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95–743 PDF 2004

THE ENDANGERED SPECIES ACT

AND ITS IMPACT ON

AGRICULTURAL PRODUCERS

HEARING

BEFORE THE

SUBCOMMITTEE ON CONSERVATION, CREDIT,

RURAL DEVELOPMENT, AND RESEARCH

OF THE

COMMITTEE ON AGRICULTURE

HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

JULY 26, 2004

GREELEY, CO

Serial No. 108–37

(

Printed for the use of the Committee on Agriculture

agriculture.house.gov

COMMITTEE ON AGRICULTURE

BOB GOODLATTE, Virginia, Chairman

JOHN A. BOEHNER, Ohio

Vice Chairman

RICHARD W. POMBO, California

NICK SMITH, Michigan

TERRY EVERETT, Alabama

FRANK D. LUCAS, Oklahoma

JERRY MORAN, Kansas

WILLIAM L. JENKINS, Tennessee

GIL GUTKNECHT, Minnesota

DOUG OSE, California

ROBIN HAYES, North Carolina

CHARLES W. ‘‘CHIP’’ PICKERING,

Mississippi

TIMOTHY V. JOHNSON, Illinois

TOM OSBORNE, Nebraska

MIKE PENCE, Indiana

DENNIS R. REHBERG, Montana

SAM GRAVES, Missouri

ADAM H. PUTNAM, Florida

MAX BURNS, Georgia

JO BONNER, Alabama

MIKE ROGERS, Alabama

STEVE KING, Iowa

CHRIS CHOCOLA, Indiana

MARILYN N. MUSGRAVE, Colorado

DEVIN NUNES, California

RANDY NEUGEBAUER, Texas

CHARLES W. STENHOLM, Texas,

Ranking Minority Member

COLLIN C. PETERSON, Minnesota

CALVIN M. DOOLEY, California

TIM HOLDEN, Pennsylvania

BENNIE G. THOMPSON, Mississippi

MIKE MCINTYRE, North Carolina

BOB ETHERIDGE, North Carolina

BARON P. HILL, Indiana

JOE BACA, California

RICK LARSEN, Washington

MIKE ROSS, Arkansas

ANI ́BAL ACEVEDO-VILA ́ , Puerto Rico

ED CASE, Hawaii

RODNEY ALEXANDER, Louisiana

DENNIS A. CARDOZA, California

DAVID SCOTT, Georgia

JIM MARSHALL, Georgia

BEN CHANDLER, Kentucky

STEPHANIE HERSETH, South Dakota

G.K. BUTTERFIELD, North Carolina

EARL POMEROY, North Dakota

LEONARD L. BOSWELL, Iowa

MARK UDALL, Colorado

RICK LARSEN, Washington

LINCOLN DAVIS, Tennessee

——— ———

PROFESSIONAL STAFF

WILLIAM E. O’CONNER, JR., Staff Director

KEVIN KRAMP, Chief Counsel

STEPHEN HATERIUS, Minority Staff Director

ELYSE BAUER, Communications Director

SUBCOMMITTEE ON CONSERVATION, CREDIT, RURAL DEVELOPMENT, AND RESEARCH

FRANK D. LUCAS, Oklahoma, Chairman

JERRY MORAN, Kansas

TOM OSBORNE, Nebraska

Vice Chairman

SAM GRAVES, Missouri

ADAM K. PUTNAM, Florida

MAX BURNS, Georgia

JO BONNER, Alabama

MIKE ROGERS, Alabama

STEVE KING, Iowa

——— ———

TIM HOLDEN, Pennsylvania

Ranking Minority Member

ED CASE, Hawaii

COLLIN C. PETERSON, Minnesota

CALVIN M. DOOLEY, California

BOB ETHERIDGE, North Carolina

ANI ́BAL ACEVEDO-VILA ́ , Puerto Rico

JIM MARSHALL, Georgia

MIKE MCINTYRE, North Carolina

——— ———

RYAN E. WESTON, Subcommittee Staff Director

(II)

(III)

C O N T E N T S

Page

Lucas, Hon. Frank, a Representative in Congress from the State of Oklahoma, opening statement .................................................................................... 1

Musgrave, Hon. Marilyn N., a Representative in Congress from the State

of Colorado, opening statement ........................................................................... 2

WITNESSES

Foutz, Alan, president, Colorado Farm Bureau, Centennial, CO ........................ 10

Prepared statement .......................................................................................... 38

George, Russell, executive director, Colorado Department of Natural Resources, Denver, CO ............................................................................................. 4

Prepared statement .......................................................................................... 29

Palmer, William, executive director, Rocky Mountain Bird Observatory,

Brighton, CO ........................................................................................................ 16

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

Sims, James T., executive director, Western Business Roundtable, Golden,

CO .......................................................................................................................... 13

Prepared statement .......................................................................................... 43

Stetson, Jean, co-chairman, Endangered Species Committee, Colorado Cattlemen, Craig, CO ..................................................................................................... 7

Prepared statement .......................................................................................... 36

SUBMITTED MATERIAL

Weege, Merle, secretary, Ginseng Board of Wisconsin, statement ...................... 65

(1)

THE ENDANGERED SPECIES ACT AND ITS

IMPACT ON AGRICULTURAL PRODUCERS

MONDAY, JULY 26, 2004

HOUSE OF REPRESENTATIVES,

COMMITTEE ON AGRICULTURE,

SUBCOMMITTEE ON CONSERVATION, CREDIT,

RURAL DEVELOPMENT, AND RESEARCH,

Greeley, CO.

The subcommittee met, pursuant to call, at 2:00 p.m., in the

Weld County Court House, Greeley, Colorado, Hon. Frank D. Lucas

(chairman of the subcommittee) presiding.

Members present: Representative Musgrave.

Staff present: Ryan Weston, subcommittee staff director; Claire

Folbre, and Andy Johnson.

OPENING STATEMENT OF HON. FRANK D. LUCAS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OKLAHOMA

Mr. LUCAS. This hearing of the Subcommittee on Conservation,

Credit, Rural Development, and Research to review the Endangered Species Act and its impact on agricultural producers will

come to order, and we will turn to opening statements.

I would like to thank everyone for coming to this hearing to review the impact on agriculture of the Endangered Species Act.

Good afternoon to you all and thank you for, once again, being

here.

I would like to thank Congresswoman Musgrave for hosting the

subcommittee hearing for this very important subject. Congresswoman Musgrave is well-aware of the challenges facing agriculture. The prolonged droughts in Colorado and other areas of the

United States has made it very tough on producers the past few

years.

Bringing common sense solutions to complex issues is sometimes

more difficult than it should be. We are here today to discuss the

impact that the Endangered Species Act, ESA, has had on agricultural producers. We want to hear about the problems that ESA has

sometimes created. And, more importantly, we want to know what

can be done to make ESA work fairly for producers.

The testimony provided by witnesses today is excellent. I was

very pleased reading over it. Everyone has done a thorough job listing problems and possible solutions. It is always easy to point out

the faults, but sometimes it’s quite difficult to come up with good

ways to work to cure them. The need to preserve and protect plants

2

and animals is not very controversial. Therefore, the basis behind

ESA is not a bad idea.

The controversial aspect, though, is trying to figure out the appropriate way to preserve and protect those plants and animals.

The implementation and funding of ESA never seems to work quite

as it was intended.

Most of ESA seems straightforward enough. Using the best possible data, the Government has to determine if a species should be

listed as endangered or threatened under ESA. This is one of the

aspects being reviewed by Congress right now. If there is no data

available, it’s sometimes hard to determine if a species is really at

risk.

Once we determine the appropriate data sets and science to determine if something should be listed, what should we do next?

Sometimes critical habitat is designated for species. Is the habitat

necessary to save the species? There has been much debate regarding the appropriate amount of habitat and whether the designation

actually helps restore the species numbers.

Even more important habitat is determined by sound plans for

recovery. We need to set clear goals regarding how the Government

can work with landowners, and I stress ‘‘work with landowners,’’

to enable species to replenish its population. We also need to make

it clear to landowners that if a species recovers to a predetermined

level, that it be delisted.

There are currently 16 species listed as endangered in Colorado

and another 15 listed as threatened. Producers spend most of their

lives trying to make plants and animals live and grow. We can find

ways to fairly compensate and/or work with producers to save listed species and allow producer operations to remain as viable agricultural operations.

We don’t intend to have to list farmers and ranchers as endangered just because they have listed species on their property. With

that, I look forward to all of the testimony today. And I turn to my

colleague, Congresswoman Musgrave, for her opening comments.

OPENING STATEMENT OF HON. MARILYN N. MUSGRAVE, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF COLORADO

Mrs. MUSGRAVE. Well, thank you, Mr. Chairman. I especially

thank you for your willingness to bring this subcommittee hearing

to the heart of Colorado’s Fourth Congressional District. It is here

in the heart of the American West, where we can best glimpse how

the Endangered Species Act and its implementation plays out for

average Americans.

In congressional districts such as Colorado’s fourth, districts

which are largely rural and agricultural, we can see clearly how

this very well-intentioned act has gone awry. We will also see how

the act affects our life in largely urbanized corridors, and we will

hear about the undue strain that this Statute has put on areas

such as Colorado’s growing Front Range.

Indeed, the Endangered Species Act was well-intentioned when

it was passed 30 years ago. Sadly, it has become the supreme Federal land use tool of the small minority of agenda-driven interest

groups, who will use it to stop not just growth but almost anyone

3

whose daily life and work depend on the land and the water and

the proper and sensible stewardship of those resources.

Nobody doubts for a minute the importance of conserving species

and looking out for those species that are in decline. However,

under the Endangered Species Act, as it is currently written and

administered, dealing with species decline and pursuing ultimate

recovery have become secondary to confronting untold litigation

and enormous regulatory burdens. At the end of the day, it is difficult to determine if anything good has been done for the species

this act was meant to protect.

Fortunately for all of us, innovative things are occurring here in

Colorado, and today’s panel will be able to tell you of positive

progress in the endangered species field.

My former colleague, who was speaker of the House when I was

serving in the [Colorado] House of the Representatives, Russell

George, will outline the proactive approach undertaken by Governor Bill Owens aiming at species recovery and delisting. Russell

knows the ESA well, having served as the director of Colorado’s Division of Wildlife for 31⁄2 years before being appointed by our Governor to his current position as the executive director of the Colorado Department of Natural Resources this last January.

Jean Stetson, representing the Colorado Cattlemen’s Association,

will tell us of the ESA and its direct effect on Colorado’s livestock

industry. Jean is particularly well-suited for this task, having

learned ESA policies through her service as a ranching representative on Colorado’s Wolfward Group, advising the State Department

of Natural Resources on agricultural concerns related to links reintroduction and serving as a leader and expert in the greater sage

grouse for Moffat County and the ranching community.

Dr. Alan Foutz is here. He is my constituent from Apron, Colorado, in Washington County. He will give us the particulars of

ESA’s impact on Colorado’s farmers.

Of course, we know that agricultural producers are truly our first

and foremost conservationists. And I’m sure Dr. Foutz will remind

us of that in many ways.

Jim Sims has been doing incredible heavy lifting in alerting the

business community of the work which needs to be done to preclude ESA listing of the greater sage grouse. This is of particular

concern throughout the West. And the U.S. Fish and Wildlife Service is reviewing a listing petition for this species, even as we meet

here today.

Finally, William Palmer will tell us of the good work of the

Rocky Mountain Bird Observatory, especially their practical species

conservation efforts in protecting the bird species mountain plover,

which the Fish and Wildlife Service decided not to list primarily

because of the work of the private and nonprofit sectors and State

and local governments pooling their resources to affect conservation

measures for this species.

It is a pleasure having this panel of experts here today, Mr.

Chairman. And I know the subcommittee will be well-served and

well-educated by their comments. Thank you.

Mr. LUCAS. Thank you, Congresswoman.

Let me state again for the record as we officially invite our witnesses to the table: Mr. Russell George, executive director, ColoVerDate 11-SEP-98 13:00 Sep 13, 2004 Jkt 095743 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 F:\DOCS\10837 HAGRI PsN: HAGRI
4

rado Department of Natural Resources, Denver, Colorado; Ms. Jean

Stetson, co-chairman, Endangered Species Committee, Colorado

Cattlemen, Craig, Colorado; Mr. Alan Foutz, president of the Colorado Farm Bureau, from Centennial, Colorado; Mr. James T. Sims,

executive director, Western Business Roundtable, Golden, Colorado;

and Mr. William Palmer, Executive Director, Rocky Mountain Bird

Observatory, Brighton, Colorado.

With that, Mr. George, please begin.

STATEMENT OF RUSSELL GEORGE, EXECUTIVE DIRECTOR,

COLORADO DEPARTMENT OF NATURAL RESOURCES, DENVER, CO

Mr. GEORGE. Thank you, Mr. Chairman, and may I say welcome

to Colorado and to Greeley today. Mrs. Musgrave, nice to see you

again. Thank you both for coming here and setting up this hearing

to draw attention and invite comments and information on this

very important Federal act that we all have a great deal to do with.

This invitation we take as an opportunity for you to hear what

we have to say about how the act works and how it should work.

I suspect before we are done today, you will find all of us have

some ideas about what to do about that.

You have my statement already delivered to your staff, and I

would ask that be made a part of the record. I am going to take

the few minutes I have to address you by trying to summarize as

succinctly as I can what is more elaborately set out in that statement. I am hoping that the summary will give rise to questions.

And I will be happy to attempt to address those at the appropriate

time.

Let me start by stating what we believe is the right approach for

any State, and that is the Colorado approach, as articulated by

Governor Bill Owens. He asks us, what can we do and should we

be doing at the State level to recover directly an endangered species? The key to this is recover, generally lost in the debate.

He does not ask us ‘‘How do we use the Endangered Species Act

to control land use?’’ He asks simply and pointedly, ‘‘What do we

do to recover threatened endangered species?’’ Everything you will

hear from me today will focus on that point.

Today I think there are three flaws in the Endangered Species

Act. The first is its record. It has a very poor record of recovering

species. I think the statistics are we have recovered 30 or delisted

30 species out of the 1,300 or so that have been listed, 30 out of

1,300, a very poor record.

State participation has not been encouraged over most of the

years until recently, a good sign of going the right direction.

Species can be recovered in a more proactive and citizen-friendly

manner without listing. The act has a tendency to drive away cooperators, rather than to invite them.

The Fish and Wildlife Service has much authority for enforcing

this act, as you know. The ESA administration priority seems to

be more aimed at managing what goes on the list, not so much

what comes off the list due to recovery.

Part of this, I think what I will call misdirected priority for the

Fish and Wildlife Service, is not at their own making but is in response to the huge number of petitions and lawsuits that are filed

5

against the Fish and Wildlife Service for about anything they undertake. That kind of litigious activity has to drain away their staff

efforts and their resources from the more important task of working on recovery, to defending the Statute as they must.

So Colorado’s emphasis, then, will be and has been fostering and

nurturing public and private partnerships for conservation and recovery of the species. We have found time and again that this approach works better without listing than after the Federal jurisdictional layers lays over the top and has some control over everything we do and every decision we make.

We have some very significant examples with our work in Colorado that I have outlined in detail in the statemnt that I want to

walk through. Some of these are success stories. Some of these remain as challenges. But what we have learned from both the successes and the challenges are some very important on-the-ground.

site-specific, species-specific things that we haven’t been doing

right or that we can do better.

Let me start with the black-tailed prairie dog. The National

Wildlife Federation filed a petition claiming that 90,000 acres is all

the occupied habitat that could be found for the black-tailed prairie

dog. This was brought forth as the best available science at the

time, which, as you know, is the standard under the act.

Could that be 5 minutes already?

Mr. LUCAS. Continue.

Mr. GEORGE. With your indulgence, could I just have a few more

minutes?

Mr. LUCAS. Continue.

Mr. GEORGE. And when I have gone too far, Mr. Chairman, if you

could say?

Mr. LUCAS. Please proceed.

Mr. GEORGE. I don’t want to impinge upon the time of the others.

The long and short of the black-tailed prairie dog is this. The best

available science of 90,000 acres was very poor science indeed. The

Colorado Division of Wildlife immediately stepped up, went out on

the ground to see what the real facts were.

The first evidence we got in 2000 by land survey was that

217,000 occupied acres was probably more accurate. We were able

to follow that up 2 years later with an aerial survey, which told us

that 636,000 acres was probably more accurate.

Unfortunately, the National Wildlife Federation continues to

challenge the science. The Fish and Wildlife Service did act upon

the petition at the 90,000-acre number and found that the listing

was warranted but precluded. Hopefully, now that they have this

additional science, when they make their decision next month, they

can determine delisting is appropriate.

Preble’s Meadow jumping mouse is a very important issue for

Wyoming and Colorado. It was listed in 1998. The science then consisted solely of a subspecies designation based on comparison of

three individual mouse samples.

Since that time, Dr. Ramey from the Denver Museum of Science

and History has conducted a very elaborate genetic study and has

determined that the Preble’s Meadow jumping mouse is really part

of a much larger grouping called the Bear Lodge jumping mouse.

6

So the numbers originally thought to exist that warranted listing

are simply not true. It is not a separate subspecies.

The State of Wyoming and a group of Colorado citizens filed for

delisting of the mouse at the end of last year based upon this new

science. That process is in motion now. Public comments are being

taken now, and a decision, I think, is forthcoming, clearly another

case of the best available science has oftentimes either been no

science or not very good science.

In the meantime, since that listing in 1998, of course, citizens,

landowners, businesses, local governments spent hundreds of millions of dollars up and down the Front Range of Colorado to attempt to accommodate this listed species.

Black-footed ferret, last remaining population was found in Wyoming in the late 1970’s. Since then, through the cooperation of

many groups and people, a captive breeding program has successfully produced 2,200 individual ferrets.

The reintroduction program initiated in 1999, Colorado has three

such sites. We think this is a success story in the making. Recovery

goal now is when we have 1,500 ferrets producing in the wild by

2010, that species will have been recovered and can be taken off

the list.

A fairly unique Colorado story is the Canada lynx. The Colorado

Division of Wildlife stepped up and said, ‘‘We will undertake to reintroduce and recover the Canada Lynx in Colorado.’’ Colorado at

its own expense went to Canada and engaged contract trappers to

bring individuals into Colorado. In 1999 and 2000, we brought in

55. In the years 2003 and 2004, we brought in another 71 individuals.

Happily, in 2003, we discovered reproduction. We had 16 kittens

born in the wild in southern Colorado. Again this year, we found

more reproduction, another 30 kittens. We can’t tell you how exciting this is when you can see this kind of success.

The biologists tell us that we will require recruitment, that term

meaning that we need reproduction from those that had been born

in Colorado, before we can say we have a viable population. Within

a couple of years, if we have the same success we are seeing now,

we should be well on our way towards saying we have recovered

the lynx species in Colorado.

One of the problems we have with the way the system works is

the Endangered Species Act is not precise about setting forth the

requirement of recovery goals. We still don’t know what will be

adequate recovery goals so that we can say, ‘‘This species is now

recovered in Colorado and can be delisted.’’ So we are working on

that, and we will probably appeal to you to help us accomplish that

goal.

The mountain plover I think others will talk more about. That

is a real success story. Again, this was one where we were saying,

‘‘We can do this on the ground with all our partners. Don’t list it

because we think listing will actually make this harder to do.’’ And

we moved out ahead and were able to accomplish enough progress

that the Fish and Wildlife Service correctly agreed with us that the

mountain plover recovery is working without the necessity of a listing.

7

The native Colorado river fish program is one of those that shows

again some of the expense and delay and perhaps waste that can

occur when you don’t have recovery goals. For 15 years, we’ve waited and worked to recover the four fish on the Colorado River, not

knowing when the end would come.

In recent years, through a good deal of pressure by Governor

Owens and others, we now have recovery goals from the Fish and

Wildlife Service. So we can see the end is in sight. One of the

things that Colorado did to show we meant business was we built,

at our own expense, a native aquatic fish hatchery in Alamosa, in

the southern part of the State. We have been rearing endangered

species for the opportunity to return to the wild to augment and

recover.

I appreciate the extra time. Let me wind up finally saying that

Colorado would like to see these changes, improvements in the Endangered Species Act.

As I have already alluded to, we think that the act should formulate and publish recovery goals at the time of the listing, not some

time later. If there is enough science to say that a species requires

listing, then that science also ought to be sufficient to say, ‘‘And if

this is what is wrong with the species, here’s how we will know

when we have recovered the species,’’ hand in hand at the front

end. Then we all know how to respond and set our own targets, set

our own budgets, and do what we can to help recover the species.

The second thing we would ask you to work with us on is to

amend the standard of best available scientific and commercial information because, as we know, oftentimes the best available is not

much or not good enough. So that it would be amended to require

the science be peer-reviewed to show that it really is adequate

science under the very rigid standards of scientific method and

other applicable formulas.

Thank you, Mr. Chairman and Mrs. Musgrave. I will be available

questions.

[The prepared statement of Mr. George appears at the conclusion

of the hearing.]

Mr. LUCAS. Thank you, Mr. George.

Mrs. Stetson.

STATEMENT OF JEAN STETSON, CO-CHAIRMAN, ENDANGERED

SPECIES COMMITTEE, COLORADO CATTLEMEN, CRAIG, CO

Ms. STETSON. Good afternoon, chairman. I appreciate the opportunity to appear here today to provide some of my experience with

the Endangered Species Act and its effect on agricultural producers.

The Stetson family has been cattle ranching in northwest Colorado for three generations. Our ranching operations have experienced firsthand the burdens and the challenges of the Endangered

Species Act.

In northwest Colorado, producers are not just dealing with the

impacts of a single species but, rather, several species of concern.

We have the greater sage grouse, the black-footed ferret, leopard

frogs, endangered fish, now the white-tailed prairie dog, and the

wolf is moving in from Wyoming.

8

Each species brings with them their own set of rules, regulations,

costs, and time. Most agricultural producers I know are very limited on time and money. However, the agricultural producer must

take time to be involved in the processes that come with endangered species issues because if you are not involved, the species

management requirements you are handed are often impossible

and unrealistic. When we become involved, we can at least try to

help drive the process and make the expectations more manageable.

My experience with the Endangered Species Act began in July

1998. Our ranch became very concerned about the impacts of the

greater sage grouse. I became the spokesperson for our ranch regarding the sage grouse issues because, ironically, my husband was

already too busy representing our ranch in the plan that was being

written for the recovery of the endangered fish in the Yampa River.

Our ranching operations, along with many other operations in

the area, rely on the Yampa for irrigation and stock water. There

was concern that requirements that were being set forth in this

plan would affect the ability to use our water that we use for irrigation. He could not be in two places at once, so we split responsibilities.

Our concern with the grouse began when we received information in a BLM permit that was requiring the herding of our cattle

away from grouse nesting areas. The BLM also wanted a vegetative condition that was desirable for nesting sage grouse, and they

wanted us to maintain residual grass cover of at least 6 inches

high in the spring. They also wanted us to start a rotation grazing

pattern in this pasture so there was not the opportunity to go to

another pasture.

These requirements alarmed us. We could not afford a herder.

It’s not part of the tradition to herd cattle like you do sheep, and

we questioned whether the vegetative requirements were reasonable for the types of grasses that are on our range. We decided it

was important to get involved in the grouse planning process at the

local level to make sure that the ranching interests were truly represented.

And I just want to echo the approach that was made there, as

he suggested, was not one of calling you up or saying we need to

work this out. It was a directive that was given to us, and I think

that an approach to get agricultural producers involved in this

process would be much better if you could approach it from a team

perspective.

I have spent too many hours to count in the 6 years of meetings

for the sage grouse. I have been trying to stress the importance of

data, science, and a common sense approach. As a result of the

sage grouse concerns, our ranch changed grazing rotations, and

we’ve hired a range consultant to help us monitor our range and

gather data to make sure that we had accurate information regarding the vegetation. We did not want to risk changes to our permits

that were not based on data and science.

If this was all not enough, there is yet another endangered species that has very recently been alarming us: the wolf. Wolves are

moving in out of the Yellowstone area, and they are coming to

9

northwest Colorado, and that will affect every rancher in that part

of the country that does business.

What will the costs be? Can we afford the extra time and management that will come with yet another endangered species? Wolf

proponents suggest that it is up to the rancher to adopt new husbandry techniques that help minimize the potential of wolf depredation. The burden is again on the producer. How can we protect

our livestock? How can we possibly have the time and the manpower to patrol thousands and thousands of acres to protect our

livestock?

So many of the operations in northwest Colorado require large

amounts of land because of the arid climate and the range conditions. We must use our range resources very carefully. For instance, our grazing rotation over the year comes to a 64,000-acre

rotation, and ours is one of the smaller operations up there.

The wolf issues will take more of our already precious time,

money, and resources. I am currently representing the livestock industry on the Colorado Wolf Management Working Group because

I am fearful that if we do not truly manage the wolf, the wolf will

have a negative impact on the livestock producers.

These are just a few of the species that my ranch operation is

having to deal with. Other operations, as he mentioned, are the

lynx. I know producers that have had sacrifices to depredation as

well as problems with forest permit renewals, things like that because of the lynx.

The mountain plover, the black-tailed prairie dog, the Preble’s

Meadow jumping mouse, and the burrowing owl.

The Endangered Species Act is now 30 years old. The act has

done very little of what it was intended to do. As Mr. George mentioned, 1,300 species have been placed on the list, and less than 30

have been recovered. The act has resulted in regulatory and financial burdens that have been placed on the people who are out on

the land trying to make a living and on the people who care for

the land every day.

It is time to change the focus of the Endangered Species Act. We

need to stop using it as a tool for land use control. We need to reduce the regulatory burdens and truly promote species recovery;

encourage win-win projects, projects that will benefit the species,

the land, and the people out on the land trying to make a living.

An example of that is the project that we did on our ranch to increase water conservation. We went from flood irrigation to a pivot.

We increased conservation. We increased production of our hay

crop. We left water in the river for the endangered fish. And we

also created better habitat for the grouse that use our hay fields

to raise their chicks.

Treat the people who work and care for the land as partners.

These partnerships need to encourage the sustainability of agricultural operations. Farming and ranching operations are often the

key components in species recovery programs. Farms and ranches

maintain open space, and that open space is important for diversity

of wildlife habitat. Condominiums will not help species recovery. It

is time to promote cooperation and true conservation.

Thank you for your time and consideration.

10

[The prepared statement of Ms. Stetson appears at the conclusion of the hearing.]

Mr. LUCAS. Thank you, Ms. Stetson. And the Chair would note,

customarily we operate under the 5-minute rule for comments and

questions, but on topics of this nature, where testimony is this

straightforward and well-composed and where we have one panel,

the Chair is more than willing to indulge this kind of bright witnesses.

Mr. Foutz, please.

STATEMENT OF ALAN FOUTZ, PRESIDENT, COLORADO FARM

BUREAU, CENTENNIAL, CO

Mr. FOUTZ. Good afternoon, Mr. Chairman. My name is Alan

Foutz. I want to welcome you here today. I want to particularly

welcome Congresswoman Musgrave here today. She and I don’t get

to see each other very often, but it is a pleasure to see you here.

I did see you last week, I guess, but we don’t get to do that very

often.

I am the president of Colorado Farm Bureau. It is our State’s

largest agricultural organization. I currently farm about 1,200

acres in Washington County, Colorado of wheat, sunflowers, and

millet.

I really do appreciate the opportunity to spend some time with

you today regarding the Endangered Species Act and the effects

that it has on agriculture. You have my written testimony. I will

be very brief on my oral testimony, but certainly I would invite you

to go to look at our written testimony.

In our opinion, in Colorado, the Endangered Species Act is one

of the pieces of legislation that needs reform in a much- urgent

fashion. That reform will have a huge and critical impact on how

our farmers and ranchers do business in the future.

The U.S. Fish and Wildlife Service and National Marine Fisheries Service simply in the past have not used sound scientific

bases for imposing regulations and restrictions on our operations.

In addition, farmers and ranchers many times simply do not

have an opportunity to participate in discussions where ESA decisions are being made. The agencies determine how private lands

containing these species and the habitat of these species are going

to be managed without much input, if at all, from the landowner.

To alleviate these problems, we feel strongly that independent

scientific peer review be required for ESA decisions. We also recommend that affected landowners be considered as primary stakeholders in this process and be given ample opportunity to provide

comments, and then have those comments considered in all of the

recovery plans and listing plans as they are made.

The current system simply is not working. As has been stated

here, there is something on the order of over 1,300 species that

have been listed. Somewhere between 15 and 30 have been removed from that list because of recovery. It is simply not working.

We strongly believe that we need to have a new approach if we are

going to make the Endangered Species Act work both for people

and for species.

Farmers and ranchers are not opposed to saving endangered species. We are opposed, however, to the arbitrary land use regulaVerDate 11-SEP-98 13:00 Sep 13, 2004 Jkt 095743 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 F:\DOCS\10837 HAGRI PsN: HAGRI
11

tions that are imposed by species habitat protection and the harsh

and often unreasonable penalties that accompany any activity that

is contrary to some administrative fiat.

For these reasons, Colorado Farm Bureau and the American

Farm Bureau believe that endangered species protection can be

more effectively achieved by providing incentives to private landowners rather than imposing land use restrictions and penalties.

Desired behavior is always more apt to be achieved by providing

a carrot, rather than a stick. As it now currently stands, there is

no carrot in the Endangered Species Act.

As agricultural producers, we want to be proactive in finding

common sense, practical solutions to saving threatened or endangered species. We believe that voluntary, cooperative conservation

programs are one of the best options available right now to help

conserve species and conserve habitat. We are pleased that this

committee and the administration has interest in finding out and

learning more about some of the kinds of programs.

In order to ensure these cooperative programs that are developed

are grounded through legislation and not enacted through regulation, we believe all ESA cooperative-based programs should: No. 1,

be voluntary with the landowner.

Number 2, we feel that they should focus on providing active species management and innovative improvement measures, as opposed to passive management through restrictions and regulations

on land use; No. 3 that we not focus on sales of lands or purchases

of easements in order to provide for that habitat; No. 4, that we

incorporate the removal of existing regulatory disincentives, such

as land use restrictions. Safe harbor and no-surprise agreements

should be explored whenever appropriate in any of these agreements. Number 5, we need to recognize that plans should be locally

developed.

Number 6, we need to be flexible with the landowner. Landowners can develop creative solutions for ESA issues, and they

need to be recognized and used. And I’ve said, not tongue in cheek,

but I’ve said many times for farmers and ranchers do produce

abundant food. We can produce whatever the consumer wants. If

we’re allowed, we can produce endangered species, just help us pay

for it and help us make a living doing it, and we’ll produce all that

this nation wants.

We believe that if we are given an opportunity and the proper

support, farmers and ranchers can do a better job of enhancing listed species than the Government does. As experienced practical

land managers who may have observed the species for a number

of years, we bring a working knowledge that Government scientists

simply do not have. I’m going to expound on that in just a few minutes.

More importantly, we can offer day-to-day management of the

species that, again, the Government simply cannot do. Such programs will result in better management and greater chance for recovery of the species than is provided under the current law.

We also believe that with the proper incentives and with the respect for private property rights of the participants and their

neighbors, farmers and ranchers will be willing to participate in

these kinds of programs.

12

In closing, just let me give you a story, one that happened in this

State. And I know Congresswoman Musgrave was involved in this

with several others sitting at these tables today. And that was the

mountain plover issue.

Several years ago, this came to my attention. I wasn’t yet president of the Colorado Farm Bureau, but it came to our knowledge

that a petition had been sent to the U.S. Fish and Wildlife Service

that asked that the mountain plover be listed.

The U.S. Fish and Wildlife Service contacted Colorado Farm Bureau, contacted me. We had a meeting in Akron, Colorado in the

basement of the Masonic Temple. The Fish and Wildlife Service

was there. There were many local landowners there. We sat down

in that meeting room.

The first question that was asked of the landowners, growers,

and ranchers in that areas was, ‘‘This is what the language of the

listing is. Can you live with this? Number 1, if you own grass, you

will have to burn it by March 15 of every year. Number 2, can

those of you who are farming not do anything in your fields from

March 15 through July 15?’’ That was the original listing language.

Well, I’m sure you can well-imagine the furor that created at

that particular time. Colorado Farm Bureau, along with Rocky

Mountain Bird Observatory, along with the Division of Wildlife and

some other agencies began to come together and see what we

couldn’t do.

Those of us who farmed and ranched in that eastern area of Colorado had been seeing these birds. We knew where they were at.

But current science said that they were in grasslands in northern

Colorado, in the Pawnee grasslands. Guess what. They weren’t

finding them there.

It is interesting that those who want to list all of these things

assume that everything in development in nature stopped 100

years ago. These birds were smart. They knew where they were

protected. And they ended up on our farmlands, and they were

being protected.

We asked that a 3-year study be done. We worked very closely

through the Fish and Wildlife Service. They agreed to allow us to

do the study, a 3-year study. Colorado Farm Bureau put in several

thousand dollars to help facilitate that study. The Rocky Mountain

Bird Observatory, Division of Wildlife participated. Colorado State

University participated. And we found that, in fact, there were a

lot of mountain plover in eastern Colorado on cultivated lands.

When that 3-year study was over with, the Fish and Wildlife

Service decided that if there was some way that we could continue

to work and maintain that population, a listing would not necessarily have to take place. And we now have landowners working

with Rocky Mountain Bird Observatory and the Division of Wildlife, making sure that we provide that habitat for the particular

species and preclude the listing of that bird.

That is not done without a cost because that means that in the

spring of the year, I need to have somebody go out into my fields

and flag nests, do all of these kinds of things. And then I have to

work around those nests and do all of my operations around nesting sites.

13

That doesn’t come cheap. When you are out in those fields, it is

hard to see these little birds. So all of these issues are not without

cost, but we are able to do it.

This was a tremendous program that we think has some real viability for other listings in the State. Secretary of Interior Gale Norton was very closely involved with that. She has decided that this

was the kind of a program that she would like to try to use on

other species. But that’s how together, cooperatively we can save

these things.

It was an issue that was borne out of desperation on my part because I saw my whole operation disappear in one year. And yet out

of that, I think all of us have come away from this process not only

saving the species, but saving our agricultural system at the same

time.

It can be done. It can be done in a much better way than what

currently is stated in the Endangered Species Act. We would simply ask that you consider these things as you go back to your domain and work on making changes to that with forward thinking.

[The prepared statement of Mr. Foutz appears at the conclusion

of the hearing.]

Mr. LUCAS. Thank you, Mr. Foutz.

Mr. Sims, whenever you are ready.

STATEMENT OF JAMES T. SIMS, EXECUTIVE DIRECTOR,

WESTERN BUSINESS ROUNDTABLE, GOLDEN, CO

Mr. SIMS. Good afternoon, Chairman Lucas, Congresswoman

Musgrave, and staff here at the subcommittee. My name is Jim

Sims. Thank you again for showing the national leadership that

you both are showing in bringing this hearing to Colorado and in

other hearings that I know the subcommittee will be doing on this

issue.

I represent a very, very broad range of interests through two organizations: the Western Business Roundtable and the Partnership

for the West. In our organizations, we have members in agriculture, coal, hard rock mining, timber, oil and gas, financial services, construction, legal services, chemicals, manufacturing, engineering services, private property rights, small business owners,

education officials, pro-growth coalitions, and many others. We are

a very, very broad set of interests. I greatly appreciate the opportunity to testify here today.

Mr. Chairman, I’m here today to say that the Endangered Species Act is dead, but long live the Endangered Species Act. What

I mean by that is that the Endangered Species Act is dead is that

it is broken, outdated, anachronistic law that is operating barely on

life support. It discourages innovative environmental conservation.

It confiscates, effectively, private property. It denies folks their

livelihoods and their businesses. It costs our economy many billions

of dollars each year with little positive benefit. It prevents wellmeaning folks at Fish and Wildlife from doing the real work of trying to help species flourish.

And, most importantly, I think it fails miserably at one of the

central goals that Congress intended when it wrote the law 30

years ago, and that it is recovering species to health.

14

Others have and I know in your subcommittee’s hearings you

will hear many more specific testimonies about the failings of the

law, but I will simply point to one statistic. Over the 30 years of

this law’s existence—and this is its 30th anniversary—the ESA has

clocked greater than a 99.9 percent failure rate in recovering

threatened species, and I would ask any of the members here of the

subcommittee or, frankly, anyone in the audience if anyone can

point to any single Federal law that has registered such a breathtakingly consistent record of failure over that period of time. I don’t

think there is one.

ESA is kind of like a doctor who tells me that my 3-year-old has

a potentially life-threatening illness. And his treatment regimen is

this. He wants to put her in the hospital. He wants to give her no

active treatment, no medications, no therapy, no even visits to her

bedside. And he says, ‘‘Listen, we are going to let nature take its

course, and hopefully things will work out.’’ Well, does that sound

like a rational approach? Would anyone in this room follow that advice if a doctor said, ‘‘This is what we want to do with your child?’’

I don’t think so, but that is exactly what ESA does through its critical habitat designation.

Now, the act does do two things very, very well. Number 1, it effectively transfers control of large swaths of land throughout the

West and, really, throughout the country from private landowners

and from States and counties who control those lands to the control

of unelected Federal bureaucrats and, in some cases, environmental extremist groups.

Number 2, frankly, it provides a very, very good living for a relatively small group of trial attorneys and professional environmental groups who use a series of never-ending lawsuits to warp

this well-intentioned law for their own purposes.

Now I also said, Mr. Chairman, at the outset of my remarks, that

long live the Endangered Species Act. What I mean by that, and

how do I square that with such a damning indictment of this law?

What I mean is the American people overwhelmingly support having a law on the books that protects endangered species. I don’t

think this act is going to be repealed. I don’t think it is going to

be gutted. I don’t think it will be eviscerated, not certainly in our

lifetimes.

But at the nexus of these two statements I think is the challenge

that faces you in Congress and other national leaders. And that is

how to fix this act. The American people want an act. We want one

that works. How do we make it work? How do we modernize it

after 30 years? How do we bring it up to date for the 21st century

so that it really works for species and works for the people who live

with those species? I have several suggestions for reform.

Number 1, why don’t we require sound, peer-reviewed science as

we look through our listing decisions, rather than simply the best

available science? Look, we have laws like the Safe Drinking Water

Act, the Marine Mammal Protection Act, a variety of laws that affect the Food and Drug Administration, the Department of Education, the Department of Labor, and the Department of Commerce, just to name a few. All of those require the science that goes

into their decision-making process be peer-reviewed. Why doesn’t

ESA?

15

Of course, if it did, we probably wouldn’t see listing mistakes,

such as happened in the case of what I call the mouse formerly

known as Preble’s, and you heard about that today.

What about this? What about updating the act to incentivize

stewardship on private lands, rather than relying on the punitive

approach of the act?

In the case of the greater sage grouse, which Congresswoman

Musgrave made reference to, which is currently under listing review, I think we would see a lot more folks and private landowners

coming to the table interested in preserving that species on their

land, rather than trying to fight the listing.

As it stands now, how do you think many landowners would

react when they find that they have some greater sage grouse on

their lands and they understand the listing is in the works? Do you

think that their instinct is to pick up the phone and call Fish and

Wildlife and say, ‘‘Hey, we have sage grouse. What do we do?’’

Instead, what most people do—and they won’t say this for the

record—is they shoot, shovel, and shut up. That is a well-known

phrase, but it happens. And that is what people quietly are telling

us in the sage grouse campaign. They hope they don’t find these

birds because if they do, they may not be there the next day. That

obviously doesn’t work in the current act.

What if we added provisions to the act that stretched out the

time frame between the time of the new listing and the time that

we start the critical habitat designation that is listed in the

Cardosa bill that the House Resources Committee passed last

week?

What I think that would do would be to give more time to stakeholders to come to the table after the species is listed, the sound

science shows it is required, come to the table, environmental

groups, landowners, State and local officials, industry, et cetera,

and work out conservation plans so that when we get to the critical

habitat process, we may need to avoid that. We all know that process does not work very well.

I think we should also look to give States to have the chance to

play more active roles in the development of those plans. We

should look I think at the option of requiring species recovery goals

to be set prior to a species being listed.

Finally, I think, most importantly, we should add provisions to

the act that place the focus more on species recovery than on the

bureaucratic stranglehold of the critical habitat process. I think

that would replace a failed strategy critical habitat with one that

works very, very well. That is locally-driven conservation plans.

If you look at, as has been referred to, just how bad the current

act is with species recovery, I have summarized some of the statistics that come right to Fish and Wildlife. They’re in the handout

over on the table for people to look at, but I will summarize in two

sentences what they say.

That is, the ESA has not been responsible on its own for the recovery of a single species. We removed about 30 species from the

list over 30 years. About 14 or 15 were removed because of data

errors or they went extinct. Sixteen have been recovered. And some

folks have looked at those 16 and said, ‘‘Did the ESA on its own

help recover any of these species?’’ And the answer was no.

16

So, in effect, if you look at the success or failure of the act with

regard to species recovery, it has a zero percent rate of success over

30 years.

That is astonishing. In summary, the act can be fixed, we believe. It can be modernized. It can be brought up to date with technologies and sciences of the 21st century. But achieving success on

this will require bipartisan support, bipartisan consensus.

We were pleased to see, just last week, the House Resources

Committee passed out a bill sponsored by a Democrat and one

sponsored by a Republican, and both bills passed with pretty

strong bipartisan support. We certainly hope that continues. We

will, of course, work with you and your colleagues in this historic

reform effort.

Thank you very much.

[The prepared statement of Mr. Sims appears at the conclusion

of th hearing.]

Mr. LUCAS. Thank you, Mr. Sims.

Mr. Palmer.

STATEMENT OF WILLIAM PALMER, EXECUTIVE DIRECTOR,

ROCKY MOUNTAIN BIRD OBSERVATORY, BRIGHTON, CO

Mr. PALMER. Chairman Lucas, Congresswoman Musgrave, thank

you. I’ve submitted a formal testimony. With your permission, I

would like to summarize that.

I am William Palmer, and I’m the executive director of the Rocky

Mountain Bird Observatory. We are a nonprofit organization. Our

mission is the conservation of birds and their habitats throughout

the Rocky Mountains and Great Plains. We achieve our efforts

through monitoring or bird counting, determining bird population

trends, research, outreach, and education. It is primarily the outreach component that we talked about today.

The part of our outreach program works with producers is called

the Prairie Partners Program, and it has been in existence for 5

years. In this program, we work with landowners and resource professionals to conserve all types of prairie birds. We literally have

knocked on doors. We have met people in restaurants. We have

conducted bird inventories. We provide technical assistance. We

talk to people wherever we can talk to them.

But by far, the most effective thing that we do is to conduct

workshops to bring together landowners and State and Federal

professionals to discuss wildlife economic diversification and partnership opportunities.

Several people have mentioned the Rocky Mountain Bird Observatory, and I appreciate that very much. But one of the things that

I want to point out to you is the interest that was in this kind of

work that we do. Since 2002, for 2 years, we have conducted 26

workshops in four States: Montana, Colorado, New Mexico, and Nebraska.

Some of those workshops have been in urban areas, where people

from towns have come out, meet land owners, and really understand some of the problems and complications and challenges that

are facing the land ownres. In those 2 years, almost 1,000 people—

and we’ll hit 1,000 people this summer, I’m sure—have attended

these workshops.

17

We also produce and distribute outreach tools. We have prepared

a brochure called Sharing Your Land with Short Grass Prairie

Birds that tells landowners about some of the birds and some of

the specifics of those birds. We’ve distributed 10,000 copies of that.

We produced a small pocket guide to prairie birds. It’s a small

things farmers can stick in their pocket, they can put in their tool

box, their tractor, they can put in their pickup. In 2 years, we have

distributed 28,000 of those. People love this material. They want to

know what they have.

We have also developed and distributed hundreds of what we call

stock tank ladders. These are escape mechanisms for a bird that

gets trapped in a stock tank. He will be ble to climb out and get

away.

The number of people that we have talked to since this program

has been innovated is some 700 people. We keep contact with some

700 people through our database. And that represents more than

a million acres. We think that is pretty impressive.

Several people have talked about mountain plover. I would like

to add to that a little bit. We consider it to be an extremely successful program that works on behalf of landowners, professionals,

and groups like the Rocky Mountain Bird Observatory

We have produced a video to help farmers and landowners identify mountain plovers to determine their preferred habitats, to

learn about conservation opportunities. We’ve distributed 270 copies of this video. In addition to that, numerous organizations have

shown it at meetings, such as the Farm Bureau. They are showing

it at some of their meetings.

We know a lot about mountain plovers and their preferences.

And we know that they prefer cultivated lands, as Mr. Foutz said,

over the Pawnee grasslands. Our work has shown by these numbers a tremendous interest in the willingness of landowners to

work with us, but they need some help. They need to know what

is out there and how to do it.

One of the things that we have done is created a toll-free number. And if a landowner thinks that they have a mountain plover

on their property, during nesting season, they will call us, and we’ll

send out a technician to go out and confirm that it is a plover. If

it is a nesting plover, we will put a flag up to show the landowner

where the nest is. That will prevent them from running over the

nests with farm equipment.

We have taken about 20 landowners. This is a relatively new

program. We have put about 25,000 acres into this service. Not

only are we doing this in Colorado, but I would like you to know

that we are doing it in Nebraska and other places and hope to expand to the Great Plains.

We are committed to the voluntary conservation of mountain

plover on private lands. The Division of Wildlife, Colorado Division

of Wildlife, has funded our outreach efforts through 2008, so we’re

very happy about that.

We are going to continue to work with private landowners to conserve prairie bird species. We believe that once regulatory mandates are a part of the process, private landowner cooperation declines. Only with full private landowner cooperation can birds such

as the mountain plover be conserved.

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Non-public conservation efforts have become a model effort

proactively and voluntarily with a group of diverse stakeholders

and species conservation. There have been a lot of people involved

in this mountain plover success story, and we are very pleased to

have been a small part of it. But the real contribution was made

by the landowners who are going to preserve these birds.

Thank you.

[The prepared statement of Mr. Palmer follows appears at the

conclusion of the hearing.]

Mr. LUCAS. Thank you.

Mr. Palmer, it appears that Rocky Mountain Bird Observatory is

a model of how things should be done to repopulate. In your observation and your experience, is it possible, perhaps, for other organizations to work in the same general way the group works, or is it

just a different matter? Is it simpler to save birds than perhaps

fish or flowers? Your opinion?

Mr. PALMER. Mr. Chairman, thank you.

I thought about that question quite a bit. And I think that the

model the Rocky Mountain Bird Observatory has put forth is a

model that could be applied anywhere with any species.

Mr. LUCAS. Based on your experiences, you believe that there is

a willingness out there among producers to cooperate that have

that kind of information and the kind of assistance that you’re providing, for not just birds but perhaps everything else, too?

Mr. PALMER. With everything, yes, sir. I think that is exactly

true. Producers, farmers, landowners want to keep in business.

And they’re willing to. As Mr. Foutz said, they can produce endangered species, but they need knowledge. They need information,

and organizations such as ours can provide it.

Again, I firmly believe that this is the success that we have had.

If you look at the numbers of people who have participated with

this in 2 years, I think it is the wave of the future. It is a winwin situation for everybody.

Mr. LUCAS. Turning to you, Mrs. Stetson, along that line, between the time that the ESA first became relevant in your ranch

until now, have you been able to find or were you initially able to

find initial advice you needed, the sound advice to be able to move

forward or, if not then, have you been able to accomplish that now?

Ms. STETSON. Yes. We were able to find the advice. It wasn’t as

readily available in the format that he suggested. We had to actively seek this information.

I was listening to what he was saying. I think that there is a

willingness on the part of the producers to be proactive in this

manner. Howver, it has to be done in a non-threatening manner.

Unfortunately, there are always—forgive me—agendas, no matter

what branch of government you are in, if it’s the BLM, the Forest

Service, no matter where it is.

The willingness of a producer to come forward has to be done in

a manner so that if the agenda is one person is going to say, ‘‘Ha.

She has grouse up there. I’m going to get her cows off there,’’ then

I’m afraid to do it. If it’s done in such a way where they’re going

to come to me and say, ‘‘OK. We’re glad that you came to us. Let’s

work through this and come up with a win-win solution,’’ of course,

we’re very willing to do that.

19

But the problem I see is that you never quite know what you are

dealing with until sometimes it is too late. And you just don’t know

the type of people that you are going to be going to and how they

are going to react to the information that you are going to give

them. And I don’t know how you will get over that hurdle, but that

is very real concern.

Mr. LUCAS. You mentioned requirements proposed on your rangeland. What is your average rainfall?

Ms. STETSON. I don’t know the answer to that question. As far

as the residual height that we were required to leave, it wasn’t reasonable for——

Mr. LUCAS. The reason I asked that is I live 500 miles south and

east of you. We get about 24 inches of rain a year. That 6-inch requirement would be a challenge.

Ms. STETSON. Yes.

Mr. LUCAS. I suspect you probably get less than that annual

rainfall.

Ms. STETSON. And I did find out in digging through the requirements that were set forth by specialists such as Connelly and

Brown on the sage grouse there was a section in the book that said

that this was just a suggestion.

And if you dig deeper, you would find that they recommend that

all areas have their own range people evaluate the grass and find

out what was acceptable and reasonable for that type of grass in

that area before setting any standards.

As a group, in the sage grouse group, we have moved forward

and are coming down to do research and some things and trying

to find out what is reasonable and acceptable for sage grouse habitat in Moffat County because we didn’t feel like the cookie cutter

approach was working, so we were trying to find out the correct

data.

Mr. LUCAS. From a range management perspective, literally

every soil type, every adjustment in range, the side of the slope

you’re on makes so much difference.

Ms. STETSON. That’s right.

Mr. LUCAS. Very true.

Mr. Foutz, your comments about the carrot and stick are so very

much to the point. As Mr. Sims pointed out, the original act passed

30 years ago. My goodness, Richard Nixon was the President and

signed it into law. Look how long he has been gone.

Is it fair to say that if we were able to make the kind of adjustments that numerous of you have discussed in this manner. We’ll

focus on sound science, the ability to verify the science that the decisions were based on, if we could come up with a way to make this

more of a carrot, as opposed to a stick, that we might see a greater

level of participation by your membership, a desire to, as you said,

produce more of those endangered species, so to speak?

Mr. FOUTZ. Well, I can certainly only speak for my members and

my organization. But I do feel, and I do find that as I talk with

that membership, that they are all concerned about the species,

just the same as everybody else is. They like getting up in the

morning and walking out in the yard and seeing the deer or bird

or whatever it might be there just as much as anyone else.

20

And so to answer your question, yes. There is an interest on our

growers and our members to have those species around if it is at

all possible. There may be some where it is simply not possible,

economically possible to do that either. We have to have the problems with that, just as on the other side.

I think from the standpoint of our members, yes. They are as interested in preserving as many species as can be economically and

viably be preserved on a given piece of land. I certainly am.

One of the greatest things at noon is to shut the tractor off,

which we don’t get to do anymore. At noon, sit down behind a tractor wheel, and watch the birds and listen and see what is going on

and see what is happening. That’s why I live out there.

Mr. LUCAS. Mr. George, what kind of effect does it have on the

State of Colorado’s budget, these efforts that obviously you and

your department are trying to go through to be more effective and

proactive in working these issues? What is the cost to the State?

Which, obviously you’re willing to rise to the occasion to meet,

but——

Mr. GEORGE. If we’re going to do anything, it costs money. That

is given. The problem with the act, one of the significant problems—and this is going to apply to almost any Federal statute that

causes a change, behavior change, contact, or activity—it costs

somebody something. The Endangered Species Act has not drawn

adequate funds with it, as we all know.

In the case of the four endangered fish in the Colorado River, the

benefit there flows from the power revenues, the Federal power

revenues, coming from Glen Canyon Dam, and that’s been hundreds of millions of dollars.

What would have happened in the Colorado River had that

source of revenue not been available is that there would not have

been other funds available, and we would have essentially shut off

private diversion of water from the Colorado River. Fortunately,

that has not occurred. Everything has worked to avoid that.

Other species where we haven’t had that source of revenue, then

the State has had to find it. And we haven’t had it. In the case of

statewide species conservation, Colorado legislature less than 10

years ago set up a species conservation fund, funded $5 million of

general fund, as I recall, and then $5 million severance tax dollars.

These are the only funds available though the Colorado legislature.

That money is gone. The Division of Wildlife has tried to parcel it

out to do the numbers of things we have done.

Where we are now with that fund gone—and, of course, Colorado’s general fund crisis is similar of any other State’s because of

the downturn in renvue stream, tax revenues, States everywhere

in the last few years—the one source Colorado has left is the lottery funds.

We have a lottery program in Colorado. Half of that money is

made available through Great Outdoors Colorado. A fourth of that

comes to the Division of Wildlife. That is the seed money we then

use to reach out wherever we can to find matching money.

There has been some growing success with the Department of

the Interior’s landowner incentive program. We have been able to

put some significant money on the ground in Colorado for acquisition of easements and otherwise to underwrite the activity that

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needs to be done. We see the stormcloud looming, that we have so

much more to do. And I don’t know where the money is going to

come from to do it.

So what happens under the circumstance, as we know, is that

when conduct must change because of Federal law, if the Federal

Government cannot or does not fund the cost of changing that conduct, someone else is going to pay, either pay in not doing what

had been done before, which probably earned a living for somebody,

that earning a living is now gone, there is an enormous price to

pay there that spins all through our local communities, as we

know.

So we don’t have an answer to all of that. And we have kind of

stayed away from that whole discussion today, but maybe that is

for another day. We have focused more on, because we want to do

the job, here is how we can change the law to help it. All of that

we are very serious about.

But it is only a portion of the problem. The States have stepped

up to the plate where they could. Businesses on the Front Range,

the 100 or more million dollars that have been invested in changing activity on the ground because of the Preble’s Meadow jumping

mouse have been funded by local governments out of their own revenues and by businesses. It’s a cost of doing business. And that’s

the way the cost evolves.

Of course, we will do what we have to do. The American ingenuity is always at play, and we will do it. But is that fair? Is that

the right way? And will we be as successful if we continue to sort

of pay for this by default?

Mr. LUCAS. Mr. Sims, you obviously are well-informed about the

efforts to try modernize the Endangered Species Act, and the efforts you alluded to bipartisan in nature. We have made real

progress.

I have been a member of the body for 101⁄2 years now. The very

first time there was an endeavor to try and accomplish some of

these things, those of us who were supportive were, in the midnineties, basically were laughed out of the chamber to the point

now where a couple of good bills have cleared committee. And

that’s not just a committee dominated by one perspective. It is a

committee that you clearly have to have a good bill to win over all

side of these issues.

I am just pleased that you are so well-informed and hope you

would agree with me that we have some good legislative efforts underway to benefit everyone and all of the efforts of ESA.

Mr. SIMS. Mr. Chairman, I would just make one observation that

I think that there has—and I hope you agree with this and Congresswoman Musgrave I think would, too—I think there has been

a political sea change in the Congress on this issue; whereas, even

a couple of years ago, a lot of observers would have guessed that

an ESA reform bill, even bipartisan, wouldn’t go anywhere. I think

it has changed.

I think part of that is that members and interest groups and others that have been pushing this see that the path to success is not

appeal of the act, is not wholesale change. It’s improving the act.

It’s modernizing the act.

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I think that the American people when they are presented with

the case or the question ‘‘Should the Congress improve and modernize a law that doesn’t seem to work and has been around for

30 years and never been tinkered with? Should that happen?’’ I

think they will overwhelmingly respond positively to that, and I

think members of Congress will as well. That’s my hope.

Mr. LUCAS. Thank you.

Mr. SIMS. That is my hope.

Mr. LUCAS. The Chair turns to the gentlelady for her questions.

Mrs. MUSGRAVE. Thank you, Mr. Chairman.

I just might go right back to Mr. Sims and your comments that

you made. They were very bleak in regard to species being recovered. Did you say that you thought that you thought that none of

the recovery efforts were responsible to the ESA?

Mr. SIMS. It’s amazing, Congresswoman Musgrave, but if you

look at the numbers—and these come from Fish and Wildlife—we

have about 1,265 species over 30 years that have been listed as

threatened or endangered. There are 39 other species that were

listed or delisted during that period of time and some, frankly, because they were mistakes.

We have had about 1,304 that have gone on the act as listed endangered species. Sixteen of them by Fish and Wildlife’s own statistic will have been recovered. And the other 14 or so went extinct

or they were put on by mistake.

The question is, and it was looked at by the National Wilderness

Institute. They did a study in 1997, and they asked, ‘‘How has the

Endangered Species Act and the mechanisms of the ESA we’re calling species recovery?’’

And while you can say that the act has recovered or helped recover 16 species, if you look at those species and say, ‘‘Did the act

by itself, the mechanisms of ESA, lead to recovery?’’ the answer

was no in every single case.

Now, the act obviously played a role, I think. I would like to

think it played some role in those recovery success stories, but in

stories like the peregrine falcon or the bald eagle, which I think

will be delisted in the next year or so, what really helped recover

those species were things that were done outside of the act.

We banned DDT. That was one of the biggest parts of the success

story of the bald eagle. We bred California condors, something ESA

doesn’t really encourage, but people went in and did that kind of

active conservation effort. That is what led to success.

If the ESA could be changed to encourage active conservation

measures, it would be changed at the outset to provide carrots to

private landowners to do active things, I think it would work a lot

better. It just doesn’t do that now.

Mrs. MUSGRAVE. Thank you very much.

Mr. Palmer, how would you advise the Fish and Wildlife Service

to allocate their resources and administer ESA?

Mr. PALMER. Wow.

Mrs. MUSGRAVE. Big question, I know. I think the remarks you

made just show the cooperation and the success that you have had.

So just as much detail as you want. How a better job could be

done?

Mr. PALMER. Well, thank you.

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I think one of the things that has to be done is what several people here have mentioned, and that is good science. We really need

to be monitoring these species to determine their long-term trends,

population trends, so that we don’t come to the edge of a problem.

Some of the work that we do in monitoring bird species throughout the West here, it may take 30 years before you can really figure

out, statisticians tell us it may take 30 years before you can really

figure out if that trend is increasing or decreasing. A lot of people

see the decline in one year, and they become very concerned. So we

need long-term science. We need to be working on that right now.

We are doing some of that. Some of that is happening, but I

think there needs to be more of that. Put money into keeping species delisted, rather than trying to get them off of the list, I think

is key.

First I would tell you that I spent 20 years in government—so

what I am going to say I will preface with that—in a regulatory

agency. One of the things that I think helps the success of the

Rocky Mountain Bird Observatory is that we are not regulatory

people. There tends to be a little hesitation when landowners meet

regulatory people. I see you smiling, Congresswoman, but it’s true.

I’ve been on both sides of that. So I think that working with nonprofits and other groups like ours is a really effective tool.

Third, one of the things that we are able to do is, because we are

nonprofit, I think through the entire Rocky Mountains and Great

Plains, we are able to cross State boundaries and work with different State agencies. We are able to work with feds. We are able

to work with foundations. And all of those people, all of those different groups, come together. And we are able to leverage dollars

against dollars and get a greater result than any single agency

funding us.

I mentioned the little booklet that we have given away 27,000 of.

That is funded by numerous State and Federal agencies, by Boy

Scouts, by our memberships. Our foundations believe in what we

are doing.

So it is pretty interesting that groups like ours—and I will use

this as a model only, but we are able to cross boundaries in putting

dollars together to form really broad-based partnerships.

Mrs. MUSGRAVE. Mr. Sims?

Mr. SIMS. Would you mind if I add something regarding numbers

because I don’t want to be accused of just presenting one side of

the case?

Those who feel strongly about the act will paint a different picture with numbers. They will say, ‘‘Look, the act in 1,300 species,

very very few have gone extinct. Therefore, the success rate of the

ESA is very high with regard to preventing species from going extinct. And that’s what the numbers say.’’

I would just add—it begs two questions. And that is, one, at what

cost are we preventing these species from going extinct? What is

cost of putting them all in the hospital, in the intensive care unit,

for years and years and never checking them out? And, two, how

can you check them out? How can we get to the point where they

become successes, which is delistings?

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I want to add that because my friends will say, ‘‘Wait a minute.

You’re not talking about one part of the success of the act.’’ And

it is successful in keeping species from going under.

Mrs. MUSGRAVE. Well, if we already make changes and if that

sea change that you spoke about is taking place, the public needs

to be informed about the success, about the cost. And those are important things.

Dr. Foutz, you talked about incentive programs, landowner incentive programs. The thing that comes up in my mind is confidentiality. Could you address that, please?

Mr. FOUTZ. Congresswoman Musgrave, I would really like to address that question because that is a huge issue. It is a huge issue

for our members.

As we found out over the last 20–25 years as these programs,

whatever program, Government program, it might be, takes place

and begins to form, and all of a sudden, we begin to see a lot of

paperwork sitting in somebody’s office, we have found out through

experience that confidentiality and personal information becomes a

real issue.

We are actively involved in four or five lawsuits right now on

confidentiality with USDA and some other agencies on personal information that people have access to through the Information Act.

That is a real issue.

We feel that if these programs are going to be effective, if they

are going to be effective, particularly if they are voluntary programs, and our members sign onto those programs, that there

needs to be confidentiality of their personal data and the data that

takes place on their farm and ranch.

We’re not talking about aggregated data over an area. We’re

talking about personal information that takes place on my farm or

about me personally, and that should be kept confidential.

So that is a real concern. That needs to be addressed. And somewhere as we develop these incentive programs, we need to make

sure that the language is there, that there is a level of confidentiality about individual people and about individual farming practices.

Some of that is proprietary.

Mrs. MUSGRAVE. Thank you very much. I wonder also—you said

that in one point in your testimony that farmers and ranchers

would need some financial help. Could you comment on grants

made to States and who would oversee those and how it would be

handled?

Mr. FOUTZ. Well, there are a lot of different ways that one could

look at financial help. Obviously, grants would be one way to do

that. I guess if we were looking in terms of grants on some incentive program, I would hope that the granting process would be such

that there would be local involvement on the panel that would be

reviewing the grants, that landowners would be involved in that

process somewhere and would be able to view that grant and see

if it was going to be, in their minds, successful. I think a lot of local

control needs to take place there.

But there is a bigger issue there, Congresswoman, and I think

it is this. I don’t know that there necessarily need to be Government grants as long as there is an economic incentive for farmers

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and ranchers to save species or to be involved in species restoration.

I make a living farming. Today I make a living growing food for

people. I guess I have to be very honest and say if society thinks

that growing or saving a particular species is more important than

me growing food, then somewhere there needs to be an economic

value attached to that. And if there is an economic value attached

to that such that I can raise a family and do all of the things that

I like to do and want to do, then that is how the program ought

to run.

It ought to be a way for society to say if the mountain plover is

so important in society, then let’s figure out some way that we can

allow Alan Foutz to grow the plover and be able to derive an economic benefit from that particular activity, like we do when we are

growing food.

And I think that is the answer somehow. I don’t know that I can

sit here today and give you a specific program on how that might

be accomplished, but for me that is the answer. And it is an answer

that society has to decide what is important. If food is important,

that is one thing, but certainly if growing species is more important

than growing food, then let’s figure out how we can do that.

Now, that doesn’t necessarily mean that the two are incongruous,

they can’t grow together. And we need to recognize that and be

able to work that into the equation also.

But in some cases it does because in some cases, habitat protection may not always be in conjunction with what I am doing on my

farming operation. The other side of that is, it very well might be

because of my farming operation and the habitat that I have there

today is why I have a particular species there.

So there is a wide range in here, but we can set up programs.

I mean, we are good at that. And that helps me. There is no question about that. But I think the overall issue is that society needs

to determine if in fact, if species restoration or species maintenance

is as important as food production. Somehow we need to figure out

how to compensate me for that production or that conservation of

that species.

Mrs. MUSGRAVE. Thank you.

I guess Mrs. Stetson was really listening very closely to that answer. You probably thought you couldn’t take one more endangered

species habitat on your operation. Could you comment on what you

needed that you did not get from a Government agency when you

were facing yet another endangered species issue on your operation? What would have helped you in all of this?

Ms. STETSON. I think what would have helped us was some of

the approach. I think so much of what ag producers spend their

time doing is defending or feel like they have to defend themselves.

I think that an approach that would have helped would have

been to have come to us and maybe start gathering data together,

saying, ‘‘We have these concerns about our permit. Let’s see how

we can work your operation to operation to rotate your cattle so

that they aren’t affecting our safe grouse during nesting time.’’

And hat is actually how we ended up working that solution. And

we have to do some rewriting of the permits, coming in and out at

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different times, starting different allotments to try to alleviate the

situation.

I think a lot of what you need, it’s more of an approach and a

willingness to try to work with the operator on the ground rather

than from an agency taking a top down approach and taking a

textbook and saying, ‘‘This is what they say the grouse needs. This

is what this operator is going to do. And this is how we are going

to fix the problem’’ without ever consulting the operator.

Mrs. MUSGRAVE. And the height of the grass at a certain time

of year or——

Ms. STETSON. Exactly and when you’re counting, and if this is

the only allotment that you have to work in, then we have got to

come up with a different solution. If you have got several allotments to choose from and you can start over at A and B and leave

C until later to alleviate the situation, then maybe that will work.

They just really need to do hands-on common sense and include the

producer in their concerns and help the producer to come up with

a solution.

Too often it’s top down and they dictate what they think the outcome is going to be and this is how you arrive at this point, instead

of trying to involve the producer and make it a win-win situation

for the species and the producer.

Mrs. MUSGRAVE. Thank you very much.

Russell George, I remember when Gene Adkins first carried legislation in regard to this, trying to find some of the problems that

we have when a species is about to be listed and it’s to our advantage to keep it from being listed and the efforts that were taken

then.

Do you have any plans for working on delisting species in Colorado?

Mr. GEORGE. Certainly. And the Colorado list, the State list of

species of concern has eighty or more individual species on it. We

are probably working on half a dozen or a few more than that and

have no resources, whether it be funds or personnel to really do

very much for anything else.

So it’s almost a fire drill approach. Whatever seems to be most

at risk at any given time is where our attention is placed. That is

not acceptable. That is simply not good enough.

In those early days that you and I remember when we were

working together at legislature, there was then a willingness for

the State to step up and do what they could.

What worries me as the years have gone by is that the Endangered Species Act, the way it has been used by so many as a land

control and land use control device has given the whole issue of the

Endangered Species Act and species conservation efforts such a bad

name that now when we go to the legislature and talk about ‘‘Can’t

we replenish the species conservation fund so that we can expand

these efforts?’’ there is such a negative feeling about it that we

can’t get past the discussion of that ugly Federal statute over to

the discussion of ‘‘Here is what we need to do. Here is what we

would like to do. Here are the sources of funds we have identified.

Could we have the appropriation authority to do it?’’ We seem to

be stuck right there.

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That is kind of a little bit different twist on where we are, but

critical that we get past it. So a good part of our analysis that

brings us here with you today is how do we undo some of that to

recover the act itself resurrected from the death that Jim tells us

about.

Can it be done? It should be done. I’ve got to believe virtually everyone cares about wildlife and cares about survival of species. I

have yet to run into somebody in all of my travels who says it is

OK for that species to go extinct. Quite the opposite is true. Everyone is saying, ‘‘How do we keep that species from becoming extinct?’’ Getting from there to the right combination of private acts

and public laws has really gone backwards on us.

So as part of your work in the subcommittee and the help that

we hope that we can provide to you in doing this is that we need

to fix the Endangered Species Act so that we move it away from

this malfunction that we have observed.

If we can do that, and I believe we can—some of these reforms

that we have all talked about, some as you reminded us were occurring in committees in Washington last week, all of which I

think is going in the right direction. If we could restore the correct

purpose, the original purpose and, therefore, the image, then it is

going to be much easier for us to find the dollars we need to do

to guide more efforts into these projects.

And I tell you, it will make a big difference when we get out on

the ground because when we go on the ground today, people say,

‘‘I don’t want anything to do with the Endangered Species Act. I

cannot deal with the Federal Government and the way that act imposes itself onto our conduct.’’ We have to get past that. We have

heard very often from the landowner representative. We cannot do

this without the private landowners’ cooperation. They want to

help, but they also want to survive. Right now we’re at a very dangerous place.

There is also this whole discussion about all the public lands in

the West. In the States, we are the States’ wildlife managers for

all of wildlife on public and private land. So we have an obligation.

So we’re now trying to figure out how do we improve the relationship with our Federal land management, primarily Forest Service

and Bureau of Land Management in Colorado.

I am happy to observe that in recent years, we have begun to see

a trend on the part of the Forest Service and the BLM to listen to

the States to bring us in as cooperative partners in whatever we’re

doing, and to try to make these decisions together. That is a real

positive. Those Federal officials who are wanting to go in the right

direction also need some protection from the Endangered Species

Act, which at the moment hamstrings them.

So it has all got to be tied together. I think the citizens of Colorado, and I’m sure our neighboring States, are more than willing

to spend the dollars and do what they have to do. We’ve got a little

bit of work to do on the at before we can get them to do that.

Mrs. MUSGRAVE. Good comments. Thank you.

Mr. LUCAS. Thank you, Congresswoman.

And I would be remiss if I, first of all, didn’t thank the panel for

their efforts and their thoughtful testimony and their very good answers to the questions today as well as you for inviting me to come

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to Greeley today to have a hearing on this topic that is of great importance to us all.

And I would note not only do we share jurisdiction of resources

on the Endangered Species Act but before long, you and I will be

in the process of working on the next farm bill. And we invest a

substantial amount of Federal resources in conservation programs

that are cost share incentives for producers out there, whether it

is CRB or WRB or EQUIP or WHIP or Farmland Protection or

GRB. And cleary we need to bear all of these things in mind,

Marilyn, as we put those programs together, things that help producers in their day-to-day work.

With that and without objection, the record of today’s hearing

will remain open for 10 days to receive additional testimony, material and supplemental written responses from witnesses to any

question posed by a member of the panel. This hearing of the Subcommittee on Conservation, Credit, Rural Development, and Research is adjourned. Thank you folks very much.

[Whereupon, at 3:25 p.m., the subcommittee was adjourned.]

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