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94-066 PS 2004

EXAMINING THE IMPACTS OF 

THE ENDANGERED SPECIES 

ACT ON SOUTHERN NEW 

MEXICO

OVERSIGHT FIELD HEARING

BEFORE THE

COMMITTEE ON RESOURCES 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

Monday, June 7, 2004, in Carlsbad, New Mexico

Serial No. 108-96

Printed for the use of the Committee on Resources

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/house 

or 

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

(II)

COMMITTEE ON RESOURCES 

RICHARD W. POMBO, California, Chairman 

NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska 

W.J. ‘‘Billy’’ Tauzin, Louisiana 

Jim Saxton, New Jersey 

Elton Gallegly, California 

John J. Duncan, Jr., Tennessee 

Wayne T. Gilchrest, Maryland 

Ken Calvert, California 

Scott McInnis, Colorado 

Barbara Cubin, Wyoming 

George Radanovich, California 

Walter B. Jones, Jr., North Carolina 

Chris Cannon, Utah 

John E. Peterson, Pennsylvania 

Jim Gibbons, Nevada, 

Vice Chairman 

Mark E. Souder, Indiana 

Greg Walden, Oregon 

Thomas G. Tancredo, Colorado 

J.D. Hayworth, Arizona 

Tom Osborne, Nebraska 

Jeff Flake, Arizona 

Dennis R. Rehberg, Montana 

Rick Renzi, Arizona 

Tom Cole, Oklahoma 

Stevan Pearce, New Mexico 

Rob Bishop, Utah 

Devin Nunes, California 

Randy Neugebauer, Texas 

Dale E. Kildee, Michigan 

Eni F.H. Faleomavaega, American Samoa 

Neil Abercrombie, Hawaii 

Solomon P. Ortiz, Texas 

Frank Pallone, Jr., New Jersey 

Calvin M. Dooley, California 

Donna M. Christensen, Virgin Islands 

Ron Kind, Wisconsin 

Jay Inslee, Washington 

Grace F. Napolitano, California 

Tom Udall, New Mexico 

Mark Udall, Colorado 

Anı ́bal Acevedo-Vila ́, Puerto Rico 

Brad Carson, Oklahoma 

Rau ́l M. Grijalva, Arizona 

Dennis A. Cardoza, California 

Madeleine Z. Bordallo, Guam 

George Miller, California 

Edward J. Markey, Massachusetts 

Rube ́n Hinojosa, Texas 

Ciro D. Rodriguez, Texas 

Joe Baca, California 

Betty McCollum, Minnesota

Steven J. Ding, Chief of Staff 

Lisa Pittman, Chief Counsel 

James H. Zoia, Democrat Staff Director 

Jeffrey P. Petrich, Democrat Chief Counsel 

(III)

C O N T E N T S 

Page

Hearing held on Monday, June 7, 2004 ................................................................. 1

Statement of Members: 

Pearce, Hon. Stevan, a Representative in Congress from the State of 

New Mexico ................................................................................................... 5

Prepared statement of ............................................................................... 7 

Pombo, Hon. Richard W., a Representative in Congress from the State 

of California ................................................................................................... 3

Prepared statement of ............................................................................... 4

Statement of Witnesses: 

Davis, Tom W., Manager, Carlsbad Irrigation District, Carlsbad, 

New Mexico ................................................................................................... 13 

Prepared statement of ............................................................................... 16

Harvard, Jeff, President, Harvard Petroleum, and Past President, 

Independent Petroleum Association of New Mexico .................................. 18

Prepared statement of ............................................................................... 20

Ogden, Alisa, Rancher, Carlsbad, New Mexico .............................................. 8

Prepared statement of ............................................................................... 11

Prukop, Hon. Joanna, Secretary, New Mexico Department of Energy, 

Minerals and Natural Resources ................................................................. 24

Prepared statement of ............................................................................... 27

Stell, Hon. Joe M., State Representative, District 54, State of 

New Mexico ................................................................................................... 35

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

Tully, Jon R., City Administrator, City of Carlsbad, New Mexico ............... 39

Prepared statement of ............................................................................... 41

(1)

OVERSIGHT FIELD HEARING ON ‘‘EXAMINING 

THE IMPACTS OF THE ENDANGERED SPECIES ACT ON SOUTHERN NEW MEXICO.’’

Monday, June 7, 2004

U.S. House of Representatives 

Committee on Resources 

Carlsbad, New Mexico 

The Committee met, pursuant to call, at 8:00 a.m., at the Pecos 

River Village, Carousel Building, Carlsbad, New Mexico, Hon. 

Richard W. Pombo presiding. 

Present: Representatives Pombo and Pearce. 

The CHAIRMAN. If I could have everybody take their seats, 

please. Good morning. 

The oversight hearing by the House Committee on Resources will 

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

on the Endangered Species Act. Thank you for the opportunity to 

bring the Committee to southern New Mexico. I look forward to listening and gaining greater insight from the witnesses today on how 

the Endangered Species Act is impacting families in everyday operations and businesses in this region of the country. 

I’d like to now turn it over to my colleague, and the host of 

today’s hearing, Congressman Steve Pearce. 

Mr. PEARCE. Thank you, Mr. Chairman. And I’m going to introduce what we’re going to do first, and then we’ll just walk straight 

through it. The posting of the colors is going to occur by Boy Scout 

Troop 288, and then we’ll be following that with the Pledge of Allegiance led by Chief Connie Riley. Then Jeff Herring is going to sing 

God Bless the USA, and Reverend Robert L. Smith will do an 

opening prayer. 

So if I can have you all please rise for the posting of the colors. 

[Singing of God Bless the USA.] 

Reverend SMITH. Let us pray. 

Father God, we come to you right now as humble as we know 

how. We come first, Lord, to thank you with uplifted heads for 

being in the land of the free. Father God, we want to say thank 

you for all of the blessings that you’ve bestowed upon us. You’ve 

kept us and you’ve sustained us. 

And we thank you for all the lands that you’ve given us, the 

beasts of the fields and the birds in the air. And we thank you, 

Lord, and we pray that we have the mind and wisdom, that Thou 

will give us the mind and wisdom to sustain all you have given us. 

2

And we ask that you would look on those that have made it possible that we be free, the soldiers that are fighting overseas. Lord, 

we pray for them and for their families, that Thou will keep them 

and bless them. But most of all, that we as a nation, Lord, would 

always have our mind near to Thee, that has all power. And most 

of all, Lord, also that Thy will be done, not our will, but Thy will. 

These and many other blessings that we ask in the name of 

Jesus, Amen. 

Mr. PEARCE. You all can take your seats, and I’m going to do a 

short flag presentation. If I could get Mr. Berg and Reverend Smith 

and the Boy Scout troop right up here, I think we are going to announce them, and if the Chairman would pass the flags out to 

them. These are flags that have been flown over the Capitol. And 

we think it is very special when we have people help us in our 

process. We just want to recognize those things, so thank you all. 

Let’s give them a big round of applause. 

We have Mayor Forrest here. Mayor, would you like to make a 

comment or two before we get started? 

Mayor FORREST. I think everybody has heard enough speeches. 

I just want to thank you and the Chairman, Richard Pombo, for 

being here. We really appreciate having these hearings. 

And I notice people here that are opposed to the endangered 

species. We just had an oil well blow out here a month ago, here 

in Carlsbad, and I’ve been to those committee meetings and I’ve 

watched the oil and gas people and the community have come together and working out a solution. And I think one of the best 

things that ever happened to this community, we’re able to sit 

down and work our problems out. 

And I think today is another good example of you having this 

hearing, giving both sides a chance to talk about the issues, talk 

about the problems. And you know, as mayor of Carlsbad, we’re 

very blessed with potash, with oil and gas, and healthcare and 

tourism. We’ve got so many good things going for us. 

But the biggest asset this city has is this beautiful river. And we 

have seen over the last two or 3 years what happened in the 

drought. Down in Otis, the Prices having to give up 6,000 acres of 

irrigated land. It is a very big problem. I think we can work it out. 

We’ll all work together. And I just want to thank you and the 

Chairman for having this hearing here today. 

Mr. PEARCE. Thank you, Mayor, and thank you for having us 

here in town. 

The CHAIRMAN. Thank you. And I thank all of those who participated in the opening of our hearing here today. As we begin, I’d 

say that under Committee Rule 4(g), the Chairman and the Ranking Minority Member can make opening statements. If other members have other statements, they can be included in the hearing 

record. 

Also, under House Rules, there is a prohibition on the display of 

signs or any comment from the audience during the process of the 

hearing. This is an official Congressional hearing, and the decorum 

must be maintained in accord with the Rules of the House. 

3

STATEMENT OF THE HON. RICHARD W. POMBO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

The CHAIRMAN. The Endangered Species Act has given wildlife 

very little to cheer about as we stagger blindfolded into its 30th anniversary. Since its inception, nearly 1,300 species have been listed 

as threatened or endangered. Yet, only seven domestic species listed under the ESA have ever been recovered in 30 years. Not one 

of those species was recovered as a result of the ESA alone. Their 

removal from the ESA is to be linked to other vital conservation 

measures and human intervention. 

Sadly, that is the history of the Endangered Species Act. Born 

of the best intentions, it has failed to live up to its promise. Species 

are more threatened today because of its serious limitations. Thirty 

years of the same prescription has failed. Moreover, despite the evidence, some maintain that we can only use one treatment, the one 

prescribed 30 years ago. 

But for the last 30 years, the ESA has remained a law that 

checks species in, but never checks them out. It has been a failing 

form of managed care. Specifically, the diagnosis and treatment aspects of the law are fatally flawed. They are ambiguous, open to 

arbitrary personal judgment, and do not rely on sound science or 

peer-reviewed research. Known as listing and critical habitat respectively, these key elements of the Act are responsible for the 

misdiagnosis of species as endangered or threatened and the application of a one-size-fits-all solution. 

When a species is listed for protection, treatment comes in the 

form of critical habitat designations, which forbid the use of lands 

by or for anything but the species. Critical habitat is one of the 

more perverse shortcomings of the Act. It has been interpreted to 

mean that if an animal is determined to be in trouble, there is only 

one viable option, to designate the critical habitat and let nature 

take its course. 

Rampant environmental litigation has undermined the alreadybroken system at the expense of species recovery. In fact, there 

have been so many lawsuits that the Federal critical habitat program went bankrupt last year. Litigation has left the United States 

Fish and Wildlife Service with limited ability to prioritize its 

species recovery programs and little or no scientific discretion to 

focus on those species in the greatest need of conservation. 

The Administration acknowledges that court orders and mandates often result in leaving the Fish and Wildlife Service with almost no ability to confirm scientific data in its administrative 

record before making decisions on listing and critical habitat proposals. In the wake of this decade-long trend, the current Administration, supported by the previous Clinton Administration, recognize that critical habitat designations provide the majority of listed 

species and proposed to be listed species little, if any, additional 

protection. 

Congress intended for this law to be used to recover species and 

to increase the number those in need before triggering Federal regulation. To merely prevent the extinction of the species is not a 

long-term measurable success. Congress never dreamed that it 

would turn into a tool used by vocal and well-funded special 

4

interest groups seeking to impose court-ordered Federal land and 

water use controls on the majority of Americans. 

Celebrating these failures—as many are doing in this 30th anniversary of the Act—is not how we should mark this occasion. Instead, we must begin to improve it for the 21st Century. As we are 

doing here today by closely examining its implementation in southern New Mexico, Congress must focus on legislative reforms that 

foster the science, technology, and innovation that have made 

America successful in other endeavors. 

I realize the amendment and reauthorization of the Endangered 

Species Act has dragged on since it expired in 1993. This is not for 

lack of trying, and Congress has come close to reaching agreement 

a number of times. But unfortunately, some groups would rather 

play politics and benefit from the current state of dislocation under 

the Act than have to agree on what is best for the species. 

The House Committee on Resources is here today as a result of 

the hard work of my colleague and good friend, Congressman Steve 

Pearce. We are before you today to hear from you and receive your 

ideas on what we, as your elected representatives in Washington, 

can do to improve the implementation of the Endangered Species 

Act. 

Again, thank you for having us, and I would like at this time to 

recognize Mr. Pearce. 

[The prepared statement of Chairman Pombo follows:]

Statement of The Honorable Richard W. Pombo, Chairman,

Committee on Resources 

Good morning. I would like to call this hearing on the Endangered Species Act 

to order. Thank you for the opportunity to bring the House of Representatives Committee on Resources to southern New Mexico. 

I look forward to listening and gaining greater insight from the witnesses today 

on how the ESA is impacting families and every day operations and businesses in 

this region of the country. 

The Endangered Species Act has given wildlife very little to cheer about as we 

stagger blindfolded into its 30th anniversary. Since its inception, nearly 1,300 

species have been listed as threatened or endangered. Yet, only seven domestic 

species listed under the ESA have ever been ‘‘recovered’’ in 30 years. Not one of 

these species was ‘‘recovered’’ as a result of the ESA alone. Their removal from the 

ESA is to be linked to other vital conservation measures and human intervention. 

Sadly, that is the history of the Endangered Species Act. Born of the best intentions, it has failed to live up to its promise, and species are more threatened today 

because of its serious limitations. Thirty years of the same prescription has failed. 

Moreover, despite the evidence, some maintain that we can only use one treatment—the one prescribed 30 years ago. But for the last 30 years, the ESA has remained a law that checks species in, but never checks them out. It has been a failing form of managed care. 

Specifically, the ‘‘diagnosis’’ and ‘‘treatment’’ aspects of the law are fatally flawed. 

They are ambiguous, open to arbitrary personal judgment and do not rely on sound 

science or peer-reviewed research. Known as ‘‘listing’’ and ‘‘critical habitat’’ respectively, these key elements of the Act are responsible for the misdiagnosis of species 

as endangered or threatened and the application of a one-size-fits-all solution. 

When a species is listed for protection, treatment comes in the form of critical 

habitat designations, which forbid the use of lands by or for anything but the 

species. Critical habitat is one of the most perverse shortcomings of the Act. It has 

been interpreted to mean that if an animal is determined to be in trouble, there 

is only one viable option—to designate critical habitat and ‘‘let nature take its 

course.’’

Rampant environmental litigation has undermined the already-broken system at 

the expense of species recovery. In fact, there have been so many lawsuits that the 

federal critical habitat program went bankrupt last year. Litigation has left the 

United States Fish and Wildlife Service with limited ability to prioritize its species 

5

recovery programs and little or no scientific discretion to focus on those species in 

greatest need of conservation. 

The Administration acknowledges that court orders and mandates often result in 

leaving the Fish and Wildlife Service with almost no ability to confirm scientific 

data in its administrative record before making decisions on listing and critical 

habitat proposals. In the wake of this decade long trend, the current Administration, supported by the previous Clinton Administration, recognize that critical habitat designations provide the majority of listed species and proposed to be listed 

species little if any additional protection. 

Congress intended for this law to be used to recover species and to increase the 

number of those in need before triggering federal regulation (restrictions). To merely 

prevent the extinction of a species is not a long-term measurable success. Congress 

never dreamed that it would turn into a tool used by vocal and well-funded special 

interest groups seeking to impose court ordered Federal land and water use controls 

on the majority of Americans. 

Celebrating these failures—as many are doing this 30th anniversary of the Act—

is not how we should mark this occasion. Instead, we must begin to improve it for 

the 21st century. As we are doing here today by closely examining its implementation in southern New Mexico, Congress must focus on legislative reforms that foster 

the science, technology and innovation that have made America successful in other 

endeavors. 

I realize amendment and reauthorization of the Endangered Species Act has 

dragged on since it expired in 1993. This is not for a lack of trying and Congress 

has come close to reaching agreement a number of times. But unfortunately, some 

groups would rather play politics and benefit from the current state of dislocation 

under the Act then have to agree what is best for the species 

The House Committee on Resources is here today as a result of the hard work 

of my colleague and good friend, Congressman Steve Pearce. We are before you 

today to hear from you and receive your ideas on what we as your elected representatives in Washington, can do to improve the implementation of the Endangered 

Species Act. 

Again, thank you for having us and I would at this time like to recognize Mr. 

Pearce. 

STATEMENT OF THE HON. STEVAN PEARCE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW MEXICO 

Mr. PEARCE. Thank you, Mr. Chairman, for coming to New 

Mexico and coming to Eddy County to look at impacts that we have 

on the Endangered Species Act. You know, there are a lot of people 

who say that we should just dismantle and rescind that act, and 

I will tell you that it’s not politically possible, nor is it necessarily 

desirable. I think there are a couple of good outcomes that have 

come from that act, but we must achieve some balance. 

For me, this hearing continues a hearing we had a couple of 

weeks ago in Washington, and the last testifier of the day, after 

about four and a half hours of testimony, the last woman just 

burned her testimony into my mind. She said that, My politics are 

green, and she said that, I come from—I think it was San Jose, 

California, and she said, We’re as green a city as exists in the 

United States. 

And she said the Endangered Species Act is blocking everything 

we want to do. And she said now here in my time I’m seeing people 

with green policy. Just open the dad gum beach, basically, is what 

it said. My wife has cautioned me against repeating bumper stickers exactly. So when the people who really support an issue begin 

to say that we need some balance in it, I believe that we need to 

look cautiously at the changes that we need to make. 

Another compelling testimony we had about 6 months ago was 

when the loggers and the pulp woodworkers, the Paper of America 

came, a strong union group, and they told us how many mills had 

6

been closed, and they said just give us our jobs back. Our friends 

on the other side of the aisle in that committee meeting said, but 

you don’t understand, you can have jobs in tourism. You can have 

jobs in the hospitality industry. And these fine union workers—and 

I mean, these were the heart of Americans out here working in 

very difficult conditions to cut timber and to bring it to market—

said, we don’t want those jobs. We want our jobs in the industry 

back. So we continue to hear the difficulties that the Act causes. 

Mr. Chairman, if there is no—I’ve got a longer, more complete 

statement I would like to submit for the record. But also if we 

could include in the record a copy of the videotape from this morning’s rally for people who fight this fight for judicious implementation of the Endangered Species Act, and if we could include that 

in the record, I would appreciate that. 

The CHAIRMAN. Without objection 

[NOTE: The videotape submitted for the record has been 

retained in the Committee’s official files.] 

Mr. PEARCE. Thank you. I was just in a meeting Saturday up in 

Cloudcroft. We were being told there that Georgia-Pacific had come 

in and wanted to put a chipping plant in this district, but they 

needed certainty from the Forest Service that they could provide 

small-diameter logs in a number adequate to sustain their production. They were willing to bring 85 jobs here almost immediately. 

The Forest Service has been working for 3 years to try to determine how much timber they can cut. And they said, We still don’t 

know. We’ll get back with you. 

Georgia-Pacific left the state and said, When you-all get some 

knowledge, give us a call back. Right now, we’re in danger of losing 

the two mills over in Alamogordo. They need 12 million board feet 

a year from the Forest Service out of a million acres of land, and 

the Forest Service can’t give them an answer. I don’t think it’s always the Forest Service’s complete fault. I think they are bound by 

litigation and they are bound by internal policies. But it just is an 

example to me how badly flawed some of our decisionmaking processes are when we cannot get answers, when we cannot create and 

have jobs for people to work on. 

As I look at the Scott Able fire, a very hot fire that burned because we have basically too many trees in the forest, that fire 

burned. And we had, earlier this year, a rain. The estimates from 

an official Saturday was that we had 3 million years of topsoil 

washed away in the Scott Able fire. When we choose not to manage 

our resources, when we choose to allow the fuel load to buildup and 

then burn—and it’s not a question of if they are going to burn, but 

when our forests are going to burn—then we have catastrophic 

damage that will take a long time. 

Many times the policies that we’re implementing do not prove to 

be environmentally sound. They prove to be what an environmental 

group wins in court. 

I was also at the meeting on Saturday and found that the estimate is that we have the equivalent, when we looked at the tree 

load in just the southern district of New Mexico, that we’ve got the 

equivalent of 500,000 families, because each tree uses a certain 

amount of water. And when you compare the number of trees and 

equate it over to the amount that one family uses in water, we 

7

realize that a second deep problem is occurring from the tree load 

in our forests, and that is that water in the Pecos River and the 

water in our aquifers is impeded to such an extent that it affects 

our way of life. It affects even our ability to continue to have communities and to have agriculture and to have just a culture here 

when we need the water that’s being used by too heavy and too 

dense a population of trees in our forests. 

When I look at the price of oil, you simply have to say that we 

make our choices here. Right now we’re over asking the Saudi Arabians if they’ll increase production by a million to a million and a 

half barrels of oil a day to try to get the price down so that the 

price of gasoline is not close to $3 at the pump. In 1995, the House 

and the Senate passed a bill which would have allowed drilling in 

ANWR. President Clinton vetoed that bill, and today, had that bill 

gone through, we would have been piping one and a half million 

barrels a day, almost exactly what we’re asking for the Saudi Arabians to produce. We would be somewhat more dependent today 

than what we are as a result of the choices that we make in our 

environment and in all of life are going to end up coming together 

and impacting us in economic ways. It’s up to us, the people, to decide what those ways are. 

As we talk about our resources, New Mexico is rich with resources. We’ve got timber. We’ve got mining. We’ve got oil and gas. 

We have to ask ourselves which of those resources are available 

and accessible? And that ends up being an economic—has an economic outcome. 

So, Mr. Chairman, I’m going to submit my full statement, but I 

wanted to make these comments to really put into perspective what 

we’re going to talk about, in my opinion, at this field hearing today. 

We’ve got a good panel that really has been interdicting, has been 

dealing with the on-the-ground effects of this Endangered Species 

Act for years. 

I think these, given the testimony that you took a couple of 

weeks ago in Washington, I think that this testimony will again 

give us information about the things that we can do that make 

common sense that will bring balance into a bill that we need to 

have. We need to be protecting species, but we do need to be considering the human aspects. 

So, Mr. Chairman, I thank you for coming to Carlsbad. I thank 

you for coming to New Mexico. 

[The prepared statement of Mr. Pearce follows:]

Statement of The Honorable Stevan Pearce, a Representative in Congress 

from the State of New Mexico 

Thank you, Mr. Chairman, for coming to New Mexico to learn about the impact 

of the Endangered Species Act. 

If there are no objections and with your permission, I’d like to include in the 

record a copy of the videotape from this morning’s rally. 

Mr. Chairman, our nation’s economy is driven by natural resources that are available on federal lands. Americans cannot heat their homes, enhance their businesses, 

or feed their families without affordable natural resources. America, and particularly the West, has been blessed with an abundance of federal lands from which natural resources are available. Federal lands grow our food, provide wood to build and 

furnish our homes and minerals that become products we use every day. We also 

get a large percentage of our energy supply from federal lands. 

New Mexico, in particular, is an important producer of food and energy for our 

nation, and the unreasonable application of the ESA is having a disastrous impact 

8

on how we are able to live our lives and provide for our families. For example, the 

ESA has had a devastating effect on the production of fruits, vegetables, livestock 

and oil and gas in New Mexico. Land and water New Mexican’s have used for hundreds of years is now off-limits to them because of the ESA. For example, livestock 

grazing is being drastically curtailed, in some instances solely because of the ESA. 

Another example is the water that took New Mexico decades to store as a hedge 

against drought is being taken for fish with no regard for the impacts to humans. 

My bill, H.R. 2603, would return the water rights to the states and the rights holder, and has broad support in the state. 

Federal lands support a wide variety of activities that are important to New 

Mexico’s culture and heritage. Many descendents of the Mexican land grants hold 

family parcels on federal lands that are used to raise cattle and pass on the traditions and family values from generation to generation. We cannot allow the unintended consequences of the ESA to stop our heritage. 

As much as these federal lands benefit the citizens of the United States, if we 

lock them up by denying access, we will lose most if not all of the benefits they provide. We must ensure full and fair access to federal lands today and in the future. 

New Mexico in particular is blessed with an abundance of natural resources. For 

example, oil and natural gas annually contributes about $1 billion into New 

Mexico’s general revenue fund. This is one-quarter of the state’s annual budget. The 

Permanent Fund revenue from our natural resources pays for about 90 percent of 

all school buildings and other capitol investments, which saves taxpayers an average of $800 each. 

Mr. Chairman, I believe we can continue to access our federal lands to enjoy the 

cultural and economic values we share and need. We can do this through balance 

and responsibility. However, under the current interpretation and enforcement of 

the ESA is skewed with little or no balance, and that is unacceptable. 

I applaud your willingness to come to Southern New Mexico to gain firsthand 

knowledge you can use as we begin to make commonsense changes to balance the 

ESA. No one wants to see a species go extinct, yet we must not sacrifice our heritage or our economic prosperity for the sake of over-regulation. 

Current regulations and laws are the culprit to why we have gasoline over $2 per 

gallon, and to why we are losing jobs oversees. Without real reform of the ESA we 

will continue to be held hostage by high gasoline and energy costs. 

The CHAIRMAN. Thank you. 

I’d like to recognize our panel. 

The CHAIRMAN. We have Ms. Alisa Ogden, Mr. Tom Davis, Jeff 

Harvard, Ms. Joanna Prukop, Joe M. Stell, and Jon Tully. Before 

I began the testimony, if I could have you all stand. As a rule of 

the Committee, we swear in all of our witnesses. 

[Witnesses sworn.] 

The CHAIRMAN. Thank you very much. You can be seated. Let 

the record show they all answered in the affirmative. 

Welcome to the hearing. I appreciate all of you making the effort 

to be here and to prepare testimony for the hearing this morning. 

Under Committee Rules, your oral statements are limited to 5 minutes. Your entire written testimony will be included in the record. 

The lights that are up here on the table, it works like a stoplight. 

Green means go, yellow means hurry up, and red means stop. So 

if when you see the red light come on, I’d appreciate it if you’d try 

to wrap up your testimony. But again, your entire written testimony will be included in the official record. 

Ms. Ogden, could we begin with you, if you’re ready. 

STATEMENT OF ALISA OGDEN, CARLSBAD, NEW MEXICO 

Ms. OGDEN. Sure. Mr. Chairman and members of the Committee, 

on behalf of the agriculture industry and all New Mexicans, I 

thank you for holding a field hearing in New Mexico on this issue 

9

so vital to our livelihoods and futures, and for the opportunity to 

testify before you. 

I am Alisa Ogden. I’m a fifth-generation rancher and third-generation farmer on the lands my family settled south of Carlsbad 

and Loving. My mother’s family established our ranch south of 

Carlsbad in 1890, and my father’s father moved to the Loving area 

in 1917 to farm in the newly developed irrigation district. In 1981, 

I returned home to manage the family ranch. 

By 1988, my father was ready to retire, so my brother Craig and 

I became partners in the management of the family farm. We have 

continued to operate the farm since that time. In addition, I am a 

single mother of a 10-year-old son, active in my church, philanthropic organizations, as well as agricultural organizations. 

I am here today representing southern New Mexico’s agricultural 

industry, including the New Mexico Cattle Growers Association. 

And at this time, I’d like to thank Caren Cowan, who is the executive director of the New Mexico Cattle Growers Association, for 

helping me in my testimony and for the information. 

In theory, the Endangered Species Act has its place in the attempt to keep a variety of species from extinction. In reality, it has 

become our worst nightmare come true. The human factor has been 

completely ignored in the decisionmaking process. In addition, the 

use of sound science is not encouraged in determining what species 

are in need of protection or the best method in protecting them. 

Too many times personal agendas have taken precedence over 

commonsense decisions in regards to many species. The ESA has 

had tremendous impact on the financial well-being and resources 

of agricultural organizations as well as to individual producers like 

me. New Mexico’s livestock industry has spent well in excess of 

half a million dollars in attorney fees alone in attempting to protect 

agricultural producers and their rights during the past 7 years. Despite winning a landmark case on critical habitat designation in 

2001, we have had to continue to sue the U.S. Fish and Wildlife 

Service on the same issue time and time again just to obtain compliance with Federal law. 

Even more frustrating is the fact at the Federal level, the Fish 

and Wildlife Service has chosen to apply the precedent only in the 

10th Circuit Court of Appeals, where the case was decided, and 

this case was on a southwestern Willow flycatcher. Since 2001, we 

have won the same case two more times on other species, which 

are the Arkansas shiner and the spikedace and loach minnow. 

Given that New Mexico has some 44 endangered, threatened, or 

candidate animal species and 13 plant species, this could be a pretty costly process for producers and their trade groups as well as the 

Federal government. 

The ESA is particularly harsh on New Mexico and other western 

states because of land ownership patterns. New Mexico is over 60 

percent government owned and made up of a patchwork of private, 

Federal, and state lands. Most of our livestock operations contain 

two, if not all three types of land ownership. 

While some say that the ESA does not impact private land use, 

they are wrong. If your ranch is made up primarily of Federal 

lands, Bureau of Land Management or Forest Service, you are not 

allowed to use the Federal portion of that ranch, and that makes 

10

the private portion useless as a livestock operation. Some people in 

southern New Mexico have become almost full-time unpaid employees of the Fish and Wildlife Service in an attempt to develop a 

working plan to address the lesser prairie chicken, a candidate 

species, and keep it from being listed as endangered. 

At this point in time, this small bird threatens to destroy the 

ranching and oil and gas industries in this area, which, in turn, 

will destroy our rural economy and our families. And if trying to 

deal with the lesser prairie chicken weren’t enough, the working 

group was recently told that they must also consider the sand dune 

lizard. And to add insult to injury, last month a beetle was added 

to their list of concerns. 

We have hardly begun to address the northern Aplomado falcon. 

Nearly 2 years ago, the New Mexico Cattle Growers Association attempted to work proactively with the Fish and Wildlife Service in 

the development of a 10J experimental nonessential rule that 

would provide some level of comfort for landowners and Federal 

land users in restoring the bird to the region. Unfortunately, budgetary concerns have limited progress on the proposal and environmental elitist groups are threatening litigation to force the declaration of critical habitat. 

There are few on this earth who care for and appreciate animals 

in our environment more than those of us in production agriculture. We choose to live frugal lives on the land with our animals 

and the wildlife because we value all they have to offer us—a life 

filled with a wealth that money and material possessions can never 

provide. But we cannot survive under the oppressive Federal mandates of the ESA. 

However, we are not unwilling to be part of the solution. 

New Mexico agriculture came together 2 years ago to identify potential fixes to the ESA that would protect species and our families, 

and what resulted is the attached 17-item list that has been adopted by the Western States Soil and Conservation Districts. 

The 2002 Klamath Basin disaster comes to mind for all farmers 

when the worst case scenarios are imagined. Overreaction to a 

water situation ruined the livelihoods of many people, not just 

those in farming. Closer to home, a minnow, the Pecos blunt-nose 

shiner, has had a great effect on determining whether and even if 

water stored in reservoirs on the Pecos River will be delivered for 

use by farmers in the Carlsbad Irrigation District. 

In this desert area, there is much data on the most efficient delivery of water from the reservoirs upriver. Every drop counts in 

these short water years. It is vital to use the most efficient water 

delivery possible. The Fish and Wildlife Service has tried to have 

an impact on that delivery, and many times a great deal of water 

would have been lost for use by the farmers if CID had followed 

Fish and Wildlife desires. 

For our farm, that means less water to use to produce our crops. 

We do not have supplemental water wells and depend solely on 

water delivered by the CID. Water is our make-or-break factor. 

Without the water delivered by CID, we cannot survive as farmers. 

With all that Mother Nature sends our way, we do not need shortsighted governmental regulations to battle, also. 

11

A lot of blood, sweat, and frustrations have kept these lands together. Most of the time nature was a factor we had no control 

over. We plugged on through and persevered. Every person involved in production agriculture expects the weather to throw some 

curves. It is the curves thrown to us by our government that may 

be what, after all these years, defeats us. 

Thank you, once again, for your time and interest, and I hope 

that together we can create a law that achieves the noble goal of 

species protection without harming people like my family and me. 

[The prepared statement of Ms. Ogden follows:]

Statement of Alisa Ogden, Carlsbad, New Mexico 

Mr. Chairman and members of the Committee, on behalf of the agricultural industry and all New Mexicans, thank you for holding a field hearing in New Mexico 

on this issue so vital to our livelihoods and futures, and for the opportunity to testify before you. 

I am Alisa Ogden. I am a fifth-generation rancher and third-generation farmer 

on the lands my family settled south of Carlsbad and Loving. My mother’s family 

established our ranch south of Carlsbad in 1890 and my father’s father moved the 

Loving area in 1917 to farm in the newly developed irrigation district. In 1981, I 

returned home to manage the family ranch. By 1988, my father was ready to retire, 

so my brother Craig and I became partners in the management of the family farm. 

We have continued to operate the farm since that time. In addition, I am a single 

mother of a 10-year-old son, active in my church, philanthropic organizations, as 

well as agriculture organizations. 

I am here today representing Southern New Mexico’s agricultural industry, including the New Mexico Cattle Growers’ Association (NMCGA). 

In theory, the Endangered Species Act (ESA) has its place in the attempt to keep 

a variety of species from extinction. In reality, it has become our worst nightmare 

come true. The human factor has been completely ignored in the decision making 

process. In addition, the use of sound science is not encouraged in determining what 

species are in need of protection or the best method in protecting them. Too many 

times, personal agendas have taken precedence over common sense decisions in regards to many species 

The ESA has had tremendous impact on the financial well being and resources 

of agricultural organizations as well as to individual producers like me. New 

Mexico’s livestock industry has spent well in excess of half a million dollars in attorney’s fees alone in attempting to protect agricultural producers and their rights during the past seven years. Despite winning a landmark case on critical habitat designation in 2001, we have had to continue to sue the U.S. Fish & Wildlife Service 

(FWS) on the same issue time and time again just to obtain compliance with federal 

law. Even more frustrating is the fact that at the federal level, the FWS has chosen 

to apply the precedent only in the 10th Circuit Court of Appeals, where the case 

was decided. Since 2001 we have won the same case two more times on other 

species. 

Given that New Mexico has some 44 endangered, threatened or candidate animal 

species and 13 plant species, this could be a pretty costly process for producers and 

their trade groups as well as the federal government. 

The ESA is particularly harsh on New Mexico and other Western states because 

of land ownership patterns. New Mexico is over 60 percent government-owned and 

made up of a patchwork of private, federal and state lands. Most of our livestock 

operations contain two, if not all three types of land ownerships. While some say 

that the ESA does not impact private land use, they are just wrong. If your ranch 

is made up primarily of federal lands, Bureau of Land Management (BLM) or U.S. 

Forest Service (USFS), and you are not allowed to use the federal portion of that 

ranch, the private portion is useless as a livestock operation. 

Some people in Southern New Mexico have become almost full-time unpaid employees of the FWS in an attempt to develop a working plan to address the lesser 

prairie chicken, a candidate species, and keep it from being listed as endangered. 

At this point in time, this small bird threatens to destroy the ranching and oil and 

gas industries in this area, which will in turn destroy our rural economy and our 

families. And if trying to deal with the lesser prairie chicken weren’t enough, the 

working group was recently told that they must also consider the sand dune lizard. 

To add insult to injury, last month a beetle was added to their list of concerns. 

12

We have hardly begun to address the Northern Aplomado Falcon. Nearly two 

years ago the NMCGA attempted to work proactively with the FWS in the 

development of a 10J experimental-nonessential rule that would provide some level 

of comfort for landowners and federal land users in restoring the bird to the region. 

Unfortunately, budgetary concerns have limited progress on the proposal and environmental elitist groups are threatening litigation to force the declaration of critical 

habitat. 

There are few on this earth who care for and appreciate animals and our environment more than those of us in production agriculture. We chose to live frugal lives 

on the land with our animals and the wildlife because we value all they have to 

offer us—- a life filled with a wealth that money and material possessions can never 

provide. But we cannot survive under oppressive federal mandates like the ESA. 

However, we are not unwilling to be a part of the solution. New Mexico agriculture came together two years ago to identify potential fixes to the ESA that 

would protect species AND our families. What resulted is the attached 17-item list 

that has been adopted by the Western States Soil Conservation Districts. 

The 2002 Klamath Basin disaster comes to mind for all farmers when the worst 

case scenario is imagined. Overreaction to a water situation ruined the livelihood 

of many people, not just those in farming. Closer to home, a minnow, the Pecos 

Blunt-nose Shiner, has had a great effect on determining when, and even if, water 

stored in reservoirs on the Pecos River will be delivered for use by farmers in the 

Carlsbad Irrigation District (CID). In this desert area, there is much data on the 

most efficient delivery of water from the reservoirs upriver. Every drop counts and 

in these short water years, it is vital to use the most efficient delivery of water possible. The FWS has tried to have an impact on that water delivery, and many times, 

a great deal of water would have been lost for use by the farmers in the district 

if CID had followed FWS desires. 

For our farm, that means less water to be used to produce our crops. We do not 

have supplemental water wells and depend solely on water delivered by the CID. 

Water is our make or break factor, without the water delivered by CID, we cannot 

survive as farmers. With all that Mother Nature sends our way, we do no need 

shortsighted governmental regulations to battle also. 

A lot of blood, sweat and frustrations have kept these lands together. Most of the 

time, nature was the factor we had no control over. We plugged on though and have 

persevered. Every person involved in production agriculture expects the weather to 

throw some curves. It is the curves thrown to us by our government that may be 

what, after all these years, defeats us. 

Thank you once again for your time and interest. I hope that together we can create a law that achieves the noble goal of species protection without harming people 

like me and my family. 

NEW MEXICO’S PROFESSIONAL AGRICULTURAL PRODUCERS 

SUGGESTED CHANGES TO THE FEDERAL ENDANGERED SPECIES 

ACT OF 1973 AND ALL REVISIONS 

The Endangered Species Act must: 

1. Provide full compensation to individuals for current and long-term ‘‘takings’’. 

Take into consideration cost -benefit analysis and mitigate for all adverse economic, social and cultural needs of the human element. (change Section 4(bx2) 

of ESA) 

2. Consider and evaluate cumulative effects in accordance with the National 

Environmental Policy Act (NEPA) for recovery planning and designation of 

critical habitat. Single species management does not consider ecosystem needs 

and may be detrimental to the well being of other organisms. (add to 

Section 4) 

3. Focus on species recovery instead of single species listing. Listing should be 

incentive based rather than regulatory. (add to subsection (c) of Section 4 and 

a new statement to Section 4) 

4. Define; ‘‘science’’ and ‘‘peer review’’. Ensure that non-governmental, non-bias 

peer review is mandatory prior to the listing of any species. 

5. Be revised so the citizen lawsuit provision requires the loser of any lawsuit 

pertaining to the ESA be totally responsible for all alleged costs to the Government, defendants and interveners. (revise Section 11(g)) 

6. Require appropriate bonding by any petitioner for a proposed listing of a 

species. Bond to be forfeited if a species is determined not warranted to be 

listed. Financial burden of any listing must be borne by the petitioner whether individual, organizational, or governmental. (add to Section 4(b)) 

13

7. Ensure agency regulations conform to ESA law. (ex.: adhere to critical habitat 

provisions) 

8. Transfer recovery planning from the United States Fish and Wildlife Service 

(USF&WS) to the States. (add to Section 4(f) and Section 6) 

9. Transfer critical habitat designation responsibilities from the USF&WS to the 

States. Confine critical habitat to realistic peer reviewed boundaries. (amend 

Section 4(b)(2) and Section 6) 

10. Codify applicant status to make clear that permit applicants (consists of any 

individual seeking a Federal permit or license) are provided the opportunity 

of direct involvement in the Section 7 process. (amend Sections 6 and 7(a) and 

(d)) 

11. Not prevent implementation action of any project or activity prior to completion and formal approval of a Recovery Plan. (amend Section 7(a)) 

12. Reserve and limit Section 7 consultation to land management planning level 

documents. (add to Section 7(a)) 

13. Eliminate the proposed listing of any sub-species. (amend Section 3(16)) 

14. Not allow taxpayer funds to be utilized to sue the Government or others. (add 

to Section 1(c)(4) as new policy, and amend Section 11(9)(g)) 

15. Change the criminal penalty law to a civil violation. (Section 11) 

16. Codify the delisting process. (add new subsection under Section 4) 

17. Revise the ‘‘taking’’ definition to protect private and states’ property rights in 

conformance with the United States Constitution. (Section 3(19)) 

The CHAIRMAN. Thank you. Mr. Davis. 

STATEMENT OF TOM DAVIS, MANAGER,

CARLSBAD IRRIGATION DISTRICT 

Mr. DAVIS. Again, thanks, Chairman Pombo, for having a field 

hearing here in Carlsbad and giving us local folks, who have had 

some experience with the Endangered Species Act, a voice. I’m the 

manager of the Carlsbad Irrigation District and have been since 

1987. Prior to that, I worked for the U.S. Forest Service. I had a 

rather fast-paced career on track with the Forest Service. 

But in those days, being younger, I was somewhat idealistic, and 

one of the reasons I left the Forest Service is because of just some 

of the things you said. It was no longer an agency that did sound 

resource management. It was an agency totally driven by lawsuits 

resulting from the Endangered Species Act. And it was very unfortunate, but over time, a lot of people that are good resource managers left the Forest Service or became so frustrated they were of 

no use to the Forest Service. And that goes for a lot of other government agencies, Bureau of Reclamation, Bureau of Land Management, so forth. 

You see a map here in front of me. The heavy line on that map 

outlines the basin of the Pecos River in New Mexico. The bottom 

of that map is the Texas state line. The Pecos River originates in 

the high country just outside of Santa Fe, New Mexico, in what’s 

known as the Pecos Wilderness. It runs in a south-southeasterly direction through New Mexico and Texas, and culminates into its 

confluence with the Rio Grande just above Lake Amistad just north 

of Del Rio. 

All the water that you see in the reservoirs that are depicted on 

that map are stored for the use of the Carlsbad Irrigation District, 

and we’ve been in existence in one form or another since before the 

turn of the century. 

Some of these reservoirs that you see are second-generation reservoirs, they’ve replaced reservoirs that were built over 100 years 

ago that have filled with silt or were no longer functional and 

14

stable as flood control structures and irrigation storage structures 

because of their construction during those times. And we’ve 

constructed more modern reservoirs of which we are very, very protective of keeping the storage capacity available in those reservoirs, 

because we realize that in today’s climate, it’s very difficult, if not 

impossible, to build new reservoirs, as you’re experiencing out 

there in the central valley in some of your upland watersheds. So 

we’re very protective of preserving that storage so that our reservoirs will last another 100 years, 150 years. We don’t see any 

likelihood of building new ones. 

Just quickly to get through what we do here and our interrelationship with Endangered Species Act. We store water in those 

reservoirs and we try for efficiency of storage and delivery of water, 

delivery of water to keep our water stored in the upper reservoirs 

as long as possible, because there is less evaporation loss in the 

upper reservoirs as there are down in the reservoirs near this area. 

All of our farmland begins here in Carlsbad and runs southeasterly down the valley toward the state line of Texas, and we deliver 

with flood irrigation through open, concrete-lined canal systems. So 

in today’s world, we are not very efficient. But in the type of the 

low quality water, the high saline water that we deal with on the 

Pecos, this is the only system, irrigation system that we can function. We can’t sprinkle with saline water, obviously, you kill plants. 

So we’re a gravity-flow flood control system, and we move water 

from the upper reservoirs you see to the lower reservoirs, and have 

since the 1930s, in block releases. We release a tremendous amount 

of water for a short period of time down the river to the lower reservoirs, and that’s the most efficient way. If we start trickling that 

water down river, we lose 60, 70, 80 percent of the water, depending on the release. Even with our block release, we lose 25 percent 

of the water. And we’ve operated the river in that respect since the 

first upstream reservoir was built in Sumner, Sumner Reservoir, 

just above the village of Fort Sumner. It was completed in 1937. 

We’ve operated the river since then in that fashion. 

The Pecos bluntnose shiner was listed in 1987 as a threatened 

species, and it’s a small minnow, very similar to the silvery minnow on the Rio Grande. And it is very difficult to identify even with 

experienced biologists because there are several minnows that look 

very similar; their reproductive habits are very similar; the physiological requirements are very similar. 

And, in fact, when the Pecos bluntnose shiner population is 

counted, they are counted as a percentage of the whole. They don’t 

even count them separately. So it’s a very complex, difficult issue 

to get a handle on. 

And I see that I’m out of time, so I want to make a few quick 

statements, just philosophical about the Endangered Species Act. 

After having been involved with it since its inception in 1972, I was 

just a young man recently out of college at that time, in fact, it was 

one of my first years on the job. And I’ve seen the attempts to 

make it reasonable, to make it functional, to reauthorize it, and I 

applaud you in your efforts, Chairman Pombo. I have followed very 

closely some of the things you’re attempting to do. 

But let me just quickly take some of our personal experiences 

here on the Pecos. You know, we’ve done everything possible since 

15

1992 to cooperate with the Fish and Wildlife Service biologists in 

our operation of the dam, and let me say this. It was immediately 

assumed after the listing that the dam was the problem. The fact 

of the matter on the Pecos, all the water flowing into Santa Rosa 

Dam and into Sumner Dam is bypassed through Sumner Dam 24 

hours day. 

All those base flows are bypassed through the dam. So the river 

is actually operating as if the dams weren’t there. We only store 

flood control. We only store flood flows in the reservoir. The base 

flows pass through. But it was automatically assumed by those implementing the Act that the dam was the problem. 

And we have made every possible effort for the last 12 years to 

cooperate with different release scenarios and different operation to 

benefit the minnow. We were told within the last 3 months that 

actually the minnow population is less now than it was 12 years 

ago when we began trying to cooperate. So what’s the point? 

Also, within the last 6 years, the Interstate Streams Commission, 

who has a stake in this effort because they have to satisfy the compact needs of the State of Texas, hired a private biology firm, who 

employed some nationally recognized fish biologists, who did their 

own study over about a 5-year period on the Pecos. They found a 

lot of things different than what Fish and Wildlife Service biologists had led us to belief; that the minnow, the habitat requirements are somewhat different than we were led to believe. They actually occupy different reaches of the river and different microecosystems within the river. And they’ve even found the minnow in 

reaches of the river we were told that they couldn’t live in. 

So where does that leave a layman like myself that doesn’t understand much, but has really attempted to cooperate? We don’t 

really know what the shiner’s real situation is. I mean, that’s my 

opinion. No one really knows. No one knows what the populations 

were 300 years ago and no one knows what the populations are 

today. I’m of that opinion. 

So all we’ve been able to do here through 12 years of intense cooperation—and I think this is common throughout the west, and I 

know this is the theme that Alisa expressed and you expressed it—

but in my opinion, all we’ve done here is spend millions of dollars 

and fretted and fought to try to preserve our water and make it 

more available to our farmers, at the same time doing these different scenarios to try to learn what benefits the minnows, and we 

find that the minnows, there are less of them now than there were. 

This is common throughout the west. The Endangered Species 

Act, in any opinion, has done that. All we’ve done is crippled the 

western economies. We haven’t necessarily benefited any species. 

Look at the delisting. We’ve delisted very few species, and those 

that we have delisted, some megamoney species like the bald eagle, 

American alligator, grizzly bear, in my opinion, that has come 

about as a result of different attitudes as far as enforcement of not 

killing those animals than it has been on not cutting timber so they 

can have better habitat. 

It’s resulted more from an enforcement thing that it has habitat 

manipulation. And the west can’t continue to exist economically out 

here if we keep living with the pressures of this Endangered 

Species Act. I have a lot of other comments, and I realize I’m out 

16

of time. But I appreciate the opportunity, and my full written 

testimony is available to staff. Thank you. 

[The prepared statement of Mr. Davis follows:]

Statement of Tom W. Davis, Manager,

Carlsbad Irrigation District, Carlsbad, New Mexico 

I am Tom W. Davis. Since 1987 I have been the Manager of the Carlsbad Irrigation District. For the sixteen years prior to my current employment, I was employed 

by the U.S. Department of Agriculture Forest Service in the field of natural resources management. I have a B.S. degree from Oklahoma State University. 

The Carlsbad Irrigation District is authorized to store 176,500 acre feet of water 

in four reservoirs on the Pecos River. These are proceeding from the northern most 

reservoir and moving downstream: Santa Rosa, Sumner, Brantley and Avalon. CID 

delivers water through a gravity flow canal system to 25,055 acres of agriculture 

lands scattered throughout the valley southeast of Carlsbad, NM. In order to minimize evaporation losses of the stored water, the water is kept in upstream reservoirs as often and as long as possible. The stored water is moved from upstream 

reservoirs to downstream reservoirs as efficiently as possible by making block releases. That is, the water is released at the maximum river channel capacity of 

1,400 cubic feet per second which is about 2,800 acre feet in a 24-hour period. Historically, these releases lasted 15 to 20 days. These high flow releases minimized 

evaporation and stream bank losses. This release practice has been used since Sumner Dam was built in 1937. 

CID only impounds the flood flows in Santa Rosa and Sumner from March 

through October each year. The natural base flows above these reservoirs are 

passed through Sumner for diversion by the Fort Sumner Irrigation District. So, for 

eight months of the year, the Pecos River flows below Sumner Dam unimpeded by 

Santa Rosa or Sumner Dams. The river flows as if the dams weren’t there. 

The Pecos Bluntnose Shiner was listed a threatened species to be protected under 

the Endangered Species Act in 1987. Critical habitat for the shiner was designated 

in the 70-mile reach of the river below the village of Fort Sumner. The river is wide 

and meandering with a sandy bottom throughout this reach. This is believed to be 

preferred habitat for the shiner. 

Immediately after listing the shiner as threatened, the U.S. Fish and Wildlife 

Service biologists took the position that the historical operation of Sumner Dam was 

responsible for reducing the shiner population to a threatened status even though 

the base flow of the Pecos River is released through Sumner Dam. It seemed to me 

that it was predetermined that the dams were the cause of the shiners demise. 

Since 1992, the CID has cooperated to the extent possible with the U.S. Fish and 

Wildlife biologists requests to experiment with different operation scenarios at Sumner Dam that might benefit the shiner. Currently, we are governed by a three-year 

Biological Opinion that expires in 2006 that outlines the release operations of Sumner Dam. Yet we are told by the biologist that despite the modifying of normal release operations and meeting target flows through the critical habitat, the shiner 

population is still declining. 

If it is true that the population is in decline, one could raise several questions. 

The operation or existence of Sumner Dam may not be the paramount influence on 

shiner survivability. Their population could be more influenced by other factors. It 

could be that we don’t know enough about the shiner population numbers over a 

long period to accurately understand and measure both past and present population 

numbers or population trends. Maybe we don’t understand enough about the shiners 

habitat needs to manage for its survival, not to mention de-listing. 

My point is that we are not making any progress after 12 years of manipulating 

the system and spending millions of taxpayer’s dollars to study and to meet the 

shiners supposed needs. 

Is it possible the shiner is doomed? Thousands of other species have become extinct without the influence of humans. Is it possible the shiner is cyclic and there 

are as many today as there were 300 years ago? Is it possible the shiner should 

have never been listed? I could continue on with these possibilities. 

A private firm who employ nationally recognized fish biologists was hired by the 

New Mexico Interstate Stream Commission to make an independent review of the 

literature and study of the shiner in the Pecos River. They have, after extensive 

sampling, concluded that the shiner has different habitat preferences, different populations and survivability than was published by U.S. Fish and Wildlife biologists. 

They have also found shiners in reaches of the river where we were told they could 

not survive. 

17

So, what is the shiner’s real situation? No one knows! 

This is the very same situation that implementation of the Endangered Species 

Act presents throughout the west. 

Very expensive attempts at implementing the ESA to improve the plight of listed 

species have in nearly all instances been unsuccessful. The cost to local economies 

throughout the west is in the millions. Yet, the benefits to the listed species are negligible. Just review how few have been de-listed. 

No civilized nation desires to sit by while species go extinct. There is no doubt, 

our nation has spent more and tried harder to deal with the problem than anyone 

throughout the history of mankind. But it is not working. We are just spending 

money and crippling economies. 

We must make a change for the better. 

I hope the American people can support Congress in making the necessary 

changes to the ESA so that it will serve the needs of our economy and society at 

the same time in finding a way to actually benefit species that may be in jeopardy. 

There are throughout the west a number of people who have much more experience than I do and who have been impacted by implementation of the ESA. Due 

to our experience we have many ideas on how to make positive changes in the Act. 

If Congress is sincere in making the ESA truly functional, they need to draw on 

the experiences of westerners who continue to struggle to implement the Act and 

at the same time, preserve their livelihoods. These field hearings may be one method where Congress can gain exposure to those in the west who can be helpful in 

suggesting positive changes. 

Thank you for the opportunity to comment.

[A map attached to Mr. Davis’ statement follows:]

18

The CHAIRMAN. Thank you. 

Mr. Harvard. 

STATEMENT OF JEFF HARVARD, PAST PRESIDENT,

INDEPENDENT PETROLEUM ASSOCIATION OF NEW MEXICO 

Mr. HARVARD. Chairman Pombo and Representative Pearce, I am 

Jeff Harvard, president of Harvard Petroleum Corporation. I’m one 

of those unpaid staff members that is on the stakeholders group for 

the lesser prairie chicken, the sand dune lizard, and whatever else 


94066.001
19

they decide to throw at us. And I’m here today to discuss the impact of the Endangered Species Act on the oil and gas industry in 

southeastern New Mexico. 

Without question, the current ESA has had and is having a tremendous negative impact upon our industry. Companies large and 

small are questioning whether it is worth it to continue fighting 

the unrelenting wave of restrictions and regulations due to species 

after species being proposed for listing. 

The current Endangered Species Act is a failure that has to date 

not saved a single species and is in need of immediate change, as 

you’re well aware of. It must be changed because events are coming 

together to potentially drive ranching and oil and gas in southeastern New Mexico to the point of extinction. While many would 

question this, you can look at the lumber industry and see that the 

threat is real. 

Good riddance, many would say, they are destroying the environment. But what happens when these same people have to pay double or triple the cost for gasoline, food, power, heating and cooling, 

clothing, building materials, and et cetera? I wonder how they 

would like that environment? 

Science fiction is drowning out real science. Today, perception 

and opinion are called truth. The adage of saying something often 

enough makes it factual and true is all too prevalent in these 

times. The lesser prairie chicken, the sand dune lizard, and the 

Aplomado falcon are some of the species that are being used to remove access to public lands in southeast New Mexico. This loss of 

access leads to a loss of production, loss of production leads to a 

loss of revenue to the Federal and state governments, and costs us, 

the taxpayer. 

Ranching and oil and gas are faced with continual pressure to remove more and more lands from leasing, and severely restrict grazing in the name of preserving habitat. In the case of the lesser 

prairie chicken, this is occurring even though more birds have been 

sighted during that time when the habitat is in very poor shape because of a sustained drought. 

There has been very little, if any, peer-reviewed science that pinpoints oil and gas activity as causing a reduction in the chicken or 

the lizard population. Regardless of credible science, lands continue 

be to withheld from leasing and continued regulations and restrictions continue to be imposed in RMPs. 

I’m a member of the lesser prairie chicken workgroup, and we’ve 

been working for over a year trying to address real tangible opportunities and ideas to help the chicken. One of those ideas is a reintroduction of the species of the prairie chicken down on the WIPP 

site. And Chris is here today. She has a large ranch and her family 

has a large ranch that they are willing to work and use for that 

reintroduction. 

That idea was really kind of not received well within many of the 

regulatory agencies in the group. However, they are proceeding 

anyway. I would encourage you and Representative Pearce to seriously hear them and as they seek funding to pursue this endeavor. 

We’ll get you some additional information on that. 

One of the other species that we’re hearing about lately is the 

Aplomado falcon. And in relation to the Otero Mesa discussion, the 

20

environmental community is claiming that the Otero Mesa area is 

prime habitat for the falcon and must be protected. The problem 

is that according to an August 1992 U.S. Fish and Wildlife report, 

suitable habitat should have 19 trees per one acre, as well as many 

other criteria. 

Otero Mesa does not meet these criteria. From 1990 to 1999, 

there have been only nine falcon sightings in New Mexico. In 2001 

no nests have been verified in the United States since 1952. BLM 

officials indicated that there was one nesting discovered a few 

years ago near Deming but it was unsuccessful. 

So what should be done? The legal authorization for the ESA expired over 10 years and Congress has done nothing but provide 

funding ever since. It would be very difficult to refuse to reauthorize the Endangered Species Act, but it is possible to go back to the 

original 1969 Act by removing sections 4, 7, 9, and 11(g). This is 

one way to stop the abuses of the Endangered Species Act. 

Recently, news media has been reporting on the large amount of 

leased land that has not been developed. The major reason for this 

is the regulatory restrictions caused by the Endangered Species 

Act. Without access to the land to explore for new reserves, our nation’s producing capability will decline at an even greater rate 

while our demand for oil and gas continues to increase. 

The inescapable conclusion is higher prices for all commodities 

due to pervasive need for energy in those areas. Our nation’s need 

for more energy will demand an increase in the importation of foreign oil and gas and weaken our economy with greater trade deficits. Recent events have proven time after time that many of these 

foreign countries are very unstable and do not look kindly upon our 

great nation. 

Everything reasonably possible must be done to ensure that our 

nation has the resources that it needs. The oil and gas industry in 

southeastern New Mexico has been providing a continuous source 

of energy for this nation for over 80 years with little or no impact 

on all species. Our industry is committed to improving our operation to minimize any impact on the environment. We continue to 

meet with and work with the various groups to identify ways that 

we can help threatened species. But the Endangered Species Act 

must be changed to more accurately reflect the needs and responsibilities of this state and this nation. Thank you. 

[The prepared statement of Mr. Harvard follows:]

Statement of Jeff Harvard, Past President,

Independent Petroleum Association of New Mexico 

Chairman Pombo and Distinguished Committee Members, 

I am here today to discuss the impact of the Endangered Species Act (‘‘ESA’’) on 

the oil and gas industry in southeastern New Mexico. Without question, the current 

ESA has had and is having a tremendous negative impact on our industry. More 

and more time and energy is being drained from our everyday business activities 

to identify, analyze, evaluate, discuss and address ESA issues. I personally am 

spending more that 25% of my time dealing with ESA issues and I am getting tired. 

The playing field is continually moving; rules and regulations are continually changing. I am not alone in my sentiment that it is getting to the point where it is not 

worth the hassle. Companies large and small are questioning whether it is worth 

it to continue fighting the unrelenting wave of restrictions and regulations due to 

species after species being proposed for listing. 

The current Endangered Species Act is a failure that has not saved a single 

species and is in need of immediate change before it does any more mischief. It must 

21

be changed because events are coming together to potentially drive ranching and 

oil and gas in New Mexico to the point of extinction. While many would question 

this, you can look at the lumber industry and see that the threat is real. Good riddance many would say. ‘‘They are destroying the environment.’’ But what happens 

when these same people have to pay double or triple the cost for gasoline, food, 

power, heating and cooling, clothing, building materials, etc. Or, worse yet, not have 

any of these necessities. How loud would the cry be if the trade deficit doubled and 

this nation was held hostage by foreign nations that have made their dislike of the 

Unites States clear. I wonder how they would like that ‘‘environment’’. 

The cartoon below from the 6/2/04 Albuquerque Journal speaks volumes about the 

issue we are examining today. Science fiction is drowning out real science. Science 

of old, where something was studied, data collected and unbiased truths were discovered and reported has been replaced with political science where a pre-determined outcome or opinion is identified and data, if any, is manipulated to reach the 

political truth desired. Today, perception and opinion are called truth. The adage 

of ‘‘saying something often enough makes it factual and true’’ is all too prevalent 

in these times. 

It is very apparent that groups trying to list species under the Endangered 

Species Act are assaulting the financial support of New Mexico, the very existence 

of local ranchers and oil and gas operators, and threatening our national security. 

Five years ago a group of environmental foundations decided there should be an 

ANWR is every state. Two key weapons that they are using are NEPA and the ESA. 

While NEPA is not the subject of this hearing, it is important to understand that 

the motivation behind these groups is to obstruct and remove lands from any multiple use and return them to wilderness. 

The Lesser Prairie Chicken, the Tiger Beetle, the Sand Dune Lizard, the Black 

Tailed Prairie Dog, the Aplomado Falcon, the Roswell Springsnail, the Koster’s 

Tryonia, the Pecos Assiminea and Noel’s Amphipod are all species that are being 

used to remove access to public lands. This loss of access leads to a loss of production that leads to a loss of revenue that causes a greater deficit due to the necessity 

of importing more foreign oil and gas and other commodities resulting in a serious 

national security problem. Below are examples of the impact from each of these 

species. 

Lesser Prairie Chicken and Dune Sagebrush Lizard 

The limited chicken population in New Mexico is on the edge of the historic range 

and therefore subject to greater increases and decreases in population due to natural forces (drought, predation and disease) rather than human activity. However, 

because SE New Mexico has the most federal land in the five states with chicken 

habitat it has become a main targeted area to ‘‘save the chicken’’. Industry members 

have been meeting with various workgroups to identify ways to assist the chicken 

population for years. For over 20 years the BLM has been imposing timing stipulations that restrict drilling and workover activity for up to a quarter of the year in 

much of Lea, Eddy and Chaves Counties. These restrictions for chicken mating were 

imposed and not removed even though many of the areas had no chicken sightings 

or activity. 

Environmental groups recently filed a petition with BLM to create an Area of 

Critical Environmental Concern in the middle of the oil field in southeastern NM. 

The ACEC includes over 343,000 acres and proposes to restrict any grazing and 

drilling for oil and gas to protect chicken habitat. 

For over a year a government promoted shinnery oak habitat workgroup that includes regulatory agencies, environmentalists, ranching, and oil and gas has been 

working very hard to identify ideas and plans to help the prairie chicken and the 

dune sagebrush lizard. After a year’s work on ways to help the chicken and lizard 

and keep it from being listed, we were disturbed to hear a BLM representative tell 

the group that there may not be anything we can do about a listing because of the 

Tiger Beetle that hasn’t been addressed yet and also the prairie dog. The industry 

was also just informed that, contrary to what we were led to believe, the Carlsbad 

and Roswell districts are amending their RMPs relating to oil and gas and endangered species even though the workgroup has not completed its document. Ranching 

and oil and gas are faced with continual pressure to remove more and more lands 

from leasing and severely restrict grazing in the name of preserving habitat. This 

is occurring even as it appears that more and more birds have been sighted during 

a time when the habitat is in very poor shape due to the sustained drought. 

We also have another problem because the reported habitat conditions for the 

chicken are different than the lizard. In the case of both species, specific science is 

lacking concerning the affect of oil and gas activity. There has been very little, if 

any, peer-reviewed science that pinpoints oil and gas activity as causing a reduction 

22

in the chicken or lizard population. Regardless of credible science, lands continue 

to be withheld from leasing, stipulation restrictions continue to be imposed and 

RMPS amended. 

Concerning the Dune Sagebrush Lizard, producers have been required by the 

Carlsbad office to move sand dunes and to limit the number of wells in a section 

to 13, because Charlie Painter, NMG&F biologist, thinks that is the most that 

should be allowed. But there are questions about where habitat really exists. The 

1994 Distribution field report found dune sagebrush lizards in 51% of the habitat 

the researchers considered suitable. A concentration of areas along the Lea-Eddy 

County line were considered to be very good habitat but contained no lizards. Conversely, the lizard was observed at 100% of the evaluated sites considered not to 

be potential habitat in dune grassland. On a March 30, 1994 telephone conference, 

Dr. Rob Gordon of Environmental Issues Council said that habitat is only suitable 

if the lizard lives there. 

Aplomado Falcon 

In 2002, The Carlsbad BLM Office removed 82,014 acres of minerals south of 

Hope, NM, some of which were nominated for leasing by oil and gas producers in 

the January and April sales. Questions were raised on this withdrawal and Leslie 

Theiss, Carlsbad Field Manager, explained the withdrawal in a letter dated April 

16, 2002 to the members of the BLM/Industry Working Group. The oil and gas industry asked for a description of the economic impacts statement required by Executive Order 13212. 

Federal Land Policy and Management Act of 1976, 43 U.S.C. 1701 requires BLM 

to manage land for multiple use and sustained yield. Multiple use and sustained 

yield do not exist when the two major users and income producers on federal lands 

are restricted or denied operations due to the Aplomado Falcon which has only 

nested once in southern New Mexico for over 50 years. USF&W in a Section 10j 

under the ESA notice said the bird ranges from near the Mexican border south to 

Argentina. Additionally the letter says that data needs to be collected on habitat 

quality before consultation begins. The BLM was protecting an area that has not 

been established as habitat. BLM finally relented and leased the area, but with stipulations. 

The Aplomado Falcon is also prominent in the Otero Mesa discussion. The environmental community is claiming that the Otero Mesa area is prime habitat for the 

falcon and must be protected. The problem is that according to USFWS in August 

1992, suitable habitat consists of inter-tree distances of 30m (avg.), tree densities 

of 19 trees/40 ha (avg.), tree height of 9 m (avg.), and 92% ground cover at 0.7m 

off the ground and 70% at 0.5m. This does not sound at all like the Otero Mesa. 

In 2001, no nests had been verified in the U.S. since 1952, when a nest was reported 

near Deming, NM. From 1990 to 1999 there have been only 9 falcon sightings in 

NM. BLM officials indicated that there was one nesting discovered a few years ago 

near Deming but it was unsuccessful due to assumed egg predation. 

Roswell Springsnail, Koster’s Tryonia, Pecos Assiminea and Noel’s Amphipod 

A number of snails in and around the Pecos River have been listed and as a result 

oil and gas activities have been restricted. BLM is holding APDs because the drilling of wells might develop a leak that might get into the water table and might 

reach the Bitter Lakes Refuge. Bill Radtke, supervisor at Bitter Lakes, said, at the 

first snail meeting in October 1996, that the biggest threat to the snails is the dropping water table. In the handouts from this October meeting, there was a list, citing 

‘‘Wilson 1981’’, of the major existing sources of potential ground water contamination in New Mexico and the only oil and gas activity listed is oil or gas refining. 

The only refinery is downstream some 40 miles south of Bitter Lakes. 

The New Mexico Oil Conservation Division wrote EPA and said there are no proven cases of water pollution resulting from oil and gas activities in New Mexico. The 

Roswell water basin is connected to the Refuge. The water on the Refuge is not fit 

for drinking and is more saline than the ocean. It has become more saline since the 

1940s. Since the river has a higher saline content and the wells in the area are 

lower in saline content and used for irrigation and drinking, the Refuge must be 

recharged by the Pecos. Therefore, these facts indicate that contamination from 

drilling wells is not a problem so there is no basis to indicate that the oil and gas 

activity north of Roswell poses a threat to the snails. Regardless, the BLM continues 

to prohibit drilling near the refuge. 

The ESA has been a failure. 

The Endangered Species Act must be changed because it has been a complete failure. Further, the damage caused by regulatory restrictions and land withdrawals 

is incalculable. 

23

Dr. Michael Coffman wrote the following August 2, 2003: 

‘‘For three decades, environmental purists have actively promoted the pantheistic 

notion that plant and animal life rank higher on the species hierarchy than people. 

Their ‘‘return-to-the-wild’’ agenda argues that human life activities are the enemy 

of plant and animal species, and only through their efforts to halt growth and shut 

down people’s normal and necessary life endeavors will Mother Earth smile again. 

Federal environmental regulations like the ESA have destroyed the lives of tens 

of thousands of people, closed entire communities, and confiscated hundreds of millions (if not billions) of dollars of private property, all in the name of protecting the 

environment. Michael Kelley of the Washington Post Writers Group describes the 

brutality of the ESA in the July 11, 2001, issue of MSNBC: 

‘‘The Endangered Species Act...has been exploited by environmental groups who 

have forged from it a weapon in their agenda to force humans out of lands they wish 

to see returned to a pre-human state.’’

Of the sixty species that have been de-listed and supposedly ‘recovered,’ twelve 

were actually extinct, thirty were incorrectly listed in the first place or had data 

errors, twelve were recovered due to actions resulting from other laws or private efforts (not the ESA), and the balance were de-listed due to management of U.S. Wildlife Refuges. The ESA has not been responsible for recovering even a single species.’’

The Partnership for the West noted that the Endangered Species Act, in its 30-

year history, has had a 99 percent failure rate in restoring species to health. On 

the other hand, the Partnership said, the ESA ‘‘has a high rate of success as a tool 

to confiscate private property, discourage private conservation efforts that actually 

conserve species and habitat, devastate rural communities, curb economic growth 

and destroy jobs.’’

What should be done? 

There must be action right now to revise the current Endangered Species Act. The 

first Endangered Species Act was passed in 1966 in response to Rachel Carson’s 

book Silent Spring. The Act directed all federal agencies to identify native fish and 

wildlife threatened with extinction. Federal agencies were provided money by Congress to purchase habitat for endangered species and to protect the species. In 1969 

the ESA was amended to also protect invertebrates. The last change occurred in 

1973 and this is the Act commonly referred to in the media. The 1973 Act added 

Section 4 that said species will be listed without reference to possible economic or 

other impacts. In 1978 the Supreme Court held that a listed species must be protected at whatever cost. Section 7 of the EAS prohibits any federal action that will 

jeopardize a listed species or substantially modify its habitat. Section 9 prohibits the 

taking of a listed species and defines a take to include actions that will annoy to 

such an extent as to significantly disrupt essential behavior patterns. It is this section that has cost the federal government, actually us, the taxpayer, millions of dollars in takings lawsuits. 

The definition of ‘‘taking’’ must change. The U.S. Supreme Court legitimized this 

convoluted interpretation on June 29, 1995 in Babbitt v. Sweet Home Chapter of 

Communities for a Great Oregon. In doing so, the Court ruled that the word ‘‘take’’ 

included altering the habitat of an endangered species thereby allowing the government to take private land for an endangered species without paying for it. 

Writing for the Heritage Foundation on November 18, 1998, Alexander Annett 

notes that: ‘‘Because of the Supreme Court ruling, the ESA empowers the federal 

government to regulate any land that is thought to provide ‘‘suitable habitat’’ for 

an endangered species without proof of death or injury to an identifiable animal 

that was caused by the landowners.’’ As evidenced in Klamath Falls, zealous bureaucrats can impose arbitrary and capricious habitat recovery plans on private 

property that instantly strips the value often their life savings from a landowner. 

The Federal Government should be required to pay for takings of private property. The ESA costs multiple billions of dollars annually, but the landowners who 

happened to have the last critical habitat needed by a species shoulders most of that 

cost. This is neither fair nor just when the reason the species is endangered results 

primarily from nature and secondarily from the actions of society as a whole. The 

only solution is for federal agencies to pay just compensation to landowners adversely affected just as the U.S. Constitution supposedly requires. 

Paying for the huge costs of implementing the ESA would expose the real cost 

to the taxpayers footing the bill, forcing the USFWS and other agencies to prioritize 

what species must receive protection to allow for their recovery, while putting less 

emphasis on those species that are not in real jeopardy. 

The legal authorization for the ESA expired in October 1992 and Congress has 

done nothing but provide funding since. It would be very difficult to refuse to reauthorize the ESA, but it might be possible to go back to the 1969 Act. That could 

24

be done by taking out Sections 4, 7, 9 and 11g. This is one way to stop the abuses 

of the ESA. 

Other suggestions to make the ESA workable would be to use only a biological 

and numerical definition of endangered species. Only a pure species can be classified, no sub-species or distinct populations. Only those species with total numbers 

indicating a threat can be listed. 

Socio-economic impacts must be on an even or greater par than all other considerations. Sec. 11 on penalties at (g) citizens’ suits must come out. One alternative is 

to allow any citizen to counter sue those filing citizens’ suits and the loser pays. 

Species, to be listed, must exist in more than one state. Half of the 1082 species 

listed do not. Finally, put into law the 1997 Bennett v. Spear Supreme Court case. 

It found that the best scientific and commercial data must be used to designate critical habitat and to make the decision to list. Federal agencies, currently, list and 

designate critical habitat without any science or with only studies that have not 

been peer reviewed. 

We recognize that it takes time to get bills through, but we are faced with the 

local BLM offices changing rules overnight. It seems that they hear about a new 

study or theory on the prairie chicken or lizard and the next day it is a rule. Recently the news media has been speaking about the large amount of leased land 

that has not been developed. A major reason for this is regulatory restrictions 

caused by the Endangered Species Act. Without access to land to explore for new 

reserves our nation’s producing capability will decline at an even greater rate while 

our demand for oil and gas continues to increase. The inescapable conclusion is 

higher prices for all commodities due to the pervasive need for energy in most all 

business areas. Our nation’s need for more energy will demand an increase in the 

importation of foreign oil and gas and weaken our economy with greater trade deficits. Recent events have proven time after time that many of these foreign countries 

are very unstable and do not look kindly upon our great nation. It will be years before any possible supplemental energy source may become valid. Everything reasonably possible much be done to ensure that our nation has the resources it needs. 

The oil and gas industry in southeastern New Mexico has been providing a continued source of energy to this nation for over 80 years. Past experience and improved 

present practices show conclusively that we can drill and produce oil and gas safely, 

with little or no impact to all species. Time has proven in many areas (offshore platforms, the Alaskan pipeline, etc) that the existence oil and gas activity has improved 

many habitats rather than destroyed it as was originally claimed. Our industry is 

committed to improving our operations and minimizing any impact on the environment. We continue to meet and work with the various groups to identify ways that 

we can help threaten species. But the Endangered Species Act must be changed to 

more accurately reflect the needs and responsibilities of this nation. 

Thank you. 

The CHAIRMAN. Thank you. 

Ms. Prukop. 

STATEMENT OF HON. JOANNA PRUKOP, ENERGY, MINERALS 

AND NATURAL RESOURCES DEPARTMENT 

Ms. PRUKOP. Good morning, Mr. Chairman, Congressman 

Pearce. Thank you for the opportunity to provide the state’s perspective on the Endangered Species Act. 

My dad was a farmer and a rancher. He recognized that understanding signs in nature would help him understand his business 

and how to manage his lands. I learned from him, as others here 

have learned, that nature serves as an environmental barometer, 

as an indicator of what’s going on in our world. Understanding 

what was going on around him helped Dad make good decisions 

about how to manage his land and how the deal with the challenges presented by the environment he worked in. He knew that 

there were many things you cannot control and he knew that he 

had to learn to work with Mother Nature to accomplish his farming 

and ranching goals. 

25

Here in the Pecos River basin, endangered fish are not the problem. They are only an indicator, a symptom. Rather, it is management of water that is the fundamental issue. Impacts of fish 

species are symptoms that the ecosystem is not functioning naturally, and it is easy to see that the impacts on wildlife of this sort 

are related to the problems of downstream delivery of water. The 

loss of fish species is a sign of what humans are doing to change 

the natural water systems. They tell us that we are damaging the 

infrasystem, damage that extends far beyond the species itself into 

the lives of everyone affected. 

In striving for the balance we all wish to attain between environmental concerns and the needs of humanity, we must be thoughtful 

in making quality of life decisions and careful in understanding 

long-term economic impacts in the region. 

We believe the ESA is a very important law, one that is important to habitat protection and species conservation in the United 

States. It’s appreciated and supported by many Americans, including many New Mexicans. Like others here have said this morning, 

it would be very hard to repeal it. Many Americans would come forward to voice their opinions about that. 

However, after 30 years, much has been learned and approaches 

to implementation of the ESA have evolved to address the complexities of managing endangered and threatened species. The use of 

habitat conservation plans and safe harbor initiatives has been two 

examples of that. We need to continue this effort to improve the 

Act in a manner that achieves species conservation and habitat 

protection while allowing for managed growth. 

We advocate thoughtful careful review of the ESA, just as many 

of our natural laws have been reviewed and have evolved over 

time. However, Congress must be careful not to make wholesale 

changes that will undermine the initial intent and purpose of the 

law. On this, it seems there is potential for the agreement across 

a wide spectrum of interests. 

The best pathway is to work together in ways that will conserve 

habitat, while, for example, observing private property rights. 

Methods that emphasize incentives for landowner participation in 

listed species conservation, actually such as the lesser prairie 

chicken here in New Mexico, are one example of an ESA model 

that needs to be continued and expanded upon. 

The U.S. Fish and Wildlife Service web site lists 42 species as 

threatened or endangered in New Mexico, 29 animals and 13 

plants. New Mexico currently has several wildlife species considered as candidates under the ESA including the lesser prairie 

chicken, the black-tailed prairie dog, the sand dune lizard, the yellow-billed cuckoo, and the Texas hornshell mussel. 

In the Pecos River basin we currently have two federally listed 

species, the Pecos bluntnose shiner and the Pecos gambusia, and 

one candidate mullosk, the Texas hornshell. We also have four invertebrate species that are proposed for Federal listing. 

In New Mexico, we have three federally threatened plant species 

on the Pecos River basin, the Pecos sunflower, gypsum wild buckwheat, and Sacramento Mountain thistle, and one endangered 

plant known as Kuenzler’s cactus. 

26

In the State of New Mexico, the state agencies and Federal agencies work cooperatively with other interested parties to seek innovative and workable solutions to solving ESA issues. Partnerships 

between agencies and private landowners and groups have also 

been very important in implementing ESA projects. 

The recovery of the lesser prairie chicken has been mentioned. 

Through the cooperative work, the state management plan that has 

been developed now includes better survey and habitat information 

than it has in the past, better protection and improvement work by 

Federal and private landowners, and better management of Game 

Commission-owned property specifically intended for the lesser 

prairie chicken. 

We also have an example in the black-tailed prairie dogs. 

Through their working group, the implementation of a management plan will likely lead to removal of the prairie dog as a candidate species within the next few years. 

Another example is the Pecos sunflower that I mentioned. 

Here in this state a couple of landowners are working with state 

agencies to repopulate that species in appropriate habitat. The Gila 

trout recovery team in the Gila National Forest has also been very 

successful. The Gila recovery team that has been in place for more 

than 20 years, and today populations have been restored and it’s 

possible that within the next few years, they will actually be fished 

for again. 

In terms of other successes, we know that we have some new 

funding sources for ESA available that we can work with, including 

the Landowner Incentive Grants, Private Stewardship Grant Program, the Highlands Plains Partnership, and increased funding to 

certain portions of Farm Bill. We also have some new regulatory 

programs under section 10 of the ESA that have developed—that 

have been developed for landowners that involve both pre-listing 

and a post-listing species, such as the Candidate Conservation 

Agreements with Assurances system for landowners and the Habitat Conservation Plans. 

Regarding economics in New Mexico, it’s essentially always the 

case that expenditures to recover a listed species are far greater 

than the expenses to promote conditions that preclude their listing. 

So we advocate for earlier work. 

As I wrap up here, in terms of what needs improvement and implementation of the Act, we would like to get more conservation 

benefit from putting more effort into maintaining an appropriate 

list of species that would be protected under the ESA versus the 

time spent on determination of critical habitat designations, which 

recently have been regularly challenged in court and have led to 

a lot of money and time being spent to redo them. 

We need to adequately identify issues related to ESA statutory 

language and requirements versus issues related to ESA implementation. Recovery teams should be used more effectively to actually lead to on-the-ground implementation of recovery plans. And 

Congress and the Administration should do more to support habitat conservation planning. 

More recommendations in terms of improvements to the ESA 

itself are that we feel the doom and gloom regarding the ESA is 

exaggerated. The law has been underfunded, understaffed, and in 

27

some cases poorly administered. But the mere fact that species like 

the peregrine falcon have been removed from the endangered 

species list and the American bald eagle has had nationwide recovery shows that it can work. 

In terms of improving the Act itself, we should acknowledge that 

the ESA is about listed species and listing species, not avoiding 

species listing. Again, once you list the species, the likelihood of 

success of recovery is very low. Hence, we need additional legislation to manage species that are identified at some stage prior to 

actual endangerment such as while an identified species is at risk. 

We also believe the ESA must be amended to foster and ecosystem management approach to conservation. It must be included 

in this—this concept must be included in the purpose and statement of the Act and fleshed out in the regulations. The Act should 

provide stronger conservation in conjunction with private interests. 

It should provide provisions to reward landowners who self-report 

and self-conserve the species. 

We need greater Federal incentive for state conservation efforts, 

and we need to provide the opportunity for states to be involved in 

developing the biological opinions that the U.S. Fish and Wildlife 

Service submits. 

In conclusion, we appreciate the opportunity to appear here 

today and address the issues raised by so many people here in New 

Mexico. We feel the reauthorization of the Act is a very high priority for New Mexicans and all American citizens. We support the 

continued effort to look at it and try to figure out ways to improve 

it. 

We also strongly support more adequate funding for the Act and 

a stronger role for states. We are willing and capable partners in 

working with Federal agencies and others who are concerned about 

this act, and we would appreciate hearing from you in the future 

in terms of how we might continue to participate and collaborate 

on reauthorization of the Act. Thank you very much. 

[The prepared statement of Ms. Prukop follows:]

Statement of The Honorable Joanna Prukop, New Mexico Cabinet 

Secretary, Energy, Minerals and Natural Resources Department 

Welcome and Introduction—the need for balance and a systems approach 

Mr. Chairman, Congressman Pearce, distinguished Committee members, thank 

you for the opportunity to provide the State’s perspective on the Endangered Species 

Act (ESA) in Southeastern New Mexico. 

My dad, Philip Prukop, was a farmer and rancher. He recognized that understanding signs in nature would help him understand his business. I learned from 

him as others here have learned that Nature serves as an environmental barometer—as an indicator of what’s going on in our world. Understanding what was 

going on around him helped Dad make good decisions about how to manage his land 

and how to deal with the challenges presented by the environment he worked in. 

He knew that there were many things he could not control and he knew he had 

to learn to work with Mother Nature to accomplish his goals. 

Here in the Pecos River Basin of Southeastern New Mexico endangered fish are 

not the problem—they are only an indicator, a symptom. Rather, it’s management 

of water—the river itself—and other surface waters and groundwaters that make 

up the system that feeds the Pecos River. 

Impacts to fish species are symptoms that the ecosystem is not functioning naturally, and when investigated, it’s easy to see that impacts to wildlife of this sort are 

related to the problems of downstream delivery of water. The loss of fish species is 

a sign of what humans are doing to change natural water systems. These signs tell 

us that we are damaging the ecosystem, damage that extends far beyond the species 

28

itself and into the lives of everyone affected. An important concept I’ll expand upon 

later as we discuss how to make the Endangered Species Act more effective involves 

conservation of systems, as opposed to single-species or single-issue management. 

Another point to remember as our discussions proceed is that in striving for the 

balance we all wish to attain between environmental concerns and the needs of humanity, we must be thoughtful in making quality of life decisions and careful in understanding long-term economic impacts in the region. 

We believe the ESA is a very important law—one that is important to habitat protection and species conservation in the United States, and appreciated and supported by many Americans, including many New Mexicans. 

After 30 years of implementation much has been learned, and approaches to implementation of the ESA have evolved to address the complexity of managing endangered and threatened species on public and private lands. Examples for private 

lands include the use of Habitat Conservation Plans and ‘‘safe harbor’’ initiatives. 

We need to continue this effort to improve the Act in a manner that achieves species 

conservation and habitat protection while allowing for managed growth. 

We advocate thoughtful, careful review of the ESA. However, Congress must be 

careful not to make wholesale changes that will undermine the purpose of the law. 

On this, it seems there is potential for agreement across a wide spectrum of interested parties. The best pathway is to work together in ways that will conserve habitat while, for example, observing private property rights. Methods that emphasize 

incentives for landowner participation in listed species conservation (as with the 

lesser prairie-chicken in New Mexico, see below) are one example of an ESA model 

that needs to be continued and expanded upon. 

The ESA in New Mexico Today 

The U.S. Fish and Wildlife Service Web site lists 42 species listed as threatened 

or endangered in New Mexico (29 animals, 13 plants) under the Endangered Species 

Act. Subtracting those species that are considered extirpated from New Mexico, or 

those listed twice due to the existence of an experimental population designation 

(e.g., Mexican wolf), there could be considered to be 22 threatened or endangered 

animals present or occasional in New Mexico. 

New Mexico currently has several wildlife species considered as candidates under 

the ESA including: the lesser prairie chicken, the black-tailed prairie dog, sand dune 

lizard, yellow-billed cuckoo and Texas hornshell mussel. 

At the state level, there are 118 species listed as threatened (70) or endangered 

(48) under the New Mexico Wildlife Conservation Act (WCA). Twenty-four of these 

are also listed under the Endangered Species Act (2 of the species listed under the 

WCA would currently be considered irregular in New Mexico, therefore don’t appear 

on the ESA list for New Mexico). 

In the Pecos River Basin, we currently have two federally listed fish species—the 

Pecos bluntnose shiner and the Pecos gambusia; one candidate mollusk—the Texas 

hornshell; and four invertebrate species that are proposed for federal listing. Other 

fish species listed at the state level for this area are: the blue sucker, gray redhorse, 

Mexican tetra, Pecos pupfish, bigscale logperch and the greenthroat darter. Two 

state-listed reptiles (the plainbelly water snake and western river cooter) also occur 

in the Pecos River. 

There are three federally listed threatened plant species in the Pecos River Basin 

of Southeastern New Mexico: the Pecos sunflower, gypsum wild buckwheat and the 

Sacramento Mountain thistle; and one endangered plant known as Kuenzler’s 

cactus. 

Effective use of ESA in New Mexico 

The State of New Mexico and its agencies have worked cooperatively with Federal 

agencies and other interested parties to seek innovative and workable solutions to 

solving ESA issues in New Mexico. 

Partnerships between agencies and private landowners and groups have also been 

very important in implementing ESA projects. As an example, ESA partnerships 

working on recovery of the lesser prairie chicken include a southeast New Mexico 

working group comprised of state and federal agencies, industry representatives, 

and the conservation community to discuss potential conservation actions. This 

group has been in place for 18 months, working to develop specific guidelines that 

could be implemented through Bureau of Land Management (BLM) plans, regulations, stipulations, etc. Through such cooperative work the state management plan 

now includes better survey and habitat information, habitat protection and improvement work by federal and private landowners, and better management of Game 

Commission-owned properties specifically intended for the lesser prairie chicken. 

Both state Wildlife Partnership Funds and federal Partners for Fish and Wildlife 

29

projects have been applied on private ranches in New Mexico to benefit lesser prairie chickens. 

In another example involving a candidate species in several western states, multiparty (public and private stakeholders) black-tailed prairie dog working groups have 

developed state management plans, including in New Mexico, where multiple cooperators have signed a Memorandum of Understanding (MOU) to support the plan 

of the New Mexico working group. This effort has promoted the availability of various incentive programs for private landowners interested in maintaining prairie 

dogs. Implementation of state management plans will likely lead to removal of the 

prairie dog as a candidate species within the next few years. 

Another example of public-private collaboration in New Mexico involves a threatened plant species. The Pecos sunflower occurs in the Pecos River drainage at Santa 

Rosa and the Roswell/Dexter region. It is a wetland species associated with springs 

and seeps (not the river proper). Its largest population is at Bitter Lake National 

Wildlife Refuge where it is managed by the U.S. Fish and Wildlife Service (USFWS). 

Most other populations are on private lands, but a few are on BLM and Bottomless 

Lakes State Park. The greatest threats to this species are salt cedar encroachment 

and aquifer depletion (drying habitats). On a very positive note, two ranchers with 

state trust land springs (one near Fort Sumner and another near Bottomless Lakes) 

have volunteered to re-establish Pecos sunflower on their ranches. The State Land 

Office (SLO) and the State Forestry Division of the Energy, Minerals and Natural 

Resources Department have assisted these ranchers by successfully seeding Pecos 

sunflower in suitable habitats on their ranches. 

I’d like to mention one more example in New Mexico of a recovery effort to illustrate the successful use of the recovery team concept. The Gila Trout Recovery Team 

has been in place for more than 20 years. From the very beginning with this species 

there was a long-term commitment of state and federal wildlife agencies, land managers (primarily Forest Service, especially Gila National Forest) and others to save 

this species, our New Mexico state fish. Once the recovery plan was drafted, the recovery team remained in place and was very active in managing the recovery of this 

species. There was also general support for this effort in both the conservation and 

angling communities. Today populations have been restored sufficiently to be able 

to withstand some habitat impacts such as wildfire. The USFWS is currently working on a downlisting package, with a special rule to allow for some angling for this 

species under state management. 

General ‘‘successes’’ and opportunities to build on experiences from ESA 

Some ‘‘new’’ funding sources have been put in place that ESA efforts can take advantage of, especially for conservation on private lands. Examples include state 

Landowner Incentive Grants, the federal Private Stewardship Grant Program, the 

High Plains Partnership, and increases in funding to Farm Bill conservation title 

programs. 

‘‘New’’ regulatory programs under ESA Section 10 have been developed for landowners, both pre-listing (e.g., Candidate Conservation Agreements with Assurances) 

and post-listing (e.g., Habitat Conservation Plans). 

All of the above programs can be beneficial, but agencies do not have existing infrastructure to successfully administer these new tools. So federal funding mechanisms must be pursued and secured. 

USFWS has become more receptive to partnering with state agencies in recent 

years. In New Mexico, the state collects much of the biological field data on endangered species that may be figured into Section 7 consultations, etc. The downside, 

however, is the continuing decreases in ESA Section 6 funding to states. States lack 

sufficient agency staff to participate directly in biological opinions and other related 

ESA activities. 

Unlike with wildlife, the ESA does not protect threatened or endangered plants 

or their habitats on private, municipal, or state trust lands unless the activities of 

those landowners are federally funded or require a federal permit. Most threatened 

and endangered plant species management in southeastern NM occurs on federal 

lands. The ESA has been effective in avoiding direct impacts to these plants on federal lands, which is important and can be considered successful implementation. If 

federal land populations are safe, then private land populations usually do not need 

to be an emphasis for recovery, unless they are critical to the species. Land use 

projects on federal lands have been modified because of these species, but we do not 

know of an instance where a project has been stopped because of a threatened or 

endangered plant. Incentive programs for private landowners, such as grants for 

habitat improvement or purchase of conservation easements, need to be funded to 

support the ESA so that recovery plans can be implemented with willing landowners. 

30

The ESA Habitat Conservation Plan provisions have been successful. They provide certainty and flexibility for states, landowners, and federal agencies. It’s the 

kind of forward thinking that will protect species over the long term, instead of the 

reactive approach that is less successful and that creates last-minute surprises for 

landowners and the private sector. Habitat Conservation Planning efforts need continued refinement, such as a legal requirement that plans be consistent with species 

recovery and set measurable recovery-based biological goals. Review by independent 

scientists and allowing for greater public involvement in plan development should 

also be a part of the process. As with other aspects of implementing the ESA these 

efforts need additional support and funding. 

The Economics of the ESA in New Mexico 

Regarding economics of the ESA, it is essentially always the case that expenditures to recover a listed species are far greater than expenses to promote conditions 

that avoid listing to start with. Also, if people objectively consider the true long-term 

economic cost of altering landscapes in ways that put species at risk, the actual cost 

of resource extraction would be higher than the costs we have historically considered. This is the argument of short-term economic gain versus longer-term economic 

implications of unwise resource use or management. This relates to who pays: the 

current generation or subsequent generations. Many types of resource use are possible in the face of at risk species and judicious conservation of habitat systems. The 

conflict generally comes when there is near-term income motivation fueling the resource use that views any appreciable environmental considerations as reducing the 

bottom line. 

In New Mexico, we believe the positive impact has outweighed negative impacts, 

and in cases like the Pecos River and management of fish species, maintenance of 

surface flows has likely had positive economic impact (e.g., to sport fishing and government funds paid for water leasing, etc). 

What needs improvement 

We would likely get more conservation benefit from focusing efforts on listing 

actions as opposed to critical habitat designation. Such listing actions would be: 

completion of findings on proposed rules, review and determination of petitions, review of candidate species for which ‘‘warranted but precluded’’ determinations were 

made, completing listing, down-listing and de-listing packages. In other words, 

putting more effort into maintaining an appropriate list of species that would be 

protected under the ESA, versus time spent on determination of critical habitat 

designation, which recently have been frequently challenged in court and have had 

to be redone multiple times (e.g., Mexican spotted owl). 

Given these statements, however, we do not support H.R. 2933—The Critical 

Habitat Reform Act of 2003—because it would create unattainable standards and 

eliminate the habitat protections that endangered species need to recover. The 

recommended changes ignore the need for species sustainability and habitat 

conservation—making the endangered species designation available only to those 

species perilously close to extinction. 

We also do not support H.R. 662 and S. 2009—Sound Science for the Endangered 

Species Act Planning Acts. By requiring government agencies to ‘‘give greater 

weight’’ to some kinds of science over others, it seeks to restrict the use of important 

methods that scientists currently use to assess species’ protection. Using the ‘‘best 

available science’’ is a laudable goal, making value judgments about science is not. 

It’s also important to mention that just as science is needed to implement endangered species protections, industry and other developers must also share the burden 

of using science to determine how best to carry out their activities in an environmentally compatible manner. 

We need to adequately identify issues related to ESA statutory language and requirements versus issues related to ESA implementation within the USFWS and 

the Department of Commerce. 

We need greater federal incentives for state conservation efforts to avoid listing. 

We should establish reasonable rewards for landowners who self-report and selfconserve listed species. 

We must adequately fund ESA recovery efforts so there can be an effective test 

of what the ESA is supposed to do. Thus far, the ESA has not adequately addressed 

recovery. Funding of recovery programs shows positive association with species 

improvement, but funding for recovery on a per species basis has substantially 

diminished since 1980. 

Recovery teams often disband after recovery plans are written, leading to no 

direct oversight or recovery implementation. There are excellent models of recovery 

31

teams being actively involved in management such that successful recovery was accomplished. This approach needs to be replicated. 

The Administration and Congress should do more to support Habitat Conservation Planning. It should recognize the ESA on military and other public lands. Unfortunately, the Administration and Congress have under-funded ESA implementation, and states and landowners are growing increasingly frustrated with the law 

itself instead of with the way it is being implemented. 

The Need for More Collaboration 

There is reason for the federal agencies to reach out to the stakeholders in the 

ESA debate. Private landowners, environmental groups, and others all belong at the 

table. This is the essence of collaborative conservation. 

Here in New Mexico, we can tout a few successes in that regard. For instance The 

Nature Conservancy has done some very important habitat protection on private 

land, while working with agencies and other landowners cooperatively. Additionally, 

Senator Domenici’s efforts to get Middle Rio Grande stakeholders into collaborative 

programs to protect the Rio Grande silvery minnow are promising. These efforts 

take a long time, especially in complicated western situations involving habitat and 

water rights. But they are worthwhile—and they are much more constructive than 

the court battles that create long-term hostility among potential allies. 

In our state, a variety of state agencies have been involved in ESA management 

challenges in the Pecos River Basin. The New Mexico Interstate Stream Commission (ISC) has provided technical assistance in the form of hydrologic modeling to 

calculate ESA depletions and offsets using an innovative integrated groundwater 

and surface water model—this kind of collaboration should continue. 

In addition, the New Mexico Department of Game and Fish (NMDGF) and the 

ISC have undertaken a significant state investment in biologic research to determine the habitat needs of the fish in the Pecos River, in conjunction with federal 

agencies and stakeholders. This work resulted in the identification of flow regimes 

that would be most successful in achieving recovery of listed fishes. The ISC also 

worked with other agencies, individuals and groups to take other actions to aid with 

ESA compliance including: the bypass of inflow water through Sumner Reservoir, 

establishing a fish conservation pool in Sumner Reservoir, pumping water from the 

Lynch Ranch to maintain flows in critical habitat, and a water leasing and forbearance program with the Fort Sumner Irrigation District. 

In another example on the Pecos River, a Cooperative Conservation Plan was developed by State and Federal agencies for the Pecos pupfish in lieu of federal listing. 

Additionally, current efforts by state agencies (ISC and NMDGF) to establish a 

Conservation Agreement in lieu of federal listing of four invertebrate species are 

moving forward. These four invertebrate species, if listed, could adversely impact 

New Mexico’s efforts to implement a long-term compliance plan to the Pecos River 

Compact, so precluding listing is of paramount importance. 

Recommended Improvements to the ESA in New Mexico 

The gloom and doom regarding the ESA is exaggerated. The law has been underfunded, understaffed, and in some cases poorly administered—but the mere facts 

that species like the peregrine falcon are being removed from the endangered 

species list and the bald eagle is recovered nationwide are indications that the ESA 

is working in very big ways. 

Here are some ways to make the ESA more effective: 

• Acknowledge that the ESA is about listed species and listing species, not avoiding species listing. The ESA is designed to protect threatened and endangered 

species, but is not designed to prevent species from becoming threatened or endangered. Once a species is actually listed, the likelihood of success in recovering the species is very low. Hence, additional legislation is needed to manage 

species that are identified at some stage prior to actual threat or endangerment, 

e.g., as in ‘‘species at risk.’’

• The ESA must be amended to foster an ecosystem management approach to 

conservation of species and preservation of habitat. A mechanism to address 

ecosystem management issues (conservation of systems) must be included as a 

statement in the ‘‘purpose’’ section of the Act and then be fleshed out in the 

regulatory steps. Such an approach should incorporate protections for candidate 

and proposes species. This does not, however, imply that any individual species 

should ever be discounted. 

• The Act should provide stronger habitat conservation provisions in conjunction 

with private interests. 

32

• The ESA should include provisions to reward landowners who self-report and 

self-conserve listed species, i.e., emphasize incentives for landowner participation in listed species conservation (e.g., tax incentives). • We need greater federal incentives for state conservation efforts to avoid listing. • We should provide the opportunity for USFWS biological opinions re: ESA to 

be written jointly with state agencies. 

Closing Remarks 

We appreciate the opportunity to appear, and to hear the issues raised by people 

here in New Mexico. 

Reauthorization of the ESA is a high priority in New Mexico. We support continuance of the ESA and strongly support reforms that make it more effective in achieving the original intent of the Act. 

We also strongly support adequate funding of federal ESA implementation programs. 

We support a stronger role for states in working as collaborators with the federal 

government and others to achieve ESA goals in an effective and timely manner. 

However, the State of New Mexico cannot afford for the Federal Government to abdicate its responsibility by weakening the ESA and its funding levels and burdening 

states with compliance. 

We are willing and capable partners in the reform of the ESA. We anticipate 

hearing from you in the future and welcome future collaboration. 

Thank you. 

ENDANGERED SPECIES ACT PERSPECTIVES (1966-2003)

INSIGHT FOR J. PRUKOP TESTIMONY

1966—End. Species Preservation Act (1st federal End. Spp legislation) 

1967—1st federal listing of endangered species (13 mammals, 36 birds, 3 reptiles, 

3 amphibians, 22 fishes) 

1969—End. Spp. Conservation Act (additional protection of species worldwide) required U.S. to convene global convention (led to CITES) 

1973—Convention on International Trade in End. Spp of Wild Fauna and Flora 

(CITES) signed 

1973—Endangered Species Act (ESA) signed 28 December (PL-93-205) 

1973—ESA implements Convention of Nature Protection and Wildlife Preservation 

in Western Hemisphere (signed in 1940) 

1976—1st invertebrates listed (6 butterfly species) 

1977—1st plant species listed (San Clemente Island Indian paintbrush and San 

Clemente Island broom) 

1978—ESA reauthorized and amended (PL-95-632) allowed economic impact assess 

of critical habitat, priority system for listing, required critical habitat with 

listing, specified public notice and hearing requirements prior to listing, cooperative agreements with states 

1978—1st Recovery Plan (Kirtland’s Warbler) 

1979—Exempted Tellico Dam project from ESA to allow completion, increased and 

extended funding authorizations through September 1982

1980—Provided for listing regulations 

1981—Defined ‘‘harm’’

1982—ESA reauthorized allowed development of HCPs, critical habitat designation 

with listing made discretionary, restricted listing to biological and trade information without economic assessment, experimental population designation 

1983—1st Habitat Conservation Plan (HCP)—San Bruno elfin butterfly (California) 

1985—1st delisting (Brown Pelican on Atlantic Coast and part of Gulf Coast) 

1986—Section 7 regulations provided 

1988—ESA reauthorized. Numerous clarifications including definition of ‘‘person’’ to 

include municipal corporations, enforcement re: import/export of listed plants, 

added ‘‘warranted but precluded’’ category, required recovery plan criteria, 

status report to Congress biannual, public review of new/revised recovery 

plans, 5-year monitoring of candidate and delisted species, and many others 

1989—Listing guidelines provided 

1990—Recovery guidelines provided 

1992—ESA authorization expires and is continued through annual appropriations 

1994—Draft HCP and Section 7 guidelines, No Surprises Policy, greater emphasis 

on Joint interagency ESA policies, initiation of policy adjustments to minimize landowner stimulus to harm wildlife habitat as means to avoid ESA implications 

33

1995—1st Safe Harbor agreement approved, U.S. Supreme Court defines ‘‘harm’’ to 

include modifying or destroying habitat if it includes taking a listed species 

1996—Listing priority guidelines developed, Final HCP guidelines provided, Distinct 

Vertebrate Population Segments Policy recognized 

1997—Safe Harbor Policy and Candidate Conservation Agreements Policy drafted 

1998—Final Section 7 Guidelines, No Surprises Rule issued 

1999—Final Safe Harbor Policy issued, Final Policy for Candidate Conservation 

Agreements with Assurances, Regulations for Safe Harbors and CCAs 

2000—Improved coordination of ESA section 7 consultation for FERC licensing of 

hydro projects 

2001—Endangered Species Planning Act gives greater weight to use of scientific or 

commercial data that is tested or peer-reviewed and increases consideration 

of information from states, landowners, and affected others 

2003—Conservation Banking Guidance to offset adverse impacts to listed species, 

Draft Candidate Conservation Agreements Handbook, Policy for Evaluation 

of Conservation Efforts (PECE) when making listing decisions 

FEDERAL AND STATE PROTECTED AQUATIC WILDLIFE IN THE PECOS 

RIVER VALLEY, NEW MEXICO

MAY 2004

• Currently, there are 7 protected fish species within the mainstem Pecos River, 

NM. One, the Pecos bluntnose shiner, is state and federally protected, and the 

remainder (blue sucker, gray redhorse, Mexican tetra, Pecos pupfish, bigscale 

logperch, and greenthroat darter) are state protected. Two state-listed reptiles 

(plainbelly water snake, western river cooter) occur in the Pecos River. Several 

other state and federally listed species occur within springs, tributaries, sinkholes, and other off-channel habitats of the Pecos River basin. Greater potential 

for regulation of habitat will occur if the yellow-billed cuckoo (found in salt 

cedar and other riparian vegetation in the Pecos drainage), which is currently 

a Candidate for listing under the Endangered Species Act, becomes federally 

listed. 

• Repatriation of Rio Grande silvery minnow to Pecos River has been identified 

as a recovery item. 

• Almost all ESA-related concerns driven by efforts to manage the Pecos 

bluntnose shiner and Section 7 consultations. 

• Major players in water issues are the Carlsbad Irrigation District, Fort Sumner 

Irrigation District, U.S. Bureau of Reclamation (USBR), U.S. Army Corps of Engineers, U.S. Fish and Wildlife Service, New Mexico Interstate Stream Commission (NMISC), and the Pecos Compact Commission. 

• Major issues are maintenance of Pecos River surface flows for the Pecos 

bluntnose shiner, delivery of full water allocation to districts, and meeting interstate delivery obligations. 

• From ESA Biological Opinions in 1991 through late 90s, an inter-agency Memorandum of Understanding (MOU) (including the New Mexico Department of 

Game and Fish) provided for research and water management. All water obligations were met and surface water for the Pecos bluntnose shiner was maintained. the Pecos bluntnose shiner status was stable and the system was functioning to benefit all constituents (including fish). NMISC offered, but chose not 

to be signatory to MOU. 

• MOU program was not perfect, but was working (1991-1998). Hydrological and 

biological research provided info for improved water and fish management, 

intra- and interstate water obligations were met. Annual meetings for coordination of fish, water, agricultural needs were held. NEPA process for operation of 

Pecos reservoirs by USBR was initiated in late 90s. Co-leads on the NEPA process, including NMISC, were adamant about creating a new structure of biological and hydrological teams for the EIS. Confusion and disarray regarding integration of previously-collected information and possible river management options occurred. 

• NMISC and its consultants refused to acknowledge the credibility and reliability of research accomplished over a 9-yr period and broad range of flows 

that identified habitat associations and biology of Pecos River fishes, particularly the Pecos bluntnose shiner. NMISC contracted work to duplicate and 

refute previous research. Work done by NMISC during 2 years of drought and 

did not refute and in some ways confirmed previous work. 

• NM’s difficulty in meeting inter-state compact obligations is a consequence of 

over-appropriation in NM, and not because of the Pecos bluntnose shiner. ShortVerDate 0ct 09 2002 13:52 Dec 16, 2004 Jkt 088533 PO 00000 Frm 00037 Fmt 6633 Sfmt 6621 J:\DOCS\94066.TXT HRESOUR1 PsN: KATHY
34

falls to TX occurred before the Pecos bluntnose shiner listed and any effort 

made to provide for it. • Drought of past 3-4 years has complicated river and water management. • During past 3-4 years, river has dried in substantial reaches, causing substantial loss of the Pecos bluntnose shiner and other fishes. Some drying is probably 

inevitable, but lack of cooperation and coordination, such as occurred during 

MOU period, likely exacerbated drying (extent and duration). 

• Considerably more info on hydrology of system (e.g., water transport efficiencies) is available, and this has contributed to improved management. 

• Under the MOU, maintenance of winter flows improved water quality (reduced 

salinity) in Brantley—less water was needed for irrigation in some years. Maintenance of more consistent flows may also benefit sport fish. 

• Although debated, maintenance of surface flow for the Pecos bluntnose shiner 

‘‘cost’’ <1,000 ac-ft/year during drought and USBR paid for this water. 

• Water leasing to maintain wet channel for the Pecos bluntnose shiner financially benefited FSID farmers. 

• Many farmers in Roswell Basin believe maintenance of surface flows helped recharge aquifer. 

• ESA has had no demonstrated negative economic impact (granted, compliance 

aggravates some) and maintenance of surface flows has likely had positive economic impact. 

• Continued, broad-scale eradication of salt cedar on the Pecos to ‘‘produce’’ more 

water in the river could create a regulatory situation with yellow-billed cuckoo 

on the Pecos similar to southwestern willow flycatcher on the Rio Grande. 

NEW MEXICO’S THREATENED AND ENDANGERED PLANT SPECIES

• There are eight federally listed plants in southeastern New Mexico: 

Æ Kuenzler’s cactus* 

Æ Gypsum wild-buckwheat* 

Æ Pecos sunflower* 

Æ Sacramento Mountain thistle* 

Æ Sacramento prickly poppy 

Æ Todsen’s pennyroyal 

Æ Sneed’s pincushion cactus 

Æ Lee’s pincushion cactus 

*Found in the Pecos River Basin 

• Kuenzler’s cactus (endangered) occurs in grasslands and savanna in the Guadalupe and Sacramento Mountains on BLM, U.S. Forest Service, state trust, and 

private lands. Its habitats on federal lands have been excluded from prescribed 

fire treatments, but have not curtailed or excluded livestock grazing. There is 

presently very little oil and gas development within Kuenzler’s cactus habitat, 

so this is has not been a conflict. ESA has protected this cactus only on federal 

lands. Recent surveys by EMNRD, USFS, and BLM have found this cactus to 

be more widespread than thought when listed. It could easily be down-listed to 

threatened. 

• The Gypsum wild-buckwheat (threatened) exists in only three populations on 

relatively small gypsum outcrops on BLM and state trust land near Carlsbad. 

There are no conflicts with grazing, and oil and gas development can easily 

avoid impacting these small areas. The ESA has successfully protected this 

species from oil and gas development impacts without curtailing these activities, or causing any economic loss. 

• The Pecos sunflower (threatened) occurs in the Pecos River drainage at Santa 

Rosa and the Roswell/Dexter region. It is a wetland species associated with 

springs and seeps (not the river proper). Its largest population is at Bitter Lake 

National Wildlife Refuge and is managed by USF&WS at that location. Most 

other populations are on private lands, but a few are on BLM land and at Bottomless Lakes State Park. Its greatest threats are salt cedar encroachment and 

aquifer depletion (drying habitats). 

• Two Ranchers with state trust land springs (one near Fort Sumner and another 

near Bottomless Lakes) have volunteered to re-establish the Pecos sunflower on 

their ranches. The SLO and the EMNRD have assisted these ranchers by successfully seeding Pecos sunflower in suitable habitats on their ranches. This 

species can be recovered, but ESA needs to provide more grants to the state and 

landowners for habitat improvement and purchase of conservation easements. 

• The Sacramento Mountain thistle (threatened) is a wetland species that occurs 

on springs around the Cloudcroft area—which is part of the Pecos River basin. 

35

Most of its locations are on the Lincoln National Forest, but one is on the Mescalero Reservation and another on private land. It habitats are threatened by 

spring capture, noxious weeds, and chronic overgrazing by livestock. The plant 

itself would be seriously imperiled if weed management programs imported the 

Eurasian musk thistle weevil (Rhinocyllus conicus) to the Sacramento Mountains to control the noxious weed, musk thistle. Greenhouse studies have shown 

this exotic weevil prefers Sacramento Mountain thistle to the musk thistle. The 

U.S. Forest Service has modified some timber harvests and grazing allotments 

because of this threatened plant, so there have been some conflicts with land 

users. It needs long-term monitoring and protection on federal lands—recovery 

is elusive. 

• The Sacramento prickly poppy (endangered) occurs in five canyons on the west 

escarpment of the Sacramento Mountains, mostly on Lincoln National Forest, 

but a few on BLM, private land, and there were 2 plants on Oliver Lee State 

Park five years ago. It grows on disturbed soils, but we have witnessed a steady 

decline in population during the last 15 years. There are now less than a 1000 

individuals left on earth. We cannot figure out why this plant is headed for extinction. Lots of suitable habitat is available. This prickly poppy sometimes 

grows on roadsides, so it has been a headache for Dept. of Transportation, but 

has not significantly curtailed other land uses. 

• Todsen’s pennyroyal (endangered) occurs on gypsum outcrops on the west slope 

of the Sacramento Mountains and in the San Andres Mountains on White 

Sands Missile Range. It is entirely confined to Lincoln National Forest, BLM 

and DOD lands. This is just a rare plant that occurs on steep slopes in pinonjuniper woodland at a few scatted localities. There are presently no serious 

threats or land use conflicts. 

• Sneed’s pincushion cactus (endangered) occurs in widely scattered locations 

from the south end of the Organ Mountains to the Franklin Mountains and over 

to the Guadalupe Mountains. There are few land use conflicts in its habitats. 

It is almost entirely on BLM, DOD, and Lincoln National Forest (a few on private land in Texas). Recent surveys and taxonomic studies by EMNRD, BLM, 

USFS, USF&WS, and NPS have revealed this cactus to be more widespread 

and less threatened than thought when listed. It could easily be down-listed to 

threatened or removed from the list altogether. 

• There is a variation of Sneed’s pincushion cactus (Escobaria sneedii var. leei) 

in the Guadalupe Mountains called Lee’s pincushion cactus (Threatened). It is 

confined to one or two ridges on the north end of Carlsbad Caverns National 

Park and is listed as threatened. There are no land use conflicts since the Park 

is obliged to protect it. This is a very rare cactus (collectors want it), so will 

need perpetual consideration by NPS. 

Most of these listed plants, the gypsum wild-buckwheat, Sacramento prickly 

poppy, Sacramento Mountain thistle, Todsen’s pennyroyal, and Lee’s pincushion cactus, are extremely rare naturally and will always need the protections afforded by 

the ESA. They will continue to be threatened as long as there are land uses in their 

habitats, so recovery is not a reasonable expectation. 

To see photos or read more about these plants, go to the New Mexico Rare Plants 

Web site at http://nmrareplants.unm.edu. It is maintained by the New Mexico Rare 

Plant Technical Council was founded in 1999 and works to construct an informative 

Web site for land managers and the public. 

The CHAIRMAN. Thank you. Mr. Stell. 

STATEMENT OF HON. JOE STELL, STATE REPRESENTATIVE,

STATE OF NEW MEXICO 

Mr. STELL. Mr. Chairman Pombo and Congressman Pearce, 

thank you for the opportunity to be here. Also, friends and members of the audience and your staff. My name is Joe Stell. For the 

record, my mailing address, 22 Caldwell Ranch Road, Carlsbad. 

Although my mailing address is Carlsbad, I actually live 32 miles 

out toward El Paso, five miles from the Texas line. And I guess my 

living so close to Texas and being from southeastern New Mexico, 

I’m at a little disadvantage in staying within the 5-minute limit because of my rapid speech. 

36

I’m a State Representative for House District 54, which includes 

a lot of this area and Otero County, including Otero Mesa. I’ve 

served as a representative for 18 years, and I’ve lived in this legislative district for over 75 years. And I graduated from a local high 

school, have a bachelor’s degree, master’s degree in school administration, and 50 hours beyond the master’s degree. 

My wife, Verna, and I, for 56 years, have been involved in ranching in Eddy County over 50 years. I’m a member of the New 

Mexico Cattle Growers, Farm and Livestock Bureau, Southeastern 

New Mexico Grazing Association, and other civic and social organizations. 

My comments—and this is a disclaimer; I don’t represent the 

Legislature. I’m just speaking from my own personal long-time 

experience. 

The Endangered Species Act is 30 years old December 28, 2003. 

A total of 1,288 plant and insects and birds, herbs, and mammals 

are listed as deserving protection. Billions of dollars have been 

spent on these species, but only a handful of success stories. 

Let me interject at this point that I consider myself somewhat 

of an environmentalist. I love wildlife, deer, birds. As a matter of 

fact, my wife and I each morning when we eat breakfast have a 

couple of 35-gallon containers that dispense feed, milo, to be exact, 

to the birds and doves and quails, rabbits, ground squirrels, and we 

watch them out our back windows. I put 47 50-pound sacks in 

those feeders last year. That’s probably more money than a lot of 

environmentalists have paid in their membership dues to their organization. That’s just an ad lib comment, by the way. 

We also put out feed, supplemental feed, for our cattle in the 

form of molasses or protein blocks, and so on. And I’ve noticed that 

the javelinas—by the way, I saw a javelina that had been run over 

on the highway, roadkill, this morning, coming in—javelinas, deer, 

coyotes, all types of wildlife like that supplemental feed for livestock. 

And I might mention here, I delineate a little between extreme 

environmentalists and environmentalists. Some of the extreme environmentalists may be at the source of some of the problem. But 

anyway, in my personal opinion, the agenda of the more aggressive 

organizations is to kind of bring the United States into an economic 

chaos, maybe an economic downfall. It isn’t really the protection of 

the species. It’s to maybe put some of the money-making endeavors, agriculture, oil and gas, forestry, out of business. 

And as evidence of that, we had the northern spotted owl in the 

northwest United States put 50,000 people out of jobs up there. 

Then they came down with the Mexican spotted owl in the Reserve 

area, started in 1987, and by 1992, it was all over, and Stone Forest Industries had taken their business out of Reserve and out of 

Catron County. 

One individual, Wilfred Estrada, was a typical person. 

He had been a logger for 34 years; didn’t know how to do anything else. He was put out of work and has not had work since. 

And other loggers have had the same fate. But those are some 

human stories that this Endangered Species Act has affected. 

Another example, over in Reserve, Catron County, we had a forest fire in 1998, damaged some logging, a huge amount of trees, 

37

timber. The logging people went in there, in conjunction with the 

forest service oversight, decided maybe some of those dead trees 

could be salvaged. So at any rate, they let a contract out, and a 

lawsuit was filed against the logging companies and the forest 

service for even wanting to take the dead trees out. 

Well, anyway, it was primarily a rural problem until the silvery 

minnow came along and they needed water resources to keep the 

minnow going. And they proposed to use water from the Rio 

Grande, that was actually imported water from the Pacific watershed through the San Juan Chama diversion into the Chama 

River, and then on down to the Rio Grande. And that was a project 

that was paid for by middle Rio Grande, Santa Fe, Albuquerque, 

some of the native American tribes, and they wanted to and did 

use that water to keep the flow of the Rio Grande going even 

though it was in, quote, private, unquote, water. 

The rural problem, that then was perceived to be rural, turned 

out to be an urban problem because the city of Albuquerque got involved in a lawsuit over that, and had to try and defend their 

water rights on that San Juan Chama diversion. 

Same thing has happened with the Carlsbad Irrigation District. 

They’ve had to try to protect their water rights and with a trickle 

of water coming out of the Fort Sumner Dam that never makes it 

down to the storage reservoirs of CID. The water seeps into the 

ground and is made useless. Yet that water is measured and we 

owe Texas a part of that water that never did get to the diversion 

point for Texas. That trickle is an indication of the way to let the 

water go down the stream. 

I might mention, ask the question, why does this happen. 

Well, the Endangered Species Act, which I think was intended to 

be a good act and salvage a lot of wildlife that we don’t want to 

see go extinct, but water has long been known in the southwest to 

be the lifeblood. In the early days before New Mexico was a state, 

the U.S. Government came in, promised to build dams, reservoirs, 

and we’ll open up the southwest to economic development. 

They did that in the case of Elephant Butte Irrigation District, 

Carlsbad Irrigation District. And both these districts, by the way, 

have paid off their loans that the Federal government financed in 

the construction of those dams. And at any rate, with the water 

being recognized as belonging to the state, which it was at that 

time, and it belongs to the people to be appropriated for beneficial 

use, and those water rights have long been established. It’s a proprietary right. And yet the Federal government, through the Endangered Species Act, is coming back to reclaim those water rights 

that have already been issued and adjudicated in a lot of cases. So 

the Endangered Species Act is creating a litigation type problem. 

There is an imbalance, also, in who is paying the price for these 

endangered species. Your oil, your gas, your agriculture, and your 

forestry are bigger and heavier stakeholders than the ones that dictate the lawsuits out of Arizona and New York, and wherever they 

come from. 

At any rate, I have some suggestions on how maybe we might 

overcome that. One of them would be to give more weight to the 

human factor with the ESA act. Give more concern to the economic 

impact that the designation of habitat might have on a community 

38

or individual or a company. Put limits on the cost of recovering an 

endangered species. I’ve heard in the neighborhood of a million dollars, and I could be wrong. Even 500,000 or 100,000 would be a 

pretty high cost per wolf, that that program is costing us. 

You might also make it more difficult to file a lawsuit and, in the 

case of water rights, require that the people that are wanting the 

water for an endangered species to purchase that water legally 

from a bona fide owner of water rights, and make that water be 

paid for instead of litigated away from the owner of the water 

rights. 

I see my time has been up for a little while. I’ll close by saying 

thank you again for allowing me to testify before this group. Thank 

you very much. 

[The prepared statement of Mr. Stell follows:]

Statement of The Honorable Joe M. Stell, State Representative,

State of New Mexico 

Mr. Chairman, Congressman, Congressman Pearce, Friends and members of the 

audience, my name is Joe Stell. 

My mailing address is 22 Colwell Ranch Road, Carlsbad, New Mexico, 88220. My 

home is 32 miles southwest of Carlsbad, New Mexico at the base of the Guadalupe 

Mountains, near Slaughter Canyon. 

My home and business phone numbers is (505) 785-2188, when it works. 

I am a State Representative for House District 54 of the State of New Mexico. 

I have served in this position for 18 years at the end of the year, and I will have 

two more years to serve after the completion of this term. 

I have lived in legislative district 54, and in Eddy County New Mexico for 76 

years. I graduated from Carlsbad High School and earned a BS degree in Language 

Arts from University of New Mexico, and an MS degree in School Administration. 

I have 50 hours of college credit beyond my MS. 

My wife of 56 years, Verna, and I have been involved with ranching for 50 years 

in Eddy County. We are members of NM Cattle Growers and NM Farm and Livestock Bureau and other social and civic organizations. 

Today, my comments are from my general experience as a legislator, school administrator, rancher and longtime citizen. 

The Endangered Species Act was 30 years old December 28, 2003. 

A total of 1,288 plants, insects, birds, herps and mammals are listed as deserving 

protection. Billions of dollars have been spent with only a handful of success stories. 

Let me interject at this point that I consider myself somewhat of an environmentalist. I love wildlife, deer, javelina, quail, doves and other wildlife. My wife and 

I often watch out our back window while eating breakfast at two thirty-five gallon 

containers that dispense grain to hundreds of birds, doves, quail, sparrows and numerous other species, rabbits and ground squirrels. The birds ate 47-50 lb. sacks 

of grain last year. (That’s 1 Ton 350 lbs.) 

Also, deer, coyotes, porcupines, javelinas and other wildlife enjoy the supplemental feed provided by farmers and ranchers to their livestock. 

The extreme environmentalists and environmental groups are creating difficulties 

in our nation. In New Mexico up until October 2002, 134 lawsuits had been filed 

since 1995. 

It is my personal opinion that the agenda of the more aggressive organizations 

is to bring the United States into economic downfall. They started with the northern 

spotted owl in the northwest and shut down logging in the National Forests of the 

Northwest with the loss of thousands of jobs. 

Next, came the Mexican Spotted Owl in the Southwest, and the community of Reserve lost it’s logging industry. Wilfred Estrada had worked as a logger 34 years 

and was put out of work and lost his means of support. Other loggers with similar 

longevity met the same fate. The environmentalists started trying to shut the industry down in 1987 and by 1992 it was all over, according to Dan Fryor, former logger 

and Catron County Manager. 

In 2001, the U.S. Forest Service awarded a salvage contract for timber in Catron 

County that had been burned in 1998. An environmental group sued the U.S. Forest 

Service, even though the fire occurred 3 years before. 

It was primarily a rural problem until the urban communities became concerned 

when the Rio Grande Silvery Minnow required water from the San Juan / Chama 

39

diversion that belonged to the Middle Rio Grande Conservancy District and the City 

of Albuquerque and others. In regard to the Rio Grande Silvery Minnow, the lawsuits have come at a significant cost to taxpayers. The city residents (IE Albuquerque) must pay higher fees on services to allow for lawyers litigation fees to protect what is already theirs. Members of the Middle Rio Grande Conservancy District, as well as other political subdivisions, have faced the same problem. 

The water supply of Carlsbad Irrigation District was similarly affected, as was the 

Pecos River Compact with the slow release of water from Sumner Dam to provide 

a constant flow of water for the Pecos River Blunt-Nose Shiner. 

And the story goes on. The logging, mining and agricultural industries have all 

been attacked by the extreme environmentalists by the use lawsuits. When the industries affected don’t contribute to the state tax base by paying corporate taxes, 

and their employees paying personal income taxes, it is a loss of income to the state. 

Other citizens and companies have to make up the loss by paying higher taxes and 

fees. 

The oil and gas industry is also in the picture with the Dune Sagebrush Lizard 

and the Aplomado Falcon on Otero Mesa and the Lesser Prairie Chicken in the east 

central NM. Oil and gas pay approximately 25% of our state budget. 

A percentage of interest earned from NM Severance Tax permanent fund goes 

into the State’s general fund. This significant amount saves each taxpayer $600 to 

$700 per year. Ninety plus percent of the money that goes into the severance tax 

permanent fund comes from the oil and gas industry. Therefore, if oil and gas production is curtailed due to lawsuits from environmentalists or designations of habitat for endangered species purposes, the loss of severance tax will be a hidden cost 

to the citizens of New Mexico. This is not to say that oil and gas exploration should 

not be controlled or limited. In many instances, exploration can occur with controls 

that will not be a detriment to endangered species. 

What can be done? 

Suggestions: 

1. Adjust (amend) the ESA to give more weight to the human factor (the effect 

on people). 

2. Give more concern to the economic impact that a designation of habitat might 

have on a community or individual. 

3. Put limits on the cost of recovering a species (IE $500,000.00 per wolf is too 

much). 

4. Make it more difficult to file a lawsuit. 

5. In the case of water rights, require the interested parties to buy or lease legal 

water rights, don’t allow confiscation by litigation. The public sector operates 

under this procedure. 

The CHAIRMAN. Thank you. Mr. Tully. 

STATEMENT OF JON R. TULLY,

CARLSBAD CITY ADMINISTRATOR 

Mr. TULLY. Thank you, Mr. Chairman Pombo, Representative 

Pearce. I appreciate the opportunity to be here. My name is Jon 

Tully. I’m Carlsbad city administrator. I’ve been employed by the 

city for 32 years, and I’ve held the position of administrator for the 

past 12 years. Prior to that, my experience with the city was in a 

variety of positions in public safety. 

My remarks today are prompted really by a conversation with 

Representative Pearce. As Representative Stell said, water is the 

lifeblood of New Mexico. But if you had been in this very spot this 

past Palm Sunday at about 4:00 in the morning, you would have 

thought it was anything but the lifeblood for this community. 

After two-and-a-half days of virtually unabated rainfall, the 

tributaries feeding into the Pecos to the north, west, and south 

converged on Carlsbad and we had a flood event that inundated 

over 200 homes in the community. Thanks to the grace of God and 

thanks to a great deal of very professional quick action by 

40

emergency responders, human life was spared and there were not 

even any serious injuries. 

But as with any story, you know, there are many, many human 

faces, each having their own set of circumstances. And one such is 

a retired elderly school administrator, a friend of mine for many 

years, who lives not half a mile from where we’re sitting right now, 

who found himself at about 4:00 in the morning having to evacuate 

his home because of the rising floodwaters. 

He lived in that house for over 40 years, and that had happened 

previously in 1966. It almost happened, his property was threatened, as were many others, in 1986. So this community breathed 

somewhat of a collective sigh of relief in 1988 when Brantley Dam 

was finally completed and commissioned in part as a flood control 

facility. And even though we knew that the dam had been built in 

the wrong place, because of the geology of the region, there was a 

sense, I think, that we were protected largely from the kind of 

floods that we had had in the past. 

And we found on Palm Sunday that that was not the case, that 

the major tributary, Rocky Arroyo, can contribute, particularly 

when the other tributaries are—the watersheds are full after days 

of rainfall, that we still have a serious flood issue in this 

community. 

It probably historically doesn’t have a whole lot to do with the 

ESA. But literally as those floodwaters were receding, Congressman Pearce met with myself and several other representatives of 

local government and he asked, if I may paraphrase, two questions. 

What do we need to do right this minute, and what do we need to 

do in the future to try to prevent these problems? 

And we discussed very briefly some thoughts that those of us 

who work in the government who have dealt with this problem for 

many years have had, such issues as rechanneling part of Rocky 

Arroyo into Brantley Dam; reconfiguring the confluence of Dark 

Canyon at the Pecos River, which is a short distance south of here; 

and several other projects that have been conceptualized over the 

years. 

But as we began to conceptualize those, almost invariably we arrived at the conclusion that while they were hydraulically and 

hydrologically possible, while the engineering would be sound, 

while the cost would be great, but perhaps not an insurmountable 

obstacle, we could probably never accomplish those projects because of the Endangered Species Act and a variety of impediments 

that it would place in our path. 

Congressman Pearce indicated that things might change, that 

perhaps we should not give up on the hope of those kind of projects 

to safeguard the citizens of Carlsbad. In my 30-plus years of public 

service, it is my experience that well-intended laws—and certainly 

the ESA is well-intended, as are most of the environmental laws 

of this country—are too frequently drafted, enacted, codified, and 

interpreted, enforced, and unfortunately litigated by people who 

never will be personally confronted with the impediments and complexities of compliance. 

And from my perspective as a city administrator, which is a job 

that takes on a wide variety of daily chores, the rub of the ESA 

is that the only absolute certainty is that there will be absolute unVerDate 0ct 09 2002 13:52 Dec 16, 2004 Jkt 088533 PO 00000 Frm 00044 Fmt 6633 Sfmt 6602 J:\DOCS\94066.TXT HRESOUR1 PsN: KATHY
41

certainty in whether or not you can achieve success in projects such 

as the rechanneling of Rocky Arroyo. 

As you ponder the dilemmas of this law, and I know you will as 

you consider its reauthorization and its impact on not only southern New Mexico, but other states, certainly the Nation as a whole, 

I would respectfully ask that you consider the comfort of my old 

friend, the school administrator, as he steps next time into the waters that are rising in his home, to know that some or other salamander or such and such snail is well protected for future generations while he has not been. 

The ESA and other environmental laws of this nation must take 

on a different perspective, and reason and balance just simply must 

prevail. Thank you very much. 

[The prepared statement of Mr. Tully follows:]

Statement of Jon R. Tully, Carlsbad City Administrator 

Chairman Pombo, Honorable Members of the Committee, it is my honor and privilege today to appear before you to offer a few very brief comments and observations 

regarding the impact of the Endangered Species Act on Southern New Mexico. 

On April 4th, Palm Sunday in fact, at about 4 A.M., after two-and-a-half days of 

heavy, virtually unabated rainfall, flood waters of the Pecos River tributaries and 

watersheds to the north, south, and west converged on the City of Carlsbad, inundating more than 200 homes but, by the grace of God and the quick and professional 

actions of emergency responder, sparing from death and serious injury the hundreds 

of residents of those homes. 

One of the many victims forced from home in the dead of night was a retired 

school administrator I have known for many years. His home and others near the 

lower lake had some 38-years ago been previously flooded when, in August 1966, 

an almost identical stalled weather system created a disastrous convergence of flood 

waters of the Pecos River and Dark Canyon. A third flood in June 1986, significantly damaged public property along the river but largely left private homes untouched. 

There was then, you might imagine, a collective community sigh of relief upon the 

completion of Brantley Dam in 1988, which, although built in the wrong location, 

inspired us to believe its flood-control capacities and capabilities would provide the 

protection this community needed. Its benefit is undeniable, but because, geologically, it was not possible to locate the dam below a major tributary above Carlsbad, 

it could not retain the waters of Rocky Arroyo that accounted for the major flood 

inflows to the north. 

At this point, the very valid question on your mind is what does the historical 

problem of flooding in Carlsbad have to do with the impact of the Endangered 

Species Act on Southern New Mexico? Actually nothing as far I know—at least in 

regards to the past; in regards to the future, it may have a tremendous impact—

and not a positive one. 

The waters of the Palm Sunday flood had only just begun to recede when Congressman Pearce met here in Carlsbad to discuss with several representatives of 

local government, including myself, what assistance we needed now and what we 

might do to in the future. It is in the pursuit of the solutions that the ESA and 

the plethora of other environmental laws, rules and regulations may adversely affect 

our ability to implement effective mitigation ‘‘channeling a portion of Rocky Arroyo 

to Brantley Dam, dredging Avalon Dam back to its original 9,000 acre feet storage 

capacity, or reconfiguring the confluence of Dark Canyon at the Pecos. Such projects 

have been informally discussed over the years but largely dismissed, not because of 

engineering, not because of hydrological or hydraulic issues, not even because of 

cost, but because of the overwhelming environmental obstacles—real and 

anticipated—that regrettably take the wind out of our sails before we even push off 

from the dock. 

Well-intended laws, such as the ESA, are too frequently drafted, enacted, codified, 

enforced, interpreted and litigated by those who will never personally confront the 

practical, real-world impediments and complexities and frustrations of compliance. 

And therein, from my perspective as a city administrator, lies the rub of the ESA: 

the absolute certainty that the path forward is uncertain as human needs collide 

with the seemingly immovable object of the ESA. 

42

As you ponder the dilemmas of the ESA and its impact on Southern New Mexico, 

I would respectfully ask that you consider the comfort it will be to my old friend 

the next time he steps into the flood waters rising in his home to know that somebody’s salamander or the such-and-such snail are well protected for future generations even if he is not. Reason and balance must prevail. 

Thank you 

The CHAIRMAN. Thank you. I want to thank the entire panel for 

your testimony. I have held a number of hearings throughout the 

country on the Endangered Species Act and it always amazes me, 

no matter where I go, that when people talk about some of the stories, the impacts that they have had, and yet we still hear people 

say that they are anecdotal stories, there is no real impact from the 

Act, that a lot of it is just—not made up—but just exaggerated, 

what the impact that the implementation of the Act has on people. 

One of the real frustrating things for me, and I’m sure for Congressman Pearce, is that we all know we need an Endangered 

Species Act. We need some tool that we can use to stop species 

from becoming extinct, and I don’t think there is a lot of debate 

around that. I think that that is—and you go back in history of the 

Endangered Species Act into the ’40s and ’50s, when we were making attempts to stop species like the bald eagle from becoming extinct—but when that tool becomes used to accomplish other things, 

it is when we begin to run into problems. 

And over the last dozen years that I’ve been in Congress, we’ve 

made several attempts at changing the Endangered Species Act 

and trying to change the way that it’s being implemented out in 

the world, out in the real world, and people that have to deal with 

it all the time, and that gets, obviously, extremely controversial 

anytime you talk about changing the Act. 

One of the issues that is before us right now is a bill by a congressman out of the State of Oregon, Greg Walden, that deals with 

the science provisions, and trying to improve or change the level 

of science that Fish and Wildlife bases its decisions on. Because in 

my experience, one of the biggest complaints that we get about the 

Endangered Species Act is that the species doesn’t exist where they 

say it exists. 

Mr. Davis, you talked about finding the species in places where 

they said it couldn’t survive, you know, and things like that. Mr. 

Stell talked about the northern spotted owl, and I have a picture 

in my office of a spotted owl nesting in a Kmart sign. And at the 

time that that picture was taken, they said that the only place in 

the world that the spotted owl could survive was in old growth forests, and somebody brought in this picture of it nesting in a Kmart 

sign. 

If I could, I’d like to have you comment a little bit on the science 

that’s being used, and do it in the aspect of what we’re trying to 

do is to have a higher level, a peer-reviewed research level, of 

science that’s being used before Fish and Wildlife makes their decisions so that their decisions more accurately reflect what’s out 

there. 

And if I could have you comment a little bit on that, Ms. Ogden? 

Do you want to? 

Ms. Ogden. I know that there is a—there was a gentleman that 

lived here in Carlsbad that was doing some scientific research inVerDate 0ct 09 2002 13:52 Dec 16, 2004 Jkt 088533 PO 00000 Frm 00046 Fmt 6633 Sfmt 6602 J:\DOCS\94066.TXT HRESOUR1 PsN: KATHY
43

volved with the Endangered Species Act, and because his findings 

did not support the wishes of the Fish and Wildlife Service, they 

ignored his report completely and then did not ask him to continue 

any more, doing any more research for them. I think a lot of times 

there is agendas out there, and if the science, so to speak, that’s 

been used or the findings don’t support what they want to have, 

then they ignore those. 

I think that’s where it’s very important, as Tom was talking 

about, that they be independent of the Fish and Wildlife Service or 

the Forest Service or whatever they are doing. The research that’s 

being done, it needs to be independent, completely independent. I 

think it’s, as best you can, unbiased, because they need to be going 

out there and finding out what the real facts are, not what the 

wishes are. 

One of the species that was mentioned being listed was the gypsum buckwheat, which just so happens to be on my ranch. And it 

only grows on gyp fields. Nothing else grows on a gyp field anyway. 

And BLM went out there with us and they were wanting us to 

fence off these gyp hills because they said, you know, the cattle are 

doing damage. 

As we went out and did a walking survey of our gyp hills out 

there, they realized that it was thriving in the bottom of calf trails, 

well, which is where the cattle walk, but yet this species is thriving 

there. So they kind of, it was like, oh, well, you know, maybe fencing it off isn’t going to make that big of a difference to whether or 

not this species survives or not. 

So what they were trying to do was, you know, they were saying, 

oh, well, the cattle are doing so much damage where, in reality, the 

damage to most species is environmental. It has nothing to do with 

the human factor or the cattle out there or any other animal, but 

it has more to do with the environment and, in our situation, 

drought more than wet weather. 

And so whenever you’re doing science, it has to be extremely unbiased, and you don’t have to have an agenda in mind when you’re 

doing the research. You need to go out there as totally unbiased as 

possible and find out the information and evaluate it. 

Mr. Davis. 

Mr. DAVIS. Thank you, Chairman Pombo. I hope I can be somewhat objective. I’ve been around this business so long I’m almost 

a cynic. It’s difficult for me sometimes to figure out—to be positive 

because everything has been commented on and tried so much in 

the past. 

But I’m somewhat familiar with Congressman Walden’s good 

science proposal and I support that, although I’ve heard the other 

side debated. Let me assure you this. The problem is not so much 

with the Endangered Species Act itself, although it needs some 

work, I believe, and the good science initiative is one of those 

things that would be helpful. The problem is the zealots that carry 

it out, the policy that’s been adopted by Fish and Wildlife Service 

administration, and also the success environmental communities 

have had in court to get rulings that make things totally unreasonable. 

And your comment about the spotted owl was right on target. It’s 

still never been proven for a fact that spotted owls require old 

44

growth forest to survive. And by the same token, it’s never been 

proven in the case of here on the Pecos of what type flows the 

bluntnose shiner minnow needs to survive. It’s totally unknown 

what the numbers are, what the numbers were 300 years ago, and 

what the habitat requirements are. Fish and Wildlife Service biologists have one set of those requirements. Independent biologists 

have another set. Folks like me, who are we to believe? 

One of the things, when you pursue this good science and this 

peer review and someone that are qualified biologists that are totally independent, it’s going to be hard to get a situation like that. 

But you’re going to have these environmental groups running to 

court and saying, but we don’t have time to go through that process. We have to do something immediately or these species are 

going to become extinct in the next 30 minutes, so we don’t have 

time to implement good science. We don’t have time to have a 

broader view of folks to look at the real habitat requirements and 

the real population numbers and the real population trends. 

And in some cases, that can be true. But in most cases in my 

experience with endangered species management is that very few 

species are on the brink of extinction within a matter of months or 

years or even decades. And so we have to be careful in getting 

caught up in that hysteria about immediate relief. But nevertheless—

The CHAIRMAN. If I could, on that topic, that has been brought 

up and we’ve been debating that bill for the last several years. And 

one of the things that we did in that legislation was we amended 

it so that it would still give the secretary the authority to do an 

emergency listing if it was determined that we had to act because 

the species was on the brink of extinction. The secretary could 

make an emergency listing. It still required them to then follow 

that by actually doing the science, but protection could be levied for 

a species that the secretary or the biologists felt was on the brink 

of extinction. 

You know, the only argument that I’ve heard brought to the 

table in opposition to that bill has been that it would slow down 

the process, which I find somewhat ludicrous that you say to actually do good science, to do the research, to do the work that’s necessary for Fish and Wildlife to make their decision, would take too 

long. So we’re just going to list and implement critical habitat and 

recovery plans without the benefit of actually doing the science. 

And in some of your species, some of the things that they’ve 

talked about that I’ve heard about since I got down here, it seems 

like that is part of the problem, is that they make decisions before 

they actually have the information. 

Mr. DAVIS. That’s exactly right. And it appeared that it was 

somewhat of a biased decision to begin with, in all deference to 

Secretary Prukop. The dams aren’t the problem. The river operates 

as if the dams weren’t there. The base flow is passed through the 

dams. But I was here when that was done and when the listing 

was done and the critical habitat was done, and I was daily 

involved, and it was apparent to me that dams were the target. 

There was no unbiased approach. The target was the dams, just 

like the target has been oil and gas, the target has been timber 

cutting. 

45

And maybe harvesting resources, management resources in many 

cases, has some impact on endangered species, and I’m sure they 

could. But when you go in and it appears that the target is to totally shut down any of those processes to benefit an endangered 

species when, in fact, if there was some better unbiased study 

done, you would find that the species is maybe not so directly impacted by these activities or maybe not impacted at all. 

More species went extinct before the influence of mankind than 

has went extinct since the influence of mankind. No civilized country wants to make species go away. I mean, we are in a unique position in our country of being able to debate these issues and being 

able to spend money and crippling our economy to try to save 

species. But where does it end? We’re listing microscopic arthropods for now. Is it going to be bacterias and viruses some day? 

It’s to the point of ridiculousness. The success is not there yet. 

And I hope that good science interjection here would benefit the 

species as much as it would anything else, because what we’ve 

done to date hasn’t been too successful in benefiting the species. 

The CHAIRMAN. Mr. Harvard. 

Mr. HARVARD. You spoke earlier about the actions before all the 

science has been gathered, and we’re facing that right now in 

Carlsbad and Roswell districts. They are amending the resource 

management plan specifically for oil and gas in relation to the Endangered Species Act. 

We were told, when we started this latest stakeholders group to 

address the lesser prairie chicken and the sand dune lizard, that 

our efforts would be completed and then would be reviewed by the 

Bureau of Land Management. They’ve decided now, we need to 

start—we’re going to go ahead and do whatever we can with what 

we have, regardless of whether we’ve finished or not. 

That’s frustrating—especially for those of us that have spent an 

inordinate amount of time working with various regulators, environmentalists, ranchers along the river. We’ve worked very, very 

hard to try to come up with specific plans. Part of our biggest problem is with the science. What is real? What is really happening? 

And what is a perception or based upon an adaptation of an analysis of another, quote, similar species? 

The sage grouse? We’re, you know, basically everything that’s—

you’re well aware of sage grouse here. Everything that’s going off 

the sage grouse is being applied to the lesser prairie chicken. There 

are, I’m sure, some similarities, but there is a lot of differences 

here. As I indicated in my testimony, we are in a severe drought 

in this area, yet for whatever reason—and we don’t know—there 

have been more chickens identified and found, sighted here in the 

past year. 

Why? We don’t know. Scientists don’t really know. A lot of them 

argue, want to say, well, no, there is not that many more. They are 

just moving around a lot more. It’s very frustrating when our main 

concern is that science is being used as a hammer rather than a 

realistic tool to unbiasedly identify potential problems. 

There is no such thing as unbiased science today. I would love 

to think that there could be, but it’s political science is what we’re 

dealing with. And how that can be changed, I really don’t know. 

46

But the biggest issue is to try to remove some of the politics out 

of it, and that’s why amending and changing, revising the Endangered Species Act to consider species and protection of species, but 

also the other factors that are related. You’ve heard everybody here 

saying the human factor, the economic factors, those should all be 

considered. They are science as much as anything, yet they have 

no basis, it seems like, or very little basis in the evaluation of consideration of species. 

There are plenty of examples of problems with science and with 

the biased position, you’re well aware. I really could go on and on, 

but it would be redundant. 

The CHAIRMAN. Mr. Tully. 

Mr. TULLY. Well, I guess my thought is that good science sounds 

a lot like good art, and it’s in the eye of the beholder. I don’t really 

have an answer to that question. I don’t know. I do know it’s difficult, if not impossible, to legislate logic and reason and to include 

in any piece of legislation the parameters by which decisions will 

be made, as those decisions are made by those who must deal on 

a regular basis with the decisionmaking process. 

I’m sorry. I don’t have a better answer than that. 

The CHAIRMAN. Mr. Stell, do you have any comment on that? 

Mr. STELL. A quick comment. My memory goes back to the northwest when the argument was used that these are the best scientific 

knowledge, that the northern spotted owl could only nest in the old 

growth forest. After that was proven to be incorrect and that the 

northern spotted owl did, in fact, nest in new growth, it was stated, 

in so many words, well, we knew that, it was just a ploy to stop 

the logging. 

I think that if the Forest Service operates properly, they can go 

into a logging area and save those large, old trees, save some of the 

younger ones, cut in the middle somewhere. You still have an industry and you can still have the habitat for the owl, too. It’s going 

to take some invading activities. 

But the best scientific knowledge was well described by my copresenter, Jon Tully. It’s in the eyes of the beholder. 

The CHAIRMAN. Ms. Prukop, did you want to comment on that? 

Ms. PRUKOP. Thank you, Mr. Chairman. I’m actually a wildlife 

biologist by training, and I know that wildlife management many 

times is not an exact science itself. It oftentimes bleeds more into 

an art because of the nature of the beast. What we’re working with 

are very difficult to understand, and we as humans haven’t in 

many respects been smart enough to figure out how Mother Nature 

put things together. 

When you’re talking about how a prairie chicken decides to feed 

and where it decides to have its moving grounds so it can reproduce, or whether or not an isopod in a pipe ends up contributing 

in some way to mankind’s understanding of how we’re going to survive on this planet, that’s why I think the term has evolved to be 

often best available science. 

And another thing I learned in graduate school is how to lie with 

statistics. Well, you can also lie with science in terms of how you 

bias your research because you do, indeed, have a foredrawn conclusion. And I think that that certainly does occur in the scientific 

47

world. And peer review is one way that has evolved over time to 

get around that. 

And as a member of the Wildlife Society, which is a professional 

organization that wildlife biologist belongs to, we certainly do believe very wholeheartedly in peer review, and use it and are able 

to, you know, determine who are the acknowledged experts about 

a particular species or particular habitat type or that kind of thing. 

So I think I would personally advocate for a more useful mechanism to use to try to get closer to the point in terms of how to recover some of these species. 

I do think that, as you’re well aware from your long contact with 

this topic, trust is a huge issue in terms of how do landowners, 

state agencies, and the U.S. Government work together to get 

around what we’re willing to do to trust each other to see how we 

can promote the recovery of a species. 

I do want to advocate for, as we think about how to use science, 

we can apply science more effectively, which I think is our goal, if 

we can learn, indeed, in terms of how to be more flexible and more 

adaptive, and to, I think as you mentioned, not have one solution 

for all species, because we deal with a wide variety of species. They 

have very different needs, very different problems, because the concerns that arise for species across the country, whether you’re talking about an insect, a plant, a bird, such as the Aplomado falcon 

or a fish in the river. 

So I think one of the things we need to do is build into the Act, 

but also then into the interpretation and the implementation of the 

Act, how to use science in such a manner that we can be more 

flexible in our thinking in terms of the variety of species that we’re 

trying to recover. 

The CHAIRMAN. On the Walden bill, what is it about that bill 

that you have opposition to. 

Ms. PRUKOP. Well, I’m not—I have to admit that I’m not terribly 

familiar with the specifics of the bill in terms of what’s required. 

I think I have a copy of it here with me. But again, as I mentioned 

before, coming to agreement on what peer review—who will be 

used as peer reviewers, what the make up of that kind of a process 

would be, and then coming to agreement on how to interpret what 

we get are issues. And again, my fundamental belief is it’s all related to trust. 

The CHAIRMAN. Maybe you could answer this for the record for 

me, then, because in listening to what you’re saying, I come away 

with the impression that you would support the Walden bill and 

what they are trying to do, and yet you’ve testified in your statement you said that you oppose that bill. And I’m not exactly sure 

why. 

And if you’re not prepared to answer that, that’s fine. 

If you could just give me, for the record, if you could just give 

me an idea in writing as to what the opposition is to it, because 

I’m not exactly sure. That’s a bill that I’ve worked on for a number 

of years and we’ve tried to address a lot of the concerns that were 

originally brought out on changing the provisions, the science provisions in the Act. And a lot of things you talk about, we have done 

in this particular bill. So I’m a little confused as to why you oppose 

that particular bill at this time. 

48

Ms. PRUKOP. Mr. Chairman, if you would allow me the opportunity to go back and review the bill in detail and, indeed, issue 

you a written statement and explanation, I’d be very happy to do 

that, and I’d appreciate that. 

The CHAIRMAN. All right, thank you. I’m going to turn it over to 

Congressman Pearce. 

Mr. PEARCE. Thank you, Mr. Chairman. And I’ve gotten several 

questions, so I’ll just ask that your answer be shorter rather than 

longer, because the Chairman has a lot of time, and as a freshman, 

I get less time. 

First of all, I have begun to implement one of Joe Stell’s suggestions already, giving more weight to the human factor with the receptions and dinners that we have to go to in Washington, and I’ve 

adequately attended to giving more weight to my human factor, 

Mr. Stell. I appreciate that suggestion. 

I think that my next question would be to Madam Secretary, on 

page 1, where your fourth bullet point begins to talk about the impact of fish, or symptoms that the ecosystem is not functioning naturally and the loss of fish species is a sign of what humans are 

doing to change the natural water systems, and I would gather 

from that that you would say that that we would be better off as 

far as those species if we did not have any collection systems up 

and down the Rio Grande. 

Ms. PRUKOP. Not necessarily, Representative Pearce. But one of 

the things that has frustrated some segments of our citizenry in 

New Mexico over the years is that New Mexico has no minimum 

instream flow law. In other words, you can totally dewater a watercourse in our state, which is not the case in many other states 

where, historically, there had to be some minimum flow left in rivers and streams, and minimum pools left in lakes and that kind 

of thing. 

New Mexico’s history, however, is quite different. And since we 

didn’t start out that way, with minimum instream flow as a 

premise of the way we’re going to manage rivers in our state, we 

are in a situation now where essentially our rivers are overallocated. 

Here in the Pecos River Basin, we have come to understand over 

time that what happens with the Pecos River is very much related 

to what happens—

Mr. PEARCE. With your permission, I’d like to scoot back over to 

the question, then, because—and we’ll use the minimum flow concept there—is there any point in your mind at which common sense 

would dictate that, I mean, that we not do what we’re doing? In 

other words, before you became secretary about 2000, I watched as 

somewhere between 50 and 80 percent of the water in all of our 

upstream reservoirs was dumped in a matter of months. It took 50 

years to get it in there. It was dumped out in a matter of months 

to maintain that flow. 

And I’m asking, Is there any point at which common sense would 

say, as soon as we dump our reservoirs, then the flow is going to 

go to what nature is going to tolerate? Is there a point at which 

common sense would say, Why are we going to do this? Why are 

we going to dump it to maintain a flow nature herself would not 

maintain? 

49

Ms. PRUKOP. I would agree that it would because we’ve been in 

a severe drought in New Mexico for the last three or 4 years. It 

is projected that the drought will, indeed, continue, and that simply 

exacerbates all of the decisions we’re trying to manage here as we 

look at water management on the Pecos. 

Mr. PEARCE. Because the frustration of the farmers is we went 

ahead and dumped that water, and now it’s not available for next 

year’s irrigation season. And with all due respect, when you say—

on page 8 when you declare that to be an overblown gloom and 

doom is exaggerated, when we dump all of the water that is in a 

storage system for irrigation in order to keep a species alive, and 

we’re dumping it at a rate we cannot sustain because the rain is 

not there, it does, it is beyond just exaggerated doom and gloom. 

It actually, what I see, is an impact that several people have 

commented on. They were at the risk of losing our industry. And 

for me, I always wonder if the people implementing decisions are 

asking these kinds of questions. Because when I sat on the water 

committee with Representative Stell, Michael Sanchez, the Democrat senator from Valencia, had a tremendous summer session, and 

they gave us a 2000-year summary of water in New Mexico, and 

we went—we’ve been in 200- and 300-year droughts. Sometimes 

the Rio Grande was completely dry, or stretches of it were completely dry for 10 years at a stretch. 

I’m sorry. When we say that we’re going to dump all the storage 

that irrigators by law have access to, these storage reservoirs were 

built for the irrigators, and the water is turned loose instead for 

endangered species that nature will not supply that same flow, I 

worry that the law is being used, the endangered species law is 

being used in a way that impacts humans very adversely, not minimally adversely. 

If we were to, Mr. Tully, we were to look at the impact of the 

endangered species—not so much the endangered species—I’ll just 

broaden it a little bit into the concept of selling, reclaiming water 

rights, repurchasing water rights, and taking agriculture out of 

production in order to comply with certain flow rates, this flow rate 

that we’re talking about mostly is for Texas delivery, but it’s also 

impacted because we’re trickling the water out of Sumner Lake and 

trickling does not surge enough water to get here to make your deliveries, so the Endangered Species Act is being used to trickle 

water out, we can’t get a flow that gets enough water here to deliver, so we have to take agriculture out of production, what’s been 

the effect on the gross receipts tax in the last 20 years along this 

valley as we take economic agricultural land out of economic production? 

Mr. TULLY. Representative Pearce, I don’t have those particular 

figures specific enough to agriculture to be able to answer that 

question. But when you look back at the figures I’ve seen, which 

I certainly can’t quote here today, agricultural land has been diminishing over many, many years. And so one would assume that 

the proceeds and, consequently, the gross receipts from agricultural 

production would also be decreasing. 

The issue that you point here is one of those areas where the Endangered Species Act and, in this case, specifically the Texas/New 

Mexico Pecos River Compact, collide. And while I’m not going to 

50

say they are totally incompatible, the prudent management of the 

compact does not suggest that trickling water is the most effective 

way to meet New Mexico’s obligation. 

Mr. PEARCE. Thank you. Madam Secretary, again, as the head of 

the minerals department, I guess I look nationally at the price of 

natural gas and realize that we had testimony last year in one of 

our committees that pointed out that when we’re at $5 gas, natural 

gas, we’re competing with Russia and Africa that have 50 cents 

and 70 cents respectively. 

Now, the question of access into land becomes very critical. And 

at what point do you personally balance this need for affordable energy versus what you’re willing to do as a cabinet secretary to protect, say, the whichever grouse, the lesser prairie chickens? 

Ms. PRUKOP. Well, I think that myself and Governor Richardson 

are on record as being very supportive of the oil and gas industry 

in the State of New Mexico when exploration and development is 

done in an environmentally compatible way. We work with the Bureau of Land Management and with industry in various parts of 

the state to try to keep New Mexico at the top of oil and gas production in our country. 

And as I’m sure you’re aware, New Mexico is number one in coal 

bed methane production in this country, and we have over 28,000 

wells up in the Four Corners area of the state and are getting 

ready to put in approximately another 11,000, again, to produce 

natural gas for this country, and again, keep New Mexico generating those oil and gas revenues and trying to keep the price of 

natural gas down. 

One of the complexities with natural gas, as I’m sure you’re 

aware, is that most of our electrical plants built these days, especially those in California, are natural gas plants because they are 

clean burning and air quality is an issue. In the southeastern part 

of the state, of course, we also have a lot of oil and gas production. 

And our oil conservation division, which is in the department that 

I manage, works very cooperatively with industry in the southeastern part of the state to try to get wells permitted and get production going as expediently as possible. 

I know that industry has issues with the BLM and to some degree perhaps with my agency, but more so with the Federal government to get permits out on a more timely basis. And I know the 

Federal government is working to try to expedite that, as is our oil 

conservation division. 

I may as well bring up Otero Mesa, since it was mentioned a couple of times here today. This Administration happens to feel that 

Otero Mesa is an ecologically unique area that we would like to 

preserve in ways different than what has been done in the southeastern part of the state. I think anyone here in this room, certainly yourself, Representative Pearce, and Chairman Pombo, have 

flown over this country and seen what it looks like when you’re 

coming into Carlsbad and see the density of well spacing around 

this city and around cities like Hobbs. And it’s that kind of density 

that we’re trying to preclude from Otero Mesa. 

We know that Otero Mesa, two wells were drilled by Threshold 

in one region, one part of that country, and turned up to be not 

productive, so they were plugged. We know that Hake Oil drilled 

51

two wells and it looks as though one of them is promising for gas. 

And although that information has not been widely shared, and understandably so. So we don’t know exactly what the resource is in 

that particular part of Otero and Sierra County. 

So my personal perspective is that, yes, I understand a need for 

oil and gas production in this country, not to mention in this state, 

and I feel that the degree to which we can do that in an environmentally compatible way is very important, because once we’ve 

burned this oil and gas, which is all we have, because the animals 

that went extinct thousands of years ago that Tom was referring 

to are not going to be making any more oil and gas in the near future. 

I feel that we should be conserving our fossil fuels to the highest 

degree that we can while supplementing our energy sources with 

renewables, and I think we can balance production of fossil fuels, 

particularly out of our Federal fluid minerals in a way that will 

make them last longer, and I would advocate for that. 

Mr. PEARCE. Mr. Chairman, I have a couple of more questions on 

this round, but in follow-up on that, then if we assume that today’s 

standards of drilling and whatever are the standards and if we understand that we’re losing 78,000 chemical industry jobs a month 

overseas, you’re saying that you would not change your standard. 

I guess that’s not quite a good question. 

The question is, Is there any point in the loss of industry and 

jobs at which we change the standard by which we’re measuring 

whether or not we would drill? If we could accelerate the loss of 

jobs and the impact into the nation’s economy, is there any point 

at which you would feel like that you would judge differently than 

you’ve judged currently on the access into the Otero Mesa? 

Ms. PRUKOP. You mean in terms of if certain kinds of approaches 

to energy development cost jobs, and that direct relationship? 

Mr. PEARCE. No. You said that you feel like it’s an area that you 

want to protect and claim, and I can accept that. My question is, 

Do you ever look at the external economy in the world and in the 

country and evaluate the job losses and the threats to our overall 

economy? Because I see that high natural gas prices in the five- to 

ten-dollar range are a threat to our nation’s economy. The loss of 

jobs has accelerated overseas, and going to the areas where natural 

gas is 50 cents and 70 cents rather than five and ten dollars. 

And I’m asking, Is there any point at which the loss of jobs and 

the loss of infrastructure and the loss of capability to produce our 

own resources internally in this country would drive you to a different decision, assuming that oil and gas production doesn’t 

change and assuming that the wilderness designation doesn’t 

change or whatever? Do economic impacts ever influence your decision? 

Ms. PRUKOP. Certainly they do, and the situation that you just 

related is very complex, and it’s not as simple as whether or not 

we drill on Otero Mesa. We know, everyone in this room who is an 

experienced business person or simply a citizen of this country, 

who has watched our country develop over time, recognizes that 

there are impacts to industries and way of life that over time cause 

change, both in terms of the degree and scope of what that practice 

might be. 

52

Farming and ranching is a perfect example. The small family 

farm has essentially disappeared because of economics, and many 

decisions were made, governmentally and otherwise, that affected 

that evolution. And so evolutions of those kinds occur in every industry. 

When you’re trying to look at the oil and gas industry and this 

country’s energy needs and how that’s tied to what’s going on at 

the global level, I do understand the implication of your question. 

And yes, economic development and economic opportunity is very 

important, but so are quality of life choices. So the best answer I 

can give you to your question is that we need to seek balance. 

Mr. PEARCE. I would agree with that. 

Mr. Chairman, my last comments are simply that I did fly over 

Otero Mesa and I happened to have Albert Teimer of the New York 

Times with me, and he looked down there and said, Am I getting 

this right? The whole Otero Mesa discussion is over that property 

down there? That wasn’t me, I was just flying along and he was 

beside me in the airplane. He was less than stunned by the sight. 

The second point that I want to make is that, again, going back 

to the original point that the impacts, the fish species are symptoms that the ecosystems are not functioning naturally and the loss 

of species, that humans are going to change a natural system, my 

observation is I was trying to get my staff to come up with absolute 

figures, but of course, it’s impossible. But prior to significant 

human changes in the environment, 99.5 percent of all species that 

ever existed have gone extinct, and most of those extinctions, tens 

of thousands of extinctions, occurred before significant human 

intervention. 

And yes, there have been species that continue to go extinct, but 

I think to declare that humans are the only and main reasons that 

species are going extinct tends to get us over on the side of the 

question that said that we must have total nonhuman intervention, 

which is where the extremists have taken the issue. 

And we’ve heard the panel discuss about the extremists’ interpretations. I don’t think any one of us would sit here and watch a 

species go extinct. But I think the question is what sort of comments do we make about the environment and about human rights, 

about our property rights, the constitution as it affects property 

rights, those are questions that this miscasting or perception that 

humans cause all extinctions drives us away from reality and closer to a position that takes us and pits us against each other. And 

I don’t think that’s, in the long-term, profitable. 

Mr. Chairman, I would turn it back over to you. 

The CHAIRMAN. Well, interestingly listening to this going back 

and forth on it, because we have—we’ve kind of developed the 

thought in this country that we don’t want to approve any new development or any human activity unless we can mitigate the environmental impact, unless we don’t have an environmental impact 

from that. That sets us up to fail, because anytime humans do anything, there is an environmental impact. When you walk across on 

a nature hike, you could scare a mating pair of some endangered 

species walking across on your nature hike and disrupt the environment by doing that. I mean, anytime we do anything, we have 

53

an impact on the environment. And the goal should be to have as 

little impact on the environment as we can. 

And that has to be where we go with this. You can’t say that 

we’re not going to have an impact on the environment. That is an 

impossible level to maintain. And Mr. Davis talks about the history 

of this watershed and at what points dams were built. I don’t know 

that much about this watershed and what’s happened here. I know 

a lot about California’s. We have endangered salmon. We have a 

winter run salmon that is listed as an endangered species in California. And yet a lot of the guys, a lot of the biologists have come 

back and said, Before we had the Shasta Dam, we didn’t have a 

winter run salmon, because there was no water running through 

that system during the summertime and into the fall in order for 

the winter run salmon to come up. And yet we are now protecting 

it as an endangered species and regulating flows coming out of the 

Shasta Dam based upon that endangered species, which, in essence, was created by human activity. 

And I would suspect if you go back over the last hundred years, 

that human activity on this watershed has changed the species 

that exist there, and none of us can doubt that, because you build 

dams, you build irrigation systems, you change what is here. 

You talk about the spotted owl in California. We have proven beyond any doubt that it can survive in places other than old growth 

forests. I wish it was just old growth forests, because then we could 

still use the rest of the forest. But now we’re regulating the entire 

forest, 30, 35 million acres of forested land in California, based 

upon activities of the spotted owl. And the result of that has been 

devastating economically. And yet that can’t be our only decision. 

We have to look at what the environmental impact is, as well. 

We’ve tried, a number of different times and ways, to look at the 

Endangered Species Act and to try to make some sense out of it 

and to have it implemented in a way that mitigates as much of our 

impact on those endangered species as we can, but, at the same 

time, takes into account that humans are part of the environment, 

that our activity does have environmental impact, and we have to 

measure that. We have to consider that. 

One of the other major issues that we are dealing with is critical 

habitat. And right now, the way that the law is operating, the way 

it is being implemented is that you have a species that is listed as 

an endangered species, there is a certain time limit in the law for 

designating critical habitat. There is not a time limit in terms of 

developing a recovery plan. 

So because of lawsuits, because of the way the law is functioning, 

what is happening is the species are being listed, and many times 

under what I would consider questionable data that comes in, gets 

listed as an endangered species, which starts the clock ticking for 

critical habitat to be designated. Once that critical habitat is designated, it’s done with incomplete information, and we’re trying to 

bring that in line in terms of what the recovery plan, where these 

species exist, what is needed for that species to recover, and then 

adopt critical habitat. And that is one of the bills that our 

Committee will be acting on, is dealing with what critical habitat 

is actually necessary for the recovery of the species. 

54

And that and the science issue are probably the two issues that 

we need to get our arms around. We need to figure that out. There 

are people that are going to oppose that legislation. They have opposed every single bill that’s been introduced to amend the Endangered Species Act in any way from the very beginning. And they 

profit from the way the Act is being implemented right now, and 

that is one of the frustrations I have. 

I have yet to talk to any responsible biologist who will tell you 

that the Act is operating the way that they want it to right now. 

People who truly care about the environment and truly care about 

recovering species look at the way the Act is being implemented 

and say, we’ve got to do a better job. We can’t continue doing this 

the way that we’re doing it. We have to do a better job. We have 

to change the dynamics of this debate so that we truly can recover 

species and stop species from becoming extinct. Under the law 

right now, that’s not happening. It’s not—you know, it’s a series of 

court cases and administrative decisions which has led us to this 

point. 

The other thing that I always hear is the major problem with the 

Act is we don’t spend enough money on it. And, you know, we are 

spending right now billions of dollars in public and private money 

every year under the Endangered Species Act and yet we don’t 

spend enough money on it. The only problem is we need to appropriate more money. And I think that is an extremely shortsighted 

view. And unless you work for Fish and Wildlife Service and you 

need more money for your budget, it’s a pretty shortsighted view 

of what’s wrong with the Act. 

Before I adjourn this hearing, I did want to give Congressman 

Pearce a chance. I know he had a couple more questions that he 

wanted to ask, but I do have additional questions that I would like 

to submit in writing to the panel, because there are some issues 

that—dealing with science and dealing with critical habitat that I 

would like you to have a chance to think about and answer for the 

record, because those are probably the two big issues that we really 

need to move forward on right now. 

And having this opportunity, being out here and listening to you, 

I think it would benefit the Committee. It would benefit me, but 

it would benefit the Committee to have the opportunity to have you 

guys think about that and give us a response. Congressman. 

Mr. PEARCE. Thank you, Mr. Chairman. 

Ms. Ogden, you had testimony that was pretty much diametrically opposed to the secretary’s on whether or not the endangered 

species was a vital and a real problem. Can you give me some real 

specifics about how it’s impacting your capabilities or whatever. 

Ms. OGDEN. The bluntnose shiner. As a farmer—I have two hats, 

I farm and ranch. So as a farmer, the bluntnose shiner has had a 

great impact on our water deliveries. As I said in my testimony, 

because we do not have water wells on our farm, we’re in an area 

where the underground water is of such poor quality that we can’t 

put the underground water on the surface or it would ruin the 

land. 

So we’re directly—when there is water in the dams, in the reservoirs, then we’re able to farm. When there isn’t water, we are unable to farm. Last year farmed on 14 inches of water per acre. 

55

There was a comment saying that that’s just about dry land, and 

yes, it is. So whenever the irrigation system is unable to do the 

best they know how to do to have the most optimum use of the 

amount of water because of having to go and jump through the 

hoops that they’ve had to jump through for the Fish and Wildlife 

Service, then it is making those of us in the Carlsbad Irrigation 

District have less amount of water that we’re able to use, you 

know, to put on our farms and to be able to use to impact. 

Last year, I farmed a third of my farm as a result of the drought 

and the low amount of water, and I can tell you it had a big impact 

on the economy in this area. It had a big impact on our ability to 

keep employees. We had to let employees go because we did not—

were not able to farm as much. And so it does have a great impact 

on not just me personally, but other people in this area as far as 

that goes. 

As far as the ranching, the impact has been more broad as far 

as what we can and can’t do. The willow flycatcher, southwest willow flycatcher is a big one, more so in the Socorro area, where they 

came in and just arbitrarily had a man remove his cattle off of his 

BLM permit because they thought it was having an impact. And 

then I since found out that wasn’t the case. 

But it did take us going all the way to the 10th Circuit Court 

of Appeals on that situation. And we have spent, you know, over 

a quarter million dollars. On one case alone, it was $200,000, just 

in the agriculture industry, in trying to fight these things. So we’re 

having to, as individual ranchers, we’re having to put so much of 

our money toward the protection of our livelihood because of the 

impact that the environmental—the Endangered Species Act has 

had on us. 

Our director of Cattle Growers spends, I’d say, 90 percent of her 

time putting—trying to help put out fires or things with the Forest 

Service, the Fish and Wildlife Service, all of these things. She is 

spending more time on litigation to help keep us viable as a ranching industry than on other areas, you know. It’s our main focus at 

every meeting is on the litigation that’s come up and what’s the impact that it’s having on us. And it’s having more of an impact than 

the environment ever would. 

As I said, my family settled here in 1890. Why they stopped here, 

I haven’t figured out yet. 

Mr. PEARCE. We all may ask that question. Thank you. 

Ms. OGDEN. But anyway, the endangered species is what’s having the impact on us now. 

Mr. PEARCE. Mr. Harvard, you said you’re one of the volunteers 

working on the partnerships. How effective is the partnership on 

the lesser prairie chicken as far as bringing all the stakeholders together, as far as coming to real solutions that acknowledge the environmental concerns, the industry concerns, the regulatory concerns? How effective is that group? 

Mr. HARVARD. Well, it depends on who you ask. Since you’re asking me, I think that in some ways it has been very effective. We 

have come up with some real potential solutions or plans which can 

help the prairie chicken, and we have been successful in at least 

trying to educate some of the other members of the realities 

56

associated with oil and gas operation and ranching operations and 

the necessity of those operations. 

I think that—I think it is successful. I think we need to continue 

working toward—working together with all parties, not just the scientific community. Your question, Chairman Pombo, to us from the 

science aspect is very important. But I think having on-the-ground 

input from the actual users and participants in the—you know, in 

the species or the affected parties of these species is very important. 

I’ve been—it’s a frustrating process in many ways because we 

continue to try to identify real solutions, yet it seems like from the 

environmental community’s standpoint, the solutions are not—the 

only solution that is acceptable is the removal of land, is the habitat and having no impact at all on that habitat. And as you pointed 

out, that’s not real. That is not acceptable and it’s not doable. 

But yet trying to get that shift away from the habitat alone to, 

all right, we have a species here that, for better or for worse, covers 

a large amount of Federal land, therefore, has the ability to be controlled more actively than some of the other areas. The lesser prairie chicken community, we’re on the fringe of the population in this 

area, yet we’re one of the prime areas of consideration for improvement of that habitat. 

It’s a difficult situation because, as we know, any fringe population is subject to the increases and decreases in population because of many different factors, and the majority of it being nature. 

Yet man is being called upon and industries are being called upon 

to come up with specific ideas that will improve, when your impact 

on that species is minimal in comparison to nature itself. 

I would at this point in time, I guess, continue to offer my services and the idea that the stakeholder process is necessary. I hope 

that we will—that our input will be taken to heart and implemented and not just discounted, like so many other of stakeholder 

processes. There has been a five-state working group on the prairie 

chicken for I don’t know how many years. 

Mr. PEARCE. I think that was my point. 

Mr. HARVARD. Yes. 

Mr. PEARCE. That if we have conclusions from partnership 

groups and they are ignored, then how effective is it? That’s my 

question. 

Mr. HARVARD. And to answer that question, right now I can’t say 

it’s that effective. But from our standpoint, if we don’t continue to 

speak about it, to stand up for what is real, I don’t know, then we 

basically are going to have to go someplace else. And we really 

don’t want to do that. 

Mr. PEARCE. Thank you. Mr. Chairman, my last questions are for 

the secretary. Madam Secretary, you made the comment that the 

problem with the Endangered Species Act is that it has not had 

enough money to implement it. When I see that we spent something between half a million and one million dollars per wolf to reintroduce them and we spent, I’m told, hundreds of millions of dollars to have a success on the Gila trout, how much money do we 

really need, in your opinion? What dollar figure do we need to successfully—to make it where that the money is not the problem. 

57

Ms. PRUKOP. I’m not certain that I can put a dollar figure on 

that. 

Mr. PEARCE. If we would scoot over, then, and tell me one project 

where the government underfunded and completely ruined the 

process for the biologists. 

Ms. PRUKOP. Because there was not enough money to go forward? 

Mr. PEARCE. Because they failed to fund adequately and it was 

Congress’s fault? Or was it the Fish and Wildlife determining 

where those billions of dollars are spent. 

Ms. PRUKOP. I understand that the root of your question is this 

notion the money that we have allocated, which has been substantial, have we used it effectively? The answer is no, for a couple of 

reasons. And as we were discussing earlier today, the interpretation of the ESA across the Nation in different regions of the U.S. 

Fish and Wildlife Service has varied, and the bureaucracies that 

have been developed in some of those regions and some of the offices, et cetera, that takes a lot of money and has not been effective, and also litigation is pulling money away from on the ground 

effectiveness. 

So wrapped into your question is the notion of how much money 

are we putting toward it and how much is being effectively used? 

I would agree with you, because I think what’s underlying the 

question is the fact that a lot of money that we’ve put toward the 

Act has not been effectively used, because it’s been tied in litigation 

especially regarding the Chairman’s point about critical habitat 

designation. 

So a real answer to your question, sir, would require looking at 

how money has been spent in the past, how to determine what effective use of money is, and then how to circumvent or find ways 

to resolve issues such that so much of the funding is not diverted 

to nonproductive use. 

Mr. PEARCE. Thank you. Mr. Chairman, I would just conclude 

saying thank you for taking your time to come to our district. We 

see our problems in very minute detail and look at the problems 

across the whole country, and I don’t know exactly what the outcome is. I understand that we’re going to have an endangered 

species bill, and I don’t think there is anyone in this room who 

would not want one. 

But I keep hearing the word balance throughout the day, I think 

it’s necessary that we try to find that balance. We just this year 

made one small incremental change in the Endangered Species Act 

and for the first time we can consider national defense. For the 

first time when we create a critical habitat, we can consider national defense. 

So that case came up because of the 17 miles of coastline that 

Camp Pendleton has, 16 and a half miles of that were unusable because of a different variety of endangered species. So the area 

where we trained for Iwo Jima was shut down, 95 percent was shut 

down because of the way that we’re doing our critical habitat and 

designating that. 

I think that the Chairman has adequately said that we will look 

carefully at all the options. So thank you, Mr. Chairman, for bringing this discussion to Carlsbad, New Mexico. 

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The CHAIRMAN. Well, thank you very much. It’s been with a lot 

of hard work and insistence by Congressman Pearce that we were 

able to come back to New Mexico and take the opportunity to come 

down here and listen to people that are dealing with the implementation of the Act every day. The effort that this Committee is making to take Congress outside of Washington and have them go out 

and listen to people, last year we had about 50 hearings like this 

around the country where members of the Committee went out and 

listened to people that are dealing with the Act and dealing with 

other issues that we have before the Committee. I think it’s extremely important for Congress to do that and actually get out and 

listen to the people. 

I want to thank the witnesses for your valuable testimony today. 

It is important, as we move forward with trying to implement our 

nation’s laws, that we have the testimony and the input of people 

that have to deal with it on the ground. I know when I first got 

elected, one of the things that surprised me, coming from an ag 

background, was how many people in Washington understood how 

farm programs worked, but had no clue what the impact of those 

programs were on people out in the real world. 

And many times in dealing with our nation’s environmental 

laws, it’s very similar to that. They understand how the program 

works, they understand how the Endangered Species Act is supposed to work in terms of the law, but they have no clue what the 

impact is on real people. And I’ve made a real effort, with the help 

of Congressman Pearce, have made a real effort to get members of 

the Committee out to listen to people that have to deal with it on 

the ground. So your testimony is extremely important to this 

Committee. It’s important to us in our efforts to move forward on 

this issue. 

I’d also say to the members of the audience who took the time 

and trouble to be here, thank you for doing that. I know that we 

were not able to hear from everybody who wanted to have input 

into this hearing today. I am going to hold the hearing record open 

for 10 days to allow anyone the opportunity to submit written testimony to the Committee. It will appear as part of the official record 

of this hearing. So if anybody has additional comments that they 

would like to make, the hearing record will be held open for 10 

days, if you could submit that in writing to the House Resources 

Committee, or if you can send it to Congressman Pearce’s office, he 

can forward it to the Resources Committee so that it can appear 

as part of the record. 

Again, I want to thank the people of Carlsbad for hosting us here 

today, the mayor, our Boy Scouts, the reverend for helping with our 

opening ceremonies here today. Thank you all very much. 

If there is no further business before the Resources Committee, 

I again thank the witnesses, and the Committee stands adjourned. 

[Whereupon, at 10:26 a.m., the Committee was adjourned.]

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