlement agreement) a court ordered date 

by which to conduct the 5-year status review and (finally) address the two petitions to delist received in 2003 (FR Vol. 78, No. 101, pg. 31680). The status 

review again re-iterates the lack of risk to the species in Wyoming from oil 

and gas development, farming and livestock ranching. But stresses the potential impact from human population growth in the four Wyoming counties 

where PMJM is found, reveling a 13 percent increase (20,410 people) by 2030 

including the concern that Cheyenne might grow by 8,372 soles. The review 

also discusses the potential negative effects on PMJM habitat from climate 

26 

change and fire. These out comes are derived through modeling efforts extending out 30 to 50 years and completely ignores the fact that fires and climate change have occurred over the range of the species since it came into 

existence. Not to mention that population growth of 20,000 persons is minute 

and will generally not occur within Preble’s habitat. Based on these finding 

the Service determined that the risk to the species is significant therefore it 

could not de-list the species in Wyoming. 

All this is over a mouse that Gwilym Jones, in his 1981 encyclopedic review of 

the Genus Zapus, states ‘‘There is no evidence of any population of Zapus hudsonius 

(ZH) being sufficiently isolated to warrant subspecific status’’ (Jones 1981). What 

Dr. Jones points out is that these 14 to 19 ‘‘subspecies’’ of Zapus hudsonius are really races, not subspecies worthy of ESA protection. 

Genetics has a long history of the argument between ‘‘Lumpers’’ (Dr. Ramey) and 

‘‘Splitters’’ (Dr. King). ZH is ripe territory for such arguments but so are domestic 

cats and dogs. Basically, following the same logic used to determine that the PMJM 

is a unique subspecies, we could also demonstrate that your cat and mine are separate subspecies and one or the other may be worthy of ESA protection. As Dr. Taylor Haynes, so eloquently stated at a Preble’s Recovery Team meeting, ‘‘A species 

being rare or uncommon does not equal a species at risk of extinction and ESA protection.’’ 

Another important point brought out by Dr. Jones (1981) is that ‘‘populations of 

the progenitors of the (Zapus) genus were isolated by the thawing of the glaciers 

and associated meltwaters with further isolation of groups occurring during periods 

of environmental drying.’’ So much for the ‘‘climate change’’ we discuss today being 

a unique event in the history of the earth. Indeed, climate change is one of the natural forces of evolution. Sadly, the Service determined it could not recognize the 

work of Dr. Jones, or his 569-page dissertation, as it was not ‘‘peer reviewed.’’ 

This mouse is the perfect example of everything wrong with ESA, initial decisions 

based on little or no data, private parties have to do the work of the Service to collect the necessary data. The bright spot in the story is that the FWS staff acknowledged the new data and the cooperation of landowners, eventually amending the 

listing decision based on a petition from the State. Unfortunately, as we see so 

often, the special interest NGO’s don’t like sound, on the ground science-based decisionmaking and sued for a re-evaluation of the delisting; eventually ending with the 

court ordered listing of a species in an area where no risk to the species has been 

documented. Special interest driven decisions are the outcome and completely ignore 

the potential impacts to the very people who have provided habitat for the species 

while also providing jobs and food for the Nation and their families. 

2. Sage-grouse 

The greater sage-grouse story in Wyoming generally starts in 1999 when the 

game and fish departments in States within the range of the species, BLM and 

USFWS enter into an Memorandum of Understanding to look at the species and 

what could be done to conserve it. The States were tasked with developing State 

and local level conservation plans; these were to address conservation taking into 

consideration local economies, impacts and habitats. This story begins with the 

threat of the ESA, do something to conserve the species or we will have to list it! 

Wyoming completed its statewide plan in 2003 and immediately set about the 

local planning process. All these workgroups included members from the oil and gas 

and mining industries, wildlife biologists, private landowners, agriculture, ‘‘conservation’’ NGO’s, local government, NRCS, WGFD and the BLM, with the Service 

in attendance. These planning efforts were completed and evolved into an Executive 

order issued by Governor Freudenthal in 2008, with the goal of maintaining or enhancing the sage-grouse population in designated Core Population areas. This EO 

has been amended twice since 2008 with the latest in 2011 (SWED 2011). 

In a 2011 letter to Governor Mead, the USFWS stated it ‘‘continues to view implementation of the Executive order as an adequate mechanism to preclude the need 

to list this species and if the Executive order remains a sound policy to manage and 

protect sage-grouse populations in Wyoming. The Service believes the Executive 

order can result in the long-term conservation of the Greater sage-grouse and thus 

reduce the need to list the species under the Endangered Species Act of 1973, as 

amended (16 U.S.C. 1531 et seq.). If fully implemented, we believe the Executive 

order can provide the conservation program necessary to achieve your goal of precluding listing of the Greater sage-grouse in Wyoming.’’ 

The BLM Washington Office IM 2012–043 further affirmed the Wyoming Core 

Population Area Protection process by stating, ‘‘The BLM field offices do not need 

to apply the conservation policies and procedures described in this IM in areas in 

which (1) a State and/or local regulatory mechanism has been developed for the conVerDate Mar 15 2010 10:53 Nov 05, 2014 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6621 Z:\00 FULL COMMITTEE\00SE04 1ST SESS PT. 1&2\85208.TXT MARK
27 

servation of the Greater Sage-grouse in coordination and concurrence with the 

USFWS (including Statewide Executive Order 2011–5, Great Sage-Grouse Core 

Area Protection; SWED 2011); and (2) the State sage-grouse plan has subsequently 

been adopted by the BLM through the issuance of State-level BLM IM.’’ 

In February 2012 the BLM Wyoming State Office issued IM WY–2102–019, 

Greater Sage-Grouse Habitat Management Policy on Wyoming BLM Administered 

Public Lands Including the Federal Mineral Estate. This IM provides guidance to 

BLM Wyoming field offices regarding management consideration of greater Sagegrouse habitats for proposed activities until the resource management planning 

amendments are completed. This IM is consistent with the Washington IM mentioned above and the State Executive order. 

The Wyoming Conservation Strategy, as described in the EO, is premised on the 

concept of managed development of oil and gas, mining and wind energy in Core 

Population areas, those areas of the State with the most robust populations of sagegrouse. Approximately 86 percent of the grouse in the State receive enhanced protection under this program. The Core concept was based in large part on research 

findings that illustrated that sage-grouse and oil and gas development can and do 

co-exist (Taylor et al. 2007 and 2011). Publically available Wyoming data was used 

in this effort to determine under what conditions grouse exhibit a decline or avoid 

an area. The EO then used other Wyoming based research findings, relative to 

avoidance of oil and gas operations, and buffered this information to provide an 

added conservation cushion. 

A key component of the Wyoming conservation strategy is the analysis of all 

projects, that require a State or Federal agency permit, proposed within a ‘‘Core 

Population Area.’’ This GIS analysis of disturbance and disruptions (DDCT) evaluates the level of existing and proposed surface disturbance and disruptions (active 

well sites and or mining locations) within 4-miles of a sage-grouse lek (the definition 

of the analysis area is more complicated than this). In my experience, these analysis 

areas can be quite large, for example 55,0000 acres to evaluate the effect of fewer 

than 10 new well sites. If the proposed project will not exceed the disturbance and 

disruptions limitations stipulated in the Executive order the project receives a ‘‘concurrence’’ or ‘‘go-ahead’’ letter from the WGFD. In the event the project analysis reveals that these limitations will, or already are exceeded, the WGFD and the BLM 

(if involved), work with the proponent to reduce/mitigate impacts to the species. 

This process needs to be followed for a number of years so we can determine if it 

works to ‘‘maintain or enhance’’ sage-grouse populations in the State of Wyoming. 

Only after the program is tracked and the population data analyzed over a good 

number of years (3 year running average as stated in the Wyoming Conservation 

Strategy) should we make any changes. 

All that said, none of this is adequate enough for the ‘‘conservation’’ NGO’s who 

continue to pound the table with new emerging research ‘‘demonstrating’’ that the 

EO and IMs are not adequate. They continually take their case to U.S. District 

Court Judge John B. Lynn Winmill, who has mandated BLM consider the National 

Technical Team (NTT) Report (BLM 2011) in the process of amending nine BLM 

Resource Management Plans to more fully address sage-grouse conservation. Similarly, the NGO’s have demanded, and BLM capitulated, that a ‘‘Recovery Alternative’’ be considered. Neither of these ‘‘conservation’’ strategies recognizes the valid 

existing rights of oil and gas lessees, the rights of private landowners, and the resource based economies of the State or the multiple use mandate of the BLM. They 

certainly do not recognize that in Wyoming oil and gas, agriculture and sage-grouse 

have co-existed quite nicely for over 100 years. 

Long story short, regardless of the broad based public process and cooperation 

that went into the development of the Wyoming sage-grouse conservation program 

or the endorsement of the Wyoming concept by USFWS and BLM, the threat of the 

ESA listing is constantly hung over the issue and used as a battering ram to force 

more stringent conservation measures to be implemented. 

As with the PMJM, the definition of SPR and a clear policy for its use is of critical 

importance to the State of Wyoming. Without the ability to identify and provide listing protection to the species in those areas where it is truly at risk due to a lack 

of conservation effort, Wyoming could end up included in a listing decision because 

of its strong and stable grouse population and conservation practices. This would 

effectively punish the State and its citizen partners for their hard work in developing and implementing grouse conservation. 

The courts should not control the outcome of the ESA. ESA decisions should rely 

solely on the best available data not the professional opinion of folks with a conservation bias. Sage-grouse represents one of, if not the largest, voluntary conservation efforts in the history of ESA but this could all be lost if the court and special 

interest plaintiffs are allowed to direct the outcome. I suspect that if this were to 

28 

happen the Service would be hard pressed to garner much public support in the future. The Service should acknowledge the tremendous level of public participation 

and effort that has gone into the range wide conservation of sage-grouse and allow 

it to play out. The BLM (in the case of sage-grouse) and the Service constantly kowtow to the demands of the litigants who use the courts to move forward their case 

leaving those that have participated honestly in the regulatory process in the dust. 

In closing, I must admit I am not an advocate of opening up the ESA; I have 

grave concern about the effort being taken over by special interests, just as has occurred with ESA to date. The USFWS must be directed to operate as was originally 

conceived in the act; sound science based on the best available data. The ESA contains timeframes for acting on petitions, if the Service were to abide by these constraints there would be little fodder for litigants. And last, in this era of bio-politics, 

when cohorts of researchers control the published literature and therefore the conservation outcome, any change in the ESA will not affect the apparent lack of scientific integrity. Regardless of the good intentions of this committee, honesty in the 

use of the scientific method cannot be legislated. 

Literature Cited 

Bureau of Land Management. 2011. A Report on National Greater Sage-grouse 

Conservation Measures. National Technical Team. On line at: https:// 

www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&ved=0CC 

sQFjAA&url=http%3A%2F%2Fwww.blm.gov%2Fpgdata%2Fetc%2Fmedialib%2Fblm 

%2Fco%2Fprograms%2Fwildlife.Par.73607.File.dat%2FGrSG%2520Tech%2520Team 

%2520Report.pdf&ei=KLUjUrfND6veyQHN9oBY&usg=AFQjCNHgNuTc3NkzaIBHO 

kYhnTdJawD-kg&bvm=bv.51495398,d.aWc. 

Jones, G.S. 1981. The Systematics and Biology of the Genus Zapus (Mammalia, 

Rodentia, Zapododae (Canada, United States). Indiana State University, Terre 

Haute, Indiana. 

Taylor, R.C., Matthew Dzialak and Larry Hayden-Wing. 2007. Greater Sagegrouse Populations and Energy Development in Wyoming. Online at http:// 

bogc.dnrc.mt.gov/PDF/WYsageGrouseNov2paper.pdf. 

Taylor, R.C., Brook Russell and Bryan Taylor. 2011. Synopsis, Greater Sagegrouse Populations and Energy Development in Wyoming—2010 Update. 

USFWS. 2011. Letter from R. Mark Sattleberg, Wyoming Field Office Field Supervisor, Ecological Services to Matthew H. Mead regarding the Wyoming Executive 

Order 2011–5 Greater sage-grouse protection. Dated June 24, 2011. Reference number ES–61411/WY11TA0313. 

SWED. 2011. State of Wyoming, Executive Department. Executive order 2011–5, 

Greater sage-grouse core area protection. Online at http://wgfd.wyo.gov/web2011/ 

Departments/Wildlife/pdfs/SAGEGROUSE_EO_COREPROTECTION0000651.pdf. 

The CHAIRMAN. You are very perceptive. 

[Laughter.] 

The CHAIRMAN. Thank you very much. Your comments on the 

Preble mouse are in the written statement, so it is part of the 

record. 

Ms. TAYLOR. Thank you. 

The CHAIRMAN. I would now like to recognize Mr. Jeff Meyer, the 

Managing Partner for the Sweetwater River Conservancy in 

Alcova, Wyoming. 

Mr. Meyer, you are recognized. 

STATEMENT OF JEFF MEYER, MANAGING PARTNER, 

SWEETWATER RIVER CONSERVANCY, ALCOVA, WYOMING 

Mr. MEYER. Good morning, Mr. Chairman, and welcome to Wyoming. It is a pleasure to join you, Congressman Lummis, and your 

colleagues to talk about species protection, jobs, property, and multiple use. I am Jeff Meyer, the Managing Partner of the Sweetwater River Conservancy. 

The Sweetwater River Conservancy is headquartered 40 miles 

southwest of Casper on the Pathfinder Ranch. It is comprised of 

nine working cattle ranches located along the North Platte and 

29 

Sweetwater Rivers. The SRC lands total 712,000 acres, an area a 

little bit larger than the State of Rhode Island. 

Today these historic lands offer a powerful platform to realize 

three groundbreaking ideas: first, an idea to bring willing landowners and investors together to expand the protection of Wyoming’s iconic wildlife; second, an idea to help Wyoming capitalize 

on its abundant natural resources; and third, an idea to demonstrate how keeping intact landscape-size parcels of private land 

is good for business. 

Earlier this year, with the full support of the State of Wyoming, 

SRC submitted applications to the United States Army Corps of 

Engineers to create a Wetland, Stream, and Riparian Mitigation 

Bank, and the U.S. Fish and Wildlife Service to create a Sage 

Grouse Habitat Conservation Bank, all on SRC-owned lands. We 

will submit a third application for a raptor bank later this year. 

These banks will be the first of their kind in Wyoming and the 

largest ever in the United States. 

The enactment of the Clean Water Act and the Endangered Species Act in the 1970s set the stage for our strategy today. These 

laws were motivated in part by the loss of critical habitat and the 

fragmentation of large landscapes. Today, four decades later, the 

debate surrounding the implementation of this legislation continues to rage and the time for new thinking seems ripe. 

To protect critical habitat, regulators apply the principle of no 

net loss and condition the issuance of a permit on the ability of a 

developer to mitigate the consequences. They require the developer 

to, first, avoid the impact when possible; second, minimize the impact; and third, compensate for unavoidable impacts. But without 

a clear way to meet these requirements, a project can languish for 

years or be derailed altogether. 

Within the third category, compensatory mitigation, we believe 

SRC will make a constructive contribution toward the goals of the 

ESA. 

SRC lands are home to high-quality habitat for the greater sage 

grouse, raptors, black-footed ferret, and several other plants and 

animals that are being carefully monitored by the U.S. Fish and 

Wildlife Service. Throughout the past 5 years, over 100 scientists 

have spread out over our ranches to catalog these resources. They 

worked their way over four mountain ranges, 70 miles of major 

river frontage, across hundreds of miles of side streams and tributaries, and through tens of thousands of acres of sagebrush scrub 

lands. This unparalleled body of knowledge served as the basis for 

the applications we recently submitted. 

Once approved, we will actively restore and enhance the water 

quality and wildlife habitat on our lands using private capital and 

following strict scientific protocols approved by a task force of State 

and Federal regulators. These improvements, known as ‘‘lift,’’ will 

create certified credits that can be used by developers to offset the 

impacts of energy projects elsewhere in the same geographic service area. 

The price for these credits will be negotiated on a willing seller/ 

willing buyer basis. No one will be obligated to buy them, and developers will have the option of doing their own compensatory mitigation or contracting with others. It is our business assumption, 

30 

however, that by investing heavily in the preapproved, up-front 

mitigation, we will have an appealing product that adds valuable 

clarity and predictability to the permitting process. 

But adding clarity and predictability is not the only benefit to 

the SRC mitigation banks. The benefits are much wider. One, 

neighboring ranchers who partner with us will have a new source 

of revenue by managing their lands for both cattle production and 

wildlife enhancement. 

For the conservationist, SRC’s unique approach supports habitat 

conservation across large landscapes, creating an ecologically compelling solution and an unrivaled product. Sportsmen will continue 

to have access to our lands and enjoy higher populations of game 

and fish. Regulators will have a credible new tool that enables 

them to protect species and promote multiple use of public lands. 

And finally, these improvements will be financed by private investors and will not rely on Federal appropriations or tax credits to 

succeed. 

Thank you. 

[The prepared statement of Mr. Meyer follows:] 

PREPARED STATEMENT OF JEFF MEYER, MANAGING PARTNER, SWEETWATER RIVER

CONSERVANCY, ALCOVA, WYOMING

Good morning Mr. Chairman and welcome to Wyoming. It is a pleasure to join 

you, Congressman Lummis, and your colleagues to talk about species protection, 

jobs, property and multiple use. I am Jeff Meyer, the Managing Partner of the 

Sweetwater River Conservancy. 

The Sweetwater River Conservancy (SRC) is headquartered 40 miles southwest 

of Casper on the Pathfinder Ranch. Comprised of nine working cattle ranches located along the North Platte and Sweetwater Rivers, SRC lands total 712,000 

acres—an area about the size of Rhode Island. 

Today these historic lands offer a powerful platform to realize three 

groundbreaking ideas. First, an idea to bring willing landowners and investors together to expand the protection of Wyoming’s iconic wildlife. Second, an idea to help 

Wyoming capitalize on its abundant natural resources. And third, an idea to demonstrate how keeping intact landscape size parcels of private land is good business. 

Earlier this year, with the full support of the State of Wyoming, SRC submitted 

applications to the U.S. Army Corps of Engineers to create a Wetland, Stream, Riparian Mitigation Bank and to the U.S. Fish and Wildlife Service to create a Sage 

Grouse Habitat Conservation Bank, all on SRC ranch lands. We will submit a third 

application for a raptor bank later this year. 

These banks will be the first of their kind in Wyoming and the largest ever permitted in the United States. 

The enactment of the Clean Water Act and the Endangered Species Act in the 

1970s set the stage for our strategy today. These laws were motivated in part by 

the loss of critical habitat and the fragmentation of large landscapes. Today, four 

decades later, the debate surrounding the implementation of this legislation continues to rage and the time for new thinking seems ripe. 

To protect critical habitat, regulators apply the principle of ‘‘no net loss’’ and condition the issuance of a permit on the ability of a developer to mitigate the consequences. They require the developer to first, avoid the impact when possible; second, minimize the impact; and third, compensate for unavoidable impacts. But without a clear way to meet these requirements, a project can languish for years or derail altogether. 

Within the third category, ‘‘compensatory mitigation’’, we believe SRC will make 

a constructive contribution toward the goals of the Endangered Species Act. 

SRC lands are home to high quality habitat for the greater sage grouse, raptors, 

mule deer, black footed ferret, and several other plants and animals that are being 

carefully monitored by the U.S. Fish and Wildlife Service. Throughout the past 5 

years, over 100 scientists have spread out over our ranches to catalogue these resources. They worked their way over four mountain ranges, along 70 miles of major 

river frontage, across hundreds of side streams and tributaries, and through thousands of acres of sagebrush scrub lands. 

31 

This unparalleled body of knowledge served as the basis for the applications we 

recently submitted. 

Once approved, we will actively restore and enhance the water quality and wildlife habitat on our lands using private capital and following strict scientific protocols 

approved by a task force of State and Federal regulators. These improvements, 

known as ‘‘lift’’, will create certified credits that can be used by developers to offset the impact of energy projects elsewhere in the same geographic service area. 

The price for these credits will be negotiated on a ‘‘willing seller—willing buyer’’ 

basis. No one will be obligated to buy them and developers will have the option of 

doing their own compensatory mitigation or contracting with others. 

It is our business assumption, however, that by investing heavily in ‘‘pre-approved’’ up front mitigation, we will have an appealing product that adds valuable 

clarity and predictability to the permitting process. 

But adding clarity and predictability is not the only benefit to the SRC mitigation 

banks. The benefits are much wider. 

Neighboring ranchers who partner with us will have a new source of revenue by 

managing their lands for both cattle production and wildlife enhancement. 

For conservationist, SRC’s unique approach supports habitat conservation across 

large landscapes creating an ecologically compelling solution of unrivaled import. 

Sportsmen will continue to have access to our lands and enjoy higher populations 

of game and fish. 

Regulators will have a credible new tool that enables them to protect species and 

promote multiple use of public lands. 

And finally, these improvements will be financed by private investors and will not 

rely on Federal appropriations or tax credits to succeed. 

Today, the SRC mitigation banks are proposed only on private lands. But it is 

possible, with supporting public policy, to imagine a time when a land owner, using 

private capital, could improve the habitat on the BLM grazing lands he leases and 

share the revenues from the mitigation banks with the Federal Government. That’s 

another big idea for Wyoming’s landscapes and wildlife. 

Thank you. 

The CHAIRMAN. Thank you very much, Mr. Meyer. You did not 

go over time, so we will credit that back. 

[Laughter.] 

The CHAIRMAN. And now, certainly not least, I would like to recognize Ms. Meghan Lally, who is a sheep and cattle rancher in 

Savery, Wyoming. 

Ms. Lally, you are recognized. 

STATEMENT OF MEGHAN O’TOOLE LALLY, SHEEP AND 

CATTLE RANCHER, SAVERY, WYOMING 

Ms. LALLY. Good morning, Chairman Hastings and members of 

the committee. Thank you to Representative Lummis for inviting 

me to speak to you this morning. I am Meghan O’Toole Lally, and 

I am a fifth-generation sheep and cattle rancher. I raise sheep and 

cattle on our family ranch, located on the Wyoming-Colorado border, along with my parents and brother. I serve as a Supervisor on 

the Little Snake River Conservation District and have recently 

been appointed to the Wyoming Environmental Quality Council. 

We pride ourselves on our management of our ranch, as well as 

our private, State, and Federal leases. The Ladder Ranch is under 

conservation easement and has been designated as an Important 

Bird Area by the Wyoming Audubon Society. 

This summer, my daughter Siobhan and I were gathering cattle 

in the forest. A sage grouse and several of her chicks flew up in 

front of us. The mother sage grouse proceeded to act as a decoy. 

She acted hurt and flew in the opposite direction of her chicks. 

Siobhan asked me what the mother grouse was doing. I explained 

that she was trying to draw us away from her chicks so that they 

32 

may survive if we were predators. I love being able to see these 

neat birds and give these lessons to my children. 

When I was a kid growing up on the ranch, we would see lots 

of wildlife daily on the bus ride to school. I had no idea until I left 

the valley that everyone did not have the same wildlife experiences 

growing up. My children continue to have those same experiences 

on the school bus today. 

The Endangered Species Act is broken. The problems are numerous. The solutions exist that are working. They can be expanded 

to a national scale. 

The decisions are made for listing habitat needs or species needs. 

It is imperative that the Fish and Wildlife Service use peer-reviewed science to make decisions. 

The State of Wyoming formed the Wyoming Statewide Big Horn/ 

Domestic Sheep Interaction Working Group. It included people representing all interested parties. The stated goal of the group was 

to maintain healthy bighorn sheep populations while sustaining an 

economically viable domestic sheep industry in Wyoming. 

The Wyoming Plan, as it is known, is a model for how to address 

domestic sheep/Big Horn sheep management in the West. It allowed areas where Big Horn sheep would be the priority and there 

would be no domestic sheep. There were also areas for domestic 

sheep grazing. Several of our sheep grazing permits are in that 

area. Recently, Biodiversity Conservation Alliance sued the Forest 

Service over a small herd of Big Horn sheep located near our grazing permit. 

Right now, the Federal Government is increasing the amount of 

red tape and analysis of habitat projects before they can be implemented on the ground. It used to take 3 to 6 months to get a 

project approved, funded, and on the ground. Now the agencies are 

saying that we need to plan on at least a year for all of the extra 

analysis needed for even simple projects. 

The intention by the adopters of the Endangered Species Act is 

that incentives should be used to encourage the preservation of 

species. I believe that the adage that you catch more bees with 

honey than with vinegar needs to be the aim of the Fish and Wildlife Service. In that spirit, I offer the following solutions. 

I believe that collaborative processes are a great tool for increasing the success of the implementation of the Endangered Species 

Act. The Wyoming Plan is an example of a win-win plan for everyone. Without the Wyoming Plan, constant litigation would be the 

future between the Big Horn Sheep advocates and the domestic industry. The Game and Fish would not be able to expand the habitat for the Big Horn sheep, and the State of Wyoming would lose 

an industry which contributes to the economy of the State. However, under the plan, the Game and Fish has an avenue to introduce Big Horn Sheep to other parts of the State, which will increase the overall numbers of Big Horn sheep. 

There needs to be an acknowledgement that in order to preserve 

these endangered or threatened species or preclude listing at all, 

that work needs to be done on the ground immediately. Simplifying 

the paperwork from dozens of pages to a reasonable application, allowing ground-level managers to make decisions, and increasing 

the number of technicians on the ground to get the work done 

33 

would streamline the process and make it easier to get work done 

in a timely manner. 

Congress has the power to list species under the Endangered 

Species Act. I think one solution is to preemptively list sage grouse 

as warranted but precluded for existing management plans. Industry and agriculture crave stability. State plans for sage grouse 

management are currently offering up stability while protecting 

sage grouse in areas where they currently exist and are thriving. 

There is a group within the Fish and Wildlife Service called Partners for Fish and Wildlife. The Partners for Fish and Wildlife helps 

to fund habitat work on private lands. They already have the infrastructure and relationships with landowners to get effective habitat 

work done for endangered species. The Partners for Fish and Wildlife is uniquely positioned to fulfill the direction of the Endangered 

Species Act for the Fish and Wildlife Service to manage the designated endangered species. 

There needs to be a recognition that if a species exists and 

thrives on a property, public or private, the practices that currently 

occur on that property will not harm and possibly protect that species. 

The Endangered Species Act is an important part of saving animals from becoming extinct. However, right now it is being used 

as a hammer to destroy livestock grazing and industry in the West. 

Not only does this affect the public lands management, it also affects the economies and culture of the communities where it is applied. 

Thank you for this opportunity to present testimony to you. 

[The prepared statement of Ms. Lally follows:] 

PREPARED STATEMENT OF MEGHAN O’TOOLE LALLY, SHEEP AND CATTLE RANCHER, 

SAVORY WYOMING

Good morning, Chairman Hastings, and members of the committee. Thank you to 

Representative Lummis for inviting me to speak to you this morning. I am Meghan 

O’Toole Lally and I am a fifth generation sheep and cattle rancher. I raise sheep 

and cattle on our family ranch, located on the Wyoming-Colorado border, along with 

my parents and brother. I serve as a Supervisor on the Little Snake River Conservation District and have been appointed to the Wyoming Environmental Quality Council. 

We pride ourselves on our management of our property, as well as our private, 

State and Federal leases. The Ladder Ranch is under Conservation Easement with 

the Nature Conservancy in Wyoming and Colorado Cattlemen’s Land Trust in Colorado. The ranch has also been designated as an Important Bird Area by the Wyoming Audubon Society. 

This summer, my daughter Siobhan and I were gathering cattle in the forest. A 

Sage Grouse and several of her chicks flew up in front of us. The mother grouse 

proceeded to act as a decoy. She acted hurt and flew in the opposite direction of 

her chicks. Siobhan asked me what the mother grouse was doing. I explained that 

she was trying to draw us away from her chicks, so that they may survive, if we 

were predators. I love being able to see these neat birds and give these lessons to 

my children. 

When I was a kid growing up on the ranch we would see Mule Deer, elk, 

Pronghorn Antelope, Golden and Bald Eagles, Sage Grouse, as well as squirrels, 

rabbits and other small birds daily on the bus ride to school. I had no idea, until 

I left the Valley that everyone did not have the same wildlife experiences growing 

up. My children continue to have those same experiences today. 

The Endangered Species Act is broken. Right now there are 630 animal species 

and 854 plant species that have been listed as threatened or endangered in some 

form. There are another 74 species that have been proposed for listing and 168 candidate species. Of those only 1 percent have been delisted. Obviously we are doing 

something wrong. Listing hundreds of species without adequate science and without 

34 

a plan for recovery beyond ‘‘all human activity is bad’’ will not improve our track 

record. There are two types of groups working on the problems in the West. The 

hopefuls and the hatefuls. The hopefuls are trying to work toward collaborative solutions that meet everyone’s needs. The hatefuls want to litigate and derail the 

process. The problems are numerous; solutions exist that are working, if they can 

be expanded to a national scale. 

The Candidate Conservation Agreement with Assurances (CCAA) concept is a 

good one for landowners who enter into it willingly with their eyes wide open. However, the CCAs and CCAAs that I am aware of have taken 10 years to even get 

the applications processed. Very few exist at all. Many people who were interested 

in the program decided not to participate because they expose themselves to litigation and regulation with no legal, court tested guarantees. Until landowners can 

enter into agreements with the Fish and Wildlife Service without fear of being sued 

or the rules and regulations changing midstream, most landowners will not be willing to commit to provide habitat for and protect threatened or endangered species. 

Litigation by hateful groups threatens the procedural rules set by the rulemaking 

process. Sue and Settle has been used by the Center for Biological Diversity (CBD) 

to force the candidate listing of 168 species. Contrary to CBD stated insistence on 

a procedurally correct, transparent process on the part of Federal agencies, Sue and 

Settle is an opaque process that is not subject to public comment or review. 

In Wyoming, we have experienced hateful groups filing the same or similar lawsuits in several venues. They choose which venue they would like their lawsuit to 

be heard. Then the other suits are dropped. This happened recently in the current 

round of grey wolf litigation. 

When decisions are made for listing, habitat needs, or species needs, it is imperative that the Fish and Wildlife Service use peer reviewed science to make decisions. 

When the agency uses ideas and hunches to make decisions it could have wide ranging impacts that have no positive effect on the target species. If there is any question as to the validity of the science, the National Academy of Science needs to be 

consulted. 

When it became apparent that hateful groups were using Big Horn sheep to remove domestic sheep grazing from public lands in the West, Wyoming decided it 

needed to be proactive. The State formed the Wyoming State-Wide Big Horn/Domestic Sheep Interaction Working Group. It included people representing all interested 

parties, including Wyoming Wool Growers, Wyoming Game and Fish Department, 

the Wild Sheep Foundation, environmental groups, sheep producers and others. The 

stated goal of the group was ‘‘to maintain healthy bighorn sheep populations while 

sustaining an economically viable domestic sheep industry in Wyoming.’’ 

The Wyoming Plan, as it is known, is a model for how to address domestic sheep/ 

Big Horn sheep management in the West. It was adopted in 2004. It allowed areas 

where Big Horn sheep would be the priority and there would be no domestic sheep. 

There were also areas for domestic sheep grazing. Several of our sheep grazing permits are in that area. Recently, Biodiversity Conservation Alliance (BCA) sued the 

Forest Service over a small herd of Big Horn sheep located near our grazing permit. 

This herd was deemed non-essential by the Game and Fish and the Working Group. 

The herd was reintroduced in 1977. The grazing permits in that predate that time 

by several decades. There are several other permittees who could also be impacted 

by the decision that any possible contact by domestic sheep to a Big Horn sheep 

means the loss of a permit. Biodiversity Conservation Alliance used that same law 

firm that is used by Western Watersheds for their litigation in Idaho. 

Unfunded mandates are negatively affecting wildlife agencies. The Federal Government regularly hands down unfunded mandates on endangered species management that the State wildlife agencies then have to try to implement. These mandates affect the management of other species within the State, which may endanger 

them in the future. It also strains the budgets of these agencies. The States then 

need to make up the money poured into these mandates. Many times this may result in increase in license fees to make up the shortfalls. 

By restricting the legal historic activities that can take place on private property; 

I believe that the Endangered Species Act is being used to perform an illegal 

takings of that private property. 

Right now the Federal Government is increasing the amount of red tape and analysis of habitat projects before they can be implemented on the ground. It used to 

take 3–6 months to get a project approved, funded and on the ground. Now the 

agencies are saying that we need to plan on at least a year for all of the extra analysis for even simple projects. There is a historic irrigation ditch on our ranch, dug 

by hand and with mules at the turn of the century by my great-grandfather. We 

are slowly piping the ditch, for efficiency and also to preserve the integrity of the 

35 

ditch. We had a Federal archeologist tell us we may not be able to continue to pipe 

the ditch without archeological analysis because it is a historic structure. 

In section 2(a)(5), the Endangered Species Act states that ‘‘The Congress declares 

and finds that—in encouraging the States and other interested parties, through 

Federal financial assistance and a system of incentives, to develop and maintain 

conservation programs which meet national and international standards is a key to 

meeting the Nation’s international commitments and to better safeguarding, for the 

benefit of all citizens, the Nation’s heritage in fish, wildlife, and plants.’’ 

This clearly indicates an intention by the adopters of the Endangered Species Act 

that incentives should be used to encourage the preservation of species. I believe 

that the adage that ‘‘you catch more bees with honey than with vinegar’’ needs to 

be the aim of the Fish and Wildlife Service. In that spirit I offer the following solutions. 

I believe that collaborative processes are a great tool for increasing the success 

of the implementation of the Endangered Species Act. The Wyoming Plan is an example of a win-win plan for everyone. Without the Wyoming Plan, constant litigation would be the future between the Big Horn Sheep advocates and the domestic 

industry. The Game and Fish would not be able to expand the habitat for the Big 

Horn sheep and the State of Wyoming would lose an industry which contributes to 

the economy of the State. However, under the plan, the Game and Fish has an avenue to introduce Big Horn Sheep to other parts of the State, which will increase 

the overall numbers of Big Horn Sheep. 

There needs to be acknowledgement that in order to preserve these endangered 

or threatened species or preclude listing at all that work needs to be done on the 

ground immediately, not 2 or 3 years from now. Water developments, fence mitigation, sage brush treatments, and fish passages or barriers are all examples of important habitat work that could be done now to preserve endangered species habitat. 

Simplifying the paperwork from dozens of pages to a reasonable application, allowing ground level managers to make decisions, and increasing the number of technicians on the ground to get the work done would streamline the process and make 

it easier to get work done in a timely manner. 

There is a group within the Fish and Wildlife Service called Partners for Fish and 

Wildlife. The Partners for Fish and Wildlife helps to fund habitat work on private 

lands. They already have the infrastructure and relationships with landowners to 

get effective habitat work done for endangered species. They have projects on the 

ground all over the country doing work to preserve habitat for toads in Nevada, 

Sage Grouse in Wyoming, and the Mountain Plover in Colorado, as well as many 

others. The Partners for Fish and Wildlife is uniquely positioned to fulfill the direction of the Endangered Species Act for the Fish and Wildlife Service to manage the 

designated endangered species. 

Some producers—working with local conservation groups—have expressed interest 

in adding endangered species habitat enhancements to water projects. Examples include habitat improvements to recharge basins and riparian areas near ditches, 

hedge rows on fields, etc. Others have sought add native habitat improvements specifically to open up access for local endangered species. However, the restricted application of safe harbor rules by Government agencies has forced many proponents 

to abandon their efforts. 

Recognition that if a species exists and thrives on a property—public or private— 

the practices that currently occur on that property will not harm and possibly protect that species. Sage grouse are vulnerable to predators. Areas where people run 

sheep tend to have heavy predator control. Based on my own observations, there are 

many thriving Sage Grouse leks within our lambing areas. I believe that the predator control that takes place on our lambing grounds has helped to keep the sage 

grouse in those areas healthy. 

Tools exist within the Endangered Species Act itself. Habitat Conservation Areas, 

Safe Harbor provisions, section 6 cooperative agreements with the States, and 75– 

90 percent match for any work done by the States for endangered species management and habitat improvement. 

The Endangered Species Act is an important part of saving animals from becoming extinct. However, it is being used as a hammer to destroy livestock grazing in 

the West. Not only does this affect the public lands management, it also affects the 

economies and culture of the communities where it is applied. 

The purposes of the Endangered Species Act ‘‘are to provide a means whereby the 

ecosystems upon which endangered species and threatened species depend may be 

conserved, to provide a program for the conservation of such endangered species and 

threatened species.’’ 

36 

It clearly states that the original intent of the Endangered Species Act was a good 

one. Saving species from extinction is important. However, it has been hijacked by 

the hateful groups to attack industries and people 

I love seeing the Sage Grouse dance and watch the chicks follow their mothers 

through the brush. I also want my children to have the same opportunities to see 

these birds. I am doing everything I can to preserve the habitat for the Sage Grouse. 

However, I can see by listing the Sage Grouse under the Endangered Species Act, 

it may actually cause a reduction in Sage Grouse Habitat and people on the ground 

doing everything they can to coexist with them. 

Thank you for this opportunity to present testimony to you. 

The CHAIRMAN. Thank you all. I want to thank you all, and I do 

know how difficult it is to repeat your remarks on an issue like 

this. I fully recognize that, and that is why under our rules, your 

whole statement—and I read all of your statements, and they were 

all longer than 5 minutes, except for Mr. Meyer. I think yours was 

longer than 5 minutes, too. But at any rate, I appreciate that is 

part of the record. It is important that we have this as we go forward, we have this evidence coming from these areas. 

We are starting the questioning period for Members, and I am 

going to defer to my colleagues here who are more immediate in 

this geographical area, and I will follow up last. If we have time, 

we will do a second round. 

So I will start by recognizing my colleague from Wyoming, Representative Lummis. 

Mrs. LUMMIS. Thank you again, Mr. Chairman. And I would also 

want to thank my chief of staff, Jeffrey Fagan, who is here; Jackie 

King from our staff in Casper; Ryan McConaughey from our staff 

in Casper, and also want to acknowledge the presence of Wyoming 

State Treasurer, Jeff Gordon—Mark Gordon. 

[Laughter.] 

Mrs. LUMMIS. You are racing cars these days, Mark. Great job 

of course as Wyoming State Treasurer. I am delighted to see you 

here Mark. 

Questions for our fabulous panel. I want to start with Jeff Meyer. 

Mitigation making is something I do see as part of a 21st century 

conservation strategy that could make a huge difference. 

Now, I have two questions for you. One is, tell me the difference 

between doing mitigation on a very small scale versus a landscape 

scale such as you are doing. And also, how does what you are doing 

dovetail with or differ from current policies? 

Mr. MEYER. So really, all science today points to—and I think 

Fish and Wildlife is accepting, beginning to accept this—that, you 

think about it, the landscape scale per acre, there is more for us 

to develop the larger your contiguous property. We call it the 

economies of contiguousness. The greater lift you get per acre for 

both habitat and species. And since, if you read the rules, that this 

land has to be managed in perpetuity for the species for which the 

mitigation predator sold, by having all that in one area, it makes 

it more economically viable not only to do it but the odds of success 

for the future just really are greater, as opposed to having small, 

100-acre, fragmented, postage-stamp projects located all through 

the State. 

And it is important in Wyoming, if you think about it, to locate 

these banks where there are very few to no oil and gas or other 

carbon that could be extracted, which is why we picked our ranches 

37 

where we are, where we have them, which is, again, in kind of an 

interval as far as an oil- and gas-free area. 

As far as how does it differ from the current policy, really I think 

that with the interim memorandum that I think came out from Bureau of Land Management in May, they are starting to see the idea 

that the Government can’t do everything, and for the first time 

they are also recognizing the opportunity to mitigate for impacts on 

Federal land by private property holders. 

So I would really say the contiguousness, the big landscape properties are important also to the rancher because Wyoming ranching 

culture is such an important part of this State. It allows ranches 

to become contiguous ranches, as opposed to ranchettes. And for 

the sportsmen, it allows an area that is really managed for game 

and fish. So the opportunity for increased hunting opportunities 

and fishing opportunities is something that will never be found 

when mitigation is done on fragmented pieces of property. 

Mrs. LUMMIS. So it monetizes the conservation of land. 

Mr. MEYER. It allows the rancher to monetize the habitat value 

of his ranch. That is correct. 

Mrs. LUMMIS. Thank you. It is an impressive property, and I 

hope you all get to see it at some point. 

A question for Ms. Taylor. You mentioned predictive modeling is 

never tested but it is used. So how can we set recovery goals without predictive modeling? What would be a good standard at the beginning of the listing process for what constitutes recovery so they 

can’t be automatically de-listed, instead of having the constant 

moving of the goal posts when we have already achieved the initial 

goal for de-listing? 

Ms. TAYLOR. Well, I think there are two different things. I think 

it may not have been clear. When I think about predictive modeling, I go specifically back to either sage grouse or the Preble’s. 

In the recent de-listing or re-listing of Preble’s and the reevaluation 

of the 5-year status review that came out in May of this year, they 

used predictive modeling to determine population growth in the 

four southern counties of Wyoming where the mouse lives and cited 

that a 20,000-person growth over the next 30 years would be a negative impact on the species. They also thought that the predictive 

modeling that determined climate change or fire frequency over the 

next 50 years would be an issue for the species. 

It is that kind of modeling, or the predictive modeling for things 

like the sage grouse that says what the impacts are way out over 

time. It is not based on the species and their reactions but patterns. So that is what I am looking at. 

Mrs. LUMMIS. Thank you very much. My time has expired, and 

I appreciate your clarification. Thank you. 

The CHAIRMAN. We will surely have time for another round. 

At this time, I recognize Mr. Lamborn from Colorado. 

Mr. LAMBORN. Thank you, Mr. Chairman. Thank you for having 

this hearing. 

I would ask unanimous consent that our whole opening statements be included in the record. 

The CHAIRMAN. Without objection, that will be part of the record. 

Mr. LAMBORN. OK. Thank you. 

38 

Commissioner Hendry, I am going to ask my first question to 

you. I drove in from Laramie this morning, where my daughter and 

her family live, and I just loved driving through your county, the 

beautiful, wide-open spaces. You have a great place here. 

Mr. HENDRY. Thank you, Representative, and we think we do. 

We are right in the heart of Wyoming, and Casper right now is 

doing pretty well. 

Mr. LAMBORN. Well, I want to compliment the whole State of Wyoming because I think your policies are balancing environmental 

concerns and energy and jobs and the things that help make a better standard of living for people. You are a State that gets it, and 

I wish Colorado could learn some things from you. 

And I want to thank Cynthia for playing a leading role in helping to make that happen as we go forward. 

Mr. HENDRY. Well, our agriculture and tourism and oil and gas 

and extracting industries, they not only make Wyoming operate 

but they make the rest of the country operate as well. 

Mr. LAMBORN. Now, specifically, recently the Obama administration finalized a rule ignoring significant opposing comments in the 

10th Circuit Court of Appeals and letters from many of us in Congress on how it must conduct economic analyses for critical habitat 

designations. The rule will require Federal agencies administering 

the ESA to only analyze cost of the actual habitat designation 

while ignoring all other costs associated with listing a species. 

What would that do to rural and western areas of our country? 

Mr. HENDRY. Well, Representative, I think that the socio-economic factors in all things are something that the Commissioners 

Association really pays attention to. Our communities are based on 

these industries that we have here, and if you list, say, the wolf, 

it is not only a detriment on livestock but it is those dollars that 

turn over in the economy, over and over. Those are the kinds of 

things that affect our local economy. The Preble’s mouse, they are 

talking about some oil and gas, some shale development down in 

southeastern Wyoming and Colorado. We could get into a deal 

where they couldn’t do some of that activity, the normal course of 

human activity, because of that mouse, and that is economic development in those areas. 

Mr. LAMBORN. OK, thank you. 

Ms. Taylor, I want to follow up with you on the mouse that we 

are talking about. How would you characterize the current trend 

of ESA sub-level species and distinct populations? How is that 

going, and is that based on sound science? 

Ms. TAYLOR. The mouse is an extremely interesting discussion 

relative to genetics, the genetics work that has been done. There 

was research in 1981 that led to a doctoral thesis that demonstrates that, of the 19 different supposed sub-species of the 

mouse, that there is really no valid sub-species separation between 

them. Genetics work was done on a number of mice, a huge number of mice, on tissue samples in 2003, and again this was determined that sub-species designation of the Preble’s was inappropriate. 

A contingent of researchers was then hired by the Fish and Wildlife Service to reevaluate all of that data, and they determined that 

it was appropriate to have that sub-species. 

39 

The issue comes down to how we discuss genetics over time. Are 

they individual races? Are they separate sub-species? Are these 

things valid? And making determinations on a significant portion 

of the range, which is what happened with Wyoming and Colorado, 

can be important for separating out where a species or sub-species 

might be at risk versus where it is not at risk, and in Wyoming 

it is not at risk, and the Service has documented that numerous 

times. Yet, they had to, through litigation and the vacating of significant portion of the range, had to re-list. So that is not appropriate. 

Mr. LAMBORN. OK. Thank you very much. 

The CHAIRMAN. I thank the gentleman. 

I now recognize the gentleman from Montana, Mr. Daines. 

Mr. DAINES. Thank you, Mr. Chairman. 

Thank you to an outstanding panel. It makes me proud to be a 

westerner, the way of life and the culture that we have. I appreciate the comments, the passion, and the common sense that we 

heard this morning. We don’t hear that very often back in Washington, DC, so thank you for that. 

This issue, talking about the jumping mouse, talking about the 

greater sage grouse, these are critically important issues. I watched 

my State, the western part of our State, see its industry decimated, 

and the ESA has been one of the underpinning arguments by these 

fringe groups that is creating wildfire risk. We have more active 

forest fires today in Montana than anywhere else in the country, 

as we speak. These issues we are talking about are critically important for our future. 

I would like to start off by directing a question here to Mr. 

Hendry. I love the comment about the 40-year-old ESA, the old 

pick-up, as far as ESA serving a useful purpose but in bad need 

of repair. That is well said. Montana is undergoing its own planning process for sage grouse conservation as we speak. Could you 

reiterate for me the importance of the involvement of local communities and industries in the planning process for the greater sage 

grouse? We need to take some of this learning certainly to Montana. If we could learn from you, what would you say? 

Mr. HENDRY. Well, the sage grouse core area is—and Ms. Taylor 

has been involved in this quite a bit also—developed through government and everybody working together, developed a plan that 

marked the core areas, the areas that sage grouse could really utilize within the State. So if you decide to work in that, if you have 

to work your energy in that area, ranching or anything else, you 

have to adhere to certain rules that protect that sage grouse. 

Outside that area, there are still a few rules, but it is not as intrusive, I guess, on your business. Although we have about 70 percent, 60 to 70 percent public land, the Bureau of Land Management and the Forest Service, they treat the sage grouse as if it was 

protected now. So it hampers our ability to do business in those 

areas that are really not in our sage grouse core areas. 

But it was developed by the State of Wyoming and everybody 

working together. Not all people like the sage grouse core area 

strategy, but it is a strategy in order to try to keep that bird from 

being listed. 

Mr. DAINES. We hunt sage grouse in Montana. I assume—— 

40 

Mr. HENDRY. We do here, too. 

Mr. DAINES. The season opened up 4 days ago, a two-bird limit. 

But I would like to ask a question of each of you that goes back 

to this reform of the ESA. You all have been involved in that process far more than any of us up here have been. I came to Congress 

with a business background in the private sector, and we focus on 

results and outcomes versus activities. 

If you could change one thing to reform the ESA—we all agree 

it is a 40-year-old process that needs reform. If you want to volunteer a second level, I will take that as well. What would it be? I 

will start with Mr. Hendry and work our way across. 

Mr. HENDRY. I would say it would be tied to crucial habitat for 

whatever species that you are talking about listing. That can have 

far-reaching effects. So crucial habitat would be one of them, and 

have that right up front so we know what we are dealing with 

when the listing is put in. 

Mr. DAINES. I am out of time. We are going to have a second 

round; is that right? 

The CHAIRMAN. Finish that real quick. 

Mr. DAINES. All right. 

Mr. Wharff? 

Mr. WHARFF. I guess, going back to my days in law enforcement, 

I guess the one thing that I see lacking is the common man principle. I mean, I think there are a lot of things within the ESA that 

the common man theory would definitely help, because some of the 

things just don’t make sense that we see being done under the Endangered Species Act. 

Mr. DAINES. What would that specifically look like? 

Mr. WHARFF. I guess put common sense back into it. I think that 

the ESA started out very good, and I think it has morphed, as is 

typical with some government programs. I guess the nature of the 

beast is to expand, mission creep, and I think we need to push back 

and make it focus on what the purposes were, and I think that is 

putting the common person back into it. If it doesn’t make sense, 

why do we do things? Sometimes I think that is what is lacking. 

Mr. DAINES. OK. Thank you. 

Ms. Taylor? This is hard, I know. 

Ms. TAYLOR. I would go back to actually something that Meghan 

said and I think that others said, and that is that when there is 

a State conservation program where the State has worked to develop with its folks a State conservation program, the Service 

should be required to follow that. They should acknowledge it, they 

should accept it, and they should watch how it plays out over time. 

Mr. DAINES. Thank you. 

Mr. Meyer? 

Mr. MEYER. The ESA should be based on science and not politics. 

Mr. DAINES. Thank you. 

Ms. Lally? 

Ms. LALLY. I will reflect what Rene ́e said. 

Mr. DAINES. Can you pull the microphone closer, Ms. Lally? 

Thank you. 

Ms. LALLY. I will reflect what Rene ́e said. State-based collaborative processes done by people within the State that know what 

is important are what need to be followed. 

41 

Mr. DAINES. Thank you. 

The CHAIRMAN. I will now recognize myself. 

I want to ask this question specifically to Ms. Lally and Mr. 

Meyer. In previous testimony in front of our committee, and I have 

said this publicly, it seems to me that the ESA has become a litigant’s dream. That is where all of the activity is. And two of the 

major litigants, the Center for Biologic Diversity and the Western 

Watershed, both of them say that they have to have their lawsuits. 

Otherwise, conservation would never happen on whatever species 

they are trying to effect. 

So what is your response to those who are always litigants? 

Would any conservation happen lacking Federal threats of litigation? 

We will start with you, Ms. Lally. 

Ms. LALLY. Well, I will go back to the example that I am fairly 

familiar with on the wild sheep. Wyoming came up with a plan, 

and it was a plan that was agreed on by the domestic industry, environmental groups, as well as the Wild Sheep Foundation, and it 

was working. The wild sheep were protected, and so was domestic 

industry. When the lawsuit took place by the Biodiversity Conservation Alliance using Western Watershed lawyers, all of a sudden everybody said, well, this doesn’t hold in the Wyoming plan. 

The Game and Fish Department would like to reintroduce wild 

sheep in other portions of Wyoming. If this happens, it will be 

fought tooth and nail to allow another wild sheep anywhere else in 

Wyoming, and those wild sheep that will be introduced will increase the population exponentially more than can occur that is 

currently not doing well anyway. 

The CHAIRMAN. So, if I understand this correctly, what you are 

saying is you would have a disproportionate population of wild 

sheep that probably could not be sustained from your perspective. 

Does that—— 

Ms. LALLY. The Game and Fish has decided that that herd cannot thrive. They have never done well since they were introduced 

in the 1970s. They have never done very well, and they would prefer to focus on populations that are thriving and growing, as opposed to populations that are contracting. And so to say 50 to 70 

sheep, they want to basically hijack the process so that those 70 

sheep can survive and no other sheep can be introduced anywhere 

else because nobody else will allow it. 

The CHAIRMAN. OK, thank you. 

Mr. Meyer? 

Mr. MEYER. I grew up in a farming community in Iowa, very 

similar I think to the ranching community here. We grew up and 

I hunted, I fished almost every day of the year, with or without 

lawsuits or anything else. If you are a rancher, it is part of your 

culture to maintain the wildlife on your ranch. I mean, it is like 

you are going to do it whether—if somebody tells you I won’t like 

it very much, but you are going to do it anyway. 

So, I believe that ranchers and really user groups, Ducks Unlimited and the success that they have, the Rocky Mountain Elk Foundation, have had a great impact because we are the folks who are 

really out on the land and the ones that are recreating. So it is 

42 

hard for me to imagine that under any circumstances we would 

want to damage the thing that we enjoy most. 

The CHAIRMAN. I kind of suspected that would be your answer. 

I mentioned that I come from central Washington. It is the Columbia Basin Project and the Yakima Valley Project in our district. 

Those were our very first agriculture areas that were irrigated, and 

I have always felt that the farmers are the best stewards of the 

land, because if you are not a steward of your land, you are not 

going to have a crop. And these crops are rotated on a regular basis 

for a variety of reasons, and so forth. But I always thought the notion that a farmer would go out and waste a whole bunch of money 

on pesticides or something like that, which is the perception in 

some parts of the world, is totally erroneous. 

But to your point, Ms. Lally, what you are simply saying, I think, 

if I can capsulize that, is these decisions, if they can be made on 

a local level, are probably better for whomever is affected by these 

decisions. Is that a fair assessment of where you are coming from? 

Ms. LALLY. Absolutely, as well as the wildlife. 

The CHAIRMAN. OK. My time is now expired, and so we will start 

a second round. 

Mrs. Lummis, you are recognized. 

Mrs. LUMMIS. Thank you, Mr. Chairman. 

I would like to ask whether primacy at the State level, as is 

sometimes used for environmental regulations, would be something 

that would be useful for inclusion in the Endangered Species Act, 

the notion that the State can take primacy from the Federal Government in the implementation through, for example, a habitat 

conservation plan. Would anyone just volunteer to answer that? 

Ms. TAYLOR. I think the concept of primacy relative to the Endangered Species Act is one that is very intriguing. I am not sure 

where the State of Wyoming would come up with the funds to be 

able to afford it. We would have to look at that very closely, because right now it is the sportsmen who provide the funding for the 

Wyoming Game and Fish Department, and right now the Wyoming 

Game and Fish Department is who is managing sage grouse and 

the gray wolf and the grizzly bear. 

The whole idea of primacy goes back to what we were saying 

about if the States have a valid conservation program, it should be 

accepted and allowed to play out, and that is already allowed within the Endangered Species Act. We should accept it and we should 

strengthen that. 

Mrs. LUMMIS. Ms. Lally, you mentioned that approving habitat 

projects is too slow at the Federal level. 

Ms. LALLY. We have an old ditch on our ranch. It was hand-dug 

by mules by my great-grandfather. And we are slowly piping it in 

order to strengthen the ditch and also increase efficiency so there 

is less water loss to evaporation. 

So we applied for NRCS money to do that, and we were told by 

an NRCS archaeologist that they would need to take a year to do 

a study because that is an historic structure. 

Mrs. LUMMIS. The ditch is an historic structure. 

Ms. LALLY. The ditch is an historic structure. That ditch has 

been in nearly continuous use the whole time. So all of a sudden 

43 

there are all these extra hurdles put in so that we are not able to 

get work that we know will help the wildlife. 

Mrs. LUMMIS. Mr. Meyer, you created wetlands in Sweetwater, 

and you have also altered spring ditches to make improvements in 

the water quality. Could you explain a little bit about that? 

Mr. MEYER. Sure. So one of our goals is to—in Wyoming in the 

wintertime when it snows, and in the spring runoff, a lot of the irrigation ditches that used to be streamed—and for good reason, 

they were irrigation ditches, because the ranchers use them to irrigate their crops. So what we try to do is we try to reengineer the 

streams to the way they were, but at the same time put in high 

water efficiency techniques; for instance, rubberizing the ditches 

before they get into the actual captures. They can save sometimes 

50 percent of your water. So that at the end you have more water 

for the fish, and cleaner water, and more sub-irrigation for your 

ranch, as well as a higher, efficient use of the water rights that the 

ranch internally owns. 

So really we just try to—and a lot of ranchers are still watering 

kind of like the Egyptians used to do, with flood irrigation. And all 

we are trying to do is figure out how to kind of balance what the 

fish and wildlife needs with what the rancher needs, and in most 

cases we are seeing more tonnage grown per acre just by using the 

new techniques and using our water more efficiently. 

Mrs. LUMMIS. Mr. Wharff, can you mention some environmental 

groups that you have been able to work with to help recover species 

or decline opportunities for hunting with them, a species recovery 

exercise? 

Mr. WHARFF. That is difficult. I work with a lot of different 

groups, and I think the biggest challenge is pulling everybody to 

the middle. Any time you get to extremes, that is when you kind 

of tend to tread in dangerous territory. But I honestly can’t think 

of a lot of groups who have actually sat down and came to resolutions. To me, it is a process, and I really have not felt like most 

of the environmental groups are actually looking to see species removed. I think they prefer to keep them listed. It is a cash cow in 

many instances. 

But I guess it depends, too, on how you look at some groups. 

Some groups are classified as conservation groups, whereas in my 

opinion they are probably more environmental oriented. 

Mrs. LUMMIS. Thank you, Mr. Chairman. 

The CHAIRMAN. I recognize Mr. Lamborn. 

Mr. LAMBORN. Thank you, Mr. Chairman. 

Mr. Wharff, I would like to follow up with you on some points 

you raised earlier. I think there are some inconsistencies with the 

Endangered Species Act that need to be addressed as we look to 

make it better. 

Are there species that are considered threatened or endangered 

in the United States that are found more commonly in other countries such as Canada? 

Mr. WHARFF. Yes, Mr. Chairman. As that map demonstrates, the 

gray wolf is probably the most offensive thing that I have seen. 

First of all, it is a species—we had populations of native wolves 

that were here. They say it was actually made in 1937, yet we had 

confirmed sightings in 1993. To me, that is the tragedy. We 

44 

brought a species of this, looking at the map, that was anything 

but threatened on a worldwide basis, and look what we put at risk. 

Those species that I identified—the elk, the moose, and the big 

horns—Mr. Hendry here can tell you what the costs are to the livestock because we know how many we have. 

Wildlife management is not an exact science. We have no idea of 

the exact cost. But to me, that is the best example that I see, is 

a species where the actions weren’t really warranted, in my opinion. When you look at the cost imposed upon the States that are 

burdened, it makes absolutely no sense to me. 

Mr. LAMBORN. Does the Fish and Wildlife Service introduce animals into areas and then say these are to be protected even when 

that is not their original habitat? 

Mr. WHARFF. Mr. Chairman, yes. My understanding is some of 

the States have been told that the Mexican gray wolf—I know some 

of my friends in Utah told me the Mexican gray wolf has never 

been documented in that State, that they are being threatened 

with being saddled with recovery of that species of wolf that historically has never had any record that it existed in that State. 

Mr. LAMBORN. Do you know anything about the snowshoe lynx? 

Mr. WHARFF. I can’t say that I do. I know about the history of 

snowshoes and the lynx, but I don’t know about a snowshoe lynx. 

[Laughter.] 

Mr. WHARFF. I am sorry. 

Mr. LAMBORN. There is some concern that it is being introduced 

into areas where it was never originally found, and now there is 

an obligation to keep it protected with its impact on tourism, fishing, hiking, hunting, energy, and all these other ramifications. 

Mr. WHARFF. I keep going back to the wolf, Mr. Chairman, because, to me, that is the one I am most familiar with. This is a species that hunts in larger packs than the species that are wildlifeevolved. The species they brought from the north is a little bit bigger because they are in northern climates. They are more conditioned to hunt in packs, and there are added advantages that they 

have that our species are forced to contend with, and it does upset 

that balance when you take something that wasn’t indigenous and 

force it. It gets right back to the people who live with that burden 

are the ones who are obligated and tasked with recovery. In some 

instances, it may not really be a species that really fits. 

Mr. LAMBORN. Is there any resistance among environmental advocacy groups to practice—like the State of Colorado, for instance— 

of raising endangered and threatened species, like fish species, in 

captivity and then releasing them into the wild to buildup the population? I think we have learned that is not always embraced by 

environmental groups. Do you have any insight on that? 

Mr. WHARFF. Mr. Chairman, I guess there is a link that when 

it is reared by them, that it loses its wild significance. But I like 

what Wyoming was able to accomplish with the black-footed ferret. 

That is a species that Wyoming saved, the black-footed ferret, not 

the Endangered Species Act. I do think that is the thing that is important. I think we have to think outside the box sometimes and 

see what works. 

There is a reluctance, and of course you do run into issues with 

contamination and disease. There are a lot of factors when we start 

45 

talking about raising things. Natural systems work best. They are 

more cost-efficient. But, yes, I look at some of these and question 

that if, in fact, the true goal is recovery, I would think anything 

that we can do to recover that species should be pursued, within 

reason. 

Mr. LAMBORN. Absolutely, and why it is not always embraced, I 

don’t understand. If, like you said, you really want to conserve that 

species, that is what we are really after. Thank you. 

Mr. WHARFF. Thank you. 

Mr. LAMBORN. I yield back. 

The CHAIRMAN. Mr. Daines? 

Mr. DAINES. Thank you, Mr. Chairman. 

We kind of talked about the lack of clarity with the ESA in terms 

of what constitutes recovery to get these species de-listed. Mr. 

Meyer, in your testimony you talk about protection of critical habitat, what needs to be done to receive permanent approval on a 

project in critical habitat. You talk about how the developer must 

minimize the impact of the area. You mention in your testimony 

there are not clear guidelines which can make achieving habitat 

protection and conservation through adequate level difficult. Your 

testimony also focused on solutions oriented more toward local 

ranchers. 

So my question is, how important is it to the local land users, 

the ranchers, the resource developers, et cetera, to have the flexibility to conserve or improve the land to the appropriate standards 

that best fits their land use purposes? 

Mr. MEYER. Let me see if I got that question. I will give you my 

answer. My feeling on it is that we are all blessed by different 

things. Some ranches are blessed with oil and gas, and others are 

blessed with sage grouse habitat. And I guess it is my belief that 

the rancher who is blessed with sage grouse habitat and not oil and 

gas should have the opportunity to monetize that habitat as opposed to being penalized and not being able to do anything with it. 

That is really kind of what we are trying to do. 

We have met with, I would say, 80 percent of the energy companies within Wyoming who are all very supportive because what 

they want to do—the perception is that the energy companies want 

to destroy the environment, which is kind of ridiculous at this 

point, right? But they want to extract energy and make money for 

their shareholders, and they want a clear-cut way to be able to do 

that, and all we are trying to offer is a better mouse trap, and our 

better mouse trap is why don’t you go to where you have large 

areas of great habitat and allow those areas to be paid by the private developers to offset their impacts where they are drilling a 

well or putting in a horizontal platform? 

Currently, and I think I am right on this, I think there is a 5 

percent—is that what it is?—5 percent inside a section that you 

can use, but that includes all historical impacts. So that includes 

the ditch your great-grandfather dug. It is not new impacts that 

the energy company has. It is new impacts on top of all historical 

impacts. So in many cases, especially on Federal land, it almost 

makes a site unpermittable. 

So all we are trying to do is really offer a solution to that. And 

as Congressman Lummis said, conservation for the 21st century. I 

46 

believe it can be private based. It does not need to be government 

based. The government is good to assist, but I don’t know that everybody has to have their hand held as we walk down the path together. 

Mr. DAINES. It reminds me of the two biggest lies that we hear 

in Montana and Wyoming. The first one is when somebody from 

DC comes and says, ‘‘We are here to help.’’ And the second one is 

when Montanans and Wyomingites say, ‘‘We are glad you are 

here.’’ 

[Laughter.] 

Mr. DAINES. In light of the complexity that you face, I know you 

talked about political science versus good science as it relates to 

species recovery. Mr. Wharff, I think you made a comment about 

ravens and sage grouse. Could you develop that a little more? Because I have spent time with multi-generational ranchers up in 

Montana who will tell you that coyote populations, the predator 

populations with bird raptors, is a significant factor in terms of 

where sage grouse populations are allowed to go down. But are we 

introducing ravens? I would like to get your comments there. 

Mr. WHARFF. You bet, Mr. Chairman, Representative Daines. 

That is one of the problems. The Mexican Bird Treaty protects the 

raven, and it is a treaty that Congress entered into, and it was 

probably a good thing to do. My recollection was that it was also 

a way for us to protect the bald eagle, so it was a good treaty, but 

there are consequences to that. 

We found that with the ravens, they used to be more migratory 

in nature, and you are starting to see that in some climates they 

are not migrating anymore. They are starting to impact and displace native birds that used to use those ranges, and we are starting to find that a lot of the impacts that we are seeing with sage 

grouse are attributed to ravens. It is one of those things a lot of 

people don’t think about. They invade the nest, and they will invade the young as well. 

So that is one of the problems that I see. I think we have all 

these good intentions and have done all these things, but nobody 

has looked at collectively, as a whole, how these things are packaged together. That is why, when you talk about single-species 

management, that is the big flaw I see in the Endangered Species 

Act, that nothing is managed by itself. We have all different species 

that are dependent upon those specific ecosystems, and any time 

we start providing protection for one species over another, you do 

upset the balance. 

That is one thing we are starting to see. As I mentioned, ravens 

are not migrating. We are starting to see them establishing in 

areas where they used to not be, that they just kind of pass 

through. So there are impacts to those protections, and I don’t 

know that anybody has ever looked collectively at how those things 

all come together. That is one of the big problems I see. I don’t 

know if that answers it. 

Mr. DAINES. It does. One more comment, and then I am done. I 

appreciate that comment, too, that there is always political science 

going on back in the Beltway. But we need good, sound peer review, and I think we can make some progress here. So, thank you, 

Mr. Chairman. 

47 

The CHAIRMAN. In the testimony where you mentioned the raven, 

it reminded me that I mentioned in my opening comment that I 

come from Washington State, where the timber industry has declined, the timber harvest on Federal land has declined by 90 percent because of the spotted owl. Recently, it was discovered that it 

was not the lack of old growth that caused the demise of the spotted owl but rather the barred owl, to which the Fish and Wildlife 

solution was to shoot the barred owl. That is just not common 

sense. I mean, that just tells you what is wrong. A whole industry 

has gone away. We have seen that go away. 

I want to follow up on something that you had mentioned. You 

mentioned that if the law could be followed, and you cited a specific 

timeframe, that a lot of this litigation could be avoided. Could you 

elaborate on that and maybe explain, if that is the case, then why 

are we in this situation? What is lacking, I guess? 

Ms. TAYLOR. Unfortunately, I think what is lacking is a focus in 

the way the Fish and Wildlife Service does its business that they 

address petitions when they come in. There is a petition to list, a 

petition to de-list. The act does contain timeframes, and you end 

up with litigation when the Service does not follow those timeframes. 

The CHAIRMAN. You mean misses a deadline? 

Ms. TAYLOR. Misses a deadline, correct. The act does provide 

legal fodder when it says we will act in 90 days. I think it says ‘‘if 

feasible’’ or something like that. There are 90-day deadlines. There 

are 12-month deadlines. There are a number of different deadlines 

depending on the portion of the process that you are in. One of 

them comes back to 5-year reviews or the reviews of species that 

are determined to be warranted but precluded from listing, and 

that is a lot of what gives fodder to litigation. You didn’t follow 

that, you didn’t meet that deadline; therefore, we are going to force 

you to meet that deadline. 

I am not an advocate for growing the size of the Fish and Wildlife Service. I think that the whole concept of perhaps looking at 

primacy is not a bad one from the standpoint of being able to say 

to the States let’s look at what is going on in your area relative 

to the way you are managing a species or how you could manage 

a species so that you can address these things on your basis in a 

more efficient manner. 

The CHAIRMAN. Well, you mentioned that you are not a fan of 

opening up the ESA because it may be overtaken by special interest groups. I suppose with any law, there is a threat of that. But 

if this part of the law is failing because of timeframes, there must 

be some way, it seems to me, to tighten that up so that won’t happen. Now, I don’t know what it is, but the way it is right now, it 

is subject to political pressure; i.e., if you don’t want to do anything, you purposely miss a timeframe, opening up a lawsuit. So 

nothing gets done. 

So there has to be a way, it seems to me, and that would, of 

course, mean opening it up, which is a problem. Would you acknowledge that? 

Ms. TAYLOR. I do. I mean, on the one hand, for 30 years I have 

worked with the ESA, and we have talked many times about potentially opening it up. But then you get to this fear, and that is what 

48 

it is, of the process being overtaken and coopted by what I will call 

the conservation NGO’s. They have so much power within the process right now. In fact, they control, in many cases, the peer-review 

literature. So there is a whole lot of problem with the way the 

agencies go forward, and you are correct, they delay making decisions so that they can get a lawsuit. We see that in many different 

aspects of the Federal Government. I mean, the Clean Air Act is 

a perfect example of that also. 

The CHAIRMAN. Well, I guess my point is I was just intrigued by 

your final statement, you are not a fan of opening it up. Yet, we 

have problems that we are going to have to somehow address. That 

is what we are trying to ascertain with these hearings, because the 

law has not been reauthorized for 25 years, and yet we still enforce 

it. I dare say if you walk down any main street in any town in Wyoming, or probably any town in this country, and say that there is 

a law on the books that has not been reauthorized for 25 years, 

should we enforce it, I doubt if you would get more than 1 or 2 percent to say no, it hasn’t been reauthorized. Yet the way we budget 

back there, because we fund it, it is de-facto reauthorized, and that 

presents a problem to us to get the other side to sit down and have 

meaningful discussions. 

Well, my time has expired, and we are going to have to leave to 

go up to Billings. I want to thank the panel very, very much for 

your testimony. If you have additional thoughts on what was said, 

if something sparks you, don’t hesitate. Please communicate that 

with us. 

Likewise, if we have a question that comes up in our minds that 

we want to get back to you and ask, please respond in a timely 

manner to our requests, too. 

And for members of the audience, if you would like to weigh in, 

you can go to the Natural Resources Committee, go to the Web site. 

I don’t know how to do that, but my staff does. 

[Laughter.] 

The CHAIRMAN. And I know it works because people are communicating with us all the time, so I know it works. So I would certainly invite all of you to participate in any way that you feel. 

I also want to say that this is a full committee hearing. Most 

people recognize that committees are bipartisan in nature. We 

opened up an invitation to the other side. They could have had witnesses in both this hearing and the hearing we are going to have 

in Billings. They declined the invitation. So if it sounds like this 

is only one-sided, I want to tell everybody that this was open. It 

was designed to be open. This is a full committee hearing for the 

Natural Resources Committee. 

So, with that, once again I want to thank the panelists. You have 

been a very good audience. I want to thank you for being here, and 

I want to thank my colleagues also for being here. We will pack 

up and head up to Billings, and hopefully we will have another robust discussion, as we had here. 

So if there is no further business to come before the committee, 

we stand adjourned. 

[Whereupon, at 10:37 a.m., the committee was adjourned.] 

# # # 

(49) 

OVERSIGHT FIELD HEARING ON STATE AND 

LOCAL EFFORTS TO PROTECT SPECIES, 

JOBS, PROPERTY, AND MULTIPLE USE 

AMIDST A NEW WAR ON THE WEST PART II 

Wednesday, September 4, 2013 

U.S. House of Representatives 

Committee on Natural Resources 

Billings, Montana 

The committee met, pursuant to call, at 1:30 p.m., in Cisel Hall, 

Montana State University-Billings, 1500 University Drive, Billings, 

Montana, Doc Hastings [Chairman of the committee] presiding. 

Present: Representatives Hastings, Daines, Cramer, Lamborn, 

and Lummis. 

The CHAIRMAN. Good afternoon. May I ask everyone to please 

rise for the posting of the colors? 

Relax. Not quite yet. We are missing one person. There you go. 

Thank you. Gentlemen will hold off. Marines will hold off for just 

a moment before you post the—there it is. 

The House Committee on Natural Resources will come to order. 

The committee is meeting today in Billings to hear testimony on 

a hearing called ‘‘State and Local Efforts to Protect Species, Jobs, 

Property, and Multiple Use Amidst a New War on the West.’’ 

Now, by way of introduction, I am Congressman Doc Hastings 

from the State of Washington. I represent the 4th District, which, 

for those of you familiar with Washington, it is central Washington 

from the Tri-Cities to the Oregon border. And Washington State 

over the years, not exclusively, but certainly has been affected 

greatly by the Endangered Species Act. We have an ongoing discussion or battle, I might say, as far as the salmon on the Columbia 

River and its tributaries. And some 20 years ago or more, we had 

the spotted owl, and we are still suffering from that. So I am familiar with the impacts that the Endangered Species Act would have. 

So I am very pleased to be joined by four of my colleagues on the 

House Natural Resources Committee: Congressman Steve Daines 

from Montana, your Congressman, Doug Lamborn, who is a Congressman from the 5th District in Colorado, Cynthia Lummis from 

Wyoming, also an at-large Member, and Kevin Cramer from North 

Dakota. So I am very pleased that they are here with me today. 

But now I would like to defer to my colleague, Mr. Daines, for 

introductions and the posting of the colors. Mr. Daines? 

Mr. DAINES. Thank you, Mr. Chairman. And it is good to be here 

in Montana. I think most of us here in Montana believe that Washington, DC should look more like Montana, not the other way 

around. 

Well, being that this is a congressional hearing, we are going to 

begin as we do with every session of the House of Representatives 

with the posting of the colors and the Pledge of Allegiance. 

50 

Please join me in standing to recognize the Eugene Sara Detachment of the Marine Corps League in Billings, who will post the colors. And Tom Hanel, the Mayor of Billings, will lead us in the 

Pledge of Allegiance. 

[Posting of Colors.] 

[Pledge of Allegiance.] 

Mr. DAINES. Thank you, and you may be seated, please. 

I now recognize the Mayor of Billings, Tom Hanel, for a few 

opening remarks. 

Mayor HANEL. Thank you, Congressman Daines, and thank you, 

each and every one, for being here today. Our special guests, welcome to Billings. Welcome to Montana, a beautiful city. 

I would like to say on behalf of the City of Billings, and also a 

special welcome to all of our guests in the audience, here for such 

a special meeting. We are very appreciative of also MSUB for 

hosting this meeting. I want to wish each and every one of you the 

very best. 

And, of course, to our special guests, safe travels to and from. 

Thank you very much. 

STATEMENT OF THE HON. DOC HASTINGS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WASHINGTON 

The CHAIRMAN. This hearing, let me just briefly say how the 

process works here. When we have committee meetings in Washington, DC and subcommittee meetings, members generally make 

an opening statement not to exceed 5 minutes. We try very hard 

to keep that within 5 minutes. And we do it by seniority. So since 

I am the Chairman, I am obviously the most senior member, and 

I get to start. That is only fair, I think. So when I come with a different lineup here, what you are seeing is the seniority of the members on the Natural Resources Committee. 

So let me start by saying that this afternoon’s hearing is the second oversight hearing that we have had today. We were in Casper, 

Wyoming earlier, for a hearing on the Endangered Species Act. 

And it is another important opportunity to hear specifically from 

interests that are directly affected by it. 

The Endangered Species Act or ESA Working Group that I and 

Congressman Lummis co-chair, has received hundreds of comments 

from individuals seeking to reform the ESA. In the coming weeks, 

the ESA Working Group will hold additional forums to ensure 

broader input from all areas that are affected by this sweeping law. 

Ramped up ESA listings and habitat designations through executive orders in closed door settlements, like the mega settlement in 

2011 by certain litigious groups, are affecting private landowners. 

They are having effects on multiple uses of public lands, Federal 

lands. It is having effects on agriculture, rural economies, rural 

timber communities, energy producers lately, and even some 

States’ own species conservation activities. 

Montana is certainly one State in the forefront of ESA’s impacts. 

Environmental groups have filed at least 29 ESA-related lawsuits 

and more than a dozen lawsuits against the Forest Service in Montana over just the past 2 years. Earlier this year, groups sued the 

Forest Service to block a forest thinning project that would lessen 

the impact of wildfires in Kootenai Natural Forest. 

51 

Threats of lawsuits are delaying job-producing activities for 

years, such as a mining project in Lincoln County, that have gone 

through an extensive ESA and NEPA analyses. BLM claim sage 

grouse are distributed over an astounding 258,000 square miles in 

portions of 11 States. In Montana, BLM has identified nearly 3 million acres of priority area for sage grouse habitat in portions of 39 

of your counties, including oil and natural gas resources in the 

Williston and Powder River Basins. 

Energy producers that support thousands of Montana and North 

Dakota jobs are concerned with the potential future lease rights in 

these areas. Ranchers and sportsmen are justifiably concerned 

about the impacts of grazing and access as well. 

Three years ago, this administration’s Fish and Wildlife Service 

determined sage grouse ranked relatively low in priority of candidate species needing Federal protection. Yet the Interior Department negotiated two ESA mega settlements with litigious groups 

without any input from Congress, without input from affected 

States, without input from local entities, and started a clock to 

force hundreds of listings and millions of acres of habitat designations, all for the sage grouse. This is simply not good public policy 

and demonstrates why ESA is in need of improvement. 

I was greatly concerned that a few months ago, BLM issued 

thousands of pages of Montana resource plans containing sweeping 

sage grouse measures and shut off public input after just 3 short 

months. They even refused the Montana delegations to extend public comment. Decisions of this magnitude should not be restricted 

by environmental lawyers, court calendars, or Federal bureaucrats’ 

marching orders from Washington, DC. 

More concerning are the continuing serious unanswered question 

about BLM’s lack of data and science supporting the National 

Technical Team, or NTT, and other conservation measures BLM 

and Fish and Wildlife claim are needed for the greater sage grouse. 

Recent communications received through the Freedom of Information Act, or FOIA, requested through the State of Idaho suggests potentially serious interference by Interior Department officials leading to the sage grouse initiative. Now, if there is interference, and I am not drawing a conclusion today, but that certainly undermines the credibility of the science use for Federal 

sage grouse resources. So this committee has found that very, very 

troubling. 

Now, I understand as we are holding this hearing, members of 

the Governor’s Montana Sage Grouse Advisory Committee are 

meeting to discuss their State’s, this State’s, conservation efforts. 

Hopefully their efforts will culminate in development of a much 

more balanced plan than what the Federal Government’s plans are 

from what we know right now. So I look forward to hearing from 

our witnesses today and having a robust discussion on ways that 

we can improve the Endangered Species Act. 

And with that, we will go by seniority, as I said, and I will recognize the gentleman from Colorado, Mr. Lummis—or Mr. Lamborn. 

Lummis is next. 

52 

STATEMENT OF THE HON. DOUG LAMBORN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF COLORADO 

Mr. LAMBORN. OK. Is this working? Is that better? OK, thank 

you. 

Well, it is great to be here in the beautiful State of Montana, and 

I appreciate the leading role that my colleague, Representative 

Steve Daines, has shown on our committee in dealing with these 

vital issues surrounding our Nation’s resources. 

Today the House Natural Resources Committee continues our 

oversight of the Endangered Species Act with a specific focus on 

State and local efforts to protect species, as well as jobs and private 

property rights. 

The Obama administration through Executive orders, Federal 

regulation, and settlement driven ESA listings, and habitat designations, is unfortunately waging a renewed war on the West, and 

has literally shut out Congress, States, local communities, private 

landowners, and even scientists who may dispute the often unreliable or unverifiable data used for these decisions. 

Although borne of the best intentions, the Endangered Species 

Act has failed to live up to its promise. Although the act was intended to recover species, less than 1 percent—1 percent—of the 

total number of U.S. species listed have ever been recovered and 

removed from the list. Of those delisted, most were removed from 

the list due to data errors or other factors. 

Many view the enforcement of the ESA as being driven by litigation or the threat of litigation, which in turn distracts from species 

conservation. Due to rigid timelines, vague definitions in the act, 

and the propensity of some environmental organizations to sue the 

Federal agencies as a way of generating taxpayer funded revenue, 

the ESA has been taken over by lawsuits, settlements, and judicial 

action. 

Many of these lawsuits have recently been wrapped up into two 

so-called mega settlements between the Fish and Wildlife Service 

and the Center for Biological Diversity and Wild Earth Guardians. 

Recently, the Fish and Wildlife Service Director told Western Governors that the mega settlements have helped decrease the amount 

of deadline lawsuits by environmental groups. However, these selfimposed deadlines are creating legal dilemmas for the Service on 

decisions whether and when to list more than 750 new species, and 

to designate millions of acres of habitat over the next 4 years. 

The Obama administration has also dramatically increased the 

designation of critical habitat, and has imposed actions that have 

been detrimental to economic growth. Here are some examples: 

BLM has acknowledged that its strict guidance with regard to the 

sage grouse has led to the deferral of more than 700 oil and gas 

leases in Montana, Utah, Wyoming, and my own State of Colorado; 

delay of more than 35 grazing permit renewals in Montana, Idaho, 

Nevada, Oregon, Utah, and Wyoming; more than seven electricity 

rights of way in Idaho and Wyoming; and denial of numerous coal 

bed natural gas and mining permits in Wyoming. 

It should be possible to balance environmental protection and 

economic growth. 

I look forward to the testimony from our witnesses and learning 

more about the efforts of the State of Montana and its local comVerDate Mar 15 2010 10:53 Nov 05, 2014 Jkt 000000 PO 00000 Frm 00058 Fmt 6601 Sfmt 6601 Z:\00 FULL COMMITTEE\00SE04 1ST SESS PT. 1&2\85208.TXT MARK
53 

munities to protect endangered species, while at the same protecting private property rights and ensuring economic growth. 

Thank you, Mr. Chairman, and I yield back. 

The CHAIRMAN. I thank the gentleman for his testimony, and I 

will recognize the gentlelady from Wyoming, Mrs. Lummis. 

STATEMENT OF THE HON. CYNTHIA M. LUMMIS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WYOMING 

Mrs. LUMMIS. Well, thank you, Mr. Chairman. And I want to 

thank Congressman Steve Daines and the people of Montana for 

inviting us and warmly welcoming us for this hearing today. It is 

an honor and a pleasure to serve with Steve Daines on the House 

Natural Resources Committee, and to work with him on issues of 

mutual concern to our adjacent States. He does a wonderful job on 

behalf of the people of Montana. And, Steve, thank you for your 

courtesy and including us in this hearing today. 

I also want to acknowledge my thanks to the Chairman of the 

House Natural Resources Committee, Doc Hastings, who not only 

chairs the committee, but co-chairs with me an effort to have a better Endangered Species Act, one that serves mankind and the flora 

and fauna that we so rely on and love as we try to make the Endangered Species Act work better. 

During the first half of the 20th century, there were beliefs that 

we had bountiful, unlimited natural resources. And when we 

reached the middle of the 20th century, we began to see that there 

were limits to our natural resources. There are limits to clean air, 

clean water, to species, and to the environment that they rely on, 

and the habitat they need. But we responded with a command and 

control structure out of Washington, DC with rules drafted by people who have never been on the ground and never seen the species 

that they were affecting. We now have policy by litigation, policy 

that is made by courts and by lawyers, and not by policymakers or 

policy implementers, not by county commissioners, not people who 

use these resources. 

I am very anxious to find a 21st century conservation strategy 

that will have robust conservation of species, and particularly their 

habitat, which is absolutely necessary to preserve those species, 

and at the same time, that allows for wise use of our lands by the 

people who rely on it for jobs and to have a robust economy. And 

I look very much forward to the testimony of our panel here in 

Montana. 

Earlier today in Casper, Wyoming, we heard from some real 

innovators in public policy on the ground, boots on the ground conservation, not conservation litigation in the courtroom, not policies, 

but practices on the land that conserve species, conserve habitat, 

and make it possible for mankind to share these wonderful, bountiful resources once again through sound science, through landowner 

and locally driven practices. Our panel today will define for us additional innovations that we can take with us as we attempt to 

have a strong, robust, practice, common sense, science-based Endangered Species Act. 

Thank you, Mr. Chairman. I yield back. 

The CHAIRMAN. I thank the gentlelady for her comments and 

opening statement. 

54 

And now I will recognize somebody that you are all familiar with, 

as we say, the gentleman from Montana, Mr. Daines. 

STATEMENT OF THE HON. STEVE DAINES, A REPRESENTATIVE 

IN CONGRESS FROM THE STATE OF MONTANA 

Mr. DAINES. Thanks, Mr. Chairman, and thank you for agreeing 

to host this hearing here in Montana this afternoon, and I want to 

thank my colleagues for being here as well. We are surrounded by 

some great States here. I got North Dakota, Wyoming, Washington, 

and Colorado, so we are in good company here today. Thanks for 

coming up to Montana. 

I also want to extend a special thanks to the Chancellor of MSUBillings, Mr. Groseth. Rolf and Janie are friends of ours going back 

to longer than probably we want to admit, but it is good to have 

this facility. Thank you for allowing us to be here. 

I am truly grateful that so many people have traveled from so 

far away to join me to address a very important issue affecting 

Montanans, and this is the abuse of the Endangered Species Act. 

This law is well intentioned. This is about trying to find reforms 

to the ESA going forward. 

I just heard the other day from a rancher—when you think about 

the ESA, it was crafted in 1973, so the ESA is now 40 years old. 

He said, it is like a 40-year ranch pickup. It served a useful purpose, but it is in bad need of repair. I think that sums it up. It is 

well intentioned, but we need to bring some balance back to the 

ESA. And as we are going to see here today, it is harmful to many 

livelihoods here in Montana. 

Now, like many in the audience here and most Montanans, we 

are avid outdoors people. We love the outdoors. That is what keeps 

us here. And when we built our company in Bozeman, our recruiting Web site was, ‘‘iloveitthere.com.’’ We used to say ‘‘Work, where 

you also like to play.’’ But there is a balance here. We want to be 

able to play in the outdoors as outdoors people, but we also need 

jobs. You cannot play in the outdoors unless you have got a job 

here to stay in Montana. I think we can strike a better balance in 

this regard. 

For better or for worse, the wildlife and the environment that 

supports it are central to our way of life in Montana. As our witnesses are going to attest to later today, our land, living in concert 

with a very diverse wildlife we are fortunate to have here in Montana, allow us to grow commodities that feed the entire world, develop minerals that provide economic security for our State and for 

our jobs for our kids, and provide recreational opportunities that 

are truly second to none. All of us know if you are flying this time, 

that last leg, whether it is Salt Lake to Montana or Minneapolis 

or Denver, about half the folks getting on the planes right now are 

carrying a fly rod. In the fall, about half the folks are wearing 

camo. In the winter time, they are carrying ski boots. People want 

to come to Montana because of the incredible quality of life that we 

have. 

However, in August we have seen firsthand the devastation from 

wildfires. So far this year, nearly 100,000 acres have burned in 

Montana so far. Nationwide the problem gets even bigger. I just got 

the update here this morning: 466,000 acres have burned during 

55 

this season. Wildfires threaten communities. In fact, as of yesterday, Montana had the largest fires in the Nation, in our State. The 

fires destroyed a forest where many of us love to recreate and 

where our unique wildlife lives, not to mention the threats to watersheds and so forth, as well as the air. I think the frustration for 

many of us is we have got bureaucrats back in Washington, DC 

that are not waking up and breathing the smoke-filled air that we 

breathe out here in Montana as a result of ravaging wildfires. 

We once boasted in Montana a very strong timber industry. It 

helped maintain healthy forests, supported jobs, provided a steady 

revenue stream for our counties and our schools. Today, timber 

harvests are down 90 percent from when I was a kid. A U.S. Forest 

Service official recently acknowledged that the abundance of litigation has played a huge role in blocking responsible timber sales in 

Montana and other Region 1 States, including projects supported 

by collaborative efforts, consisting of timber as well as conservation 

leaders. 

In fiscal year 2012, and so far this year, 40 percent of the 

projects, the timber projects, in Region 1 of the Forest Service have 

been appealed or litigated. Many of the lawsuits are fueled by the 

Endangered Species Act. The outgoing Deputy Interior Secretary, 

David Hayes, recently declared that critical habitat designations 

have been ‘‘fish in the barrel litigation for folks.’’ And unfortunately, it is the trial lawyers that are winning in this battle, and 

oftentimes Montanans are losing. 

I am concerned that some of the fires existing on Federal Forest 

Service land could be prevented. We could reduce some of that risk 

if the Forest Service managed the forests the way they should. 

The saw mill project near Cedar Lake is a perfect example. I was 

at that saw mill the day after the court order came down that 

stopped that project. It was a collaborative project that was appealed by a fringe extreme group, and it was stopped. This project 

amongst timber and conservation leaders was blocked based on the 

9th Circuit Court. It was a decision that found the Forest Service 

had not fully analyzed its potential impact on the Canadian lynx 

and ESA protected species since 2000. The failure to recover this 

species is symptomatic of the ESA’s poor record. 

Meanwhile, as of April 2012, fringe groups have won $1.2 million 

from the taxpayer coffers. Now, tell me, how will burdensome paperwork for a non-controversial sale, whose merits are supported 

by conservationists and loggers alike, how is that harmful to a species? Was conservation of the species really the goal? 

In northwest Montana, the Montanore Mining Project has been 

trying to get off the ground for 8 years. This project will create over 

400 jobs in the Lincoln County with double digit unemployment. In 

my view, this project should have been started years ago. Today 

the project is still held up and is now becoming almost economically impossible for the company due to the existence of the grizzly 

bear habitat. Similarly, jobs at the Wild Bend Mining Company are 

at risk because of the ESA. These examples just scratch the surface 

of the ESA’s impact here in Montana. 

Now, in conclusion, part of the focus today is the potential listing 

of the greater sage grouse. I would like to enter into the record 

56 

Governor Bullock’s letter describing his commitment to finding a 

Montana solution to this potential listing. 

The CHAIRMAN. It will be part of the record, without objection. 

Mr. DAINES. And comments from the Montana Electric Cooperative Association addressing how a sage grouse listing would make 

power for their customers more expensive. 

[The letter submitted for the record by Mr. Daines follow:] 

LETTER SUBMITTED FOR THE RECORD BY THE HONORABLE STEVE BULLOCK, 

GOVERNOR

STATE OF MONTANA, 

HELENA, MT, SEPTEMBER 3, 2013. 

U.S. House of Representatives, 

Committee on Natural Resources. 

Re: Oversight Field Hearing in Billings, Montana, September 4, 2013 

STATEMENT OF MONTANA GOVERNOR STEVE BULLOCK

I welcome members of the U.S. House Natural Resources Committee to the State 

of Montana. Thank you for coming to our State to learn about the State’s efforts 

to protect the Greater Sage-grouse. 

We Montanans work best when we work together to solve problems. As westerners, we’ve always had to rely on each other, regardless of our political views. 

That’s especially the case now with the serious gridlock and partisanship that continues to plague Washington, DC. 

Shortly after taking the oath of office, Montanans of many different stripes asked 

me to take action—from energy industry executives to conservation leaders and 

local government officials—all were concerned that Montana was not doing enough 

to address protections for the sage grouse. 

Protecting this species is about protecting jobs and our economy, and State leadership over our wildlife. We can protect this iconic bird while promoting continued economic development and the protection of private property rights. 

This past February, I established the Greater Sage-grouse Habitat Conservation 

Advisory Council, ‘‘to gather information. furnish advice, and provide . . . recommendations on policies and actions for a state-wide strategy’’ to protect the sage 

grouse and keep its management in State hands. 

I put a broad cross-section of Montanans on the Council—citizens representing 

such interests as energy, mining, transmission, conservation, sportsmen and women, 

legislature, agriculture and ranching, and local and tribal governments. I made the 

Council’s work a clear priority of the Director of Fish, Wildlife and Parks. 

The Advisory Council has been following a very aggressive meeting schedule to 

craft a Montana solution. The process has been in-depth and transparent, and will 

lead to a draft strategy recommendation that will undergo extensive public review 

and comment. 

There has been considerable support and involvement from industry. private citizens. and governmental and non-governmental organizations. The Council has received input from leading scientists. specialists. citizen experts such as ranchers 

working in sage grouse country, and other western States with valuable experience. 

While you are conducting your hearing, the Council will be in a previously scheduled meeting to continue its work, its 7th meeting since May. It is regrettable that 

the Council members will not be able to attend in person to share with you the 

fruits of their work. Information regarding the Council’s work can be found at: 

http://fwp.mt.gov/fishAndWildlife/management/sageGrouse/habitatConservation/. 

The sage-grouse is currently State managed and not under the authority of the 

Federal Government. It is my goal to keep management of the bird under State 

leadership, despite the litigation brought against the Federal Government seeking 

to end State control. The U.S. Fish and Wildlife Scrvice have asked Montana to 

share its updated management strategy for sage grouse. and I plan on submitting 

our Montana-led solution early next year. 

Here on the ground in Montana, the solutions will come from Montanans, who 

will roll up their sleeves, set aside political differences and posturing. and work to 

find creative ways to protect our economy and the sage grousc for our future generations. 

57 

Again, thank you for your interest in this important issue and welcome to the 

last, best place. 

Sincerely. 

STEVE BULLOCK, 

Governor. 

Mr. DAINES. I, too, am deeply concerned that sage grouse could 

become the Canada lynx or grizzly bear of southern, central, and 

eastern Montana. We want to keep the ESA from being used as a 

tool to obstruct positive species and resource management and 

allow the people, not the bureaucrats in Washington or judges in 

the Ninth Circuit, to determine how our environment and our resource economies can flourish together. 

If we continue to allow fringe groups and liberal judges to dictate 

our policies, Montanans will lose. We need a good dose of sound 

science and less dose of political science. 

With that, I will yield back to the Chairman. 

The CHAIRMAN. I thank the gentleman. 

And now, I will recognize the gentleman from North Dakota, Mr. 

Cramer. 

STATEMENT OF THE HON. KEVIN CRAMER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NORTH DAKOTA 

Mr. CRAMER. Thank you, Chairman Hastings. First of all, thank 

you for answering favorably to Representative Daines’ and my letter requesting this important hearing in this beautiful place. And 

thank you, Steve, for your hospitality. My wife, Chris, and I have 

grown to very much appreciate and love Steve and Cindy Daines, 

and appreciate your service to our country. 

And thank you to the citizens of Billings because my wife and 

daughters have spent a lot of money at the Rim Rock Mall on our 

way to Red Lodge on a regular basis. 

[Laughter.] 

Mr. CRAMER. We love this place, and so, it is great to be with 

you. And this is an important issue. 

From time to time, I feel sorry for myself when I consider how 

far it is between constituents and the big congressional district 

known as North Dakota, and then I think about how far Steve 

Daines has to drive to do his job, and I feel better about myself. 

But I am reminded when we do that how special the West is, how 

very special the West is, and how special it is has remained, not 

because bureaucrats in Washington, DC have been looking over it 

so carefully, but because the people who live here care so much for 

it. In fact, you would be hard pressed to find anybody in Washington that loves the West more than the people who have chosen 

to make it their home. 

And so much of what we face out here in terms of challenges are 

really challenges that come from Washington, DC. They come at us 

in droves from Washington. So I appreciate the leadership of this 

committee and my opportunity to serve with these good people on 

the Natural Resources Committee, who have a clear understanding, and who know that from time to time during a recess, 

it is good to get some common sense from where common sense is 

most abundant, in this very same West. 

58 

In North Dakota, prior to being elected to Congress, I spent nearly 10 years as a regulator in the energy world. I was a State Public 

Service Commissioner, and carrying the portfolios for refineries and 

pipelines, coal mining, power generation, and sighting transmission 

lines, and all of the things that add to our quality of life and grow 

our economy. And I was quite shocked one day when some witness 

at one of our hearings raised the issue of sage grouse as a problem 

for a particular route. 

And I would just say, as frightening as it is to think of bureaucrats in Washington, unelected, setting public policy, the thing that 

is far more frightening than that is litigation setting public policy. 

And I used to be critical of Congress for giving up so much of its 

authority by giving so much of it away. Now, we are in a new era, 

and we need to revisit those earlier decisions and get our hands 

wrapped around this litigious, bureaucratic mess really that brings 

us here. 

You have a good Representative here, and you have a good team 

here to take it up. But the real experts are waiting to testify, and 

I will yield the remainder of my time so that we can hear from 

them, Mr. Chairman. Thank you. 

The CHAIRMAN. I thank the gentleman for his testimony. I thank 

all of my colleagues for their testimony. And we will begin the 

panel with your testimony. 

Now, let me explain that you have all been asked to submit written testimony. And virtually in all of your written testimonies, the 

ones that I read, I know far exceed 5 minutes. Nothing wrong with 

that. That makes it part of the public record. What we would like 

to ask you to do, and just in essence of time so we can have some 

interaction with questions, is keep your oral arguments within 5 

minutes. 

Now, I am pretty generous. Did we get that hook that we asked 

for? 

[Laughter.] 

The CHAIRMAN. Now, I am generous, and so what you have in 

front of you is the timing lights. It is very similar to a traffic light. 

You can look at it that way. But when the green light comes on, 

it means that you have 5 minutes, and you are doing wonderfully 

well. When the yellow light comes on, that means you are within 

a minute, or like if you are driving a car, you speed up. That may 

be an idea to speed up. But when the red light comes on, that 

means that your 5 minutes are up, and I would ask you to try to 

wrap up your remarks. 

Obviously we want to hear—and I do say this. I know it is extremely difficult in 5 minutes to put together all of what you are 

trying to communicate. Believe me, we recognize that. That is why 

we have your full statement that you submitted, so that is part of 

the record. 

And this will be the only oral part of this other than the question 

and answer from members of this committee. But if any of you 

would like to submit any statements on anything that is said one 

way or the other—open country here—you can visit our committee 

Web site, which is www.naturalresources.house.gov, and press ‘‘contact.’’ Or just go to Google and say House Natural Resources. Somebody will get you there. 

59 

OK. With that, thank you all, panelists, for being here, and we 

will start on my left side with Ms. Lesley Robinson, who is a Commissioner from Phillips County, Montana. Ms. Robinson, you are 

recognized for 5 minutes. 

STATEMENT OF LESLEY ROBINSON, COUNTY COMMISSIONER, 

PHILLIPS COUNTY, MALTA, MONTANA 

Ms. ROBINSON. Chairman Hastings and members of the committee, I appreciate the opportunity to testify. I am Lesley Robinson, Chairman of the Montana Association of Counties Public 

Lands Committee, a Commissioner from Phillips County, and a 

member of the Montana Stockgrowers Association. 

Phillips County spans 5,213 square miles. We have approximately 4,000 people and 56,000 cattle. Ninety-eight percent of Phillips County’s 3.2 million acres is classified as agriculture land. Approximately 33 percent is administered by the BLM, and 49 percent is private land. 

Phillips County’s economy is dependent on agriculture and natural gas production. The 2012 Montana ag statistics State cash 

sales of agricultural commodities for Phillips County was $80 million. These raw commodities are further processed and transported 

to other regions of the United States and world, generating $434 

million in commerce. Based on annual consumption levels, Phillips 

County produces enough beef to feed 343,350 people and enough 

wheat to feed 1.6 million people. Gas production results in 4 of the 

top 15 taxpayers in Phillips County, providing 37 full-time jobs. 

I am a fourth generation Phillips County rancher. Our ranch sits 

right in the middle of high quality sage grouse habitat as identified 

by the Montana Fish, Wildlife, and Parks, and the BLM. This area 

covers a major portion of Phillips and Valley County. Any action 

will have a significant economic impact on our rural economies of 

this area and the State. 

BLM has just released their draft Resource Management Plan, 

and 969 allotments in our planning area have been assessed, and 

93 are meeting rangeland health standards. While the ranching 

community is always striving to keep improving, this is proof that 

our industry has been successful in working with the BLM to meet 

the objectives. 

I would like to share with the committee some research that was 

conducted in south Phillips County where I live. The research title 

is ‘‘Landscape-Scale Factors Affecting Population Dynamics of 

Greater Sage Grouse.’’ It was conducted from 2001 to 2004 by 

Brendan James Moynahan, Ph.D. candidate with The University of 

Montana. 

Moynahan radio tagged 243 hens in south Phillips County. In his 

first year of the study, most nest failures, 94 percent, were attributed to depredation, and most of the nest depredations, 63 percent, 

were attributed to avian predators. He noted that even in areas of 

expansive, high-quality habitat such as south Phillips County, winters may be so severe as to have a clear and substantial populations-level impacts. However, there is no published research data 

that indicates livestock grazing has any impact on sage grouse populations. The fact that there is a hunting season on sage grouse indicates that there is a healthy population. 

60 

Additionally, Montana FWP is capturing live birds in south Phillips County and transporting them to Canada to improve their population. The agency believes that the sage grouse population is stable over the last 30 years. 

If a listing of sage grouse under the ESA were to occur, it would 

have a dramatic effect on our community and State. I believe one 

of the first actions to be implemented would be a reduction or 

elimination of grazing in sage grouse areas. The socioeconomic impacts of this type of action would be substantial, and the likely reductions in livestock grazing on Federal lands could have great impacts on local economies like ours that are dependent on livestock 

production. 

TransCanada has also proposed the Keystone XL pipeline. The 

route would enter the United States in Phillips County and pass 

through five other counties. We have seen case after case of 

projects such as this being derailed because of the Endangered Species listing and the habitat associated with those species. If these 

projects fail to materialize, so do the good paying jobs and essential 

tax revenue to the county. 

The active management of public lands is essential to the economy of our community. It is my experience that species conservation will happen only at the ground level. No one is better equipped 

or motivated to prevent the ESA listings than a rancher, who own 

and/or operate or manage the land that is most likely to be the 

prime species habitat. If you give ranchers and their local governments an opportunity, they will develop the voluntary proactive 

measures they can to implement that benefit the species in question. 

I firmly believe that species conservation is a community-driven 

effort that strives to work with individuals, groups, and agencies 

to achieve a goal. Addressing species, such as sage grouse, needs 

to be a grassroots effort, not a top down approach. Allowing multiple use of Federal lands is a critical step in ensuring a secure food 

and fuel supply for the American people. It is imperative that we 

provide your committee and the entire Congress the input that is 

needed to modernize the ESA process to meet the future needs of 

our communities, State, and Nation. 

Thank you for allowing me to testify. 

[The prepared statement of Ms. Robinson follows:] 

PREPARED STATEMENT OF LESLEY ROBINSON, COUNTY COMMISSIONER, PHILLIPS

COUNTY, MALTA, MONTANA

Chairman Hastings and members of the committee. I appreciate the opportunity 

to testify on behalf of Phillips County at the House Natural Resources Committee 

Oversight Field Hearing. 

I am Lesley Robinson, Chairman of the Montana Association of Counties Public 

Lands Committee, a Commissioner from Phillips County and a member of the Montana Stockgrowers Association. 

Phillips County spans 5,213 square miles. We have approximately 4,000 people 

and 56,000 cattle in our county. Ninety-eight percent of Phillips County’s 3.2 million 

acres is classified as agriculture land. Approximately 33 percent is managed by the 

BLM and 49 percent is private land. 

Phillips County’s economy is dependent on Agriculture and Natural Gas production. The 2012 Montana Agricultural Statistics State cash sales of agricultural commodities for Phillips County was $80 million. These raw agricultural commodities 

are further processed and transported to other regions of the United States and 

world, generating $434 million in commerce. Based on annual consumption levels 

61 

Phillips County produces enough beef to feed 343,350 people and enough wheat to 

feed 1.6 million people. 

I am a fourth generation Phillips County rancher. Our ranch sits in the middle 

of ‘‘core area 2’’ on the Montana Fish, Wildlife and Parks sage grouse designation 

and the Bureau of Land Management ‘‘Greater Sage-Grouse Protection Priority 

Area.’’ This area covers a major portion of Phillips and Valley County, including 1.6 

million acres total. With 54 percent of this acreage, under BLM management and 

27 percent being private, any potential listing of sage grouse under the Endangered 

Species Act, Any action will have a significant economic impact on rural economies 

in this area and the State. 

Currently the BLM has just released the HiLine Draft Resource Management 

Plan (RMP). The HiLine District administers 763 permits, permitting approximately 

386,600 Animal Unit Months (AUMs) of livestock forage. All 969 allotments in the 

planning area have been assessed for rangeland health standards. Out of those allotments, 907 allotments are meeting rangeland health standards. This is a 93 percent success rate for grazing allotments in this planning area. While the ranching 

community is always striving to keep improving, this is proof that our industry has 

been successful in working with the BLM to meet the objectives. 

I would like to share with the committee some research that was conducted in 

south Phillips County where I live. The research title is Landscape-Scale Factors 

Affecting Population Dynamics of Greater Sage-Grouse (Centrocercus urophasianus) 

in north-central Montana, it was conducted from 2001–2004 by Brendan James 

Moynahan, Ph.D. Candidate with The University of Montana. 

Moynahan radio-tagged 243 hens during a 3-year study of sage-grouse in south 

Phillips County. In his first year of the study, 2001 most nest failures (94 percent) 

were attributed to depredation, and most nest depredations (63 percent) were attributed to avian predators. He suspected that California gulls were the primary predators (Moynahan 2004: 29) 

Of the successful nests of the marked hens in 2001, only one chick survived to 

30 days (Moynahan 2004: 69) 

Moynahan noted that even in ‘‘areas of expansive, high-quality habitat such as 

south Phillips County, winters may be so severe as to have clear and substantial 

populations-level impacts’’ (Moynahan 2004: 128). Additionally he suggested that 

the effects of West Nile virus were pronounced (Moynahan 2004: 129). 

The fact that there is a hunting season on sage-grouse administered by the Montana Fish, Wildlife, and Parks, indicates a healthy population. Additionally, the 

State agency is capturing live birds in south Phillips County and transporting them 

to Canada to improve their population. Montana Fish, Wildlife and Parks believes 

the sage-grouse population is stable over the last 30 years. There is no published 

research data that indicates livestock grazing has any impact on sage-grouse populations. 

If a listing of sage grouse under the ESA were to occur, it would have a dramatic 

effect on our community and State. I believe one of the first actions to be implemented would be a reduction or elimination of grazing in sage grouse areas. The 

socioeconomic impacts of this type of action would be substantial. The likely reductions in livestock grazing on Federal lands could have great impacts on local economies like ours that are dependent on livestock production. 

It is my experience that species conservation will happen only at the ground level. 

No one is better equipped or motivated to prevent ESA listings than ranchers, who 

own and/or manage the land that is most likely to be prime species habitat. If you 

give ranchers and their local governments an opportunity, they will develop the voluntary, proactive measures, they can implement that benefit the species in question. 

This approach meets the needs of the community, while also meeting the needs of 

wildlife. 

A Public Opinion Strategies poll in Montana also supports the ideals of having 

a strong economy and a healthy environment. Seventy-two percent of those surveyed, said they supported the statement that ‘‘We can protect land and water and 

have a strong economy with good jobs for Americans at the same time, without having to choose one over the other.’’ The survey also pointed out that there was strong 

support for allowing Montana to better manage wildlife to avoid Federal Government interference. Montanan’s know what’s best for Montana. 

In addition to the agricultural economy of our county, 4 of the top 15 taxpayers 

in Phillips County are gas companies. Direct employment from gas production in 

Phillips County has resulted in 37 full time jobs. TransCanada has also proposed 

the Keystone XL pipeline. The route would enter Montana in Phillips County and 

pass through Valley, McCone, Dawson, Prairie and Fallon Counties. We have seen 

case after case of projects such as this being derailed because of ESA listings and 

the habitat associated with those species. If these projects fail to materialize, so do 

62 

the good paying jobs and essential tax revenue to the county. The active management of public lands is essential to the economy of our community. Allowing multiple use of Federal lands, is a critical step in ensuring a secure food and fuel supply 

for the American people. 

I firmly believe that species conservation is a community-driven effort that strives 

to work with individuals, groups and agencies to achieve a goal. It is essential that 

addressing species, such as sage grouse, is a grassroots effort, not a top down approach. It is imperative that we provide your committee and the entire Congress, 

the input that is needed to modernize the ESA process to meet the future needs 

of our communities, State and Nation. 

The CHAIRMAN. And that is exactly why we are here to hear that 

testimony. 

Now, I would like to recognize Mr. Matt Knox, who is representing the Montana Farm Bureau. And Mr. Knox is from Winifred, Montana. You are recognized for 5 minutes. 

STATEMENT OF MATT KNOX, MONTANA FARM BUREAU, 

WINIFRED, MONTANA 

Mr. KNOX. Chairman Hastings, Congressman Daines, and members of this committee, I thank you for the opportunity to testify 

today on this important issue. 

I ranch in central Montana in the Missouri Breaks with my wife, 

Karla, and daughters, Sally and Sarah. Currently, I am serving on 

the Board of Directors of the Fergus County Farm Bureau, and I 

also represent the Missouri River Stewards, an organization dedicated to protecting ranching in the Missouri river breaks. I am testifying today on behalf of the Montana Farm Bureau. 

We believe Montana has a viable and stable sage grouse population. As such, any efforts at conservation should be aimed at continuation of current efforts. The bird numbers vary due to many 

factors. There are very real threats to the survival of sage grouse, 

but they should not be confused with misdirected conservation 

measures. Amongst these misdirected measures are several that 

are listed in the BLM’s national strategy to protect sage grouse. 

They were developed by the National Technical Team, whose main 

interest it seems is to restrict or eliminate land uses that, in fact, 

pose little or no threat to grouse. 

Some of the measures are predicated on the assumption that 

livestock grazing is associated with sage grouse population loss. 

This ignores the parallel decline over the past half century of both 

livestock numbers and sage grouse on public lands. In 1953, there 

were approximately 18 million AUMs on public lands in the West. 

By 2000, that number was around 10 million. If grazing were the 

problem, sage grouse should be flourishing. Sage grouse management and grazing management share a common objective of 

healthy native rangeland, which is important to both livestock and 

sage grouse. 

Another misdirected conservation measure is the management of 

wildfire by BLM. We believe the national strategy suggests managing fire by minimum impact suppression tactics. Rangeland fire, 

we believe, in sage grouse habitat should be attacked immediately 

and aggressively. 

Predation continues to be ignored by the U.S. Fish and Wildlife 

Service as a factor in sage grouse decline. Their response to questions on predation continues to be that it may be a rare localized 

63 

issue, but adequate habitat is the real problem. One example is a 

very aggressive nest predator, the raven, whose population in the 

West has grown by over 1,000 percent since 1900. And I can certainly bear that out where we live. Predators are a factor, and any 

effort to conserve the species needs to address the issue. 

At the request of the livestock and oil and gas industries, Governor Bullock appointed a Sage Grouse Advisory Committee to develop a management plan for sage grouse in Montana. The plan 

must pass muster with the U.S. Fish and Wildlife Service to keep 

the bird from being listed. As mentioned above, there is plenty of 

data proving that grazing and sage grouse are compatible. Therefore, we suggest that Montana follow the Wyoming example of exempting traditional agricultural practices. The livestock and oil 

and gas industries have put a lot of time in this. We would hate 

to see all this time wasted. 

This brings us to the crux of the problem of the act itself. It is 

not working very well. One of the major factors we all know about 

is cost. A couple of examples that were compiled by the Political 

Economy Research Center in Bozeman Montana: the Subcommittee 

on Forest and Forest Health reported that 130,000 jobs were lost 

and more than 900 sawmills, paper, and pulp mills were closed because of the spotted owl. And we all remember recently what went 

on with the farmers in the Klamath Basin. Those crops were valued at $53 million. 

The ESA, or the threat of it, can also cause what I would call 

perverse incentives. When the draft version of the final management plan for the Missouri Breaks Monument came out, some of 

the leks on deeded land were identified in their maps. Language 

was included, enabling BLM to manage adjacent BLM lands accordingly. In other words, we were being punished for being good 

managers apparently. 

We strongly contested this provision, but without success. Since 

that time, there has been an understandable and justifiable reluctance on the part of our local ranchers to cooperate with lek inventories. 

In closing, farmers and ranchers are very frustrated with the 

ESA process. We need to see honest economic analysis. We also 

would prefer a solution built around incentives and landowner and 

community involvement. Thank you. 

[The prepared statement of Mr. Knox follows:] 

PREPARED STATEMENT OF MATT KNOX, BOARD OF DIRECTORS, FERGUS COUNTY FARM

BUREAU, REPRESENTING MONTANA FARM BUREAU FEDERATION

Chairman Hastings, Congressman Daines and members of the Natural Resources 

Committee. 

My name is Matt Knox, and I want to thank you for the opportunity to testify 

today on ‘‘State and Local Efforts to Protect Species, Jobs, Property, and Multiple 

Use Amidst a New War on the West’’. 

I ranch in north central Montana in the Missouri Breaks with my wife Karla and 

daughters Sally and Sarah. Currently I serve on the Board of Directors of Fergus 

County Farm Bureau and also represent the Missouri River Stewards, an organization dedicated to protecting ranching in the Missouri river breaks. 

Today I am testifying on behalf of the Montana Farm Bureau. 

I would like to talk specifically about Sage Grouse, the real threats to the species, 

misdirected conservation efforts by the BLM, Montana’s developing sage grouse 

management plan and end with a few comments on the Endangered Species Act in 

general. 

64 

Montana has a viable and stable sage grouse population. As such any efforts at 

conservation should be aimed at continuation of current efforts. Bird numbers tend 

to vary due to weather patterns, predation, disease, wildfire and sage brush conversion. These are very real threats to the survival of sage grouse and should not be 

confused with misdirected conservation measures. Among these misdirected measures are several that are listed in the BLM’s national strategy to protect sage 

grouse. They were developed by the National Technical Team (NTT) whose main interest it seems is to restrict or eliminate land uses that in fact pose little or no 

threat to grouse. Some of the measures are predicated on the assumption that livestock grazing is associated with sage grouse population loss. This ignores the parallel decline over the past half century of both livestock numbers and sage grouse 

on public lands. In 1953, there was approximately 18 million animal unit months 

(AUMs) on BLM land in the West, by 2000 that number was around 10 million 

AUMs. If grazing were the problem, sage grouse should be flourishing. Sage grouse 

management and grazing management share a common objective of healthy native 

rangeland vegetation, which is as important to range livestock production as it is 

to sage grouse. Retiring grazing privileges as suggested by the BLM is based on political antagonism far more than real biology. It is amazing to our members that 

grazing by cattle is a threat but overgrazing by wild horses or wildlife has no effect 

in the eyes of the BLM. 

Another misdirected conservation measure is the management of wildfire by the 

BLM. The national strategy suggests managing fire by Minimum Impact Suppression Tactics (MIST). It doesn’t take a long memory to recall the devastation to sage 

grouse habitat during the 2012 fire season. Rangeland fire in sage grouse habitat 

should be attacked immediately and aggressively. 

Predation continues to be ignored by the U.S. Fish and Wildlife Service as a factor 

in sage grouse decline. Their response to questions on predation continues to be; it 

may by a rare localized issue but adequate habitat is the real problem. In the early 

1900s sage grouse numbers began to grow as ranchers and farmers controlled 

coyotes, skunks, crows and ravens. The trend continued into the 1960s when efforts 

to control predators were curtailed through government regulation. An example is 

a very aggressive nest predator, the raven whose population in the West has grown 

by over 1,000 percent since 1900. Predators are a factor and any effort to conserve 

the species needs to address the issue. 

At the request of the livestock and oil and gas industry, Governor Bullock appointed a sage grouse advisory committee to develop a management plan for sage 

grouse in Montana. The plan must pass muster with the U.S. Fish and Wildlife 

Service thus keeping the bird from being listed. As mentioned above there is abundant data proving that grazing and sage grouse are very compatible uses. That applies not only to grazing, but to water development, irrigation and other developments within reasonable distances from active leks. Therefore we suggest that Montana follow the Wyoming example of exempting traditional agricultural practices. 

The livestock and oil and gas industries have put a great deal of time and effort 

in this effort as well as hundreds of hours of State legislator and agency employee 

hours. These hours will have been wasted and the reputation of the entire ESA tarnished even further if, as Director Dan Ashe stated at a recent Farm Bureau gathering in Washington, DC that he was 90 percent certain that sage grouse will be 

listed no matter what the States develop as management strategies. 

This brings us to the crux of the problem, the Endangered Species Act itself. It 

is not working very well. In fact since its passage over 13,000 species of plants and 

animals have been listed. Depending on whose numbers you use, anywhere between 

7–20 species have been removed from the list. Of those removed, most had little or 

nothing to do with the act but dealt with species already extinct or recovered by 

some other means. This leaves the ESA with a success percentage of around .06 percent. Cost is another factor of the equation. Some examples of costs compiled by the 

Political Economy Research Center (PERC) in Bozeman Montana are: 

• Delay of a $55 million high school in California while waiting for ESA determination on fairy shrimp. Cost $1 million. 

• The Subcommittee on Forest and Forest Health reported that 130,000 jobs 

were lost and more than 900 sawmills, paper and pulp mills were closed because of the spotted owl. 

• Farmers in the Klamath Basin lost crops valued at $53 million because irrigation water was shut off in 2001 to protect two fish species. 

• $100 million spent on Prebles Jumping Mouse which wasn’t even a unique 

species. 

The definition of critical habitat has wandered far afield. The current definition 

now fits better for those who would seek wide spread land use control than for those 

65 

who would preserve a species. ‘‘Critical habitat’’ is not defined as land on which the 

species currently lives, but as any area that has characteristics essential to the survival of the species. A piece of property may be designated ‘‘critical habitat’’ if a species might have lived there or could possibly live there some time in the future. 

Endangered designations lack verifiable peer reviewed scientific evidence. According to Dr. J. Gordon Edwards, San Jose State University in ‘‘The Handbook of Environmental Science Health and Technology’’, scientists around the world have recognized that biological species must be reproductively isolated and genetically distinctive natural populations. This scientific categorization of species bears no resemblance to the political use of the word in the ESA. In fact Edwards claims detailed 

records reveal 40 percent of species listed on the ESA to be only sub-species or distinct populations. Among these is the Florida panther, eastern timber wolf, Columbian white tail deer and the infamous northern spotted owl. 

In closing, Montana Farmers and Ranchers are extremely frustrated with the Endangered Species Act. It is like a treadmill to landowners and producers. We spend 

an inordinate amount of time and effort in order to keep species from being listed, 

only to have them listed anyway. Once listed, delisting goals are moving targets. 

When delisting targets are reached delisting is further delayed by court cases. Habitat control takes precedence over species conservation. Conservation of one species 

leads to degradation of another. The sage grouse is on center stage at this time, before that it was the wolf, cutthroat trout and grizzly bears to name a few. When 

we start playing god to one species there is no place to stop until the Federal Government controls the entire West. 

The CHAIRMAN. Thank you very much, Mr. Knox, for your testimony. 

Next, I will recognize Mr. Dave Galt from the Montana Petroleum Association, which is based in Helena. And you are recognized for 5 minutes. 

STATEMENT OF DAVE A. GALT, EXECUTIVE DIRECTOR, 

MONTANA PETROLEUM ASSOCIATION, HELENA, MONTANA 

Mr. GALT. Thank you, Mr. Chairman, and welcome to Montana. 

Thank you for invitation to speak and for the huge effort on your 

part to hold a series of hearings out West to learn more about the 

Endangered Species Act. 

Chairman Hastings, members of the committee, for the record, I 

am Dave Galt, Executive Director of the Montana Petroleum Association. Our members include companies, and members, and individuals involved in the exploration, drilling, production, transporting, and refining of oil and natural gas. 

The Montana State University, Billings, has done extensive analysis of the economic impact of the oil and gas industry in Montana. 

Here are a few facts from their 2012 update published in the 

Treasure State Journal. Direct and indirect jobs supported by the 

industry exceed 20,000. Total economic output from the oil and gas 

industry in Montana is in excess of $10 billion dollars. Firms, investors, and employees of Montana’s oil and gas industry paid an 

estimated $440 million in State and local taxes. A 5 percent industry expansion would result in over 1,000 new jobs in Montana. 

I have attached three charts to help you visualize oil and gas 

production in or State. The map shows oil producing areas in 

green, gas in red, and sage grouse core areas in purple. The black 

dots—the little, itty-bitty black dots—represent wells drilled in 

Montana since 1915. While the purple areas represent sage grouse 

core areas, when you include the entire grouse habitat, it covers 

most of the eastern half of Montana. The other two slides illustrate 

oil and gas production in Montana by county just to give you an 

66 

idea of where it is coming from in Montana. And my point is that 

it is across the State, and not just in the Bakken. 

Studies relied upon by the NTT and the BLM in their NTT were 

significantly and scientifically flawed. A primary source of information used by the NTT was reviewed by the Center of Environmental Science, Accuracy, and Reliability, which found significant 

mischaracterization of previous research; substantial errors and 

omissions; lack of independent authorship and peer reviews; three 

of the authors on the NTT were also the authors, researchers, and 

editors on three of the most cited sources, methodological bias; invalid assumptions and analysis; and inadequate data. 

The NTT also insisted repeatedly on citing Holloran’s study in 

2005, dissertation as gospel, even though it failed to acknowledge 

that countless stipulations and mitigation measures utilized by the 

oil and gas industry throughout sage grouse habitat. The focus of 

the study was limited to an unmitigated control area which was 

used as a basis for comparison to areas where mitigation was being 

employed. 

In Montana, no site specific sage grouse data relating to the actual study areas were used by the BLM in their resource management plan revisions. Therefore, MPA has asked the BLM to rewrite 

the planning document. 

The Interior’s reliance on the NTT report will cause new oil and 

gas leasing, exploration, and development in Montana to be essentially terminated in sage grouse areas and sage grouse habitat. The 

BLM has proposed the use of no surface occupancy stipulation on 

millions of acres of public lands, as well as private surface and Federal minerals ostensibly to protect sage grouse and its habitat. 

BLM makes these areas off limits to new rights-of-way, and even 

is considering forcing the relocation of existing rights-of-way. 

In conclusion, we support efforts to avoid listing of the greater 

sage grouse as a threatened or endangered species, but we object 

that the Department of the Interior believes that the habitation destruction is the single most important factor impacting the sage 

grouse, particularly that from oil and gas development. Weather 

and predation are extremely important factors and have been essentially ignored by the agencies. Nevertheless, the greater sage 

grouse will continue to survive to the best of its ability, while the 

economy of public lands and the States will suffer draconian declines due to unjustified limits on multiple use and revenue generating activities. 

Mr. Chairman, I have got an extensive written testimony. There 

is a lot of information in there. There are studies that we have referred to. We did not provide them. We would be glad to if the committee so desires. Thank you. 

[The prepared statement of Mr. Galt follows:] 

PREPARED STATEMENT OF DAVID A. GALT, EXECUTIVE DIRECTOR, MONTANA

PETROLEUM ASSOCIATION, HELENA, MONTANA

Welcome to Montana. Thank you for the time and the huge effort to hold a series 

of meetings in the West to learn more about sage grouse and other potential endangered species. 

Chairman Hastings, members of the committee; I am Dave Galt, Executive Director of the Montana Petroleum Association (MPA). MPA’s members include companies involved in the exploration, drilling production, transporting and refining of oil 

67 

and natural gas. Montana has a long history of oil and gas production. Our first 

commercial was drilled in Elk Basin in 1915. 

Montana State University-Billings has done extensive analysis of the economic 

impact of the oil and gas industry in Montana. Here are a few facts from their 2012 

update published in the Treasure State Journal: 

• Direct and indirect jobs supported by the industry exceed 20,000 jobs. 

• Total economic output from the oil and gas industry in Montana is in excess 

of $10 billion. 

• Firms, investors, and employees of Montana’s oil and gas industry paid an estimated $440 million in State and local taxes in 2011—Tax revenue that supports education, protective services, roads and a host of services. 

Montana was one of only a few States that maintained a positive budget balance 

through the recent great recession. Montana is in the black because of the active 

petroleum industry. New wells, expanding refinery capacity and new pipeline systems all contribute to a robust economy in Montana. A 5 percent industry expansion 

would result in over 1,000 new jobs in Montana. 

I have attached three charts to help you visualize oil and gas production in Montana. The map shows oil producing areas in green, gas in red and sage grouse core 

areas in purple. The black dots represent wells drilled in Montana since 1915. While 

the purple areas represent sage grouse core areas; when you include the rest of the 

sage habitat, it covers most of the eastern half of Montana except the extreme north 

east corner. Sage grouse management proposed by the BLM with the blessing of the 

USFWS is going to have a debilitating impact on Montana’s oil and gas production. 

The other two slides illustrate oil and gas production by county in Montana. The 

point is that there is production and potential across Montana, not just in the 

‘‘Bakken.’’ 

The potential listing of sage grouse and the Sprague’s pipit pose huge problems 

not just for the oil and gas industry in Montana, but for all multiple-use activities, 

including mining and grazing. We are seeing States in the West develop plans to 

provide conservation measures for sage grouse that place huge tracts of land off limits to nearly all revenue-generating activities. The determination of the need to list 

the sage grouse has been a topic of litigation and debate for the last decade. Law 

suits by environmental groups have led to a ‘‘closed door’’ settlement by the Federal 

Government to decide the status of many species, the sage grouse being one, petitioned for listing as threatened or endangered species. The U.S. Fish and Wildlife 

Service must decide by July of 2015 if the sage grouse is endangered. In the meantime; Western States, led by Wyoming, are developing conservation plans for the 

grouse. At the same time the Bureau of Land Management, BLM is rushing to release revised resource plans, or amend existing plans, which contain draconian stipulations for resource development. The ink wasn’t dry on Montana’s 2005 conservation plan, when academics and environmental groups said the restrictions in that 

plan were inadequate. Wyoming took the lead to identify core areas and protect 

them with very strict stipulations. And now the BLM’s National Technical Team 

(NTT) on sage grouse recommends even more stringent stipulations, despite the fact 

that none of the existing stipulations have any science behind them to suggest they 

are inadequate. 

Of particular concern is that the Department of the Interior, particularly the U.S. 

Fish and Wildlife Service, U.S. Geological Survey and Bureau of Land Management, 

have failed to utilize any type of systematic cataloging and quantitative evaluation 

to determine the type, extent and effectiveness of mitigation measures that have 

been employed by the oil and gas industry in areas where it operates. That the 

agencies have very little useful and site-specific data upon which to base its land 

management decisions, particularly with respect to oil and gas exploration and development activities, is egregious when one views the protections measure proposed 

by BLM in its RMP revisions and amendments. DOI is relying upon flawed data 

perpetuated by its National Technical Team on Sage Grouse which is highly problematic. 

Studies relied upon by the NTT were significantly and scientifically flawed. Just 

a few of these problems are: 

The Cooper Ornithological Society’s Monograph: Studies in Avian Biology (monograph), used as a primary source of information by the NTT, was reviewed by the 

68 

1Science or Advocacy? Ecology and Conservation of Greater Sage-Grouse: A Landscape Species and its Habitats: An Analysis of the four most influential chapters of the monograph. 2 (Holloran, M. J. 2005. Greater sage-grouse (Centrocercus urophasianus) population response 

to natural gas field development in western Wyoming. PhD Dissertation. University of Wyoming. Laramie, Wyoming.) 3Draught and Wildlife Survival—Wyoming Game and Fish Department, Sage Grouse Precipitation Drought Index. 

Center for Environmental Science, Accuracy and Reliability (CESAR) in a paper 1

which found that the monograph relied upon: 

• Significant mischaracterization of previous research; • Substantial errors and omissions; • Lack of independent authorship and peer review (3 of the authors of the NTT 

are also the authors, researchers, and editors on 3 of the most cited sources 

in the NTT); • Methodological bias; • A lack of reproducibility; • Invalid assumptions and analysis; and • Inadequate data. 

The NTT also insisted upon repeatedly citing Holloran’s 2005 dissertation 2 as gospel despite the fact that it failed to acknowledge the countless stipulations and mitigation measures utilized by the oil and gas industry throughout sage grouse habitat. 

It is critically important to recognize that the focus of this study was limited to an 

unmitigated control area which was to be used as a basis for comparison to areas 

where mitigation was being employed. Not surprisingly, Holloran’s predictions of 

catastrophic population decline have been clearly refuted by the data. Specifically, 

he predicted population declines of between negative 8.7 percent to negative 24.4 

percent annually in Pinedale (page 82, Table 2). However, those doom and gloom 

population predictions have simply failed to come true. Instead sage grouse populations in these areas have been continually increasing, and are well above statewide averages. 

Analyses of lek count data by the State of Wyoming show that lek-attendance 

trends have been increasing since 1990 and their densities are the highest in the 

State. In fact, a separate analysis by Renee Taylor of Taylor Environmental Inc. has 

shown that there is no statistically significant difference between the average number of male sage grouse in areas affected by oil and gas in both the Pinedale and 

control areas. If Holloran’s predictions were true, there would only be a handful of 

birds left around Pinedale. Clearly, Holloran and his approach were wrong. 

A report 3 prepared using Wyoming Game and Fish sage-grouse data clearly demonstrates the significance of precipitation levels with respect to sage-grouse population arcs. While weather and precipitation levels cannot be controlled by the Federal government, they are clearly tied to sage-grouse survival and population and 

must be acknowledged. Also, numerous published reports and papers have identified 

the significant role predation has on the survival of the sage-grouse which have not 

been taken into full account by the Department of Interior so that reasonable and 

effective measures to reduce predation can be formulated and adopted. 

When BLM prepared its RMP revisions for Montana, no site-specific sage-grouse 

data relating to the actual study areas was used. Rather, BLM relied upon information based on studies of Sage Grouse Management Zone 1 (MZ1) as described in the 

NTT Report, which includes northeastern Wyoming and far western North and 

South Dakota. In so doing, BLM failed to ensure the accuracy needed upon which 

to base informed land use decisions. Although analysis of MZ1 would be appropriate 

as a study area for analysis of cumulative impacts to sage-grouse nation-wide, potential direct and indirect impacts to sage-grouse and sage-grouse habitat resulting 

from implementation of the RMP must address only those conditions and potential 

direct and indirect impacts specific to the specific planning areas. Consequently, 

MPA has asked for a redraft of all these RMP Revisions in which sage-grouse data 

directly applicable to the planning areas in Montana would be utilized. 

It is also important to note that the NTT Report is not even supported by the 

Western Association of Fish and Wildlife Agencies (WAFWA) as DOI’s sole source 

of Sage-grouse management direction. In a letter sent to the Interior Secretary on 

May 16, 2013 WAFWA member States made it clear that they never endorsed the 

sole use of the NTT or any other scientific publication. Rather, they believe that a 

variety of peer-reviewed publications which collectively provide the best available 

science for sage-grouse should have been used by BLM as the basis for conserving 

the Sage-grouse, thereby avoiding a listing under the Endangered Species Act 

(ESA). WAFWA went on to recommend that management and regulatory mechaVerDate Mar 15 2010 10:53 Nov 05, 2014 Jkt 000000 PO 00000 Frm 00074 Fmt 6601 Sfmt 6621 Z:\00 FULL COMMITTEE\00SE04 1ST SESS PT. 1&2\85208.TXT MARK
69 

nisms should be based upon the best available science which would provide the best 

strategy for near- and long-term management of sage-grouse and provides the best 

opportunity for precluding the need to list the species under the ESA. 

We point out that the International Research Center for Energy and Economic 

Development (ICEED peer reviewed a paper entitled ‘‘Oil and Gas Development and 

Greater Sage Grouse (Centrocercus urophasianus): A Review of Threats and Mitigation Measures,’’ Volume 35, Number 1, which was published by The Journal of Energy and Development. The paper pointed out that: 

‘‘Current stipulations and regulations for oil and gas development in sage 

grouse habitat are largely based on studies from the Jonah Gas Field and 

Pinedale anticline. These fields, and their effect on sage grouse, are not necessarily representative of sage grouse responses to less intensive energy development. Recent environmental regulations and newer technologies have 

lessened the threats to sage grouse.’’ 

As a result of BLM’s reliance upon the NTT Report and its recommendations, new 

oil and gas leasing, exploration and development in Montana will be essentially terminated in areas within sage grouse habitat if the measures proposed by BLM in 

its RMP revisions are adopted. Specifically, BLM has proposed the use of new No 

Surface Occupancy (NSO) stipulations on millions of acres of public lands as well 

as private surface/Federal minerals ostensibly to protect sage grouse and its habitat. 

NSO stipulations, which prevent the use of the surface area of the lease, would be 

imposed on 50 percent of the public lands in the Miles City FO, 70 percent in the 

HiLine FO and 60 percent in the Billings FO. Added to that, in the Billing Field 

Office, BLM is attempting to force the use of the same stipulations upon Federal 

minerals under private surface. We expect similar constraints to be used in the 

other field offices as well. BLM also proposes to make sizable portions of these areas 

off-limits to new right-of-way construction and even goes so far as considering forcing the removal and replacement of existing rights-of-way to areas outside sage 

grouse habitat. 

In conclusion, while we support efforts to avoid a listing of the Greater Sagegrouse as a threatened or endangered species, we are disturbed that the DOI has 

embraced the notion that habitat destruction is the single most important factor impacting the sage-grouse, particularly that from oil and gas development, which as 

pointed out earlier in this testimony has been proven to be a fallacy. While we acknowledge that unmitigated habitat destruction may play a role, albeit much more 

limited than acknowledged by the agencies, in the survival of the sage-grouse, 

weather and predation are extremely important factors that have been essentially 

ignored by the agencies when determining how best to manage habitat. To date, 

DOI’s focus has been to find ways to prevent or minimize human uses of habitat 

based upon flawed studies and reviews contained in the NTT Report. Nevertheless, 

it is patently obvious that DOI’s tunnel vision will not result in essential improvements to the widespread degraded habitat managed by Federal agencies nor will it 

address the significant problem of extensive predation throughout the Western 

States. Instead, it will shift DOI’s burden and responsibilities to public land users 

in discrete areas where they have activities while failing to address the problem as 

a whole. Nevertheless, the Greater Sage-grouse will continue to survive to the best 

of its ability while the economy of the public lands States will suffer draconian declines due to unjustified limits on multiple-use and revenue generating activities. 

70 


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The CHAIRMAN. If you would like to, if you have other studies 

that you want part of the record, we would welcome that. 

Mr. GALT. Yes, sir. I will get them in, provide them. 

The CHAIRMAN. Without objection, they will be part of the record. 

OK. Thank you very much, Mr. Galt. 

Now, I will recognize Mr. Brian Cebull from here in Billings. Mr. 

Cebull, you are recognized for 5 minutes. 

STATEMENT OF BRIAN R. CEBULL, BILLINGS, MONTANA 

Mr. CEBULL. Thank you. Good afternoon, Chairman Hastings 

and members of the committee. My name is Brian Cebull, and I am 

a third generation Montana native. Although I have spent my entire 20-year professional career in the oil and gas business, I am 

here today representing myself as a Montana landowner and a 

Montana sportsman. 

My wife and I own a unique ranch located in Carbon County, 

only 1 hour south of Billings. Grove Creek Ranch consists of our 

deeded acreage, plus over 15,000 acres of BLM grazing leases, and 

contains a healthy population of sage grouse, a very active population of grizzly bears, and an occasional wolf. I have included a 

few photos of these bears for your entertainment in my written testimony. 

My experiences and those of my tenants in dealing with grizzly 

bears highlight the flaws of the current ESA process and the need 

to keep species, such as the greater sage grouse, off of that list. 

To summarize my observations and those of my tenants regarding how the ESA affects our ranch operations, when it comes to 


85208.012.eps
72 

dealing with problem bears, the top down and centralized approach 

of the current ESA management lacks common sense and does not 

work in Montana. More authority to address problem animals in 

habitat needs to be placed in the hands of local personnel, including ranchers and landowners. The ranchers and landowners know 

best how to manage their own land. Those in charge of administering the ESA should have the ability to change and adapt local 

management plans as necessary. 

With the increasing grizzly bear population in our area, we have 

seen outdated management plans that are resulting in ever-increasing bear-human-livestock conflicts. Based on the staggering 27 

individual grizzly bears that biologists estimate to live along a 20- 

mile span of the Beartooth Mountains near our ranch, and the expectation that this number is increasing, I have concluded myself 

that politics, and not science, is influencing these grizzly bear population estimates in order to maintain pressure to keep the bear 

on the list. All too often the determination to list or to remain on 

the list is being made by Federal judges instead of scientists. The 

ESA and the decision to list or delist should be based on sound 

science and not politics. 

The ESA is a hammer. It is a threat that is constantly held over 

the heads of all private landowners and groups that utilize public 

lands either for recreation or for their livelihood. The heavy-handed 

‘‘do this or else’’ style of the ESA will create as disincentive among 

those affected local groups, and will result in the opposite effect of 

what was intended by the act. 

The ESA has become a listing tool that restricts activities and 

not a management tool for the recovery of species. Since it became 

law in 1973, over 2,000 species have been listed as endangered, 

and only 20 species have been removed from the list due to population recovery. The ESA has become a tool for pseudo environmental groups to hinder economic development and recreational activities on both public and private lands. 

The potential listing of the greater sage grouse under the ESA 

is already affecting our ranch operations. And based on our experiences with the already listed grizzly bear, it is in everyone’s best 

interest to take steps to keep them off the list. 

We are under continuous pressure to reduce our AUMs on grazing allotments already to enhance sage grouse habitat. Responsible 

rotational grazing practices actually improve the health of the land 

and the forage available for wildlife, including sage grouse. There 

is little doubt that a listing of the sage grouse will result in immediate pressure to stop all grazing on public lands in critical habitat 

areas. 

The top down, heavy-handed, and centralized approach to management that we see with the grizzly bear lacks common sense and 

will not work with sage grouse. Landowners like myself and local 

groups, such as Sage Grouse Montana, are already working voluntarily to improve the habitat for sage grouse and other species on 

our private property, and are working with the BLM to ensure responsible grazing rotations on our public lands. These grass roots 

efforts to protect sage grouse will almost certainly come to a stop 

if the bird is listed. 

73 

As a lifelong hunter and a President of the Montana Chapter of 

Safari Club International, the listing of sage grouse will have a 

profound impact on our hunting heritage in Montana for all species. In addition to the loss of sage grouse as a game bird, hunters 

will lose access to thousands of acres of private and public lands 

that they have used for generations. The critical habitat areas that 

will be shut down or have severely restricted access are any areas 

that are suitable areas, and will not even require sage grouse to 

be present on them. 

The ESA has and will continue to have a profound impact on 

Montanans and our way of life. We have seen the politically motivated management of listed species, such as wolves and grizzlies, 

result in dramatic declines in big game populations, resulting in 

lost hunting opportunities and devastating impacts to local businesses. Future ESA listings, such as the possible listing of sage 

grouse, will have similar negative impacts on both public and private lands, and those who rely on these lands both for recreation 

and for their livelihood. 

I strongly encourage you to focus on local control and voluntary 

efforts to restore sage grouse habitat, and to do everything in your 

power in Congress to make sure that greater sage grouse does not 

get listed under the ESA. Please help me ensure that the ESA can 

no longer be used as a tool for fringe environmental groups to dictate how we live and work in Montana. 

There is a new war in the West, and it is a war on our traditional Montana values. 

Thank you for the opportunity to testify today. 

[The prepared statement of Mr. Cebull follows:] 

PREPARED STATEMENT OF BRIAN R. CEBULL, BILLINGS, MONTANA

Chairman Hastings and members of the committee, thank you very much for allowing me to testify before your committee. I am Brian Cebull, a 3rd generation 

Montanan who is proud to call this great State my home. I work in Billings in the 

oil and gas industry as the owner of a small exploration and production company 

as well as the co-owner of an innovative environmental service company in the 

Williston Basin. 

While the oil and natural gas business provides my livelihood, I did not come here 

today to testify about oil and gas development and the negative impacts that ESA 

listing of the sage grouse will have on my industry. Instead, I am here today to testify as a Montana landowner who lives with endangered and threatened species and 

as a sportsman who has a passion for hunting. 

My wife and I own Grove Creek Ranch in southern Carbon County Montana that 

is comprised of deeded acreage plus more than 15,000 acres of BLM grazing leases. 

Our deeded land consists mostly of spring-fed riparian land with grassy bottoms and 

aspen groves. Our land is unique in that it is home to a variety of wildlife including 

whitetail deer, moose, elk, black bears, occasional wolves, and is located in designated core sage grouse habitat. According to Montana FWP biologists, there are 

four active sage grouse breeding leks either on or adjacent to our deeded land at 

Grove Creek. In the spring of 2011 we encountered our first grizzly bear and now 

have documented more than 12 different grizzlies in the last 2 years including capturing a video of a grizzly sow with 4 cubs of the year this past June. I have included a few photos of grizzlies at our ranch at the end of these comments. My most 

recent encounter with a grizzly on my ranch was just this past Saturday evening. 

Our experiences with the already listed and ‘‘endangered’’ grizzly bear is an important lesson when considering adding another species to the ESA list. Based on 

our observations and those of our tenants who graze cattle on our land: 

• It is obvious that the population of grizzly bears in the greater Yellowstone 

ecosystem is being underestimated for political purposes. Based on my observations and those of my tenants, the number of bears in the 3 State area of 

that makes up the Yellowstone ecosystem must greatly exceed the 600 bears 

74 

that has been used as a common estimate. A local scientific estimate indicated that there were 27 individual grizzly bears during the 2011–2012 season on the Beartooth mountain front between Red Lodge, MT, and Clark, WY, 

a span of only 20 miles! So far in 2013 there have been 11 individual confirmed sightings of bears in the same area and 9 of those were confirmed on 

our ranch at Grove Creek. According to local biologists, bear sightings and encounters are getting much more frequent in our area. Common sense says 

that the actual number of bears must be several times higher in the entire 

Yellowstone ecosystem based on the high number of bears seen in our small 

area. • The current population of bears has far exceeded the expected levels of the 

original endangered species management plan therefore the management 

practices of the plan is not effective in relationship to the current impact of 

the bears in regards to agriculture, sportsmen and recreational use. The same 

management plan for a declining species cannot work for a species whose population is rebounding. This lack of adaptability is leading to ever-increasing 

encounters and conflicts between bears, humans, and livestock. • The management guidelines for grizzlies are unrealistic. In a particular instance with my tenants on their land in the Bear Creek area, a sow grizzly 

bear and her cubs had multiple livestock kills and were on the path to many 

more. When approached about this, the regulatory entity that was handling 

the situation labeled the bear as a first time offender because complaints had 

not been lodged against her in the past. With the existing guidelines, action 

was slow to be taken because she was a first offender in spite of the fact the 

fact that she had killed in excess of 10 animals that season. It was deemed 

that if the activity was repeated the next year, she would be labeled a problem bear and action would be taken. After strong lobbying at multiple levels 

of the government by my tenants, the number of kills was taken into account 

and she was removed and destroyed. Her cubs were relocated despite the fact 

that they would likely repeat the cattle-killing activities of their mother. • With the excess population of bears and the ineffective management practices 

of the current endangered species plan, the bears are starting to push their 

boundaries and locate themselves in areas outside of their expected habitat. 

Our ranch on Grove Creek is one of those places. 

As you can see, whether or not the ESA listing has helped grizzly bears, the current situation with grizzlies is not sustainable and needs to be remedied. Although 

sage grouse do not pose the same threats to humans and livestock as grizzly bears, 

a listing under the ESA will result in many of the same issues as the grizzlies with 

regards to ongoing management under the plan. 

The potential listing of the sage grouse is already affecting our ability to utilize 

our BLM grazing allotments: 

• There is a constant push when dealing with the BLM on grazing plans and 

permits that our carrying capacity or AUM’s need to be decreased to increase 

habitat for sage grouse although there is little correlation between responsible 

grazing practices and the loss of sage grouse habitat or nesting areas. In fact, 

proper grazing practices can actually be beneficial to grouse as the cattle 

grazing creates new growth and succulents and regenerates fresh forage. Of 

course, historic overgrazing has led to declines in sage habitat and this irresponsible and short sighted behavior should be corrected by the local range 

management specialists wherever they are occurring. Even at Grove Creek, 

some of our historic BLM grazing was grazed beyond capacity by our predecessors and was very slow to recover, so we have rested some pastures for 

2 years to allow them time to recover. All of our BLM pastures are rested 

at least every other year to promote healthy growth. 

• No definitive proof has been given that the activity of livestock and other species is having a true long term impact on the sage grouse but there is consistent pressure from environmental groups to ban all grazing on public 

lands. Without a doubt, these so-called conversation groups will press legal 

action to enforce a ban immediately if the sage grouse is listed. Based on my 

on-the-ground observations, the populations of sage grouse in areas where no 

outside activity has occurred within the sage grouse’s habitat are no better 

than where grazing, energy exploration or other activities have occurred. 

• It seems folly that measures and management practices are being put into 

place through RMP’s and grazing plans to affect certain aspects of the sage 

grouse food supply and habits, yet very few of those practices are directed toward other species within the same eco system. Many of these species such 

as raptors are also federally protected and are predators of the sage grouse, 

75 

and when they are out of balance, they could potentially negate the effects 

of the ESA management plan. With this considered, it makes any amendments or alterations to the management guidelines for other activities in the 

area even more egregious. 

We bought our ranch both for investment and for hunting opportunities. As such, 

we work with our tenants to manage the grazing and crop lands to benefit both 

their livestock and wildlife. Hunting is a passion and a way of life for me, and I 

am currently the president of the Montana Chapter of Safari Club International. 

Our chapter has been actively promoting the mission of SCI which includes the conservation of wildlife, protection of the hunter, and education of the public concerning 

hunting and its use as a conservation tool. 

• Hunters are true conservationists and their license dollars go directly to the 

preservation of habitat and the management of game species. 

• Managing land for livestock grazing and for wildlife is beneficial to both big 

game and game birds such as sage grouse. Properly timed and intensive grazing rotations, the development of water projects, and the planting of high protein seed crops are just a few of the ways that we improve the habitat for 

wildlife including sage grouse. 

• Hunting of animals creates a perceived value and respect of that animal in 

the public’s eyes. The listing of the sage grouse will remove it from the hunting rolls and diminish its value, which is exactly opposite of the intent of the 

listing. 

• In addition to being removed from the hunting roles in Montana, the listing 

of sage grouse will have detrimental impacts to access of both public and private lands due to the closing of access roads and corridors and potentially seasonal restrictions on access. The listing of sage grouse will possibly impact 

ALL hunting, especially in those areas deemed as core sage grouse habitat. 

• The Montana FWP Commission has an established two bird-per-day limit on 

Sage Grouse during upland bird season. The Commission’s bag recommendations are based on the sound scientific input of local FWP biologists and other 

local experts since it was found that regulated hunting with reasonable bag 

limits was not an additive mortality and did not decrease the number of birds 

that survived until the following Spring. This is a perfect example of local 

control and species management that will be derailed through an ESA listing. 

It would be a big mistake to list the sage grouse or any other species under the 

current guidelines and practices of the 40 year old ESA which is outdated and unmanageable and does not yield the desired goal of species recovery. In my opinion, 

the ESA is broken and needs to be fixed: 

• The ESA has become a listing tool instead of a management tool. It is fairly 

easy to be put on the list but it is nearly impossible for a species to be removed from it. There are currently over 2,000 listed species and only 20 have 

ever been removed from the list due to population recovery. This dismal 1 

percent success rate does not include the species that went extinct after being 

listed. 

• The ESA is a hammer or club that is held over the head of landowners, 

sportsmen, ranchers, recreationalists, and developers. It is a constant threat 

of ‘‘do this, or else’’. The constant threat of a listing is not an effective way 

to influence the behavior or actions of those people affected by the threat. Although many of the best practices of the affected groups will actually benefit 

the sage grouse and their habitat, the best way to influence behavior is to 

create and promote incentives that will positively impact both the threatened 

species and the impacted parties. 

• The current ESA is a top-down, bureaucratic, and centralized approach to 

species management. Local control and grassroots efforts will work better to 

manage wildlife and habitats and will get much less pushback from affected 

parties. Control and incentives should be given to local authorities and landowners to maintain or improve habitats. 

• The ESA has become more about politics and less about science. In the case 

of the grizzly and the northern gray wolf, Federal Judges and not scientists 

determined whether a species remained on the ‘‘List’’. When you consider the 

measly success rate for delisting, it indicates that the ESA is being used as 

a political tool by the environmental and so-called conservation groups to halt 

or slow down economic development and severely limit access on public lands 

for grazing, hunting, and recreation. Groups that fight to put species on the 

‘‘List’’ also fight to keep them on regardless of any scientific evidence to the 

contrary because they are opposed to development or human activities or any 

76 

sorts. The ‘‘management by litigation’’ approach taken by environmental 

groups leads to many of the misguided efforts that we see today and unnecessarily burdens the personnel and financial resources of the Federal agencies 

involved. 

• Management under today’s ESA for listed or pending species such as the sage 

grouse usually means doing ‘‘something’’ regardless of how much that ‘‘something’’ costs or the impacts that it has on current activities. Economic impacts 

need to be considered and should weigh heavily on decisions to list species. 

Utilizing sound management practices including reasonable hunting limits, best 

grazing practices, and activity limits based on sound science, we are starting to 

make huge strides toward stabilizing the population of sage grouse, despite the fact 

that they are not currently listed. Most ranchers and landowners quite frankly don’t 

care about sage grouse being on their land—they’re neither an asset nor a nuisance. 

If the sage grouse is listed under the ESA, it will have profound impacts across all 

aspects of both public and private lands in Montana—hence the nickname the ‘‘spotted owl of the West’’. We need to continue to make progress on the sage grouse 

using sound science and local management, and avoid listing of the sage grouse at 

all costs under the current flawed ESA. We need to work toward making legislative 

improvements to the current ESA process so that future listings will result in the 

desired outcome of species recovery and timely delisting. 

The ESA and the species that are managed under this plan have had a profound 

impact on Montanans and our way of life. The improper management of species 

such as wolves and grizzlies has resulted in dramatic declines in elk and moose populations resulting in lost hunting opportunities and dramatically impacting the 

towns whose economies rely on hunting season. Future ESA listings will have similar and profound impacts on both public and private lands and those who rely on 

these lands both for recreation and for their livelihood. The ESA should be reformed 

and based on science, not politics, and should no longer be a tool for fringe groups 

to dictate how we live in Montana. 


85208.013.eps
77 

The CHAIRMAN. Thank you very much, Mr. Cebull, for your testimony. 

Next, I will recognize Mr. Channis Whiteman, a member of the 

Crow Tribe, recognized for 5 minutes. 

STATEMENT OF CHANNIS WHITEMAN, MEMBER OF THE CROW 

TRIBE, EQUIPMENT OPERATOR, CLOUD PEAK ENERGY, 

CROW AGENCY, MONTANA 

Mr. WHITEMAN. Good afternoon, Mr. Chairman and members of 

the House Natural Resources Committee. My name is Channis 

Whiteman, and I am a member of the Crow Tribe, and an employee 


85208.014.eps 85208.015.eps
78 

at Cloud Peak Energy’s Spring Creek Coal Mine. On behalf of the 

Crow Tribe, I welcome you to Montana. 

I am also happy to welcome you on behalf of Cloud Peak Energy. 

We are honored to have you in Montana and appreciate your interest in the issue that not only impacts the company I work for, but 

my tribe and my family. 

Let me begin by giving you some background. The Crow Reservation is Montana’s largest reservation with more than 2.2 million 

acres of land. The Reservation is home to more than 8,500 

Apsaalooke tribal members. 

You should also know that the Crow struggle economically. Our 

unemployment rate approaches 50 percent. Our young people are 

forced to leave our home in search of work. Others struggle with 

social problems associated with poverty, idleness, and despair. 

This does not have to be. The Crow Reservation is a wealthy reservation. We are blessed with an abundance of natural resources, 

including timber, water, oil, gas, and renewable energy opportunities. We are also blessed with a massive coal deposit. And their 

work on behalf of the tribe, the BIA Division of Energy and Mineral Development has estimated that there are more than 9 billion 

tons of coal resources within the boundaries of the Crow Reservation. The Crow Tribe recently signed an option and lease agreement with Cloud Peak Energy, our neighbor to the east of our Reservation, with the intent and hope to develop some of those reserves. 

Crow coal reserves could serve existing domestic markets, as well 

as the growing Asian market. It is a reserve the tribe is interested 

in developing because we believe it is a key to making us a selfreliant reservation economy that can provide good jobs for our kids 

and hope for all generations. 

I know what I speak, Mr. Chairman, because I am a proud coal 

miner at Cloud Peak Energy’s Spring Creek Mine. I am a heavy 

equipment operator; a job I have had with Spring Creek since 

2005. Cloud Peak Energy is one of the largest coal mining companies in the United States. Cloud Peak owns and operates three 

mines in the Powder River Basin States of Wyoming and Montana. 

In Montana, Cloud Peak Energy owns and operates the Spring 

Creek Coal Mine, the State’s largest coal mine, which was responsible for about 48 percent of Montana’s total coal production last 

year. And at a time when the Crow unemployment rate is near 50 

percent, and the U.S. unemployment rate is over 7, coal mining 

provides safe, reliable, good paying jobs, jobs that feed families and 

create opportunities to make healthy communities. 

But I know there are detractors who say the harm of coal mining 

to the environment outweighs the benefits of jobs and tax revenue 

created by mining. Some argue that we must choose between these 

good paying jobs and the environment. 

Now, I don’t know a lot about the Endangered Species Act or the 

legal issues surrounding the sage grouse. That said, I think we 

would all agree with Congress’s worthy intentions when passing 

the Endangered Species Act. However, we must make sure that 

any actions to save a species also takes into consideration the 

human impact. The Endangered Species Act should not force us to 

79 

choose wildlife over humans and the economic opportunity necessary to my family and my tribe. 

I am here to tell you that we can have both, thriving wildlife populations and good paying jobs created by coal. Mr. Chairman, let 

me be clear so all understand our position. Protecting the environment is of monumental importance to the Crow Tribe. Cloud Peak’s 

reclamation work and operation mitigation efforts often result in 

improvement of wildlife habitat. I know this because I see this 

every day I go to work. 

To give you a quick example, at the Spring Creek Mine, our reclamation work is second to none. If you look on the screen, you will 

see a photo of our award winning reclamation work. As a dozer operator, I have been involved in the re-grading of land after the coal 

has been removed, returning it to a condition most would argue is 

better than before we mined it. Reclaiming land specifically to provide habitat for a variety of wildlife species, including sage grouse 

is a permanent and ongoing operation. 

We are creating a sage grouse habitat today at Spring Creek in 

places that were not sage grouse habitats before we mined it. And 

this restored and improved habitat is already bringing in wildlife, 

including mule deer, antelope, osprey and a wide variety of other 

native species. 

Mr. Chairman, I am not a biologist, or a scientist, or an expert 

on sage grouse, but I do know Cloud Peak Energy takes its responsibility to the environment very seriously. If the implementation of 

laws like the Endangered Species Act fails to adequately consider 

people in the equation, then I fear efforts to save the Sage Grouse 

could lead to lost jobs, and the sage grouse will still lose habitat. 

Restrictions that prevent Cloud Peak Energy from temporarily 

disturbing the land could lead to permanent impacts for me, my 

fellow coal miners, my family, and my tribe. 

Mr. Chairman and members of the committee, the Crow Tribe is 

located in a rural part of Montana. We do not have a lot of options, 

but what we do have is a lot of coal. Coal brings good paying jobs 

and critical revenue to my tribe. In recent years, coal revenues 

from the only operation that currently mines Crow coal, Westmoreland Resources’ Absaloka Mine, accounted for almost two-thirds of 

the tribe’s revenues outside of Federal programs. To better provide 

for our people, the tribe needs to expand and diversify our coal revenue and jobs. 

And that coal also gives us a lot of hope because it helps provides 

a path toward self-sufficiency, opportunity for my kids, and a 

choice for all the families that want to stay on their homeland. 

Good paying jobs do not have to come at the expense of the environment. We can have both. As a heavy equipment operator for a 

coal mining company and as a member of the Crow Tribe, I know 

we are already accomplishing both. 

Let me finally say, Mr. Chairman and members of the committee, on behalf of Cloud Peak Energy, I extend an invitation to 

tour our Spring Creek Mine, a world class mine with world class 

employees, recovering a world class coal reserve. Thank you. 

[The prepared statement of Mr. Whiteman follows:] 

80 

PREPARED STATEMENT OF CHANNIS WHITEMAN, MEMBER OR THE CROW TRIBE, EQUIPMENT OPERATOR, CLOUD PEAK ENERGY, CROW AGENCY, MONTANA

Good afternoon Mr. Chairman and members of the House Natural Resources 

Committee. My name is Channis Whiteman and I am a member of the Crow Tribe 

and employee at Cloud Peak Energy’s Spring Creek Coal mine. On behalf of the 

Crow Tribe, I welcome you to Montana. 

I am also happy to welcome you on behalf of Cloud Peak Energy. We are honored 

to have you in Montana and appreciate your interest in issues that not only impact 

the company I work for, but my tribe and my family. 

Let me begin by giving you some background. 

The Crow Reservation is Montana’s largest reservation with more than 2.2 million 

acres of land. The reservation is home to more than 8,500 Apsaalooke tribal members. 

You should also know that the Crow struggle economically. Our unemployment 

rate approaches 50 percent. Our young people are forced to leave our home in 

search of work. Others struggle with social problems associated with poverty, idleness and despair. 

This does not have to be. The Crow Reservation is a wealthy reservation. We are 

blessed with an abundance of natural resources including timber, water, oil, gas and 

renewable energy opportunities. 

We are also blessed with a massive coal deposit—in their work on behalf of the 

tribe, the BIA Division of Energy and Mineral Development has estimated that 

there are more than 9 billion tons of coal resources within the boundaries of the 

Crow Reservation. 

The Crow Tribe recently signed an option and lease agreement with Cloud Peak 

Energy, our neighbor to the east of our reservation, with the intent and hope to develop some of those reserves. 

Crow coal reserves could serve existing domestic markets as well as the growing 

Asian market. 

It is a reserve the tribe is interested in developing because we believe it is a key 

to making us a self-reliant reservation economy that can provide good jobs for our 

kids and hope for all generations. 

I know what I speak, Mr. Chairman, because I am a proud coal miner at Cloud 

Peak Energy’s Spring Creek Mine. I am a heavy equipment operator; a job I have 

had with Cloud Peak since 2005. 

Cloud Peak Energy is one of the largest coal mining companies in the United 

States. Cloud Peak owns and operates three mines in the Powder River Basin 

States of Wyoming and Montana. 

In Montana, Cloud Peak Energy owns and operates the Spring Creek Coal Mine, 

the State’s largest coal mine, which was responsible for about 48 percent of Montana’s total coal production last year. 

And at a time when the Crow unemployment rate is near 50 percent and the U.S. 

unemployment rate is over 7 percent, coal mining provides safe, reliable, good paying jobs. 

Jobs that feed families and create opportunities and make healthy communities. 

But I know there are detractors who say the harm of coal mining to the environment outweighs the benefits of the jobs and tax revenue created by mining. Some 

argue that we must choose between these good paying jobs and the environment. 

Now I don’t know a lot about the Endangered Species Act or the legal issues surrounding the sage grouse. That said, I think we’d all agree with Congress’s worthy 

intentions when passing the Endangered Species Act 

However we must make sure that any actions to save a species also takes into 

consideration the human impact. The Endangered Species Act should not force us 

to choose wildlife over humans and the economic opportunity necessary to my family 

and my tribe. 

I am here to tell you that we can have both—thriving wildlife populations and 

good paying jobs created by coal. Mr. Chairman, let me be clear so all understand 

our position. Protecting the environment is of monumental importance to the Crow 

Tribe. 

Cloud Peak’s reclamation work and operation mitigation efforts often result in improvement of wildlife habitat. 

I know this because I see it every day I go to work. 

Let me give you a quick example. At the Spring Creek Mine, our reclamation 

work is second to none. If you look on the screen, you will see a photo of our award 

winning reclamation work. As a dozer operator, I have been involved in the re-grading of land after the coal has been removed, returning it to a condition most would 

argue, is better than before we mined. 

81 

Reclaiming land specifically to provide habitat for a variety of wildlife species including sage grouse is a permanent and ongoing operation. 

We are creating sage grouse habitat today, at Spring Creek, in places that were 

not sage grouse habitat before we mined. And this restored and improved habitat 

is already bringing in wildlife, including mule deer, antelope, osprey and a wide variety of other native species. 

Mr. Chairman, I am not a biologist or a scientist or an expert on sage grouse. 

But I do know Cloud Peak Energy takes its responsibility to the environment very 

seriously. 

If the implementation of laws like the Endangered Species Act fails to adequately 

consider people in the equation, then I fear efforts to save the Sage Grouse could 

lead to lost jobs, and the sage grouse will still lose habitat. 

Restrictions that prevent Cloud Peak Energy from temporarily disturbing the land 

could lead to permanent impacts for me, my fellow coal miners, my family, and my 

tribe. 

Mr. Chairman and members of the committee, the Crow Tribe is located in a 

rural, remote part of Montana. We don’t have a lot of options. 

But what we do have is a lot of coal. And that coal brings good paying jobs and 

critical revenue to my tribe. In recent years, coal revenues from the only operation 

that currently mines Crow coal—Westmoreland Resources’ Absaloka Mine—accounted for almost 2⁄3 of the tribe’s revenues outside of Federal programs. To better 

provide for our people, the tribe needs to expand and diversify our coal revenue and 

jobs. 

And that coal also gives us a lot of hope because it helps provides a path toward 

self-sufficiency, opportunity for my kids and a choice for all the families that want 

to stay on their homeland. 

Good paying jobs do not have to come at the expense of the environment. We can 

have both. As a heavy equipment operator for a coal mining company AND as a 

member of the Crow Tribe, I know we are already accomplishing both. 

Let me finally say, Mr. Chairman and members of the committee, on behalf of 

Cloud Peak Energy I extend an invitation to tour our Spring Creek Mine, a world 

class mine with world class employees, recovering a world class coal reserve. 

Congressman Daines toured the Spring Creek Mine in 2012 and I suspect he 

would be willing to attest to the impressive nature of our operation. Thank you 

again Congressman Daines for your interest in our mine and issues that affect my 

livelihood and for your efforts to bring this hearing to Montana. 

The CHAIRMAN. Thank you very much, Mr. Whiteman, for your 

testimony. 

And last, but certainly not least, we will go now to Mr. Kerry 

White, who is the Executive Director of Citizens for Balanced Use 

based out of Bozeman. Mr. White, you are recognized for 5 minutes. 

STATEMENT OF KERRY WHITE, EXECUTIVE BOARD MEMBER, 

CITIZENS FOR BALANCED USE, BOZEMAN, MONTANA 

Mr. WHITE. Thank you, Mr. Chairman. A correction on that. I am 

one of the 12 executive board members. We have no paid employees. We are all volunteers because we feel very passionate about 

what we are trying to do. We are a multiple use organization trying to educate the public on the importance of multiple use recreation, active resource management, and active forest management, 

responsible resource development. 

I brought a prop with me, and I would like to show it to you. 

This is a draft environmental impact statement, over 1,200 pages, 

on one project in the Gallatin. This is the final environmental impact statement, another 1,500 pages, on one project in the Gallatin. 

These both represent one project. This is what is given to the public to comment on. About 90 percent of the information in here has 

to deal with threatened species, endangered species, species’ habitat. A lot of it is under the Endangered Species Act, whether it is 

82 

grizzly bears, wolverines, big horn sheep, big horn goats, the list 

goes on and on—cutthroat trout, bull trout, it does not matter. 

But I am here today to try to look at the social aspect of what 

is going on out here. Rural America is dying. My wife and I took 

a 3,000-mile trip to 9 Western States the end of July, and I am 

sorry to say we did not visit Colorado, and we did not go to Wyoming. But we did go to Idaho, and we did go to Chairman Hastings’ 

State, LeGrande, Baker City, California, Nevada, Idaho, eastern 

Washington. And what we found was on these two-lane highways 

was that in these small towns, boarded up businesses, houses needing paint, roofs, old cars in the driveway. 

Talking to the people in the stores and the restaurants and the 

gas stations, what they were frustrated with was being locked out 

and off of their Federal managed public lands. Their timber jobs 

were gone, the mining, the mineral, not the minerals and mining 

were not there, but that they could not get to them. 

And I want to talk about this wheel that we kind of developed 

with CBU. At the top of the point up here is people, and that is 

what makes up communities, and it supports communities. If you 

are out there and you are trying to make a living, you want food, 

clothing, shelter. Agriculture here, which was talked about on the 

panel, that is the food source, and it also generates some of our 

current energy supplies, too, which I think is kind of foolish, but 

that is what we do. 

Watershed, we need water, and these forest fires out here, we 

will see the devastation to our watersheds next spring when the 

snows melt. And that is very sad, sickening to me to see this renewable resource go up in smoke. Timber to build our houses and 

homes. Minerals supply everything from this pointer, to my cell 

phone, to everything in this room. They supply our energy, turn the 

lights on. All of these provide jobs for those people in those communities. 

But what I am here today to tell you about is what I talk to the 

people about, and that is the social and mental well-being of these 

people that want to live and thrive and work in these local rural 

communities. They cannot. They cannot because they cannot get to 

the resources that enables them to have a job. 

And at the bottom of this wheel here, you will see recreation. 

And when you go out and you work 5 days a week, or 6 days a 

week, or 7 days a week, and you get off in the afternoon, and you 

want to go out and play, and I do not care what you want to do, 

whether it is cross country skiing, or snowmobiling, or rafting, or 

boating, or playing golf, or going bowling, it is recreational activities that you spend with your family and your friends. You spent 

it with your grandparents, and now you want to spend them with 

your kids, and you want to spend them with your grandkids. 

I attached my testimony to the committee. It has a picture of my 

family. There is some great information in there, attachments on 

what we are breathing from these fires. But recreation is what 

keeps us mentally revitalized. And when you take away the access 

to agriculture, minerals, timber, and to our watersheds because of 

fish or some animal, you take away access to recreation. And when 

you take away access to recreation, what you do is you force those 

people into their little iPads, their iPhones, their computer games. 

83 

You take them out of the outdoors, and that is what’s important 

to people is being outdoors. 

We had a survey done in Gallatin County: do you like passive 

recreation or active recreation? Three-quarters of the people wanted active recreation. That is outdoor, out in the woods, out on our 

public lands recreating. If you take that away from us, you are taking away our social, health, and well-being. 

And the main culprit—I am not blaming you, I am not blaming 

anybody. I am not even blaming the environmental groups. But 

Congress has given them the tools to be able to do this, and we 

need to take those tools away from them. 

Thank you very much. 

[The prepared statement of Mr. White follows:] 

PREPARED STATEMENT OF KERRY WHITE, EXECUTIVE BOARD MEMBER, CITIZENS FOR

BALANCED USE, BOZEMAN, MONTANA

I am Kerry White representing Citizens for Balanced Use (CBU). Thank you for 

accepting the following comments from CBU regarding the abuse of the Endangered 

Species Act by environmental groups. 

CBU is a grass roots 501(c)3 non-profit organization dedicated to the education 

of the public in the importance of multiple use recreation, responsible resource development and active forest management. CBU has over 6,500 active members and 

hundreds of supporting businesses in Montana and other Western States. CBU, 

through its supporting and affiliated organizations, reaches over 100,000 people in 

our mission of bringing together different public land user groups. Our supporting 

organizations include resource industries, agriculture organizations, and numerous 

recreation groups of all sizes and interests. 

CBU was formed in 2004 in response to the closure of more than half of the multiple use roads and trails in the Gallatin National Forest (GNF) Travel Management 

Plan. Our organization solicited and helped people submit over 140 appeals on this 

decision and yet all were dismissed and the Record of Decision was issued. CBU 

filed litigation on this flawed action but lost in the liberal Federal court in Missoula. 

We appealed the decision to the 9th Circuit only to lose again. Most of the reasons 

to justify the closures in the Travel Plan revision used by the Forest Service revolved around the Endangered Species Act (ESA). The ESA is used by the Forest 

Service and environmental groups as the tool of choice to close our federally managed public lands to access, occupancy and use. 

In the B–D Forest Plan revision the Forest Service designated many areas of the 

forest as non-motorized and non-mechanized. After the Forest Plan revision was 

complete the Forest Service began travel planning in specific areas of the forest. The 

Forest Service refused to conduct site specific road and trail inventories for travel 

planning in areas designated as non-motorized and non-mechanized in the Forest 

Plan revision. We were told these areas were already designated as non-motorized 

and non-mechanized and there would be no reason to evaluate the road and trail 

facilities in these areas. These areas were essentially turned into defacto wilderness 

by the Forest Service by removing all motorized and mechanized use even though 

there were historic motorized and mechanized roads and trails in these areas. Many 

of the reasons used by the Forest Service again revolved around the ESA. 

Many of the animals and issues being used to close access include Grizzly Bears, 

Lynx, Wolverine, Mountain Goats, Big Horn Sheep, West Slope Cutthroat, Bull 

Trout, Goshawk, Wolves, Big Game cover, old growth timber and more. Justifications for their actions were not always about a species being present but many 

times just the fact that these areas could provide habitat was sufficient to close 

them to human activity. Human activity is a worthwhile use of the land and laws 

like ESA allows Federal agencies to close potential habitat based on bad science to 

mechanical use and other uses that families in Montana have been using for generations. 

Our 12 executive board members of CBU are business owners, property owners, 

farmers, ranchers and family oriented people who have been here for several generations. None of our board are paid for their time and dedication to our efforts. 

It sickens us to see the misuse of the ESA to close these areas where we spent time 

with our grandparents, parents and children. We wish we could enjoy these areas 

with family and friends today but because of abuse of the ESA and flawed decisions 

by the management agencies these precious opportunities are now forever lost. 

84 

The GNF Travel Planning process is another example. During the GNF Travel 

Plan process I conveyed to the Forest Service that access to areas considered for closure are places where I have fond memories of recreating with my parents and 

grandparents. In this travel plan, 50 percent of the GNF is closed to multiple use 

access. The Forest Service seems to not understand the benefit of these traditional 

Montana pastimes. Their management prohibiting multiple use is offensive to the 

way of life of people like me in Montana and is unacceptable. 

I understand not everyone like some Forest Service personal are as lucky as I 

have been to have grown up in this beautiful part of Montana; but the impact on 

the local communities, other families like mine, and traditional uses of the land 

must not be ignored. The impact on the local community, not bureaucrats, must be 

a critical part of any land management analysis. 

Laws like the ESA allow groups like Forest Service Employees for Environmental 

Ethics, Center for Biological Diversity, and WildEarth Guardians to keep Montanans and those who love to travel here from experiencing the great outdoors. 

One of our board members is an engineer for an aerospace company. We were discussing the Forest Service and how they continue to prepare NEPA documents that 

do not hold up in court. He told me that in his industry, if their company were to 

engineer something that caused a plane to crash; the first thing they would focus 

on would be why it failed. The Forest Service on the other hand spends millions 

of dollars developing and preparing an EIS document to comply with NEPA and at 

the end of the day it fails in court. The DEIS and FEIS documents prepared for 

the GNF Travel Plan numbered over 2,500 pages. This is unreasonable to require 

the Forest Service and BLM to continue to prepare these large complex documents 

and simply not fair to the general public to require them to read, comprehend and 

comment on this amount of information. 

This information is concerning to CBU and should be concerning to Congress. 

Multiple NEPA EIS documents are prepared for the exact same project and they 

continue to be flawed, incomplete, and not stand up in court time after time. The 

main content of NEPA documents, that continue to fail, is insufficient analysis of 

wildlife under the ESA. Whether it is wildlife disturbance, potential loss of habitat, 

old growth cover or any other wildlife related issue, the ESA is destroying rural 

America. Something must be done. CBU believes that some environmental groups 

are using the tools like the ESA to stop use of our public lands. 

Case in point. When the B–D Forest Plan revision was being started in 2007, Forest Service officials included approximately 350,000 acres of new wilderness in the 

plan even though no analysis of wilderness character lands was completed. Forest 

Service officials feel pressured to base decisions like these due to the threat of litigation from some environmental groups. The Forest Service must be able to manage 

our lands so that the land continues to support our robust recreation and resource 

industries for generations ahead. With laws like ESA and NEPA establishing a 

framework for obstructive environmental lawsuits, smart land management is impossible. 

It is also disturbing to CBU that obstructive environmental groups profit from 

keeping responsible resource management projects from proceeding by the American 

taxpayer. Obstructive environmentalism is a business and our Federal Government 

and the courts are doing a great job in funding them. Take for example the Equal 

Access to Justice Act. When environmental groups prevail in court they are reimbursed through the EAJA for attorney fees and witness fees and court costs. Reports 

CBU have seen show environmental groups are collecting over $1 billion per year 

through the EAJA. These funds are tax dollars and are paid to these groups from 

the budgets of the agencies where the litigation occurred. If litigation is filed on a 

project in the Gallatin National Forest and the court rules in favor of the environmental group, those EAJA funds come from the budget of the GNF. This has greatly 

impaired the ability of specific forests to complete necessary trail and road maintenance or campground and facility improvements. Moreover, keeps funds away from 

supporting life-saving fire suppression. 

85 

ROAD AND TRAIL OBLITERATIONS

Most litigation revolves around the Endangered Species Act (ESA) so in fact the 

ESA is the root of the problem. In an effort to reduce the backlog of road and trail 

maintenance it becomes somewhat easier for the Forest Service to just remove that 

facilities or campgrounds from the inventory. This is occurring throughout the Western States by both the Forest Service and BLM. 

I am 59 years old, married 31 years to Patty, have 3 children, Kim (married to 

Nick), Tim and Brian, and 2 grandchildren Owen and Nora. My great grandfather 

came to the Gallatin Valley in 1864 and we still operate the family ranch. I am the 

current president of the Gallatin Sons and Daughters of the Pioneers and a Montana House member representing District 70. 

My grandfather and grandmother built a cabin in the Squaw Creek drainage of 

the Gallatin River in 1934 on Forest Service lease ground and at that time the lease 

was $35 per year. Today that yearly lease exceeds $1,700. Back then the Forest 


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Service encouraged people to enjoy and experience our public lands. Not true anymore. I remember spending time with my grandfather (Bud) at the cabin fishing 

and hunting. I remember the District Ranger one day stopping by and telling Bud 

that he was heading up the drainage and working his way south to Buffalo Horn 

(about 40 miles) on his horse and pack string to look at the condition of the forest. 

He asked my grandfather to look after things while he was gone for a few days. 

This was the way it was, Forest Service employees working with the people and also 

being out in the forest, on the ground, caring for the land. 

A few years later I remember riding down the Squaw Creek road with Bud in his 

old 62 Dodge Dart and as we passed the District Rangers living quarters at the 

head of Squaw Creek he turned to me and said, ‘‘Well there goes the forest’’. This 

statement startled me and I surprisingly turned to him and asked what he meant. 

He explained to me that the District Ranger, the one responsible for managing the 

Gallatin Forest, was moving to town. He told me in no uncertain terms. ‘‘Now how 

in the world can you manage a forest from an office in town?’’ He was completely 

right in this statement because we have seen our forest go from a once lush green 

garden to an ocean of dead, dying and diseased timber. An agency once supported 

by harvested timber creating good paying jobs and supporting the local community 

tax base now is an agency draining our Federal budget and managing these lands 

from behind a desk using maps, satellite imagery, modeling, assumptions, predictions and skewed data provided by agenda-driven environmental groups funding 

so-called scientific studies with a predetermined outcome. The tool of choice again 

is the Endangered Species Act. 

Contrary to the intent of the ESA, this management technique continues to fail 

and as a result all things suffer. The environmental groups want to stop active mechanical treatment of our renewable timber resource and they use the ESA to further this agenda. Let us look for a moment what affect this management technique 

is having on the land, the animals, the water and our air. Two recent articles in 

the Bozeman Daily Chronicle revealed the true cost of smoke generated by forest 

fires. The American Lung Association and the Montana DNRC both stated that 

smoke from forest fires was prematurely KILLING people with pulmonary disease 

and respiratory problems. Raging fires are so intense because of the overgrown forest and lack of active management that the soils in many cases are sterilized and 

baked. Animals unable to escape these fast moving fires are consumed and killed. 

The fish in our streams are baked and the soil erosion from rain, no longer able 

to be absorbed, suffocates what fish remain. Millions and billions of dollars spent 

trying to contain these monster fires and protect homes and property while putting 

lives at risk. This is environmentalism at its finest. 

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ENVIRONENTAL COST OF FIRE

I worked 5 years as a subcontractor on the forest fires as a camp mechanic. I inspected vehicles coming on the fire and before they left to make sure they were safe. 

I repaired broken vehicles and equipment and had access to everyone and every department in fire camp. During that time I was astounded at the waste and abuse 

of government money. A fire camp of 900 would usually be 600 administration and 

300 fire fighters. 

I believe we are wasting valuable resources in fighting these fires. We are wasting 

vast amounts of money, 40 percent of the Forest Service budget on these preventable fires. We are wasting a valuable renewable resource by letting it burn. We are 

polluting our streams and air. We are killing millions of animals unable to escape 

these fires. Most of all we are wasting the valuable resources of our rural communities and the people wanting to live in them. This is unacceptable to waste such 

a precious resource when we could be doing so much with it. 

When I was growing up I never experienced the smoke like it appears today. 

Many environmental organizations claim it is because of global warming. They are 


85208.017.eps
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ignoring the fact that timber harvests have been stopped by their own groups which 

allow forests to burn, polluting the air. 

CBU is working every day to educate people on what would be a better solution 

to our public land management needs. Good jobs created by active forest management and responsible resource development and taking care of our environment 

rather than letting it deteriorate, waste away and burn. There is social and mental 

well-being and better health resulting from people enjoying multiple use recreation 

and access. CBU has received numerous letters and emails from folks serving our 

country in the military. Some of these brave Americans have been disabled and injured. These folks need some type of motorized and mechanized transport to enjoy 

our public lands. Many of these people have thanked us for trying to keep these precious places open to them and their families when they return home. The very fabric 

of our Nation is being destroyed by these obstructive environmental groups attempting to remove people from the land. We are happy to continue this fight on their 

behalf and a fight it is. 

Recently Patty and I decided to take a 3 week journey covering 9 Western States 

on our motorcycle. We wanted to take the back road two lane highways and see for 

ourselves the economic recovery that many in Washington, DC are telling us about. 

We visited with hundreds of people along the way in small towns and communities. 

What we saw was boarded up businesses on main streets across the West, houses 

in need of repairs and paint, streets and schools in disrepair and old vehicles parked 

in driveways. What was even more alarming was what we heard from these people 

living in the small communities. 

We listened to story after story about how once these towns were booming with 

timber jobs, mining and small farms. Businesses once booming on Main Street were 

being turned into vacant buildings and empty lots. The people are moving away in 

search of employment and opportunities. The children are forced to leave as these 

communities once vibrant are turning into ghost towns. 

We continued to ask the one question of why and every time we asked, the answer 

was the same. ‘‘The environmental groups have shut down our resource industries.’’ 

The environmental groups have turned to the tools given them by the government 

to stop resource industries and close access. Many stories reflected the passion of 

these people once able to use this land, care for this land, and recreate in and on 

this land. Stories of spending time with their ancestors visiting those special places 

that are now off limits and closed was a common theme. Roads obliterated, locked 

gates and signs of closures were frequently spoken of. 

I have been hearing of this so-called economic recovery we are experiencing but 

to be very honest my wife and I saw no evidence of it in rural America. What we 

saw were people scratching to make a living and the broken dreams and promises 

all taken away by environmental groups and our Federal bureaucracy all in the 

name of an endangered fish or animal. There seemed to be little joy or hope in the 

eyes of these hard working rural Americans. This sight is something every person 

in Congress should see and every person serving in our Congress should hear. 

These rural folks will tell you about the mismanagement of our Federal lands and 

their current condition. While obstructive environmental groups are profiting from 

Federal land mismanagement, the forests in the west are dead and dying with little 

relief in sight. You could see the disgust on the people’s faces as they spoke of the 

waste that is happening to this resource. 

Water in the West is sometimes scarce. Environmentalist are quick to point the 

finger at global warming as the cause when in fact there very well may be another 

proven factor for reduced stream flows and ground water levels. This factor is overpopulation of trees in the forest. Our forests are so dense and thick today that even 

the animals are moving to private land for forage. A pilot project was done in California where water tables and stream flows were recorded before and after a forest 

thinning project was completed. 

After thinning this forest to healthy tree populations the ground water table rose 

100 feet. Old stream beds once dry were once again flowing. 

When the actions of these groups and those in our government agencies create 

the very problems we are seeing today, I find this dishonest and unacceptable. We 

have heard the new ‘‘don’t ever waste a crisis’’ and we are seeing it today with the 

global warming hysteria. I believe the true crisis is out of control land management 

agencies throwing regulation after regulation at the people on a daily basis. Most 

of these Federal agency land managers and biologists don’t know anything of the 

history and caring for the land. They are over educated bureaucrats sitting behind 

a desk looking at Google earth and creating models of predictions with flawed input 

data of E-stimates, S-peculations and A-ssumptions. Behold the ESA. 

The spotted owl is a great example of how the ESA wrongly destroyed an industry 

and people’s lives and years later we now know that it was not the timber industry 

89 

that was destroying this bird. But was it really about a bird or was it about destroying an industry? I believe it was the latter of the two. Once the industry and infrastructure was gone, the mission was complete. This industry could come back but 

only if long term predictability was in place and investors were assured a continued 

multiple year flow of raw material. This will take hard work on the part of our Congress and a President willing to support active forest management. 

I talked about our trip around the Western United States and how people were 

depressed and sadden by what they see occurring on our public lands. I want to 

speak of social environments and the requirement of analysis of social impacts in 

developing and producing NEPA documents. Of all the NEPA documents produced 

on Forest Service and BLM actions it is clear they lack adequate social impact analysis. 

Social well-being of a community is not solely based on jobs and income but also 

on mental well-being and feelings. A healthy community depends largely on recreation as a retreat from work and a hectic everyday life. Recreation can be passive 

or active. Passive being the organized sports like swim centers, football games, golf 

courses and walking trails. Active recreation is the opportunity to experience the 

outdoors in numerous ways like gold panning, snowmobiling, horseback riding, fishing, hunting, etc. In a survey done in Gallatin County, people were asked what type 

of recreation they prefer and 3 to 1 the people preferred active recreation. The current direction of the Federal land managers is to close recreational access to these 

lands. This directly affects the social health and well-being of those people living 

in these areas. 

The other part of the required social analysis is the economic job loss. When the 

Forest Service and BLM prepare a social analysis on jobs for a proposed action they 

use what is known as the IMPLAN SYSTEM program developed in Colorado. This 

flawed technique requires data input of demographics, populations, income, businesses, etc. The problem with their analysis is they only use information from large 

metropolitan areas in determining the impact. For instance on a project in the B– 

D National forest they would use economic data from Butte, Missoula, Bozeman and 

Helena and ignore small communities like Dillon, Jackson, Lima, Wise River, Ennis, 

etc. The result of 10 lost jobs in Bozeman (pop. 65,000) as a result of an action is 

quite different than 10 jobs in Wise River (pop. 150). The failure to consider these 

impacts to small communities is destroying rural America with every action implemented. The Federal land managers claim they are doing this to comply with Federal requirements, which in most cases revolves around compliance with the Endangered Species Act, NEPA, Roadless Rule, Clean Water Act, Clear Air Act and the 

list goes on and on. How about compliance with the Multiple Use Sustained Yield 

Act or the Organic Act, or the Taylor Grazing Act, or the Mining Act? CBU has been 

told by these agencies that these latter Acts are old and outdated so these land 

managers ignore them. 

In the Western United States much of the land is under Federal management. 

These lands were not relinquished to the States as were in the Eastern States when 

they came into the Union. As a result the Western States are disadvantaged as to 

the management of these lands and the loss of income to the States. Limited tax 

base, limited resource income, limited powers over these lands. Federal agencies are 

required by Federal law to coordinate their management policies and actions with 

local and State governments but in reality the Federal agencies have refused to 

comply with the coordination requirements. There are efforts underway today in 

several Western States to get the Federal Government to give these federally managed public lands back to the States. CBU believes this effort has merit. Who better 

to manage these lands than those most affected by how they are managed. 

CBU believes we are at a critical stage in our history. We are losing our rural 

communities where our food is produced. We are losing the infrastructure to treat 

and harvest our forests. We are putting off limits millions of acres of federally managed public land to energy development. We are restricting private property use in 

a way never before seen in history. The worst thing of all is there seems to be no 

end in sight to this regulation madness. 

In the United States today there is an effort to attack coal production and the 

burning of coal to produce electricity. I have heard that coal produces about 80 percent of our electricity nationally. Coal is a resource which the United States has 

vast reserves. One coal fired electricity generating plant is Colstrip which is in Montana. This facility supports 1,000s of good paying jobs and provides electricity for 

thousands of homes and businesses. I have included an attachment which shows 

this facility. Colstrip 1, 2, 3, and 4 are all working at capacity in this photo. The 

discharge from the 4 stacks is steam and NOT deadly carcinogens such as what is 

released from forest fires. You can see the beautiful clear blue skies over this community even with this facility running at capacity. So if letting our forests burn is 

90 

the right thing to do and is supported by the environmental organizations and producing electricity from coal is sinful and wrong and objected to by the environmental 

organizations, then my question is simply this, is it really about the environment 

or is it a business model of raising money to remove humans from the land. 

CBU stands ready and willing to help develop solutions to these problems but we 

are not the decisionmakers. CBU will continue to educate people on the importance 

of responsible resource development, active forest management and access to multiple use recreation while protecting and defending the private property rights of everyone. 

Thank you for accepting this brief testimony on behalf of Citizens for Balanced 

Use. 

LIST OF CURRENT AND IMMEDIATE PAST ACTIONS AFFECTING NOT ONLY MULTIPLE-USE

RECREATION BUT THE RESOURCE AND AGRICULTURAL INDUSTRIES WHICH IN TURN

ADVERSELY AFFECT THE ECONOMIES OF LOCAL COMMUNITIES: 

United States Court Of Appeals for the Ninth Circuit No. 01–35690 D.C. No. 

CV–96–00152–DWM 

Every Resource Management Plans and Planning Actions 

(inter-agency) Grizzly Bear Recovery 

Plan 

(inter-agency) ICBEMP 

(inter-agency) Northern Rockies Lynx 

Amendment 

(inter-agency)3-States OHV Strategy 

B–DNF Continental Divide Trail near 

Jackson, MT 

B–DNF Whitetail Pipestone Travel Plan 

B–DNF 2003 Forest Plan Update B–DNF Analysis of the Management 

Situation 

B–DNF Continental Divide trail near 

Feely 

B–DNF Continental Divide trail near 

Whitetail-Pipestone 

B–DNF Social Assessment B–DNF Mussigbrod Post Fire Roads 

Management 

B–DNF & BLM Flint Creek Watershed 

Project 

BLM Blackleaf Project EIS 

BLM Dillon Resource Management Plan BLM Headwater Resource Management 

Plan 


85208.018.eps
91 

BLM Arizona Strip Travel Plan BLM Bruneau Resource Area Travel 

Plan 

BLM Escalante Grand Staircase 

Monument 

BLM Missouri Breaks Monument 

BLM Moab Resource Management Plans BLM National OHV Strategy 

BLM National Mountain Biking 

Strategic Action Plan 

BLM San Rafael Travel Plan 

BLM Sleeping Giant Travel Plan BLM Whitetail/Pipestone Rec. 

Management Strategy 

BLM Lake Havasu RMP BLM Sustaining Working Landscapes 

Initiative 

BLM Rocky Mountain Front Scenery 

Evaluation Project 

BLM Kanab Resource Management Plan 

Bitterroot NF Fire Salvage EIS Bitterroot NF Post-fire Weed Mitigation 

EIS 

Bitterroot NF Sapphire Divide Trail Bitterroot NF Forest Plan Revision 

Caribou NF Travel Plan Custer National Forest Travel Plan 

EPA Tenmile Creek Watershed Plan Flathead NF Robert Wedge Post Fire 

Project 

Flathead NF West Side Reservoir Post 

Fire Project 

Flathead NF Forest Plan Revisions 

Flathead NF Moose Post Fire Road 

Closures 

Flathead NF Spotted Bear Road Closures 

Gallatin NF 2002 Travel Plan Update Helena NF Blackfoot Travel Plan 

Helena NF Blackfoot Water Quality Plan Helena NF Cave Gulch Fire Salvage Sale 

Helena NF Clancy-Unionville Plan Helena NF North Belts Travel Plan 

Helena NF North Divide Travel Plan Helena NF Noxious Weed Plan 

Helena NF South Belts Travel Plan Helena NF South Divide Travel Plan 

Helena NF Continental Divide National 

Scenic Trail 

Humboldt Toiyabe NF CharlestonJarbidge Road 

Humboldt Toiyabe NF Spring Mountains 

NRA 

Kootenai NF Bristow Restoration Project 

Kootenai NF McSwede Restoration 

Project 

Kootenai NF Forest Plan Revisions 

Lolo NF Forest Plan Revision L&CNF Judith Restoration Plan 

L&CNF Rocky Mountain Front Travel 

Plan 

L&CNF Snowy Mountain Travel Plan 

L&CNF Travel Plan update Montana State Wolf Plan 

Montana State Trail Grant Program 

PEIS 

Montana State Trail Plan PEIS 

Montana FWP Statewide Outdoor 

Recreation Plan 

Nez Perce NF Travel Plan Revisions 

NPS Salt Creek Road Closure NPS Yellowstone Winter Plan 

(snowmobile closure) 

Payette NF Travel Plan Revisions Sawtooth NF Travel Plan Revisions 

USFS National OHV Policy and 

Implementation 

USFS Forest Plan Amendments for 

Grizzly Bear Habitat Conservation 

USFS National Strategic Plan 2003 

Update 

USFS Roadless 

USFS Roadless Rule II USFS Roads Policy 

USFS National Land Management Plan 

Revisions 

USFWS Bull Trout Recovery Plan 

USFWS Westslope Cutthroat Trout ESA USFWS CMR National Wildlife Refuge 

Road Closures 

USFWS Sage Grouse Plan 

[From the Bozeman Daily Chronicle: Opinion, Friday, August 23, 2013] 

REDUCING THE HEALTH IMPACTS OF WILDFIRES

(By Kim Davitt, Guest Columnist) 

Summers in Montana are pretty magical, with plenty of sunny days and blue 

skies to enjoy hiking, camping, fishing and other outdoor activities. But, in recent 

years, summer also means wildfires. In many parts of the State, people have had 

to contend with a few smoky days, or even smoky weeks, spoiling outdoor plans. 

92 

Recent fires in Idaho and Montana are beginning to fill our communities with 

smoke. For those that suffer from asthma, COPD or another lung disease, even a 

few smoky days can be dangerous. 

Montanans should stay indoors when outdoor air quality is bad. Wildfire smoke 

even impacts those without lung disease and can increase the risk for respiratory 

tract irritation and can cause more serious health problems, such as reduced lung 

function, bronchitis and even premature death. These risks are especially magnified 

for older adults and outdoor workers. Children require extra protection, because 

their fragile respiratory systems are still developing. 

Immediate actions that can help reduce respiratory harm caused by wildfires include: 

• People living near fire-stricken areas are encouraged to stay inside as much 

as possible with their doors, windows and fireplace dampers shut. Use the recirculation setting on air conditioners to avoid outdoor contamination. Using 

whole house fans is not recommended, because they bring in unfiltered outside air. 

• Keep car windows and vents closed when driving through smoky areas. Air 

conditioning should be set to ‘‘recirculate’’ to avoid unhealthy outside air. 

• Limit time outdoors, particularly if you smell smoke or experience eye or 

throat irritation. 

• People with asthma should ask their doctors about any changes in medication 

needed to ope with smoky conditions. If you can’t reach your physician, use 

your medications as directed and closely follow your asthma action plan. 

• If you choose to wear a dust mask for protection, use one labeled ‘‘N95’’ or 

‘‘P1000.’’ 

The American Lung Association and other health professionals who are part of 

the Healthy Air Campaign are concerned about the health risks posed by wildfire 

smoke. Fires put fine particles into the air, which can irritate and damage our 

lungs. More smoke means more bad air days, more asthma attacks, more emergency 

room visits, and premature deaths. 

Because climate change is fuel ing more drought-related forest fires, and power 

plants are the largest source of climate-chang ing carbon pollution, the American 

Lung Association has called on the U.S. Environmental Protection Agency (EPA) to 

set standards to lower power plant carbon pollution. Less carbon pollution will help 

rein in climate change that is fueling conditions that causes intense forest fires and 

could make efforts to reduce ozone (smog) tougher. 

We call on Montana’s leaders in Congress to support these health protections. 

Kim Davitt is Montana initiatives manager for the American Lung Association. 

She lives in Missoula. 

[Bozeman Daily Chronicle August 25, 2012] 

IDAHO FIRES BLOWING SMOKE OVER BOZEMAN

A handful of fires from Idaho are to blame for the cover of smoke that blanketed 

the Gallatin Valley on Friday. Zach Uttech, meteorologist with the National Weather Service in Great Falls, said fires such as the Mustang Complex, Porcupine Complex and the Mallard and Ditch fires in east-central Idaho sent smoke to the area. 

‘‘It’s basically aimed in that direction to go over southwestern Montana,’’ Uttech said. 

Even though winds pushed heavy smoke out of the Bozeman area by Friday afternoon, Uttech predicted that smoke would roll back in. But with weaker winds and 

cooler weather, Uttech said the smoke shouldn’t be a problem today. ‘‘I really don’t 

think it’s going to be as bad,’’ Uttech said. Smoke in the air can cause respiratory 

symptoms in sensitive people, aggravate heart or lung diseases and increase the likelihood of premature death in the elderly or people with cardiopulmonary disease, 

according to the Montana Department of Environmental Quality. Health officials advise people to limit their exposure to the smoky air by staying indoors and not exerting themselves outside. Today’s high is predicted to be 78 degrees, with a low of 40. 

The wind is expected to blow 2 mph. 

MONTANA 2012 WILDFIRE SMOKE EMISSIONS *

[as of 9/9/2012] 

Forest Non-Forest Total 

Burned Area (acres) 408,789 404,716 813,505 

Fuel Consumption (ton dry vegetation) 3,416,104 1,093,744 4,509,848 

93 

MONTANA 2012 WILDFIRE SMOKE EMISSIONS *—Continued 

[as of 9/9/2012] 

Forest Non-Forest Total 

Emissions (tons) 

Species: 

Carbon Dioxide (CO2) 5,465,767 1,844,053 7,309,819 

Carbon Monoxide (CO) 461,174 68,906 530,080 

Methane (CH4) 25,006 2,122 27,128 

Acetylene (C2H2) 991 262 1,253 

Ethylene (C2H4) 5,842 897 6,738 

Propylene (C3H6) 3,279 864 4,144 

Formaldehyde (HCHO) 8,882 798 9,680 

Methanol (CH3OH) 10,727 1,291 12,017 

Formic Acid (HCOOH) 888 230 1,118 

Acetic Acid (CH3COOH) 12,708 3,883 16,591 

Phenol (C6H5OH) 3,484 569 4,053 

Furan (C4H4O) 2,050 186 2,236 

Glycolaldehyde (C2H4O2) 3,519 886 4,405 

Hydrogen Cyanide (HCN) 2,835 448 3,284 

Ammonia (NH3) 6,491 569 7,059 

Nitrogen Oxides (NOx as NO) 6,593 4,266 10,859 

PM2.5 (fine particulate matter) 88,135 7,842 95,978 

Propane (C3H8) 888 109 998 

n-Butane (C4H10) 284 17 301 

Isoprene (C5H8) 253 43 295 

Benzene (C6H6) 1,879 219 2,098 

Toluene (C6H5CH3) 820 87 907 

Mercury (Hg) 0 .83 0 .04 0 .87 

* Source: Shawn Urbanski Research Phyical Scientist Missoula Fire Sciences Laboratory RMRS, U.S. Forest Service. * Methodology upon request from DEQ. 

[From Loggers World, January 2013, Volume 49, Number 1] 

FOREST SERVICE ACRES HARVESTED

(By the American Forest Resources Coalition http://www.amforest.org/) 

In a November 14 report, the Forest Service disclosed that the total acres harvested on its lands in FY 2012 was 208,639 acres. Keep in mind that the Forest 

Service manages over 191 million acres; thus they harvested timber on only .1 percent of their lands. 

The most used harvest scheme was thinning (113,719 acres) followed by sanitation harvest (30,538 acres) and selection cut (16,283 acres). Harvest by Regions from 

largest to smallest were: Region 9—42,847 acres; Region 8—42,084 acres; Region 

6—39,117 acres; Region 2—28,422 acres; Region 5—21,860 acres; Region 1—12,662 

acres; Region 3—11,014 acres; Region 4—9,560 acres; and Region 10—1,063 acres. 

According to the Forest Service’s Forest Restoration Strategy (Increasing the Pace 

of Restoration and Job Creation on our National Forests—February 2012), there are 

between 65 and 82 million acres of National Forest System lands in need of restoration. Of those acres, approximately 12.5 million require mechanical treatment. If we 

stay on this current pace of harvest and restoration, it would take over 60 years 

to get those acres treated, not counting new acres that become in need of restoration. 

Thanks to Bill Imbergamo and the Federal Forest Resource Coaltion for sharing 

this data. 

RESTORING A FOREST WATERSHED AND ADDING WATER BACK TO THE LAND

(By Dan C. Abercrombie, abercrombie@tularosa.net) 

Historical evidence clearly shows a significant decline in both stream flow and 

ground water recharge in the Sacramento Mountains of southern New Mexico. 

Photos, oral history, early Census data, and written accounts all paint a much wetter picture than is present today. Dense forests are robbing springs and streams of 

surface flow. Ground water recharge during the recent drought was non-existent. 

94 

Large numbers of wells all over Otero County dried up. Drilling deeper was successful in some areas, but people in some areas are still hauling water. 

Members of the Sacramento River Watershed Coalition recently completed several 

large thinning projects near Timberon. Several thousand acres of Ponderosa pine 

and alligator juniper have been thinned and restored to historical tree densities. 

Trees were thinned on both private and State Land using Senator Jeff Bingaman’s 

Forest Restoration funds, State Forestry Wildland/Urban Interface funds, NRCS Environmental Quality Incentive Program cost share, BLM, and the rancher’s input. 

Tree densities were reduced to improve ground cover and reduce danger of a crown 

fire. 

The Otero Soil and Water Conservation District began monitoring static water 

levels in five wells in the watershed about 3 years ago. Following the treatment and 

decent summer precipitation, water rose about 100 feet in a well below the treated 

area. The static water level in this well is now about 15 feet. 

The New Mexico Bureau of Geology is preparing a Hydrogeology Map of the Sacramento Mountains. 

The CHAIRMAN. Thank you very much, Mr. White, for your testimony. I want to thank all the panelists for their testimony. And 

I will say this at the end of this hearing, too. If you have something 

else to add, as Mr. Galt wanted to add, that is certainly acceptable, 

and we will do that. 

Now, I said at the outset that seniority has its privileges, but I 

am going to defer my questions so that others who represent this 

area much more closely than I do have a chance. And we will start 

with Mr. Daines for questions for 5 minutes. 

Mr. DAINES. I guess that is home field advantage. Is that right? 

The CHAIRMAN. That is in this case, yes. 

Mr. DAINES. Well, thank you. And thank you for the outstanding 

testimony today, and for this very informed group of witnesses, and 

for what you have shared with us today. 

I want to investigate here the comments that both Mr. Galt, Ms. 

Robinson, and Mr. Knox shared about population sage grouse and 

predation as a factor. And I think anybody who has grown up in 

Montana knows and when you watch populations, you look at predation, you look at weather, you also look at disease as populations 

go up and down as three important variables, amongst others. 

But I was intrigued by the predation by other birds, including 

the raven, that was mentioned here. It seems to be the single most 

important factor, at least arguably, a very important factor in sage 

grouse populations. The raven and these other predatory birds are 

protected by the Federal Migratory Bird Treaty Act. 


85208.019.eps
95 

So we have two government statutes that potentially are at cross 

purposes with each other, and it seems like our Federal Government then blames humans as a primary cause versus looking at 

some of these naturally occurring processes in this very complex 

ecosystem. 

How can the BLM redirect its effort toward predation? I would 

be interested in hearing any thoughts you might have. Ms. Robinson, do you have a thought on that? 

Ms. ROBINSON. Well, I would just like to say that as a County 

Commissioner, I go to lots of meetings. And every time we bring 

up predators, and it is never, ever looked at. It is always completely ignored. Well, we do not have any control over predators, 

so we are not looking at predators. Well, if you look at the numbers, that is one of the big reasons of the decline in sage grouse 

is predators, but yet they are not even looking at any solutions because they are not admitting that there is a problem. 

Mr. DAINES. Mr. Knox, do you have a thought on that, too? 

Mr. KNOX. Yes, that is a very difficult issue to address. I have 

an example. When we were dealing with the riparian grazing 

issues along the Missouri River, we were told by one of the BLM 

employees, and he was quite frank about it. He said, even though 

most of the problems that you are faced with are caused by the 

dams upstream and the lack of natural flood stages, he said, there 

is very little we can do about them, but we can do something about 

you. So as individual ranchers, we feel that all the time. 

And so, I do not have a good answer to that, but I would hope 

that maybe through this process we can at least get them to acknowledge that these acts are in opposition to each other, and we 

are the victims out here because of it. 

Mr. DAINES. Mr. Galt? 

Mr. GALT. Thank you, Congressman Daines. I just agree with my 

colleagues here. I mean, the National Technical Team did not take 

that up. That was one of our criticisms of the National Technical 

Team report. And as we sit on the Council, Governor Bullock’s 

Council, on Sage Grouse Conservation Strategies, I mean, we are 

handed the document by the U.S. Fish and Wildlife Service. And 

below a certain line, everything below that line is really on the 

table for discussion. And predation, weather, things like that are 

below that line. 

So your wildlife specialists are saying it is not a problem, but everybody that has come to that Council has said this is a serious 

issue, and we see it particularly with the people that live on the 

land and see it every day. And I just think you need to bring them 

to the table and say, why not. 

Mr. DAINES. So you see that NTT, that data, that is one of the 

biggest flaws in it is eliminating these variables? 

Mr. GALT. That is one flaw, yes. 

Mr. DAINES. Is there another flaw? 

Mr. GALT. Congressman Daines, Mr. Chairman, there are quite 

a few flaws with that. 

Mr. DAINES. Do you want to give us another one? 

Mr. GALT. I think that a big issue is that we are not really taking a look at what industry and what conservation groups and 

what members of the Farm Bureau and Stockgrowers have actually 

96 

done in mitigation standards since 2002, 2003, 2004. Montana’s 

first comprehensive plan was done in 2005. We have not even had 

a chance to go back and look and analyze what mitigations that 

have been in place since then and what kind of activity they have 

had on sage grouse populations. 

So we are sitting here basing data back on studies that were 

done early on before anybody really took heart in what was going 

on in the landscape, and we are saying that these are the problems. And the one study that was relied upon a lot used an unmitigated control area, and said these horrible things are going to happen. This unmitigated control area was supposed to be used as a 

comparison to areas with controls, yet that was not the case. The 

predictions were made of horrible decimation of the sage grouse. 

They have not come true. It is really tight. 

Mr. DAINES. I have one quick question, Mr. White, and my time 

is up. 

The CHAIRMAN. We will have the second round. 

Mr. DAINES. OK. I will come back for the second round then. So 

little time, so many questions. 

The CHAIRMAN. Yes. I recognize Mr. Lamborn from Colorado. 

Mr. LAMBORN. Well, thank you, Mr. Chairman. Thanks for having this hearing. First, I would like to ask Mr. Galt a question. And 

on the committee, I am the Chairman of the Subcommittee on Energy and Mineral Resources, so I want to ask you an energy-related 

question. Would banning oil and gas activities on public lands help 

the sage grouse in any way? Why or why not? 

Mr. GALT. It would not stop the coyotes, Congressman Lamborn. 

You know, there are some issues with oil and gas, and there are 

a lot of studies that would attribute that certain uncontrolled activities would impact the bird. So eliminating it all together would 

have a marginal perhaps impact indicated by the study. 

Mr. LAMBORN. So marginal at most. 

Mr. GALT. I think so. 

Mr. LAMBORN. OK. And that is what I expected. Thanks for saying that. 

Mr. Cebull, I have a question for you. You devoted considerable 

time in your written testimony to the high numbers of grizzly 

bears. The Federal Endangered Species Act is real clear about how 

to list a species, but is very vague when it comes to de-listing a 

species, so vague that it allows litigants from outside Montana, for 

instance, to fight the de-listing of wolves to the point where Congress had to step in. 

Based on your experiences, does the law need to be improved 

when it comes de-listing so that better attention and resources 

could be concentrated on the remaining species that actually need 

help? 

Mr. CEBULL. Representative Lamborn, Chairman Hastings, absolutely I think that we need to do something about de-listing. As I 

said, this has become a listing tool and not a management tool. The 

ultimate goal of the Endangered Species Act of 1973 was species 

recovery. In order to recover, you have to have population increase, 

and you then you have to get them off the list. We have only allowed, as you cited in your comments also, 1 percent of all these 

species being listed actually were taken off the list because of reVerDate Mar 15 2010 10:53 Nov 05, 2014 Jkt 000000 PO 00000 Frm 00102 Fmt 6601 Sfmt 6602 Z:\00 FULL COMMITTEE\00SE04 1ST SESS PT. 1&2\85208.TXT MARK
97 

covery. The rest were taken off, some of them were already extinct 

when they were listed. Some of them were taken off because they 

went extinct while they were listed. And so, there was a variety. 

But 1 percent, and to me that is not successful. 

So that tells me that either the—and there are multiple flaws in 

the ESA that I cited. The management of the ESA through the 

process is not doing a good job of recovering, and the species, like 

the grizzly bear, that I personally can attest. I saw my last grizzly 

bear on Saturday night, and this is not an area that was historically known as grizzly bear range. 

And I can attest that, in my opinion, that there are a lot of 

grizzlies. And talking to the biologists and the local people, there 

are a lot more grizzlies than there were. And I believe that they 

should have been de-listed and managed locally by the State a long 

time ago, so. 

Mr. LAMBORN. I asked this question down in Casper. Is there an 

issue with animals being either introduced or maybe just found 

here and there in areas where they are not historically known to 

occur, and yet that becomes now something to be protected, even 

though historically that was not part of that animal’s habitat? 

Mr. CEBULL. I think that is absolutely correct, and it goes to the 

heart of this. And the sage grouse issue as critical habit is defined 

as where sage grouse might live, not necessarily where you would 

find them today. And I think that is the biggest issue with sage 

grouse. 

Without a doubt, when you look at core grizzly bear habitat or 

what is listed as historic grizzly bear habitat, there are a lot of 

areas in Montana that have not had grizzlies in a long time that 

it is a wide swath of them now. And our ranch is one of those that 

has probably historically had grizzly bears. And, I mean, historically when the elk were out on the plains and the predators were 

out on the plains. 

But for a long time there have been grizzlies moving that far out 

of the mountains because we are really 2 miles away from the timber that would be considered grizzly range. 

Mr. LAMBORN. OK, thank you. Ms. Robinson, I would like to ask 

you a question. I assume that you go to associations like NACO 

where county commissioners from around the West are gathered 

together, and you talk with these folks. Are they concerned about 

the sage grouse listing, because that could affect 11 different Western States? 

Ms. ROBINSON. Yes, Congressman. I am the Vice Chair of the 

Public Lands Committee for NACO, and I also am the Second Vice 

President, yes, Second Vice President of Western Interstate Region. 

And, yes, endangered species is a big concern. 

We have a resolution that we just passed in July in Fort Worth 

talking about sage grouse. And I did not bring that, but I would 

be happy to get you a copy. 

Mr. LAMBORN. What was the gist of it? 

Ms. ROBINSON. I could not tell you off the top of my head. But 

the thing is, kind of with my testimony, we need not top down, but 

from grassroots efforts, and to deal with the people that are on the 

land with the sage grouse is better suited for the species rather 

than top down. 

98 

Mr. LAMBORN. Thank you. 

The CHAIRMAN. Ms. Robinson, would you get that letter so we 

can have it as part of the record? 

Ms. ROBINSON. Yes. 

The CHAIRMAN. Please get that to us. 

I thank the gentleman. 

I recognize Mrs. Lummis. 

Mrs. LUMMIS. Thank you, Mr. Chairman. For anyone on the 

panel, is it true that when a species is headed for listing, that recovery criteria are established so you know what amount of species 

will constitute recovery? Does anyone know? Mr. Cebull? 

Mr. CEBULL. Mr. Chairman, Representative Lummis, during my 

research for this panel hearing, I actually did read that. The response to the 1 percent success rate of the ESA was the fact that 

there are targets with endangered species. Many of those targets 

are multiple decade targets where they are expecting stabilization 

and growth, but it might take decades to see that happen. So in 

my research, I did find that. 

Mrs. LUMMIS. Are you aware of the goalpost ever moving? In 

other words, once a species reaches that criteria, the criteria was 

changed? 

Mr. CEBULL. Yes, Representative. I think probably the most recent one that was very famous here was the wolves, and the fact 

that they were, in 2001, I believe, early on, that they were declared 

as being recovered. And then the goalpost kept moving as far as 

breeding pairs, number of wolves. And eventually it took us until 

congressional action to get the wolves off the list. It took years and 

years, and we had a tremendous amount of damage to our industry 

and our hunting industries because of the increasing number of 

wolves and livestock. 

Mrs. LUMMIS. Mr. Cebull, what has happened to the low low elk 

herd? Do you know about the low low elk herd? 

Mr. CEBULL. I am sorry, Representative, I do not know. 

Mrs. LUMMIS. Mr. White, do you know anything about the low 

low elk herd? 

Mr. WHITE. Thank you, Representative Lummis. The northern 

elk herd has been—I mean, that was up around 20,000 head, and 

I think it is down around 3,000, 4,000 now. From what I am hearing over in the low low, there are 1,700 to 1,500 elk where it was 

5,000, 6,000, so. 

Mrs. LUMMIS. And when you have depletions of ungulates, especially huntable ungulates, in those kind of proportions, do the number of hunting licenses that are issued drop? 

Mr. WHITE. They do. 

Mrs. LUMMIS. And what does that do to outfitters, guides, businesses that have thrived off of the hunting and recreation economy? 

Mr. WHITE. Well, it has had a significant impact to local economies that many times in many places in the small communities in 

Central Montana, 70, 80 percent of their income is derived from 

that short hunting season. When you do not have the animals, you 

do not have the hunters, you do not have the income to the communities. Then those businesses, once flourishing, actually are gone. 

99 

Mrs. LUMMIS. Mr. White, are there people in Montana who fill 

their freezers with wild game and have that as their main protein 

source through the winter? 

Mr. WHITE. They do. 

Mrs. LUMMIS. Is that true also on the reservation, Mr. Whiteman? 

Mr. WHITEMAN. Sorry. Could you repeat the question? 

Mrs. LUMMIS. Are there tribal members on the reservation who 

use big game or wild meat as their main source of protein through 

the winter? 

Mr. WHITEMAN. Yes. 

Mrs. LUMMIS. And so, they are hunting. They are sustenance 

hunting. They are relying on hunting to feed their families. 

Mr. WHITEMAN. Yes. 

Mrs. LUMMIS. Is that true? 

Mr. WHITEMAN. Yes. 

Mrs. LUMMIS. Has the Endangered Species Act in any way, to 

your knowledge, interfered with the ability of Montanans, who rely 

on wild meat for food, to obtain adequate food from wild meat? 

Mr. WHITEMAN. No, it has not. 

Mrs. LUMMIS. Mr. Cebull, are you aware of any instances where 

that is true? 

Mr. CEBULL. Representative Lummis, going back to your original 

question, the northern elk herd being an issue, that started out, 

and I will go back to when I was a kid back in the 1980s. We used 

to have a late season down in Gardner, and there was over 10,000 

cow tags issued in Gardner in a given year because these were 2- 

day hunts. They went out. This was a great family tradition. 

That hunt is completely gone now because the northern elk herd, 

as was cited earlier, is greatly diminished. So that being said, and 

understanding the pressure in the Madison Valley and western 

Montana, places that have large populations of wolves and grizzly 

bears, quite frankly, are doing a lot of predation on elk. 

It absolutely is affecting hunting opportunities and affecting people’s ability to harvest elk, for example. And so, I absolutely would 

say that is impacting people’s ability to put protein and put game 

meat in their freezer. 

Mrs. LUMMIS. For either Mr. Galt or Mr. Knox, could you give 

some quick examples of how litigation is affecting the efforts to recover species or the industries you are in? And I see that my time 

expired, so you know what I will do? I will save that question, so 

hold your thoughts on that. And if we have a second round, I will 

ask that again. 

Thank you, Mr. Chairman. I yield back. 

The CHAIRMAN. Thank you. We will have a second round. Mr. 

Cramer is recognized. 

Mr. CRAMER. Thank you very much, Mr. Chairman, and thanks 

to each of the panelists here. Your testimony is quite compelling. 

In North Dakota, we do not have a lot of sage grouse. We have 

some, and they continue to increase about 15 percent per year. But 

the greater fear that is driven by the ESA in North Dakota is this 

issue of critical habitat. And it creates sort of a growing uncertainty. Can any of you describe for me what it is that makes something a critical habitat to the Fish and Wildlife Service? Mr. Galt? 

100 

Mr. GALT. Mr. Chairman, Congressman Cramer, just from what 

I have learned on the Sage Grouse Council, they use a lot of analysis of bird populations and where those densities are heavier at 

their mating grounds than they are in other places. Those are kind 

of the dictum. Male lek attendance is a density issue that they 

drew the circles around and labeled those critical habitat. 

And you do have critical habitat right in Bowman County, North 

Dakota that is right east of the Cedar Creek Anticline, one of the 

oldest developments in the State of Montana, that makes our 

Cedar Creek Anticline critical because of the connection between 

your population and populations otherwise in Montana. 

Mr. CRAMER. Well, I get the sense from time to time that this 

critical habitat definition becomes broader by virtue not of population density, but the potential possibility somewhere down the 

road perhaps of population. And that is what concerns me is just 

how broadly can they define critical habitat. 

And so I hear that fear a lot beyond Bowman County that, gee, 

our grass looks like theirs. Could they come and declare or determine this to be critical habitat as well. 

I want to ask, and this may be getting to what Representative 

Lummis was getting at. If we were to buy into and join the goals 

of the Endangered Species Act, how is it that litigation, a litigation 

strategy, actually enhances the goals of the act, or does it not? Because one of the things that concerns me, and here we live in this 

era of budget crunch, and approach $17 trillion debt, and the Federal Government trying to find more efficient ways to use money. 

And it seems to me that if our goal was really conservation, that 

diverting that conservation money to litigation or defending against 

litigation does not seem like it would really meet the goal. Is that 

an accurate observation, and could anybody elaborate on it? 

Mr. KNOX. We have not in our area been sued specifically over 

sage grouse or anything ESA related with sage grouse. But the 

grazing management plan for the National Monument was, of 

course, challenged by the environmental groups, Western Watersheds being one of them. And they, of course, are very enthusiastic 

about ESA listing for the sage grouse. 

But it is a miserable, long, drawn-out process. We in the rural 

communities and agriculture, we always go back to the same well 

to raise money to defend ourselves from these sorts of things. And 

so, I guess the upshot is we came through the process all right, but 

we spent a lot of money, and money that would have been spent 

in our operations at home and staying at home in our communities. 

So that is, I guess, my view of it. 

Mr. CRAMER. Do you think then along those lines, do you see this 

litigation wave, if you will, as a disincentive to do what comes naturally to us out here in the West, and that is to engage in voluntary conservation? In other words, are we robbing people of even 

their own natural instinct to be conservationists on the land if you 

are a stockman or a rancher? 

Mr. KNOX. Yes, I believe that is definitely a part of it. As I included in my testimony, when leks were identified adjacent to Federal lands that were part of the monument designation, and 

showed up in the final management plan, it had a definite dampening effect on people’s enthusiasm for cooperating with anyone 

101 

inventorying sage grouse, leks. So, yes, to your point, we have seen 

that. 

Mr. CRAMER. Thank you for your testimony. And I will yield back 

the remaining seconds. 

The CHAIRMAN. If I wait 5 seconds, it will be gone. 

[Laughter.] 

The CHAIRMAN. I will now recognize myself. I want to ask a question of all of the panelists. We have had a number of hearings on 

this, and what I am going to say has been alluded to by my colleagues, but it has also been alluded by you, about the litigious nature of implementing the Endangered Species Act. 

Now, when we have hearings, the litigants say that the ESA is 

99 percent effective because it saves endangered species. Now, from 

what I hear of you, you are all on the front lines of these species 

conversation. So in your view, is 99 percent an accurate number 

that the litigants said? 

We will start with you. Yes or no, Ms. Robinson. 

Ms. ROBINSON. Mr. Chairman, do you want just a yes or no, or 

do you want just—— 

The CHAIRMAN. Well, you can emphasize it if you would like. But 

I would like to have a yes or no. 

Ms. ROBINSON. OK, no. 

The CHAIRMAN. Yes. Mr. Knox? 

Mr. KNOX. I would say no. 

The CHAIRMAN. Mr. Galt? 

Mr. GALT. I agree. 

The CHAIRMAN. Yes. Mr. Cebull? 

Mr. CEBULL. Chairman Hastings, no. 

The CHAIRMAN. OK. And, Mr. Whiteman? 

Mr. WHITEMAN. Yes. 

The CHAIRMAN. OK. And, Mr. White? 

Mr. WHITE. Mr. Chairman, no. 

The CHAIRMAN. No. OK. Well, I wanted to kind of get that out 

because the ESA was first passed in 1973, so it has been roughly 

4 years. And I am going to talk here in round numbers. And we 

have roughly in the United States about 1,500 listings, and it took 

40 years to get that 1,500 listings. 

But the mega settlement that I alluded to in 2011 has the potential of upwards of 750 to 800 listings. That means that in 6 years, 

which is the timeframe of the mega settlement, the listings could 

go up by 50 percent. 

Do you think that with that burden, that transparency and good 

science can be applied to the next 700—and I will throw this out— 

if it was applied to the first 1,500? And I will ask Mr. Galt and 

Mr. Knox that question. 

Mr. GALT. Thank you, Mr. Chairman. I do not think it could. I 

think that is part of the problem we are facing right now is there 

is not any good science on there, and we have a ticking clock from 

the sue and settle crowd to make decisions on all these species that 

science cannot get to. 

The CHAIRMAN. OK. Mr. Knox, would you like to weigh in? 

Mr. KNOX. Yes, I would agree with Mr. Galt on some of the definitions of species where there are sub species that have been listed 

102 

that really should not have been. And if we are going to talk about 

700 more, I guess I would be mistrustful of the science. 

The CHAIRMAN. And that kind of goes to the core of where our 

problem is because while I mentioned that ESA was passed initially in 1973, it has not been reauthorized as a law since 1988. 

That is 25 years ago. And I daresay if you walk down any town 

main street in Montana, probably anyplace that is affected by the 

Endangered Species Act or any law, and since we enforce a law 

that has not been reauthorized for 25 years, I daresay you would 

probably get anybody to even say yes. 

But because of the process that we have to go through in Washington, DC when we appropriate any law, appropriate dollars to 

carry out any law, whether it has been reauthorized or not, it is 

de facto reauthorized. Now, that presents a real problem because 

in order to have a discussion on real reform, you have to have two 

sides that want to sit down and talk. But when one side, because 

of the de facto reauthorization of a law that I believe is flawed, you 

have a whole lot of difficulty trying to get people to sit down and 

talk. 

And I just want to say that is one of the reasons we are having 

these hearings around the country and this working group so we 

can get input, because we need to break through that. People need 

to understand the impact this will have on our economy. 

And, Mr. White, your circle was very good. Those are all parts 

of our economy and, frankly, our life whether you live in a rural 

America or urban America. But you cannot have these things unless you have these resources, and they are being greatly, greatly 

compromised because of a lack of trying to get things done. So I 

just wanted to point that out. 

We are going to do a second round now, and I will recognize Mr. 

Daines first. 

Mr. DAINES. Thank you, Mr. Chairman. As part of the brief that 

was pulled together for this hearing, I was struck by a fact here 

that the Department of Justice responded to this committee when 

asked for the litigious behavior and activity in the last 4 years as 

it relates to the ESA. In just the last 4 years, the Federal Government has defended more than 570 ESA related lawsuits, costing 

more than $15 million in funds paid from the judgment fund. This 

is not the cost of the lawyers in the Federal Government defending 

the ESA. These are dollars that were given to the plaintiffs as part 

of the Equal Access to Justice Act. This is taxpayer dollars, so we 

are paying their legal fees. 

Question: do the lawsuits from distant groups, like the Center for 

Biological Diversity, which they are the number one litigant. There 

117 of these lawsuits that came from the Center for Biological Diversity. Do these lawsuits encourage or discourage voluntary efforts 

to conserve species? I would like to get some thoughts on that. 

Lesley, you are in the middle of some of these activities. Is it encouraging or discouraging? 

Ms. ROBINSON. I would say discourage. If you can work with the 

rancher and they do not have a fear of what is going to happen, 

then they are a lot more apt to work with you. And that is where 

the sage grouse are. They are right in the middle of ranches, so we 

know that is working. But I would say that there is a fear of it. 

103 

Mr. DAINES. Mr. Knox? 

Mr. KNOX. I would say that it is also—it has made it more difficult in the relationship between ranchers and, for example, range 

conservationists, who we traditionally get along with pretty well, 

and the Bureau of Land Management, because some of these 

groups have the strategy to litigate and contest every aspect of a 

management plan, whether it is an ESA issue or some other kind 

of issue. And so, and the strategy is simple. Overwhelm the range 

people with paperwork so that they fall behind, they make a mistake, and then we can really nail them. 

And so, when you are the rancher caught in the middle of this 

and basically, we just want to run our cows and enjoy our lifestyle 

in our communities, it has a dampening effect. It definitely does. 

Mr. DAINES. Well, speaking of paperwork, we are going to talk 

about Mr. White’s stack over there in a minute. But I was struck 

by the testimony as well that—reminding ourselves in Montana we 

have a sage grouse hunting season. It just opened up September 

1, two-bird limit, four in possession. And also, we are transporting 

birds to Canada for transplant purposes. And I think just a reminder for all of us, the goal here is we are trying to find ways to 

ensure we keep the sage grouse off the ESA as conservationists, as 

sportsmen and women here in this State. 

And in light of that, the need to reform the ESA, I would like 

to get thoughts from each of you, if you were President for a day 

and could wave a wand, and there were one or two things you 

would seek to reform in the ESA to take this 40-year-old law and 

bring it to 2013, what might that be? 

And, Mr. White, given the fact you got a stack down there, 

maybe you could start that input. 

Mr. WHITE. Thank you, Representative Daines. The litigation 

that you are speaking about on these lawsuits many times are compensated back to the environmental groups through the Equal Access to Justice Act. But these environmental groups do not have to 

post any kind of bond or anything. A 44-cent stamp will get them 

into the courtroom, and then if they prevail, they take that money 

and they turn around and sue again on another issue or another 

bird. 

So I think some sort of bonding requirement and damage, some 

sort of estimate on the damage that could be caused by the litigation, and have the environmental group or those litigants post 

some sort of a bond, I think, would discourage a lot of these litigations. 

Mr. DAINES. Great. Thanks, Mr. White. Who else? I only have 45 

seconds. Who else has a thought? Mr. Galt and then Mr. Cebull? 

Mr. GALT. I think two things, Mr. Chairman, Congressman 

Daines. You really need to bring people together, take a look at 

how they look at the whole habitat issue. It is hard for us to understand that the wildlife professionals can stand up and say hunting 

does not have an effect on the mortality of the bird. But we have 

got a habitat issue, and you cannot have a surface disturbance next 

to a highway. 

And the second thing that I would like to add is that Congress, 

in the short term, really needs to take a look at that time schedule 

that is under effect on all of those species that are under the sue 

104 

and settle agreement and see if we cannot push that date back, because we are making decisions based on science that was done before mitigation even started to work. And we are going to make 

that decision poorly. 

Mr. DAINES. OK. I am out of time. I want to enter into the hearing record, Mr. Chairman, some contents of the American Motorcycle Association, Richland Prairie Counties, Senator Jennifer 

Fielder, and the Yellowstone Valley Audubon Society. 

The CHAIRMAN. Without objection, they will be part of the record. 

I recognize Mr. Lamborn from Colorado. 

Mr. LAMBORN. Thank you, Mr. Chairman. Ms. Robinson, for your 

own county and the people you talk to from around the country, I 

would like to get your perspective. Recently, the Obama administration finalized a rule and ignored significant opposing comments, 

a 10th Circuit Court of Appeal opinion, and letters from Members 

of Congress, such as ourselves, on how it will conduct economic 

analysis for critical habitat designations. And their rule will require Federal agencies administering the ESA to only analyze the 

actual cost of the designation, while ignoring all other costs that 

are caused by the listing of a species. 

Would it not be better to fully document the costs of the Endangered Species Act by analyzing its impact on, let us say, rural 

areas? 

Ms. ROBINSON. Mr. Congressman, it definitely would be important for us for them to analyze all of the costs, because if you look 

at how many people we are feeding in Phillips County, and if you 

cut our grazing rates, then what is the step-down effect of that? 

How many people are not going to have food? How many people in 

our little town of Malta, how many businesses will go broke because of fewer ranchers on the land? There is such a trickle-down 

effect of one decision, and it all needs to be analyzed. 

Mr. LAMBORN. Thank you. I agree. That should not be ignored. 

Mr. White, Mr. Kieran Suckling, the Executive Director for the 

Center of Biological Diversity, was quoted in 2009 as saying, 

‘‘When we stop the same timber sale three or four times running, 

the timber planners want to pull their hair out. They feel like their 

careers are being mocked and destroyed, and they are. So they become much more willing to play by our rules. Psychological warfare 

is a very underappreciated aspect of environmental campaigning.’’ 

Do you think that this litigation approach on timber sales has affected the health of our forests, possibly contributing to an 

unhealthy condition that we see with catastrophic wildfires? 

Mr. WHITE. Representative Lamborn, I definitely agree. And actually what I did is when I submitted my written testimony, I put 

in there a study that was done on a pilot project down in California 

where they went in and they put in a test well and did well monitoring on the water table level below where they thinned the Ponderosa Pine. And after the thinning project, the next year the 

groundwater recovered 100 feet. The static groundwater below that 

thinning project is now sitting at 15 feet, and actually streams that 

were once dry with that overgrown forest have begun to run again. 

So what I am saying is every time you have got a tree out there, 

each one of those drinks water, and when you start pulling that 

amount of water out of the ground with an overgrown forest, what 

105 

happens is it starves the next tree next to it and puts it in stress, 

and then creates a problem of that one more susceptible to disease. 

We have got a massive bug kill out in our forests. Almost 50 percent of the Beaverhead Deer Lodge National Forest is dead and 

dying. 

We cannot cut those dead trees, and after they burn, we cannot 

even salvage those salvage burn trees after they have burned and 

destroyed all the wildlife habitat and erosion, streams, and everything. So I think it is quite out of control. 

Mr. LAMBORN. OK. Thank you so much. That is amazing. 

Mr. Cebull, one of the concerns of our committee is that the Federal Government should be incorporating more data from State and 

local governments and landowners. One example is from Garfield 

County, Colorado, where they spent millions counting and protecting sage grouse in their habitats. Yet the Fish and Wildlife 

Service has ignored them. 

Should the Federal Government use more studies than what they 

are accepting right now? Should tribes, States, localities, and landowners not have more input on these Federal decisions? 

Mr. CEBULL. Mr. Chairman, Representative Lamborn, absolutely 

they should, and that was a big, big focus of my testimony. And 

something I would like to say is that you get a lot more common 

sense the closer to the ground you get. The ESA is a 60,000 foot 

approach. It is coming. It is that top down centralized approach. 

When you get on the ground, things look a whole lot different than 

they do from 60,000, and common sense prevails. Whether it is the 

landowner, the rancher, or the local administration, it definitely 

prevails. 

Mr. LAMBORN. OK, thank you. I am going to try to squeeze one 

more in. Mr. Knox, when these taxpayer funds go to the plaintiffs’ 

attorneys, who bring these fish in a barrel type of lawsuits, do 

those monies ever get turned around and used for species and habitat protection, to your knowledge? 

Mr. KNOX. No, I am sure not. I know, for example, that the Western Watersheds group uses that money to roll into more lawsuits. 

And that is consistently what they do, and I am fairly sure that 

other environmental groups are doing it. 

Mr. LAMBORN. Thank you. 

Mr. KNOX. Treating the law the same way and the money the 

same way. 

The CHAIRMAN. I thank the gentleman. I recognize Mrs. Lummis. 

Mrs. LUMMIS. Thank you, Mr. Chairman. I also want to thank 

Mr. Cramer for following up on my questions about litigation with 

Mr. Knox and Mr. Galt. 

So I am going to go on with a question for Mr. Whiteman. I understand you are involved in coal mine reclamation. Can you tell 

me, if you are looking at a piece of land before it is mined, and 

then it is mined and reclaimed, is the reclaimed land capable of 

supporting the same species that were on the land before it was 

mined? 

Mr. WHITEMAN. Yes. 

Mrs. LUMMIS. And is that part of your obligation in terms of 

mine reclamation to reclaim it to a quality that existed before mine 

reclamation? 

106 

Mr. WHITEMAN. Yes. 

Mrs. LUMMIS. Are you aware of any instances where the Endangered Species Act has prevented either coal mining or oil and gas 

development? 

Mr. WHITEMAN. Yes. Not really what I know with other—let me 

see. In the beginning of the 2000s, when coal methane—it hindered 

production. That was brought to my attention about a week ago because I had friends, co-workers that worked in that area. 

Mrs. LUMMIS. OK. Thank you, Mr. Whiteman. 

Mr. Galt, are you aware of any instance where the Endangered 

Species Act prevented oil and gas development? 

Mr. GALT. Mr. Chairman, Congresswoman Lummis, I would answer two ways. I think the concerns about the potential of the listing for the sage grouse has indeed slowed, if not removed, many 

acres of Federal land from the ability to be leased. And I would 

have to go back to my records, but I am particularly thinking of 

a sale in North Garfield County, Montana where Federal acres 

were removed over concerns about the bird in 2007 or 2008, quite 

a bit time ago. 

Mrs. LUMMIS. OK. 

Mr. GALT. Second, one of the areas in the States that does have 

a lot of interest in oil and gas development is along the east slope 

of the Rocky Mountains. That would be grizzly bear habitat. And 

I know companies that have worked in there have had a dickens 

of a time working with the various agencies in areas with listed 

species. 

Mrs. LUMMIS. Mr. Galt, again for you, with regard to data collection and dissemination, if the Department of the Interior were compelled to release its data so that independent analysts could attempt to replicate the data that they used to make listing decisions, would that be a helpful thing? 

Mr. GALT. Mr. Chairman, Congresswoman Lummis, I think it 

would be very helpful. And further than that, I think it would also 

be very important for the academics, if the study that they produce 

on taxpayer dollars used by the government to make widespread 

determinations, if that is the case, which it is, their data should 

be made public, too, and it is not. Thank you for that question. 

Mrs. LUMMIS. Now, also, Mr. Galt, if Congress were to allow 

Montana and other Western States time to implement, track, and 

analyze conservation plans, without the threat of a court designated listing deadline, would that be a helpful thing? 

Mr. GALT. Mr. Chairman, Congresswoman Lummis, I think so. 

When I started in this job in 2005, the ink was dry on the Montana 

Wildlife Conservation Strategy Book, and I cannot remember the 

name of it. But they had sage grouse, comprehensive sage grouse 

stipulations in that book that our members started to develop in 

2005. The ink was not dry on that, and they were already saying 

that those stipulations were not good enough. And we have stipulations in the Wyoming plan that now people are saying are yet not 

good enough. 

And I think we really need to find out if the ones in 2005 were 

really good because some of the studies are showing that what was 

thought to be a huge decimation of sage grouse in particular areas 

107 

in your States are seeing the largest lek densities in the State. And 

they are certainly back in robust numbers. 

Mrs. LUMMIS. Now, for any of you, would it be reasonable for 

Congress to set some factors or criteria by which the U.S. Fish and 

Wildlife Service could rank order listing petitions based on imminent threat rather than using predictive models that reach forward 

for years, like trying to predict how global warming will affect species? Would that be helpful? Anyone? 

Ms. ROBINSON. I think that would be very helpful. I do not know 

how you can do predictions on global warming not knowing what 

tomorrow brings as far as that. And there should not be listings 

based on predictions. 

Mr. GALT. Mr. Chairman, Congresswoman Lummis, yes. 

Mrs. LUMMIS. Thank you. Mr. Cebull? 

Mr. CEBULL. Mr. Chairman, Congresswoman Lummis, I would 

also like to encourage you to include economic impacts in that listing in that rating. 

Mrs. LUMMIS. Thank you very much. Mr. Chairman, I yield back. 

Thank you, panel. 

The CHAIRMAN. I recognize Mr. Cramer. 

Mr. CRAMER. Thank you, Mr. Chairman. And before I forget or 

run out of time, Mr. Chairman, I know that the record will open 

for 10 more days. But I would like to offer the written testimony 

of Lynn Helms, the Director of Industrial Commission and Department of Mineral Resources in North Dakota. 

The CHAIRMAN. Without objection, it will be part of the record. 

Mr. CRAMER. You know, one of my take-aways, and I am not surprised by it by listening to you all and being here, is that much 

like my State of North Dakota, you do not compromise quality of 

life for an improved standard of living. And you are to be commended for that. That is clear when you drive around this beautiful State of yours. 

And this issue of consent decrees becoming law by virtue of liberal organizations suing a liberal administration and coming to a 

settlement in a liberal judge’s chambers is very concerning to me. 

And I am wondering if any of you and your organizations that you 

belong to or associations have ever considered using sue and settle 

as an offensive tool instead of it always being a defensive tool. Because, quite frankly, Napoleon once said, ‘‘The logical conclusion of 

defense is defeat.’’ And while our job is to create policy that does 

not encourage such a thing, I would be interested to know if you 

have ever considered using the tools that your opponents use 

against you. 

Mr. WHITE. Representative, we have considered that under the 

Clean Air Act or the Clean Water Act as to what these fires are 

doing and erosion and stuff to our watersheds and stuff like that. 

These environmental impact statements, whether they be draft 

or final, right in the front when they start on the draft environmental impact statement, it says that a lot of the information in 

here are estimates, speculation, and assumptions. Put into a modeling program and out the back end, you get a prediction. 

And so, with that estimate and speculation and assumption, I believe that is the ESA. And that is all it is is people behind a desk 

creating models, putting in junk in the front and junk out the back. 

108 

We do not have the tools. Congress did not give us an organization the tools to go out and sue to try to get our way. All we are 

trying to do is keep what we have. We are not asking for anymore. 

It is incrementally being taken away from us in rural America, resource industries, everybody on the panel, counties losing tax base. 

And one other thing. When Montana came into the Union, we did 

not get all our land under the Equal Footing Doctrine like the 

Eastern States. And so, that reduces our tax ability and our tax 

base within our State. So maybe transfer that land and dispose of 

that land back to the States might be a good idea, because I just 

do not think that the Federal Government is doing a good job of 

managing what they have, yet they go out through the Land and 

Water Conservation Fund and want to buy some more. 

Mr. CRAMER. Right. 

Mr. WHITE. And I just do not think that it is common sense, as 

was mentioned on the panel. Thank you. 

Mr. GALT. Mr. Chairman, Congressman Cramer, we have not 

done that within our organization. We have engaged in two lawsuits in my tenure as executive director. Both of the times we have 

intervened in support of the government, in one case the State government, in the other case, the Federal Government. 

So, we have a lot of projects at stake. We have a lot of time at 

stake. Making the decision to engage in litigation is very serious 

and a very big step for an organization as diverse as ours. But 

some of these NGO’s, that is how they survive, and that is not how 

MPAs survive. 

Mr. CRAMER. Anybody else? 

Ms. ROBINSON. As a County Commissioner, economically it is just 

not feasible for counties to go into a lawsuit or for a rancher. And 

we have intervened in different lawsuits, but the bottom line is the 

money just is not there to do it. 

Mr. KNOX. We are a small organization. I am representing the 

Farm Bureau today, but I also am involved with the Missouri River 

Stewards. And I would echo what Lesley has said. So far, we have 

had intervener status and that sort of thing. And I think it goes 

to your point that we are playing defense, and we have talked 

about that. 

The Farm Bureau, who I am representing here today, is, of 

course, a bigger, more effective organization. And they have sued 

over the listing of the wolves, to varying degrees of success. But 

some of it has been done, but I guess we are not as good at it as 

the other side. 

Mr. CRAMER. I want to wrap up with this quick question. Should 

litigants have to have a direct personal interest in the outcome of 

a lawsuit before they can engage in it? I mean, you all have had 

to intervene from time to time. Should litigants not have the same 

obligation or same relationship? 

Mr. WHITE. Representative, yes, definitely. 

Mr. CRAMER. I think so, too. With that, I thank you, Chairman. 

I thank the panel. And I look forward to eating some bread and 

beef from Phillips County. 

[Laughter.] 

The CHAIRMAN. Well, thank you. Let me wrap this up because 

we had a lot of discussion today on the sage grouse. And I have 

109 

to tell you my first reaction when I heard about the potential listing of the sage grouse when it was described to me in this way. 

The sage grouse is endangered in 11 States covering 260,000 

square miles. Now, my first thought was, if one is dealing in common sense, that is a pretty darn big area in 11 States to have a 

species be endangered. 

To put that in perspective, that is nearly 260,000 square miles. 

Montana has a square mileage of, I think, around 147,000, so that 

just gives you the perspective of what this is. It cries for some sort 

of solution. But I just wanted to make that observation. 

Mr. Cebull, you said there should be an economic analysis. I totally agree with you. You may or may not be aware that this administration finalized a rule ignoring that, even a 10th Circuit 

Court of Appeals rule on that. 

Let me finish where I kind of started. I mentioned from the outset that I am from the Pacific Northwest where we have been 

greatly impacted, much longer, I think, than you are. I am not 

going to say exclusively, but certainly much longer. And I will tell 

you, and this is kind of a warning, it does not go away. 

Two issues: the spotted owl. The spotted owl has caused a decline 

in timber harvests on Federal lands in Oregon, Washington, and 

California by a factor of 90 percent—90 percent. And now, we have 

discovered that it was not the lack of old growth that caused the 

demise, but rather a predator called the barred owl. So what is 

Fish and Wildlife solution? Shoot the bard owl. Now, that is not 

common sense. That is why this cries to be talked about. 

The other issue is the salmon issue. We have spent billions of 

dollars, taxpayer dollars and rate payer dollars because all of it is 

paid by rate payers, Bonneville Power, billions of dollars to save 

the salmon. The salmon runs are coming back in greater numbers 

now on average in the last couple of years since records have been 

kept in 1938. 

Yet there is an article in one of the Seattle newspapers talking 

again about removing four Snake River dams that generate—I forget how many megawatts of power, enough to do Seattle for about 

a year, to supposedly save the salmon. So these issues are not 

going to go away. 

So my message to you in that regard is this: you communicate 

here with people in Montana. You have to extend that network 

much, much farther. Commissioner Robinson, you said you have 

talked to other county commissioners. My appeal to you—I am not 

going to tell you what to do—my appeal to you is to be much more 

aggressive in that regard. Do not leave it up to just the Western 

States. You have got to engage county organizations in other 

States, because it is coming. 

Case in point: I remember several years ago when the issue of 

endangered species in the Permian Basin—you are familiar with 

the Permian Basin. It is an area that produces a lot of oil and natural gas, but because of new technologies, it may be even better. 

And my colleagues came up to me and said, boy, you have to do 

something about the Endangered Species Act. Now, I said this 

without trying to be flippant or anything, but I said, welcome to 

the club, because now you are part of this deal. 

110 

So my appeal to you, Mr. Galt, is you are part of this association, 

and I know your members compete against each other trying to get 

jobs. But you have one commonality: if you do not have a robust 

organization out there, you are not going to have jobs. I mean, it 

is as simple as that. So you need to communicate with other associations in other States. They have to be part of this. 

Now, Texas settled. Not everybody was happy with that. But I 

guarantee you it is not going to go away in Texas. That was only 

one settlement. There will be others. 

And finally, I will just say this, and this is not in relationship 

to the Endangered Species Act. But, Mr. White, you talked about 

the catastrophic wildfires and what it does to our renewable resources. Just for your information, we passed out just before the 

August district work period—all of us voted for it—a bill dealing 

with healthy forests. We think there is a solution there, and if you 

have not looked at that, I would invite you to. 

So I want to thank especially the panelists. I thought the testimony was very thoughtful, the questions and answers. Well, the 

answers were maybe more than the questions. But nevertheless, I 

really want to thank you. And that is all going to be part of the 

record. I cannot emphasize. That is part of the record that we will 

buildup on. 

And for any of you that are in the audience, obviously if you have 

something that you would like to weigh in on, pro or con. By the 

way, I should say this: the House Natural Resources Committee is 

a bipartisan committee. It is made up of Democrats and Republicans. We happen to be all Republicans, so we called this hearing. 

And, of course, we fully expected the Democrats to participate. And 

by the way, they are the minority party. They had a chance to have 

witnesses at the table. 

They had an opportunity to do that, and they refused to have a 

witness here or to send a member of their party to this full committee hearing. So I just wanted to say that for the record. 

But I will leave it open. If anybody here has contrary views of 

what you have heard today, we certainly welcome that, and you 

can go to www.housenaturalresources.gov, or whatever it is. You 

can find it, just go online. 

So with that, again, I want to thank all of you, and you have 

been a very, very attentive audience. We appreciate that very 

much. Stay tuned because this issue is not going away. That is why 

we are having these field hearings. That is why we are having this 

working group made up of members from the eastern part of the 

United States so that when the political opportunity is right, we 

can move legislation hopefully that will correct what we all think 

are flaws in the ESA. 

So with that, thank you all, the panel. I want to thank my colleagues for being here, and certainly thank the audience. 

And with no further business, the committee stands adjourned. 

[Applause.] 

[Whereupon, at 3:30 p.m., the committee was adjourned.] 

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