S. HRG. 107–322

LISTING AND DELISTING PROCESSES UNDER THE

ENDANGERED SPECIES ACT

HEARING

BEFORE THE

SUBCOMMITTEE ON FISHERIES, WILDLIFE,

AND WATER

OF THE

COMMITTEE ON

ENVIRONMENT AND PUBLIC WORKS

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

ON

THE REGULATIONS AND PROCEDURES OF THE U.S. FISH AND WILDLIFE SERVICE CONCERNING THE LISTING AND DELISTING OF SPECIES UNDER THE ENDANGERED SPECIES ACT

MAY 9, 2001

Printed for the use of the Committee on Environment and Public Works

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NG AND DELISTING PROCESSES UNDER THE

ENDANGERED SPECIES ACT
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78–073 PDF 2002

S. HRG. 107–322

LISTING AND DELISTING PROCESSES UNDER THE

ENDANGERED SPECIES ACT

HEARING

BEFORE THE

SUBCOMMITTEE ON FISHERIES, WILDLIFE,

AND WATER

OF THE

COMMITTEE ON

ENVIRONMENT AND PUBLIC WORKS

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

ON

THE REGULATIONS AND PROCEDURES OF THE U.S. FISH AND WILDLIFE SERVICE CONCERNING THE LISTING AND DELISTING OF SPECIES UNDER THE ENDANGERED SPECIES ACT

MAY 9, 2001

Printed for the use of the Committee on Environment and Public Works

(
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

BOB SMITH, New Hampshire, Chairman

HARRY REID, Nevada, Ranking Democratic Member

JOHN W. WARNER, Virginia

JAMES M. INHOFE, Oklahoma

CHRISTOPHER S. BOND, Missouri

GEORGE V. VOINOVICH, Ohio

MICHAEL D. CRAPO, Idaho

LINCOLN CHAFEE, Rhode Island

ARLEN SPECTER, Pennsylvania

BEN NIGHTHORSE CAMPBELL, Colorado

MAX BAUCUS, Montana

BOB GRAHAM, Florida

JOSEPH I. LIEBERMAN, Connecticut

BARBARA BOXER, California

RON WYDEN, Oregon

THOMAS R. CARPER, Delaware

HILLARY RODHAM CLINTON, New York

JON S. CORZINE, New Jersey

DAVE CONOVER, Republican Staff Director

ERIC WASHBURN, Democratic Staff Director

SUBCOMMITTEE ON FISHERIES, WILDLIFE, AND WATER

MICHAEL D. CRAPO, Idaho, Chairman

CHRISTOPHER S. BOND, Missouri

JOHN W. WARNER, Virginia

LINCOLN CHAFEE, Rhode Island

BEN NIGHTHOUSE CAMPBELL, Colorado

BOB GRAHAM, Florida

MAX BAUCUS, Montana

RON WYDEN, Oregon

HILLARY RODHAM CLINTON, New York

JON S. CORZINE, New Jersey

(II)
(III)

CONTENTS

Page

MAY 9, 2001

OPENING STATEMENTS

Baucus, Hon. Max, U.S. Senator from the State of Montana .............................. 52

Clinton, Hon. Hillery Rodham, U.S. Senator from the State of New York ......... 7

Corzine, Hon. Jon S., U.S. Senator from the State of New Jersey ...................... 6

Crapo, Hon. Michael D., U.S. Senator from the State of Idaho ........................... 1

Graham, Hon. Bob, U.S. Senator from the State of Florida ................................ 10

Reid, Hon. Harry, U.S. Senator from the State of Nevada .................................. 51

Smith, Hon. Bob, U.S. Senator from the State of New Hampshire ..................... 50

WITNESSES

Brosnan, Deborah M., president and founder, Sustainable Ecosystems Institute ........................................................................................................................ 23

Prepared statement .......................................................................................... 64

Article, Can Peer Review Help Resolve Natural Resource Conflicts? .......... 68

Echeverria, John D., director, Environmental Policy Project, Georgetown University Law School, Washington, DC ................................................................. 32

Prepared statement .......................................................................................... 79

Frazer, Gary, Assistant Director for Endangered Species, U.S. Fish and Wildlife Service, Department of the Interior ............................................................. 11

Prepared statement .......................................................................................... 53

Ginzburg, Lev, professor, Department of Ecology and Evolution, State University of New York at Stony Brook and president, Applied Biomathematics,

Setauket, NY ........................................................................................................ 27

Prepared statement .......................................................................................... 78

Grader, Zeke, executive director, Pacific Coast Federation of Fishermen’s

Associations, San Francisco, CA ......................................................................... 39

Prepared statement .......................................................................................... 122

Articles:

Why Fishermen Need the Endangered Species Act ............................... 134

A Fishermen’s Agenda for the Endangered Species Act ........................ 135

Knowles, Don, Director, Office of Protected Resources, National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce ............................................................................................... 13

Prepared statement .......................................................................................... 61

Responses to additional questions from Senator Baucus .............................. 62

Moss, Ralph, L., director, Government Affairs, Seaboard Corporation, Washington, DC, on behalf of Atlantic Salmon of Maine .......................................... 38

Prepared statement .......................................................................................... 93

Moyer, Steven N., vice president of Conservation Programs, Trout Unlimited,

Arlington, VA ........................................................................................................ 35

Prepared statement .......................................................................................... 89

Quarles, Steven P., counsel, QuadState County of Government Coalition and

American Forest and Paper Association, Washington, DC .............................. 34

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

Thomas, Hon. Craig, U.S. Senator from the State of Wyoming .......................... 3

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

Wilcove, David S., scientist, Wildlife Program, Environmental Defense, Washington, DC ............................................................................................................. 25

Prepared statement .......................................................................................... 76
Page

IV

ADDITIONAL MATERIAL

Articles:

Can Peer Review Help Resolve Natural Resource Conflicts?, Science and

Technology ..................................................................................................... 68

Fisherman’s Agenda for the Endangered Species Act, Fisherman’s News .. 135

The Petition Process, U.S. Fish and Wildlife Service .................................... 74

Why Fishermen Need the Endangered Species Act, Fisherman’s News ..... 134

Comments of the State of Maine In Opposition to Proposed Endangered

Status for a Distinct Population Segment (DPS) of Atlantic Salmon in

the Gulf of Maine.............................................................................................. 154–641

Letters:

Atlantic Salmon of Maine ................................................................................ 96

Governor of Maine Angus S. King, Jr................................................. 107, 143, 151

Report, Activities and Achievements Under the Atlantic Salmon Conservation

Plan ....................................................................................................................... 113

Statements:

American Farm Bureau Federation ................................................................ 139

Atlantic Salmon, Senator Susan Collins ........................................................ 118

Table, Delisted Species Report as of May 7, 2001 ................................................ 72
(1)

LISTING AND DELISTING PROCESSES UNDER

THE ENDANGERED SPECIES ACT

WEDNESDAY, MAY 9, 2001

U.S. SENATE, COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, SUBCOMMITTEE ON FISHERIES, WILDLIFE, AND WATER, Washington, DC.

The subcommittee met, pursuant to notice, at 9:32 a.m. in room

628, Senate Dirksen Building, Hon. Michael D. Crapo (chairman of

the subcommittee) presiding.

Present: Senators Crapo, Corzine, Clinton, and Graham.

OPENING STATEMENT OF HON. MICHAEL D. CRAPO, U.S.

SENATOR FROM THE STATE OF IDAHO

The hearing will come to order.

Good morning, everybody. The Subcommittee on Fisheries, Wildlife, and Water will focus today’s hearing on the listing and

delisting processes under the Endangered Species Act.

Let me begin by apologizing. It is our understanding that in

about 5 minutes or so there is going to be a vote called on the floor.

Rather than not start the hearing and go handle that vote, we

thought that we would at least start the hearing and have opening

statements by the Senators, so that we get that much done. We

will probably, then, be interrupted by a vote, but I will assure you

that we will run to the vote and return as quickly as we can, so

that the break there will be as short as possible. It is my understanding that there is only vote, so it should not be much of an

interruption.

Since the authorization for the Endangered Species Act expired

in 1992, there have been many—and I would hate to hazard a

guess how many—but a lot of hearings and a lot of legislation

introduced aimed at both reauthorizing and reforming the Endangered Species Act. In the course of those hearings, dozens of witnesses from the various interests have offered impassioned explanations about the importance of strong Endangered Species Act reforms and the need for reauthorization. From my perspective, both

are true. I am extremely concerned about the plight of the Columbia River Basin salmon and steelhead stocks. So I have proposed

a $688 million funding package to recover these fish last week.

Extinction of a species is not an acceptable outcome, but neither

are policies that cause economic hardship or burden private landowners unfairly. The fact, frankly, that we have recovered just 9

or 10 species since the ESA was passed is not a testament to its
2

success. From the records I have seen, just nine species have been

recovered, and three of those species were from one Pacific Island,

Palau. Three of the nine species have been recovered on just one

island. If you look at the continental United States, that means

only six species during the history of the Act have been recovered.

When you take into account the hundreds of millions of dollars that

the United States spends each year in threatened and endangered

species protection, something is clearly wrong with this picture.

While I have said that a significant amount of oversight has been

conducted on the Endangered Species Act, there are a few areas

that have not received adequate attention and are in need of more

thorough examination. Listing and delisting are two issues that

need to be addressed if we are to resolve some of the shortcomings

of the Act. It is my hope that by conducting oversight that examines some of the problematic components of the Act, we can craft

solutions to each of these which will increase our chances of success in reforming and reauthorizing the Endangered Species Act.

The quantity and quality of science is an issue that comes up

again and again. I have been chairman of this subcommittee now

for a little more than 2 years, and in that short time I can’t think

of an issue or a hearing in which the science was not called into

question. There has to be a better way of getting better science and

more consensus about the science to inform us in the policymaking

process.

In addition to the Administration witnesses, there are a number

of scientists testifying before the subcommittee today, and I look

forward to having a productive discussion with all the witnesses on

how to improve the science and, in turn, policy decisions with respect to conserving species.

I have other serious concerns about the listing and delisting process, but I am more interested in listening and learning from our

witnesses who are here with us today. I hope that the witnesses

have come to offer fresh ideas about how to specifically resolve

issues in the context of listing and delisting. More rhetoric on the

Endangered Species Act is not going to help bring resolution to

what is potentially our Nation’s most contentious environmental

law.

Before moving along, I would like to note that we elected not to

address the issue of critical habitat in this hearing, even though it

is a part of the listing process. It is a significant issue and one that,

frankly, could use up the entire hearing. We have focused significant attention on critical habitat in the past, most notably in the

106th Congress, when this committee reported out Senate bill

1100, which would modify the timing of critical habitat designations. The subcommittee will evaluate the need for critical habitat

a bit further down the road.

Once again, I would like to thank everybody for coming. I think

we are going to have a very interesting and productive hearing

today.

[The prepared statement of Senator Crapo follows:]

STATEMENT OF HON. MICHAEL D. CRAPO, U.S. SENATOR FROM THE STATE OF IDAHO

Good morning. The Subcommittee on Fisheries, Wildlife, and Water will come to

order. In today’s hearing we will be examining the listing and delisting processes

under the Endangered Species Act.
3

Since the authorization for the Endangered Species Act expired in 1992, there

have been many—I would hate to hazard a guess with respect to how many—but

a lot of hearings held and a lot of legislation introduced aimed at both reauthorizing

and reforming the ESA. In the course of those hearings, dozens of witnesses from

the various interests offered impassioned explanations about the importance of a

strong Endangered Species Act and the need to reform it. From my perspective, both

are true. I am extremely concerned about the plight of Columbia River Basin salmon and steelhead stocks—so concerned that I proposed a $688 million funding package to recover these fish last week.

Extinction of species is not an acceptable outcome, but neither are policies that

cause economic hardship or burden private landowners unfairly. The fact that we

have recovered and delisted just nine U.S. species since the ESA was passed is not

a testament to its success. Just nine species have been recovered—and three of

those species were recovered on the Pacific Island of Palaualone. When you take

into account the hundreds of millions of dollars the United States spends each year

in threatened and endangered species protections, something is clearly wrong with

this picture.

While I have said that a significant amount of oversight has been conducted on

the Endangered Species Act, there are a few areas that have not received adequate

attention and are in need of more thorough examination. Listing and delisting are

two issues that need to be addressed if we are to resolve some of the shortcomings

in the Act. It is my hope that by conducting oversight that examines some of the

problematic components of the Act, we can craft solutions to each of these, which

will increase our chances of success in reforming and reauthorizing the Endangered

Species Act.

The quantity and quality of science is an issue that comes up again and again.

I’ve been chairman of this subcommittee for a little more than 2 years, and, in that

short time, I can not think of an issue or a hearing in which the science was not

called into question. There must be a better way of getting better science to inform

the policymaking process. In addition to the Administration witnesses, there are a

number of scientists testifying before the subcommittee today, and I look forward

to having a productive discussion on how to improve science, and in turn, policy decisions with respect to conserving species.

I have other serious concerns about the listing and delisting process, but I am

more interested in listening and learning from our witnesses who are with us today.

I hope that the witness have come to offer fresh ideas about how specifically to resolve issues in the context of listing and delisting. More rhetoric on the Endangered

Species Act is not going to help bring resolution to what is potentially our Nation’s

most contentious environmental law.

Before moving along, I would like to note that we elected not to address the issue

of critical habitat in this hearing even though it is part of the listing process. It is

a significant issue and one that could have consumed the entire hearing. We have

focused significant attention on critical habitat in the past, most notably in the

106th Congress when this committee reported out S. 1100, which would modify the

timing of critical habitat designations. The subcommittee will evaluate the need for

critical habitat oversight a bit further down the road.

Senator CRAPO. At this point I would like to turn the time over

to Senator Thomas from Wyoming for an opening statement.

Senator.

OPENING STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR

FROM THE STATE OF WYOMING

Senator THOMAS. Thank you very much, Mr. Chairman. I am no

longer on this committee, but I appreciate the opportunity. I have

some fairly strong feelings about endangered species, have my prejudices reasonably well arranged, and so I wanted to share some of

that with you.

I think it is an example of good intentions gone astray, basically.

We need to have more effective public input, more effective landowners’ input, and more effective input from the States that are affected. Obviously, when you have 1,245, or whatever it is, species

listed and less than 20 really have been recovered, maybe you’ve

got a problem of some kind. I think we need to take a look at it.
4

We have had firsthand experience in Wyoming a number of times

that talks about the background. Preble’s jumping mouse, for example, listed in Wyoming, and it turns out that there was no historical data there or current knowledge that it did not support the

short-grass semi-arid plains. It basically turned out to be someone

had done the windshield checking to do that thing and really had

to back away from it because it wasn’t done properly; couldn’t even

really identify the species that was there.

The State was not notified. I had a visit with Secretary Babbitt

shortly before he left, and he had some ideas about how people are

including more in the endangered species and many times could do

something other than list them. I don’t know that that plan was

ever put into place.

We have petitions now for prairie dogs. I have lived there all my

life. There are prairie dogs everywhere practically. It is really interesting that that would even be considered.

I think the problem is we have a kind of a ‘‘postage stamp’’ petition for nominating, and most anyone may nominate with very little background. We also don’t have any priorities that have been

set in terms of what is more important than another. Therefore, we

just deal with whatever comes up.

I think there needs to be some peer review. Certainly, I don’t

question the idea of requiring protection of endangered species. I

am for that, but I think we have to do it in a different way that

makes it more important. The recovery goals really need to be what

we talk about.

I have a bill, as a matter of fact, that says we ought to have the

recovery plan along with the listing, along with the nomination, so

that we know what we are going to do. Probably the most obvious

one of those is the grizzly bear. Grizzly bears have been on the list

forever. I can remember being in Yellowstone Park with the Superintendent 6 or 8 years ago when they said, yes, we have clearly exceeded the numbers. But we are still talking about habitat, and

you can talk about habitat forever, and, apparently, we’re going to.

So there does need to be something that we do there. Of course,

the bottom line is the game and fish in the State ends up spending

the money to manage the bears, given rules by the U.S. Fish and

Wildlife Service, because they are not delisted to go back into the

State authority.

There’s just an awful lot of things that need to be talked about

and need to be changed. As I said, there are 1,200-and-some listed,

and just very, very few—we are not really emphasizing, in my

judgment, enough the recovery plan. That is really where we ought

to at least be as interested in the recovery as we are in listing. Apparently, that is not the case.

So, Mr. Chairman, I think it is very important that we have

some changes, and I am delighted that you are holding hearings.

I hope we can make some progress this year. Thank you for the opportunity.

[The prepared statement of Senator Thomas follows:]

STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR FROM THE STATE OF WYOMING

Thank you, Mr. Chairman, for holding today’s hearing on this important topic. In

Wyoming, we have seen firsthand the need to revise the listing and delisting processes of the Endangered Species Act.
5

Listing should be a purely scientific decision. Listing should be based on credible

data that has been peer-reviewed. Unfortunately, none of this is true regarding the

current administration of the ESA. To date, 1,243 species have been listed in the

United States under the Endangered Species Act. Twenty to twenty-five have been

delisted. Clearly, the system is broken.

Not long ago, the Prebles Meadow Jumping Mouse was listed in the State of Wyoming, yet the listing process for this mouse demonstrates how the system has gone

haywire devoid of good science.

One of the more significant shortcomings of the Preble’s Rule relates to confusion

about claims regarding the ‘‘known range’’ as opposed to the alleged ‘‘historical

range’’ of the mouse. Historical data and current knowledge do not support the high,

short-grass, semi-arid plains of southeastern Wyoming as part of the mouse’s historical habitat range. The U.S. Fish and Wildlife Service has even admitted to uncertainties regarding taxonomic distinctions and ranges. Further, the State was not

properly notified causing counties, commissioners, and landowners all to be caught

off guard. Such poor practices do not foster the types of partnerships that are required if meaningful species conservation is to occur. Clearly, changes are desperately needed to the Endangered Species Act.

Not far behind the mouse in Wyoming, was the black-tailed prairie dog. Petitions

to list the prairie dog were filed with the U.S. Fish and Wildlife Service. I’ve lived

in Wyoming most of my life, and I’ve logged a lot of miles on the roads and highways in my State over the years. I can tell you from experience, there is no shortage

of prairie dogs in Wyoming. Any farmer or rancher will concur with that opinion.

This petition, and countless other actions throughout the country, make it painfully clear that some folks are intent on completely eliminating activity on public

lands, no matter what the cost to individuals or local communities that rely on the

land for economic survival.

I believe we should take action to require the Secretary of the Interior to use scientific or commercial data that is empirical, field tested and peer-reviewed. Right

now, it’s a ‘‘postage stamp’’ petition: any person who wants to start a listing process

may petition a species with little or no scientific support. I have introduced legislation, S. 347 to prevent this absurd practice by establishing minimum requirements

for a listing petition that includes an analyses of the status of the species, its range,

population trends and threats. The petition must also be peer reviewed. In order

to list a species, the Secretary needs to determine if sufficient biological information

exists in the petition to support a recovery plan. Under my proposal, States are

made active participants in the process and the general public is provided a more

substantial role.

Unfortunately, I have found that with several listings in the State of Wyoming,

the Department of the Interior was unable to tell me what measures were required

to achieve species recovery. The Agency could not tell me what acts or omissions

we could expect to face as a consequence of listing. This is troubling since the Agency is supposed to be fully apprised of the status of the species. Conversely, if the

Agency cannot clearly describe how to reverse threatening acts to a species so that

we can achieve recovery, how can we be sure that the species is, in fact, threatened?

This ambiguity has caused much undue frustration to the people of Wyoming. If

the Secretary believes that certain farming or ranching practices, or the diversion

of a certain amount of water, or a private citizen’s development of one’s own property, is the cause for a listing, then the Secretary should identify those activities

that have to be curtailed or changed. If the Secretary does not have enough information to indicate what activities should be restricted, then why list a species? Why

open producers and others to the burden of over-zealous enforcement and even litigation without being able to achieve the goal of recovering the species?

Mr. Chairman, we must ultimately seek to design a system to support and improve the quality of information used to support a listing. If the Secretary knows

enough to list a species, we should also know enough about what will be required

for recovery. That should be the case under current law, unfortunately it is not the

case today.

Just as the beginning of the process needs changes, we need to revise the end of

the process—the delisting procedure. Recovery and delisting are quite simply, the

goals of the Endangered Species Act.

Yet, currently, it is virtually impossible to delist a species. There is no certainty

in the process and the States—the folks who have all the responsibility for managing the species once it is off the list—are not true partners in that process. Once

the recovery plan is met, the species should be delisted.

Wyoming’s experience with the grizzly bear pinpoints some of the problems with

the current delisting process. The Interagency Grizzly Bear Committee set criteria

for recovery and in the Yellowstone ecosystem, those targets have been met, but the
6

bear has still not been removed from the list. We’ve been battling the U.S. Fish and

Wildlife Service for years over this one to no avail, despite tremendous effort and

financial resources to meet recovery objectives. Even with rebounded populations,

we keep funneling money down a black hole.

Mr. Chairman, it is clear that something needs to be done. My constituents are

angry and upset about the current situation and the trickling effects of countless

listings. Real lives are being impacted.

It is time for some real changes. The changes I’ve suggested will have a significant affect on the quality of science, public participation, State involvement, speed

in recovery, and finally the delisting of a species.

Species that truly need protection will be protected, but let’s not lose sight of the

real goal—recovery and delisting.

Thank you.

Senator CRAPO. Thank you, Senator. That was the vote that was

just called, but I think, Senator Corzine, that we have time for you

to make an opening statement before we break and run to the vote.

OPENING STATEMENT OF HON. JON S. CORZINE, U.S. SENATOR

FROM THE STATE OF NEW JERSEY

Senator CORZINE. Thank you, Mr. Chairman. I have a complete

statement that I would ask for unanimous to put in the record.

Senator CRAPO. Without objection.

Senator CORZINE. Thank you. This is obviously a very, very important environmental law issue for us all to consider, the Endangered Species Act. It is complicated for a newcomer, and I am

working my way through trying to be fully informed.

I am concerned, the people of New Jersey are concerned, about

extinction rates. There are issues here that truly need to be addressed, and I appreciate the hearing or background note. But,

maybe as important as anything, I am concerned, as I am on a

whole series of issues, to make sure that we have the right kind

of funding so that we address this issue properly, not in simplistic

and underfunded formulas. I am very, very concerned that we are

taking a step back in protecting our environment and endangered

species. It is a very key issue, particularly on our coastline in our

fisheries. So it is one of those things that I look forward to being

an active participant in. Thank you very much for having the hearing.

[The prepared statement of Senator Corzine follows:]

STATEMENT OF HON. JON S. CORZINE, U.S. SENATOR FROM THE STATE OF

NEW JERSEY

Thank you, Mr. Chairman. I want to thank you for holding this hearing on one

of our most important environmental laws, the Endangered Species Act.

Mr. Chairman, extinction is occurring at alarming rates worldwide. The World

Conservation Union estimates that current global extinction rates are between 1,000

and 10,000 times higher than the normal background extinction rate. And extinction

rates are increasing rather than decreasing.

Here in the United States, we are doing better than many places, but we still

have a pressing problem. More than 1,200 species are listed as threatened or endangered under the ESA, more than 200 species are awaiting listing decisions, and

some scientific experts believe that as many as 3,000 U.S. species may require protection under the ESA.

These are daunting statistics. For me, they put into focus the reasons why we

need to continue to work to protect our natural heritage. From an ecological standpoint, there is still much we do not know about how our planet works and what

is important to keeping it healthy. Aldo Leopold, in his seminal environmental

work, A Sand County Almanac, observed that ‘‘the first rule of an intelligent tinkerer is to keep all of the pieces.’’ Mr. Chairman, we are losing pieces here and

abroad, and we do not understand the consequences.
7

From an economic standpoint, I observe that less than scientists have studied less

than 1 percent of the world’s species extensively. The potential of these unstudied

species to provide medicines, food, and other benefits to humankind is vast, unknown and untapped.

Finally, I believe we owe it to our grandchildren and their grandchildren to hand

them down a world rich in the biological diversity that we have inherited. A planet

poorer in wildlife is a planet diminished, and we owe it to our heirs to preserve

what we can.

So, for all these reasons, Mr. Chairman, I strongly support the goals of the Endangered Species Act and want to look for ways to strengthen it and make it more

effective.

Today’s hearing will focus on the listing and delisting processes under the Act,

and I want to make several comments about these processes. First, some will suggest that the listing process is not based on sound science. I disagree. If you look

at the history of the listing process, less than 1 percent of species that have been

listed or proposed for listing have been withdrawn because they their listing was

backed by incomplete data. That is an extremely low error rate, and does not suggest a systematic problem with the role of science in the listing process. I think that

one reason for this is that peer-review is built into the listing process, which ensures

that independent scientists review the information that the Government relies on.

Second, I have heard the suggestion that the listing process is secretive. That the

data behind the listings are not available. This is simply not the case. The administrative record for a listing includes all relevant data, how the data supports listing,

and the comments of the peer reviewers. All of this information is available to anyone who wants to see it.

Finally, I want to address ESA funding. Simply put, ESA has suffered from chronic underfunding. The listing program is no exception. Unfortunately, the President’s

budget does not remedy this problem.

Rather than limiting the ability of citizens to participate in the ESA process, as

the budget proposes, we should provide the U.S. Fish and Wildlife Service and National Marine Fisheries Service with the resources they need to do the job right.

With that, I conclude my remarks, and look forward to the testimony of our witnesses.

Senator CRAPO. Thank you very much, Senator. Senator Clinton,

they have just called a vote, but we figured we would try to finish

the opening statements before we recess and run to the vote.

OPENING STATEMENT OF HON. HILLARY RODHAM CLINTON,

U.S. SENATOR FROM THE STATE OF NEW YORK

Senator CLINTON. Well, I thank you very much, and I thank you

for holding this hearing on such a critical issue. This is one of the

many critical and pressing issues that this committee is discussing,

everything from global warming to how we deal with our energy

needs while protecting our environment. The issue of protecting

threatened and endangered species is one that I put right up there

with all of these other very important matters.

If there is nothing else that people on opposing sides of the ESA

debate agree upon, the one thing that we do seem to agree upon

is that all decisions under the Endangered Species Act should be

based on sound science, the very best available science that we

have. I think every one of us understands that many environmental decisions are complicated. Whether it’s setting standards

for drinking water or deciding what to do about PCB contamination

in waterways, like the Hudson River, all of these decisions should

be insofar as possible taken out of politics and put into the realm

of science.

I guess, Mr. Chairman, what concerns me is that the Bush Administration budget cuts ESA science funding along with funding

for recovery plans and habitat conservation plans and candidate

conservation plans—all things that we know are critical to achiev-
8

ing success under the Act. In the budget, the Administration also

asks for a rider. I think it’s a little unusual to have a rider in the

initial budget that is proposed by the Administration, but, nonetheless, there is one, to prohibit citizens from petitioning the U.S. Fish

and Wildlife Service to list species as threatened or endangered or

from designating critical habitat.

It is always preferable—I think, again, every one of us would

agree that it is preferable that we do not have to resort to the

courts to implement our environmental statutes. But our environmental statutes contain citizens’ rights provisions for a reason, and

I think these provisions need to be respected and not skirted.

It is my understanding, further, that in responding to these citizen petitions, the U.S. Fish and Wildlife Service can decide to list

a species or not to list it, or it can put it on a candidate list and

assign a low priority for listing, based upon listing guidance that

has been in place since 1983. So, in this regard, I think we need

to make very clear that citizens are not determining the listing priority of species. These decisions are still being based on the best

available science, and they are ultimately the responsibility of the

U.S. Fish and Wildlife Service.

I think rather than attaching riders to the budget, we should be

addressing these issues as the chairman is having us do today, in

the authorizing committee. Rather than saying we cannot deal with

the backlog, which I understand is a serious issue and I have absolute sympathy for the positions that both Secretary Babbitt and

Secretary Norton have found themselves in. I mean, it is a huge

undertaking and it uses up a lot of resources, and it is a very challenging task that they face.

I would instead propose that we try to come up with the necessary resources to address the listing backlog to remove the uncertainty. We have landowners and developers who are really in a

very disadvantageous position because they can’t get an answer.

Putting a rider in the budget and saying, well, we’re going to postpone this, when they know there are citizens’ groups out there that

are going to say that, as soon as we are able to, we’re going to come

in and ask for listing, doesn’t help us clear up the uncertainty.

It is my understanding that the Service estimates it would take

roughly $80 to $120 million to clear up the backlog. I think we

could develop a 5-year plan that would be certainly doable within

our budget to get this work done, which would be keeping faith

with the Act, keeping faith with the citizens who are concerned

about these issues, keeping faith with good, sound science, and

keeping faith with the needs of our landowners, our developers,

and others who have very serious concerns about this.

So, while we might disagree about some of the topics that are to

be discussed today, the context of ESA, I think we could all reach

agreement that the ESA needs to be administered effectively and

funded appropriately, so that we can deal with the backlog, deal

with the uncertainty, put to rest some of the issues that are legitimate concerns of people throughout our country, but, particularly,

in the region where the chairman comes from.

So, again, Mr. Chairman, I have found in my short term on this

committee that, despite very great geographic differences and perspectives, acting in a collegial, open-minded manner can possibly
9

lead to some solutions. I very much appreciate your holding this

hearing and look forward to the results of it. Thank you very much.

[The prepared statement of Senator Clinton follows:]

STATEMENT OF HON. HILLARY RODHAM CLINTON, U.S. SENATOR FROM THE STATE OF

NEW YORK

I would like to thank the chairman for holding this hearing on such a critical

issue.

As with other topics we have been discussing in this committee, such as global

warming, the issue of protecting threatened and endangered species is one that is

absolutely critical to our planet’s future. One that, if allowed to go without adequate

attention and resources, could have irreparable consequences.

If there is nothing else that people on opposing sides of the ESA debate agree

upon, the one thing that they do agree upon is that listing decisions—as all decisions under the Endangered Species Act—should be based on sound science, the

best available science that we have.

Many environmental decisions are complicated ones. And I have always said,

whether it is setting standards for drinking water, or deciding what to do about

PCB contamination in the Hudson River, that these decisions should be based on

the best available science.

Yet the Bush Administration’s budget cuts ESA science funding, along with funding for recovery plans, habitat conservation plans and candidate conservation

plans—all the things we know are critical to achieving success under the Act.

And in its budget, the Administration also asks for a rider to prohibit citizens

from petitioning the U.S. Fish and Wildlife Service to list species as threatened or

endangered, or from designating critical habitat.

It is always preferable that we not have to resort to the courts to implement our

environmental statutes. But our environmental statutes contain citizens rights provisions for a reason, and I think those provisions need to be respected, not skirted.

It is my understanding that in responding to these citizen petitions, the U.S. Fish

and Wildlife Service can decide to list a species, not to list it, or can put it on a

candidate list and assign it a low priority for listing based upon listing guidance

that has been in place since 1983. In this regard, citizens are not determining the

listing priority of species. Those decisions are still based on the best available

science, and ultimately made by the Service.

Rather than attaching riders to the budget, we should be addressing these issues

in the authorizing committee, as we are doing today.

And rather than saying we can’t deal with the backlog, we should focus on providing the necessary resources to address the listing backlog. It is my understanding

that the Service estimates that it would take roughly $80–120 million to clear up

the backlog. We could develop a 5-year plan to get this work done.

While we all might disagree about some of the topics to be discussed here today,

we should all be able to reach agreement that the Endangered Species Act cannot

achieve its goal of restoring threatened and endangered species if we starve it of

funding.

I would like to thank the chairman and ranking member again for holding this

hearing today, and I look forward to hearing the testimony from today’s witnesses.

Senator CRAPO. Thank you very much, Senator. I think that your

comments highlight one of the critical problems we face. The backlog in the listing process is significant. We do need to find the resources to deal with it. In fact, the backlog is not only there.

There’s a backlog in the recovery plan arena. There’s a backlog in

implementation.

You may or may not be aware, because of the issues in the Pacific Northwest on salmon, I just proposed last week that we double

the amount of resources we are putting into the salmon recovery

in the region up to—I think I proposed something in the neighborhood of $688 million just for that one species in terms of our efforts

to try to recover it. So there’s no disagreement on my part about

the fact that we need to find a way to get resources to these issues.

Just to kind of highlight for the attendants here, before we recess

and run to the vote, I have some interesting statistics on just the
10

litigation that is involved with the listing process. Just consider

this information for a minute.

As of March 1 of this year, 79 cases have been resolved through

the entry of court orders or settlement agreements—and this is on

listing litigation. As of the same date, the Service is still involved

in 75 active section 4 lawsuits covering 400 species, including 17

lawsuits on petition findings for 41 species, 9 lawsuits covering 11

species regarding final determination, 36 lawsuits covering over

354 species regarding critical habitat, and 13 lawsuits covering 11

species regarding merit challenges. In addition, the Service has had

86 notices of intent to sue over 640 species relating to listing activities, including 34 NLI’s regarding critical habitat determinations

for 303 species.

Those statistics indicate the enormous task that we face just in

the litigation that is surrounding the listing process. If this committee can find ways to build consensus toward helping us get a

path forward, both in terms of getting the resources and the reforms necessary to help us move forward in protecting species, I

think we can do a tremendous service for the environment and for

the people of the Nation. I think that there is an opportunity for

us to find that common ground.

If there are no further comments at this point, we will recess at

this point. As I have advised everybody, there has been a vote

called and we’re getting toward the end of the timing for us to get

to the vote. We’ll rush down there and try to return as quickly as

possible. Hopefully, it won’t take long.

At this point the committee is recessed.

[Recess.]

Senator CRAPO. The hearing will come to order.

We’ve been joined by our ranking member, Senator Graham.

Senator, if you would like to make any opening statement, you’re

welcome to do so at this point.

OPENING STATEMENT OF HON. BOB GRAHAM, U.S. SENATOR

FROM THE STATE OF FLORIDA

Senator GRAHAM. Thank you, Mr. Chairman. I have an opening

statement which I would like to submit for the record.

I want to commend you for holding this hearing. One of the centerpieces of the Endangered Species Act has been the ability of citizens to nominate species for consideration. I recognize that that

has resulted in a significant backlog of court-administered cases.

This hearing today I hope will give us some sense of what the

range of options is to deal with that issue, and I appreciate your

affording us that opportunity to do so.

[The prepared statement of Senator Graham follows:]

STATEMENT OF HON. BOB GRAHAM, U.S. SENATOR FROM THE STATE OF FLORIDA

Mr. Chairman, the Endangered Species Act was historic when it was passed by

a nearly unanimous Congress over 25 years ago. The Act remains important in our

efforts to balance human activities with the needs of imperiled wildlife. While this

law is certainly not without its share of controversy, I have witnessed success stories such as the recovery of the American alligator, a keystone species in the Everglades and vital to the overall health of that ecosystem.

The State of Florida is home to some 111 threatened or endangered species. We

can boast, rather unfortunately, that this number is third only to the States of Ha-
11

waii and California. Included in this list is the Florida Manatee, which I consider

a poster child for the importance of the Endangered Species Act.

One of the strengths of the Endangered Species Act is that it allows citizens the

opportunity to petition the U.S. Fish and Wildlife Service to list species that they

have reason to believe are critically important. Citizens may also pursue legal recourse if they think that the U.S. Fish and Wildlife Service has not acted to protect

these species.

I appreciate the fact that the U.S. Fish and Wildlife Service faces a severe listing and delisting backlog. An estimated $80-$120 million is needed to eliminate this

backlog. However, I do not think that effectively cutting citizens out the process by

limiting the ability of the U.S. Fish and Wildlife Service to respond to court orders

is the most appropriate way to address this problem.

Most of our environmental laws include a process for citizen enforcement and

oversight. Such opportunities for citizen involvement are necessary to compensate

for times when administrative agencies are unable to fully implement the law.

I hope that today’s hearing will present us with some ideas for solutions to eliminate the current backlog and address citizen and scientific concerns in a prudent

manner. I will submit my questions for the record.

Thank you, Mr. Chairman.

Senator CRAPO. Thank you very much, Senator.

Without anything further then, let’s invite our first panel to come

forward. Our first panel consists of Mr. Gary Frazer, who is the Assistant Director for Endangered Species at the U.S. Fish and Wildlife Service of the U.S. Department of the Interior. Please come forward, Mr. Frazer, and also, Mr. Don Knowles, the Director of the

Office of Protected Resources for the National Marine Fisheries

Service.

I would like to advise our witnesses, as well as all the witnesses

on the future panels, that we would like to ask you to do your best

to keep your testimony to 5 minutes, as you have been requested

to do, so that we have time for questions and answers from the

Members of the Senate.

You probably know how the lights work, but I’ll re-explain it for

everybody. The green light goes on during the beginning of your

testimony. When you have 1 minute left, the yellow light comes on,

and then when the time has expired, the red light comes on. When

the time’s expired, we ask you to try to summarize where you are.

What we have found is that nobody—at least very few people—are

ever able to get said in 5 minutes what they have to say, but please

be assured that you’ll have an opportunity to expand on your

thoughts and to complete your statement during responses to questions and answers.

Without anything further then, Mr. Frazer.

STATEMENT OF GARY FRAZER, ASSISTANT DIRECTOR FOR ENDANGERED SPECIES, U.S. FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR

Mr. FRAZER. Mr. Chairman, thank you for this opportunity to

discuss how the U.S. Fish and Wildlife Service carries out its duties relating to listing and delisting species under the Endangered

Species Act.

Our procedures, some prescribed by statute and others by agency

regulations or policies, are all focused upon ensuring that our decisions are objective, based on good science, and made in the open

with peer review and public participation throughout. The U.S.

Fish and Wildlife Service is committed to making the Endangered

Species Act work in the eyes of the public, the Congress, and the
12

courts, so that we can accomplish its purpose of conserving threatened and endangered species and protecting the ecosystems upon

which they depend. This is a challenging task involving precious

and irreplaceable natural resources, a complex statute, and many

stakeholders with deeply held and often conflicting interests.

To meet this challenge, we work hard to base our decisions on

the best available science, seek independent peer review of our decisions, to provide for public participation throughout our decision

process, and to ensure that our decision process is understandable

and open to scrutiny.

The Endangered Species Act requires listing determinations to

be made solely on the basis of the best available scientific and commercial data. This careful evaluation of scientific evidence, including the involvement of independent peer reviewers and our colleagues in State fish and wildlife agencies, is fundamental to assessing species for listing and delisting under the Act.

To this end, the Service has issued a number of joint policies

with the National Marine Fisheries Service which guide our listing

and delisting efforts. Our policy on information standards provides

direction to our biologists and managers on the use of scientific information in our decision process. Our policy for peer review ensures that independent peer review is built into our listing recovery

and delisting activities. Our policy on the role of State agencies recognizes the unique capability of State fish and wildlife agencies to

assist in implementing all aspects of the Act.

Listing under the Endangered Species Act becomes necessary

when a species declines to the point where it is at danger of extinction throughout all or a significant portion of its range, or is likely

to become endangered in the foreseeable future. The Secretary is

required to list the species if, after reviewing the species’ status

using the best scientific and commercial data available, it is found

that the species is endangered or threatened because of any one or

a combination of the five listing factors laid out in the Act.

We have two ways to identify species in need of listing. The first

is a candidate assessment process which is initiated by the Service.

The second is a petition process which is available to the public.

Through the candidate assessment process, the Service works with

species experts, State natural heritage programs, and others to

identify species that may be at risk and potentially in need of protection under the Act. The petition process allows any interested

person to petition the Service to add or remove a species from the

Federal list. If the petition is found to provide substantial information, we initiate a status review and issue an additional finding

within 12 months as to whether listing may be warranted.

The Service issues proposed rules to list species when we have

sufficient information to show that listing is warranted. If the

issuance of a proposed listing rule is precluded by work on other

higher priority listing actions, we add the species to our candidate

list to be prioritized for a future listing proposal. We publish this

list of candidate species annually and solicit information from species experts and the public to stay current on the status of the species that are on the candidate list.

At the other end of the process is delisting which marks the successful end point of the recovery process. The goal of the recovery
13

process is to restore listed species to a point where they are secure,

self-sustaining components of their ecosystems and do not require

the protections of the Endangered Species Act, and thus, could be

delisted.

Throughout the process the Service uses the best available

science and input from the affected public to guide our actions toward successful recovery of listed species. Our listing and delisting

actions are informal rulemakings published and proposed in final

form in the Federal Register. Once a proposal is published, the

Service must allow for a public comment period on the proposal;

provide actual notice of the proposed regulation to appropriate

State, tribal, and local government agencies; publish a summary of

the proposal in a newspaper of general circulation in areas where

the species occurs, and hold a public hearing, if requested. Since

public participation is so important to effective conservation efforts,

the Service will often hold multiple public hearings and extend the

comment period beyond the minimum required by law and regulation.

Species are usually listed as a result of factors that cause their

decline over many years, often decades or even centuries. As a result, recovery of listed species requires time and effort, but we have

had real success. Recently, the Service removed peregrine falcon

and the Aleutian Canada goose from the list of species protected

under the Endangered Species Act, and the bald eagle, our Nation’s

symbol, is on the verge of complete recovery. We expect to downlist

or delist at least six species next fiscal year, and many of the species that are on the list have had their declines arrested and the

population stabilized or improving since the time they were added

to the endangered species list, which is a real measure of the effectiveness of our recovery efforts.

In closing, I would like to emphasize the importance the Service

places upon having a science-based, open-decision process in which

the affected public can participate fully. Our listing and delisting

decisions are sometimes difficult and contentious, and not all parties will agree with our final decisions. But it is critical that the

public and the Congress view our work as an honest and objective

effort to reach a decision required of us by the Act. Our success in

implementing the Endangered Species Act is tied to that trust.

Mr. Chairman, this concludes my prepared statement. Thank you

for your strong interest in the Endangered Species Act and how it

is implemented, and for the opportunity to present testimony. I

would be happy to respond to any questions you or the other members of the committee may have.

Senator CRAPO. Thank you, Mr. Frazer.

Mr. Knowles.

STATEMENT OF DON KNOWLES, DIRECTOR, OFFICE OF PROTECTED RESOURCES, NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE

Mr. KNOWLES. Thank you, Mr. Chairman. I appreciate the opportunity today to testify on the process we at the National Marine

Fisheries Service use to list and delist species under the Endangered Species Act. My name is Don Knowles. I am the Director of
14

the Office of Protected Resources at National Marine Fisheries

Service, an agency of the National Oceanic and Atmospheric Administration.

NOAA Fisheries is committed to making the implementation of

the Endangered Species Act effective and to increase public support

for its goals. We are also committed to working closely with the

U.S. Fish and Wildlife Service to make sure our approach is consistent and to working with States, tribes, local governments, and

others as partners. We are committed to basing our procedures and

decisions on good science and making our decisions, any of them,

with peer review and public participation throughout the process.

We recognize it’s a difficult challenge. We thank the committee for

its support over the years.

Our listing and delisting regulations are jointly published with

the U.S. Fish and Wildlife Service, so I won’t duplicate a description of that process at this point. Let me just briefly summarize for

you an overview of NMFS’s Protected Species Program.

We currently have 55 species listed under the Endangered Species Act, much smaller than the U.S. Fish and Wildlife Service. Of

our species, 26 are salmon and steelhead in California in the Pacific Northwest; Alaska contains no listed salmon species. Of those

26 ESUs that are listed, 21 of them have been listed since 1997.

So, in effect, we have created an entirely new regulatory structure

and process just in the last 6 years in the Pacific Northwest.

We have a little over 550 people working on endangered species

and marine mammal issues. Over half of those, well over half of

those, are full-time scientist. We have a very strong world-class

science program in support of our listing program.

To be sure, NMFS’s implementation of the ESA has been contentious and the subject of a significant amount of litigation. We have

six cases pending now on listing issues. We have lost some cases

and, hopefully, learned some valuable lessons in the Northwest to

address the issue of whether NMFS’s decisions are based on the

best science. We spent a significant amount of effort in the mid1990’s collecting information from the Pacific Salmon Biological

Technical Committee and interested parties, and established a Biological Review Team. While these efforts haven’t eliminated the

lawsuits, they have helped NMFS gather the best available science.

For all of the species under our jurisdiction, NMFS continues to

look for new ways to ensure that it uses the best available science

in the decisionmaking process.

I think I will stop there, Mr. Chairman. I’ve got a statement

that, if you would be interested in including it in the record, I will

thank you for the opportunity to testify and look forward to answering any questions you might have.

Senator CRAPO. Thank you very much, Mr. Knowles.

Mr. Frazer, I will begin my questions with you. I noted in your

testimony that you referenced the U.S. Fish and Wildlife Service’s

language in the President’s fiscal year 2002 budget request that is

intended to comply with the current orders and settlement agreements with respect to critical habitat designations, as well as, to

address the backlog of listing actions. Since I know that this question will come up—in fact, Senator Clinton has already raised the

issue in her opening statement—in the context of the listing pro-
15

gram, would you explain in a little more detail why the Administration has requested this language and how they are approaching

the budget this year?

Mr. FRAZER. I would be happy to. For a number of years, the

Service’s workload in our listing program, all aspects of our listing

program—processing petitions, adding species to the list, critical

habitat—for a number of years, that workload has exceeded the resources we have available to carry out our program. As a result,

we had a backlog accumulate. Many of these actions have mandatory deadlines laid out in the statute, and there is opportunity for

us to be sued to comply with those deadlines, and we have been

sued.

The result is that in this fiscal year, virtually our entire listing

budget is dedicated toward complying with court-ordered actions,

most of which are for designation of critical habitat for species that

are already listed. Our goal in proposing this language in the President’s budget is to be able to have the assistance of Congress to return to a more balanced listing program that addresses biological

priorities.

The language would essentially do two things. It would say that,

of the money that Congress appropriates for us to administer our

listing program, that we are to use that to comply first with existing court orders, but then any that’s left over would be spent on

those listing actions—processing petitions, adding species to the

list—that are driven by biological priorities. We would use a biological priority process for determining how to spend the remainder.

With this as our marching orders from Congress, we hope to be

able to return to the kind of balanced listing program which I think

the public expects, and that would have the greatest benefit for the

species that are at risk and need protection under the Act.

Senator CRAPO. Now if I understand what you just said, what

you’re saying is that court orders are basically dragging the utilization of the budget rather than biological or science-based decisionmaking?

Mr. FRAZER. This year, in fiscal year 2001, the number of actions

that are required by court order or court-sanctioned settlement

agreement are such that we are using virtually every dollar that

we have available in our appropriation to comply with those court

orders and settlement agreements. So we have no money left over

for discretionary actions—to be able to respond to a citizen petition

or to be able to deal with any other sort of listing action.

Senator CRAPO. As has been indicated in some of the statements

by the Senators already today, it would be helpful to have additional financial resources to meet all these needs, but given the

budget situation that you deal with—well, first of all, let me ask

you: Is the proposed budget for this year an increase or a decrease

from previous years?

Mr. FRAZER. It’s an increase of $2 million, about a 31 percent increase from the previous fiscal year.

Senator CRAPO. A 31 percent increase? So there is an increase

in the dollars available but, even with that increase, you are still

seeing the court orders essentially consume the flexibility with

which you can use those dollars?
16

Mr. FRAZER. We have court orders and settlement agreements

that are going to require us to do a substantial amount of work

next year. With an increase, we hope to have some funds available

that we will be able to apply to other parts of our listing program— to be able to respond to citizen petitions, to add species to the list.

But the litigation is there. We have a large backlog. The potential

remains for us to have additional lawsuits filed and court orders

issued that will eat into that discretion as well. So this language

was structured such that it would reflect the intent of Congress

that we would certainly be complying with existing court orders,

but for the remainder, biological priorities as opposed to lawsuits

would drive the use of those dollars.

Senator CRAPO. Isn’t this approach to how to manage the budget

something that was started under the previous Administration?

Mr. FRAZER. We have had for a number of years a cap, a listing

cap, that essentially is just language in the appropriations bill that

says that the money that Congress appropriates to us for carrying

out our listing program is the sum total that we can use to carry

out those duties under section 4 of the Act. That’s to prevent court

orders from imposing obligations on us that are in excess of the

dollars, the amount, that Congress appropriates for us to run our

program. The cap language is to ensure that court orders for listing

actions don’t eat into other parts of the Endangered Species Act

Program or other parts of the U.S. Fish and Wildlife Service’s resource management account.

Senator CRAPO. It seems to me—and tell me if I’m right about

this—but it seems to me that, to the extent that your utilization

of these funds is driven by court orders and not by the biological,

scientific evaluation that the Agency would like to apply to it, that

creates an increased risk of further litigation because the Agency

is not able to utilize the best science, but is instead being driven

by judicial decisionmaking.

Mr. FRAZER. The deadlines that are imposed, understandably,

courts would like us to undertake and complete these actions soon.

In many cases we are well past the deadline. So there’s an interest

in having us complete these actions as soon as possible. But the

deadlines do create real tension between making the best decision,

using the best available information, and having a careful process

that has everyone affected involved in the decision process, and facing a potential contempt hearing if we don’t meet the deadline. So

a number of our actions have been very difficult and we have had

to do less outreach and had less time to consider the decisions before we went to final. As a result, we have a number of people that

have criticized the outcome, and we have a number of merits lawsuits on some of our most recent critical habitat determinations.

Senator CRAPO. All right. Mr. Knowles, do you have any disagreement—or I wouldn’t say ‘‘disagreement.’’ Would you like to

add any comment on this issue before I——

Mr. KNOWLES. No, I don’t think we have—we’re not in the same

situation as the U.S. Fish and Wildlife Service.

Senator CRAPO. All right. With regard to the question of litigation, I would like to toss this question out to both of you. Before

I do, I want to go over the statistics that I read earlier just to set

the stage again.
17

According to the information I have—and this is from the U.S.

Fish and Wildlife Service, so I hope that you will agree with the

numbers here, Mr. Frazer—as of March 2001, 79 cases have been

resolved through the entry of court orders or settlement agreement

but, as of the same date, the Service is involved in 75 active section

4 lawsuits covering 400 species, including 17 lawsuits on petition

findings for 41 species, 9 lawsuits covering 11 species regarding

final determinations, 36 lawsuits covering over 354 species regarding critical habitat, and 13 lawsuits covering 11 species regarding

merit challenges. In addition, the Service has 86 notices of intent

to sue which involve another 640 species relating to listing activities, 34 of which are critical habitat determination issues for 303

species.

To me, that incredibly large amount of litigation says that something is broken. In other words, we are not getting to put the resources to the issue of species recovery the way we would like to

because we are spending a tremendous amount of time in court. I

assume that a large part of the budget goes for legal actions rather

than environmental recovery actions.

The question I have is: What is it that is causing all of this litigation? What is the reason that we have this voluminous amount

of litigation surrounding the listing process? I know that’s a tough

question, but really it’s a question that has to be asked.

Mr. FRAZER. I’ll give you my views. I think that it reflects the

strong interest, and in many cases the impassioned interest, in the

Endangered Species Act, in conserving fish and wildlife and plants

that are at risk of extinction. We have a very vibrant economy, a

lot of growth, and there are tensions between that kind of economic

development and conservation of our plants and fish and wildlife.

We have tools that address that, but they’re not 100 percent effective and there’s clearly a need for extending the protection of the

ESA to species that we have not been able to satisfy because of the

limited resources we have had to carry out our program.

The deadlines that are under the Act and the interest in ensuring that the Act is carried out where it’s needed I think, has been

the primary driver in the volume of litigation that is associated

with our listing program. It does require a good bit of work of the

people employed in our listing arena. Litigation support takes up

an unfortunately large part of our time.

Senator CRAPO. How many lawyers have you got on staff?

Mr. FRAZER. Actually, our legal counsel is through our Solicitor’s

Office, and then the Department of Justice provides us with very

capable legal support as well.

Senator CRAPO. Is that legal support included in your budget

numbers or would that be in their budget numbers?

Mr. FRAZER. No, it’s in their budget numbers. The only part in

our budget, our listing budget, is the litigation support that we do:

drafting declarations, doing document searches, and preparing

records, those sorts of things.

Senator CRAPO. All right, let’s move on to the peer review issue.

Mr. Frazer, in your testimony you provided some reasons why peer

review is not easy to obtain. As you know, sound science I think

is critical to this listing process. Actually, if we could resolve some

of the science issues, maybe we would reduce the litigation. I think
18

that paying for peer review would resolve at least one obstacle. Am

I correct in that?

Mr. FRAZER. It may. It’s a function of whether covering the cost

is a primary impediment or whether it is a matter of priorities and

what other kind of rewards there might be for independent peer reviewers to get engaged.

Senator CRAPO. What would you recommend for us to remove

some of the obstacles or disincentives for the peer reviewers to

make this their high priorities?

Mr. FRAZER. Well, I don’t think improving our capability to get

peer review requires statutory change. There certainly are things

that we can do. We can work with organizations that represent the

scientific community. We can work with academic institutions,

State agencies, Federal agencies to emphasize the importance of

their involvement in our listing program activities and to understand what sorts of reward systems they need in order for them to

be able to step up, and then work to address those.

We’ve got a pilot program underway already. One of the other

witnesses this morning is going to, I think, discuss that in some

fashion.

The other thing, though, is to have the volume of litigation associated with our listing program removed, so that when a peer reviewer does get engaged, they don’t have to have the level of concern about whether this is going to be a long-term commitment involving them be drug in for depositions or called to be an expert

witness, or whatever.

Senator CRAPO. So the litigation is actually impacting the peer

review process, it sounds like?

Mr. FRAZER. It is. In some cases, we know that it is.

Senator CRAPO. Mr. Knowles, Mr. Frazer has indicated he

doesn’t think that there are legislative necessarily needed to improve the peer review process. Do you have any opinion on whether

there are legislative changes that are needed? I guess I would also

ask you to suggest what changes, if any, you think might be helpful

in that context.

Mr. KNOWLES. I don’t think legislative changes are needed. I do

think that some of the testimony you are going to hear later today

talks about the differences between peer review in a pure academic

sense, the way it works, and peer review in a management sense

like this, and I think there are some suggestions there that you

could consider.

We have sort of taken a slightly different tack, I think, not necessarily for peer review for our listing packages, but peer review

for other decisions. We have actually funded a group through the

University of Miami called the Center for Independent Experts. We

are essentially funding the University of Miami to select for us a

series of peer reviewers to cover a number of actions throughout

the year. We can schedule them in advance. We can get peer reviewers to agree to review, I think, and going through a university

is easier than directly at this time.

So I think when we solicit the peer reviewers in the Pacific

Northwest, I’m told that typically we get responses, positive responses, from a half to two-thirds of the people that we approach.
19

So I do think it’s hurting us. I don’t think it’s hurting us in the

same way that it is hurting U.S. Fish and Wildlife Service.

Senator CRAPO. Thank you. Mr. Knowles, let me ask another

question to you. One of the criticisms of the listing process is the

lack of scientific transparency. Without established criteria and

thresholds, it seems to me that it is very difficult to arrive at objective decisions so we end up using the best data available, which

often has significant gaps in it and is not considered to be reliable,

which I think probably then leads to litigation.

Would you support some type of objective criteria for listing and

delisting?

Mr. KNOWLES. By objective, you mean quantitative? I think in

the National Marine Fisheries Service, because we have such a

large number of people working in pure sciences, I think we have

more quantitative data for our species than I expected. I have been

at NMFS for a little over 18 months now. I think for Northwest

salmon in the Columbia Basin, because of its long interaction with

the hydropower system, we have quite a lot of data. For most of

our listed species, I think we have a lot of quantitative data. I don’t

think it is the same level of problem.

Senator CRAPO. Well, thank you. I know because of our delay we

are running late. So I will cut my questions short. I did want to

say to you, Mr. Knowles, that, as you know, I am very interested

in the salmon issue in the Pacific Northwest and look forward to

working with you to solve our problems, not only at the listing levels, but with the recovery levels, and hope that we will be able to

make some significant success there.

Mr. KNOWLES. I appreciate that, Mr. Chairman.

Senator CRAPO. Senator Graham, do you have any questions?

Senator GRAHAM. Yes, and if you have already asked this question, if you would just shut me up——

Senator CRAPO. Well, we’ll see if they answer it the same way.

[Laughter.]

Senator GRAHAM. One of the things that I suspect led to this

hearing was the issue of the large volume of court-managed endangered species cases and a proposal that there be a hiatus in citizens’ nomination of endangered species until that backlog has been

reduced. Could you comment as to what would be the effect of that

and your opinion as to what would be—and your suggestion as to

what would be—other ways to deal with the same issue of the

backlog of cases?

Mr. FRAZER. I did address this a little bit ago, but I would be

happy to reiterate. We do have a significant backlog in listing actions that has accumulated over a number of years. The workload

has been greater than the resources we have to carry out all our

duties under the Act.

Senator GRAHAM. Could you give us a sense of what would have

been the cost to have fully and expeditiously maintained your responsibility and what was your actual budget against that?

Mr. FRAZER. I would be happy to try to make that kind of estimate and get that to you.

The landscape has changed rapidly. We had a listing moratorium

several years ago that affected our workflow. So it hasn’t been a

steady playing field.
20

In addition, the focus, whether it was to add species to the list

or to deal with critical habitat designations, has changed as well.

But I can try to give you some sense.

Senator GRAHAM. Mr. Knowles, could I ask the same question,

and maybe you could provide us with something in writing on that

issue, too?

Mr. KNOWLES. I would be glad to.

[The information referred to follows:]

NMFS is not in the same situation as FWS for several reasons. We have been

able to list species and designate critical habitat (most of the time) within or close

to the time limits proscribed by the Act. See species list below which includes critical habitat designations. Also, our budget requests target the needs of specific

groups of species (e.g., Pacific salmon, sea turtles, marine mammals) and not specific ESA programs such as listing, critical habitat and section 7 consultations. This

gives NMFS the flexibility to use our allocated funds for a variety of ESA programs,

and wherever the need is greatest at the time.

NMFS ESA Species List.—June 2001

Listed/Proposed

Common Name Population Name ESA Status

Cites

ClassificationScientific Name Critical

Habitat

Fish

Salmon, Atlantic ........... Gulf of Maine DPS ....... Endangered ......... ............ Salmo salar ..................

Salmon, chinook ........... Upper Willamette River Threatened .......... ............ Oncorhynchus

tshawytscha.

Designated

Snake River Fall-run .... Threatened .......... ............ Oncorhynchus

tshawytscha.

Designated

California Coastal ........ Threatened .......... ............ Oncorhynchus

tshawytscha.

Designated

Central Vally Spring-run Threatened .......... ............ Oncorhynchus

tshawytscha.

Designated

Lower Columbia River .. Threatened .......... ............ Oncorhynchus

tshawytscha.

Designated

Upper Columbia River

Spring-run.

Endangered ......... ............ Oncorhynchus

tshawytscha.

Designated

Snake River Spring/

Summer-run.

Threatened .......... ............ Oncorhynchus

tshawytscha.

Designated

Sacramento River Winter-run.Endangered ......... ............ Oncorhynchus

tshawytscha.

Designated

Puget Sound ................. Threatened .......... ............ Oncorhynchus

tshawytscha.

Designated

Salmon, chum .............. Hood Canal Summerrun.Threatened .......... ............ Oncorhynchus keta ....... Designated

Columbia River ............. Threatened .......... ............ Oncorhynchus keta ....... Designated

Salmon, coho ................ Central California Coast Threatened .......... ............ Oncorhynchus kisutch .. Designated

Southern Oregon/Northern California Coast.Threatened .......... ............ Oncorhynchus kisutch .. Designated

Oregon Coast ................ Threatened .......... ............ Oncorhynchus kisutch .. Designated

Salmon, sockeye ........... Snake River .................. Endangered ......... ............ Oncorhynchus nerka ..... Designated

Ozette Lake ................... Threatened .......... ............ Oncorhynchus nerka ..... Designated

Sawfish, smalltooth ..... US–DPS ........................ Proposed Endangered............. Pristis pectinata ...........

Sturgeon, Gulf .............. Range-wide .................. Threatened .......... II Acipenser oxyrinchus

desotoi.

Sturgeon, shortnose ..... Range-wide .................. Endangered ......... I Acipenser brevirostrum

Totoaba ......................... Gulf of California ......... Endangered ......... I Cynoscion macdonaldi

Trout, steelhead ........... Upper Willamette River Threatened .......... ............ Oncorhynchus mykiss ... Designated

Snake River Basin ........ Threatened .......... ............ Oncorhynchus mykiss ... Designated

Trout, steelhead ........... Southern California ...... Endangered ......... ............ Oncorhynchus mykiss ... Designated

Middle Columbia River Threatened .......... ............ Oncorhynchus mykiss ... Designated

Upper Columbia River .. Endangered ......... ............ Oncorhynchus mykiss ... Designated
21

NMFS ESA Species List.—June 2001—Continued

Listed/Proposed

Common Name Population Name ESA Status

Cites

ClassificationScientific Name Critical

Habitat

California Central Valley.Threatened .......... ............ Oncorhynchus mykiss ... Designated

Northern California ....... Threatened .......... ............ Oncorhynchus mykiss ...

Lower Columbia River .. Threatened .......... ............ Oncorhynchus mykiss ... Designated

South-Central California

Coast.

Threatened .......... ............ Oncorhynchus mykiss ... Designated

Central California Coast Threatened .......... ............ Oncorhynchus mykiss ... Designated

Mammal

Dolphin, Chinese River Yangtze River-China .... Endangered ......... I Lipotes vexillifer ...........

Dolphin, Indus River .... Indus River-Pakistan .... Endangered ......... I Platanista minor ..........

Porpoise, harbor, Gulf

of California.

Gulf of California ......... Endangered ......... I Phocoena sinus ............

Sea Lion, Steller ........... East of 144° Long

(Eastern U.S.).

Threatened .......... ............ Eumetopias jubatus ..... Designated

West of 144° Long

(Western U.S.).

Endangered ......... ............ Eumetopias jubatus ..... Designated

Seal, Caribbean monk .. Range-wide .................. Endangered ......... I Monachus tropicalis .....

Seal, Guadalupe fur ..... Mexico-Southern California.Threatened .......... I Arctocephalus

townsendi.

Seal, Hawaiian monk ... Hawaiian Islands ......... Endangered ......... I Monachus

schauinslandi.

Designated

Seal Mediterranean

monk.

Mediterranean Sea ....... Endangered ......... I Monachus monachus ...

Seal, ringed .................. Lake Saimaa-Finland ... Endangered ......... ............ Phoca hispida

saimensis.

Whale, blue .................. Range-wide .................. Endangered ......... I Balaenoptera musculus

Whale, bowhead ........... Range-wide .................. Endangered ......... I Balaena mysticetus ......

Whale, finback ............. Range-wide .................. Endangered ......... I Balaenoptera physalus

Whale, gray .................. Western North Pacific

(Korean).

Endangered ......... I Eschrichtius robustus ..

Whale, humpback ......... Range-wide .................. Endangered ......... I Megaptera

novaeangliae.

Whale, right, northern .. Range-wide .................. Endangered ......... I Eubalaena glacialis ..... Designated

Whale, right, southern Range-wide .................. Endangered ......... I Eubalaena australis .....

Whale, sei ..................... Range-wide .................. Endangered ......... I Balaenoptera borealis ..

Whale, sperm ............... Range-wide .................. Endangered ......... I Physeter macrocephalus

(catodon).

Mollusk

Abalone, white .............. California ...................... Endangered ......... ............ Haliotis sorenseni .........

Reptile

Turtle, green sea .......... Florida Breeding Populations.Endangered ......... I Chelonia mydas ............

Mexican Breeding Population.Endangered ......... I Chelonia mydas ............

Range-wide .................. Threatened .......... I Chelonia mydas ............ Designated

Turtle, hawksbill sea .... Range-wide .................. Endangered ......... I Eretmochelys imbricata Designated

Turtle, Kemp’s ridley

sea.

Range-wide .................. Endangered ......... I Lepidochelys kempii .....

Turtle, leatherback sea Range-wide .................. Endangered ......... I Dermochelys coriacea ... Designated

Turtle, loggerhead sea Range-wide .................. Threatened .......... I Caretta caretta .............

Turtle, olive ridley sea Range-wide .................. Threatened .......... I Lepidochelys olivacea ...

Mexican Breeding Population.Endangered ......... I Lepidochelys olivacea ...

Seagrass

Seagrass, Johnson’s ..... Southeast Florida ......... Threatened .......... ............ Halophila johnsonii ...... Designated

Mr. FRAZER. We did, though, ask for a significant increase in our

listing program for this fiscal year, about a 31 percent increase. It’s
22

not going to be sufficient to be able to remove the entire backlog,

not close, but it is a significant increase to our listing program capability. Hopefully, it will give us the ability for next fiscal year to

be able to have some amount of funding that we would have discretion to apply to those listing actions of the highest biological priority, whether it is processing a petition from citizens to list or to

actually prepare a proposed listing rule.

This fiscal year, we find ourselves in the uncomfortable position

of having essentially every dollar that has been appropriated committed to a listing action, most of which are for designation of critical habitat for a species already listed. These are actions that are

required by court order or under a settlement agreement. So we

have no dollars available to process a citizen petition or add a species to the list, or to otherwise be able to carry out the other parts

of our listing program.

The listing cap language that we requested was to have Congress

recognize the backlog, the fact that the appropriation was not going

to be enough to remove the backlog entirely, and to give us direction on how to spend the money that Congress provides: first, to

comply with existing court orders and then to apply the remainder

to listing actions that are biologically prioritized as opposed to having our priorities set by whichever court renders a decision on an

order first.

Senator GRAHAM. Thank you. I do have just one other quick

question I wanted to throw out to both of you, and that is: I noted

that last week the U.S. Fish and Wildlife Service made a finding

that there was a listing of a distinct population segment, or a DPS,

of the western sage grouse that was warranted. I appreciate, Mr.

Frazer, your explanation of use of distinct population segments in

listing, but, as you probably know, a lot of debate circles around

the use of distinct population segments in endangered species listing actions. Listing of distinct population segments certainly comes

across as something that is highly subjective—to the point that, in

fact, in 1979 this committee directed the Services to use this technique sparingly, which I think is the exact word that was used.

I would like each of you to respond to whether you believe that

your respective agencies are following that guidance from the committee, that they are using distinct population segments sparingly.

Mr. FRAZER. I think that we are, in that we interpreted the intent of Congress to the best of our ability and issued a joint policy

with NMFS that was designed specifically to provide direction to

our field people and managers about how you make a determination of whether an entity is a distinct population segment and appropriate for listing under the Act.

Since the DPS policy was issued, the U.S. Fish and Wildlife Service has listed about 14 DPS’s, which is about 3 percent of the species that were listed during that period. Of these 14, at least 4 of

them were listed as a DPS so that we could exclude populations

that had been established through artificial means or outside of

their historic range, or they involved intergrades with other more

abundant populations, so that they didn’t require the protection of

the Act. So our use there of DPS’s was to actually ensure that the

protections provided under the Act were focused upon those parts

of the species’ range that were at risk.
23

I think that the application the Service has made of the DPS policy has been with full knowledge of the direction of Congress to use

it sparingly.

Senator GRAHAM. Mr. Knowles.

Mr. KNOWLES. I would also agree that we have used this discretion sparingly. We have long been aware of the need for a careful

interpretation. In 1990, we received a petition to list five stocks of

Pacific salmon and had to come up with a rigorous way of how to

apply the DPS policy to Pacific salmon. We published an interim

policy, and over the 2 years between 1990 and 1992, we did a fair

amount of public interaction, convened workshops, published scientific papers, etc., and put out a final policy on the use of

evolutionarily significant units in November 1991 applying the definition.

Then, in collaboration with the U.S. Fish and Wildlife Service, in

1994, we started and worked for 2 years on a final DPS policy. We

do have 26 of our 55 or so listed species listed as distinct population units, or ESUs, because of the Pacific salmon. Except for Atlantic salmon, we don’t have any other species listed as a DPS, although I think we have one in the pipeline.

Frankly, as the science evolves, and we are increasingly aware

of the biological basis for distinguishing populations, we find ourselves confronted with the issue more significantly now than in the

past. For example, recent advances in our understanding of the genetic structure of sea turtles indicate that there are genetically

unique populations that may require different recovery strategies.

Senator CRAPO. Well, thank you. Because of time, we are going

to have to move on, but I would like to thank this panel for coming

before us today and excuse you. We appreciate your testimony and

appearance.

Our second panel—and please come forward—is Dr. Deborah

Brosnan, who is the president of Sustainable Ecosystems Institute

in Portland, OR; Dr. David Wilcove, who is a scientist with the

Wildlife Program for the Environmental Defense in Washington,

DC, and Dr. Lev Ginzburg, a professor at the Department of Ecology and Evolution at the State University of New York at Stony

Brook.

We appreciate your being here. I would like to remind you of the

need to watch the lights here on the clock, so that we can have an

opportunity to discuss matters in our dialog with you.

With that, why don’t we proceed with you, Dr. Brosnan.

STATEMENT OF DEBORAH BROSNAN, PRESIDENT,

SUSTAINABLE ECOSYSTEMS INSTITUTE, PORTLAND, OR

Dr. BROSNAN. Thank you. Good morning. I am Deborah Brosnan,

president and founder of Sustainable Ecosystems Institute. The Institute is a public-benefit, nonprofit organization that provides impartial, scientific support for conservation. We’re nonpartisan and

we seek science-based, cooperative solutions that benefit both the

environment and the human communities that depend on it. Currently, over 300 scientists work with the Institute to provide support to the Government, to the private sector, and to citizen groups.

Now in recent years, there’s been extensive comment and critique of management under the Endangered Species Act. There are
24

calls for wider and more effective use of independent and certainly

impartial scientific analysis. Of course, U.S. Fish and Wildlife Service and National Marine Fisheries Service have committed to the

use of scientific excellence and, indeed, they employ many fine scientists.

However, they would probably be the first to acknowledge the

need for more resources and for better integration of their efforts

with the Nation’s other scientific resources. This is a point of view

shared across the political spectrum.

Central to the idea of improving ESA science is the concept of

peer review. Peer review is a scientific equivalent of quality control.

It’s our profession’s established method of ensuring that analyses

are carried out properly, so the best data are used, and that the

conclusions drawn are appropriate.

It’s already the policy of NMFS and U.S. Fish and Wildlife Service that important decisions such as listing actions are subject to

external peer review. However, the widespread calls for increased

peer review, as outlined in my accompanying table, testify to the

general feeling that a more systematic and open process is desirable.

At least 63 diverse groups are all calling for peer review, and the

detailed information in the table is revealing. Essentially, each

group wants impartial review of actions affecting their primary

concerns. So, for instance, resource users tend to call for review of

listing actions while environmental groups favor review of habitat

conservation plans and recovery plans.

The groups are, however, united in their common belief that an

independent review would lead to better decisions and more effective management and conservation. Scientific peer review can, indeed, be of great use, and there’s nothing to fear from the process.

However, it is important to have a well-thought-out and a systematic process. Bad peer review is worse than no peer review.

In the past few months SEI has begun a pilot process to assess

the U.S. Fish and Wildlife Service with peer review. This is a pro

bono effort by our scientists, and it supports the Service’s existing

policies and processes. It’s early days in this experiment, but we

can provide some information on success rates.

Now in the accompanying graphic that is up here, I want to show

you first that the Service has diligently been seeking independent

peer review—this is the blue columns on the left—often without recourse to SEI’s help. Their success rate has varied. Sometimes they

have been successful, but other times they failed to get the cooperation of independent scientists.

For instance, on critical habitat are the Arkansas Shriner, the

desert bighorn, and the California gnatcatcher, all affecting huge

areas of habitat, not one single scientific review was received from

any of the 17 scientists approached by the Service. Yet, the Service

had to, and did, make a decision.

The Institute usually has higher success rates for our program

with the Service and for other reviewers. Typically, we have obtained a 96 percent success rate, response rate. I believe our success can be explained by several factors.

As practicing scientists, we speak the same language as scientists and can explain the needs and the uses of science. We have
25

an infrastructure that insulates scientists from political issues and

pressures, and we also reward scientists both professionally and financially.

Peer review, however, is not a panacea. As I have previously outlined in an article in the National Academy Journal, simple extension of the academic model of peer review to applied management

decisions won’t work. Peer review itself needs to be re-examined

and carefully designed in order for it to be effective.

For instance, peer review in public decisionmaking cannot be

anonymous as it is in academia. Decisions have to be made even

when the science is incomplete or we are going to face paralysis or

analysis, and clear roads must be defined for the scientists as well

as for the decisionmakers.

The lessons we have learned so far have been useful. Working

within existing policies of the regulatory agencies, peer review can,

indeed, contribute to effective management. Academic models of review and existing infrastructures, however, are insufficient for the

task. With U.S. Fish and Wildlife Service and our other partners

in academia, we have begun to build process that includes the necessary structures, and improvements are definitely possible.

Resources will be needed. We have, for instance, estimated that

a national peer review program would cost $3 to $5 million. Of

course, we’re estimating as a nonprofit, which means we cost less

than a Federal agency.

Peer review is a serious and professional undertaking. An ad hoc

or poorly thought-out approach will lead to frustration. However, if

properly implemented, peer review can contribute much to ESA

and to other natural resource decisions.

Thank you for your time and the opportunity to address the committee.

Senator CRAPO. Thank you very much, Dr. Brosnan.

Dr. Wilcove.

STATEMENT OF DAVID WILCOVE, SENIOR ECOLOGIST, WILDLIFE PROGRAM, ENVIRONMENTAL DEFENSE, WASHINGTON,

DC

Dr. WILCOVE. Thank you very much. I’m David Wilcove with Environmental Defense.

I think there are really two essential questions that we have to

face pertaining to the listing process. The regulated community understandably wonders, are all of these species on the endangered

list really in trouble? Do they really belong there? And conservationists wonder, well, how many really rare species are there that

haven’t made it onto the endangered list? Fortunately, we have empirical data with which to examine both questions, and the answers

are, yes, the species on the endangered list really do belong there,

based on the best available information and, yes, there are lots and

lots of rare species that deserve to be on the list but haven’t made

it there yet.

Because the statutory guidance as to what constitutes an endangered or a threatened species is pretty vague, I think it is worth

examining the Service’s track record. In 1993, we published a study

in the journal Conservation Biology in which we looked at the population sizes of plants and animals that were added to the endan-
26

gered species list between the years 1985 and 1991. What we found

was that the median population size for an animal going onto the

list was less than a thousand individuals, which means that half

of the animals that we add to the list are rarer than giant pandas

are today. The median population size for plants going onto the list

was fewer than 120 individuals. In short, we found that in essentially all of the cases we examined the empirical evidence in support of an endangered or threatened status was strong.

More recently, scientists at the National Center for Ecological

Analysis and Synthesis have repeated our work using more recent

data from 1996 to 2000, and they find that the situation hasn’t

changed. What we’re adding to the list are species whose numbers

have reached a critically low point.

Of course, sometimes after you list a species, you go out and you

discover additional populations, but we could only find 5 out of

1,200 cases where enough new populations have been discovered to

warrant taking the animal or plant off the list because it was clearly an erroneous decision. We’re dealing with a low error rate here.

On that second question, as to whether there are lots of species

that haven’t made it on the endangered list but deserve to be there,

we are actually fortunate that there is a new source of information

out. I call your attention to the book, Precious Heritage: the Status

of Biodiversity in the United States, which was produced by the

Nature Conservancy and the Association for Biodiversity Information. It really represents, I think, the most complete and up-to-date

assessment of the status of American wildlife.

The Nature Conservancy and the Association for Biodiversity Information classified the plants and animals of the United States

with respect to their rarity based on the numbers of known individuals and the numbers of populations of these species. It brings together data from all 50 States and the natural heritage programs.

The Nature Conservancy and the Association for Biodiversity Information have identified well over 3,000 plants and animals in the

United States that by any reasonable scientific standard should be

on the endangered species list, and, in fact, that is more than double the current total for the list. So I don’t think there is any doubt

that we have a large number of imperiled species that are out

there that haven’t made it onto the list. The question is: What can

Congress do about this?

I would suggest that, although the number of erroneous listings

is quite small, Congress could reduce that even further by providing additional funds for biological inventories and for monitoring, because, after all, better information will produce more accurate listings.

On the matter of the backlog of deserving but unlisted species,

let me make this suggestion. I think we can conservatively assume

a backlog of about 2,000 species. At the current rate at which we’re

adding them to the endangered species list, it is going to take over

30 years to clear up that backlog. But we might set a goal of erasing the backlog within about a decade, and to do that I suggest

Congress would want to approximately triple the amount of money

that it provides for listing activities to about $20 million in the

next fiscal year. I would suggest that the penalty for not doing that

might well be the extinction of some of these plants and animals.
27

Thank you.

Senator CRAPO. Thank you very much, Dr. Wilcove.

Dr. Ginzburg.

STATEMENT OF LEV GINZBURG, PROFESSOR, DEPARTMENT

OF ECOLOGY AND EVOLUTION, STATE UNIVERSITY OF NEW

YORK AT STONY BROOK, AND PRESIDENT, APPLIED BIOMATHEMATICS, SETAUKET, NY

Dr. Ginzburg. Thank you, Senator Crapo. My testimony relates

to consistency and transparency of the listing rules. I am sort of

representing the science of ecological risk analysis here and the

ideas of quantitative thresholds and clarity in the rules.

Certainly, the determination of endangerment status is the critical for the objectives of the Endangered Species Act. Yet, the protocol that used currently by U.S. Fish and Wildlife Service has

been commonly criticized for being arbitrary because of lack of clarity in the law.

Risk-based criteria have been used in other environmental areas.

There is a famous 10 to the ¥6 in human health, one in a million,

if you’re not familiar with that, and there is a famous 10 to the ¥5, I think, in the chances for meltdown for nuclear reactors per

reactor per year. Those 10 to ¥6 and 10 to ¥5 didn’t come easy,

but they come through guidelines. This was not legislation. This

was guidelines issued by the Nuclear Regulatory Commission and

corresponding executive parts of the Government.

I think similar action can be attempted here. I’m not sure that

it is necessary to change the whole Endangered Species Act. It may

be sufficient to clarify it by appealing to scientifically based quantitative thresholds.

The example that I want to bring is a positive example of the socalled IUCN criteria. IUCN used to stand for International Union

for Conservation of Nature. Now it is called World Conservation

Union. It is based in Switzerland. It is an international organization of conservation biologists. The rules that they develop are in

practice in about 20 countries, some as laws, some as guidelines,

throughout Europe, Asia, Australia, New Zealand. It’s widely used

rules.

The World Conservation Union is an independent organization,

but what they say is respected around the world. They have been

publishing some Red Data Books from the 1960’s, close to 40 years.

The criteria that are in place right now, well, they are slightly different from what we have—we have two categories; they have

three—are based on 12 quantitative estimates. I don’t have time to

explain all of them, but the most important one is be a risk factor.

For instance, a 10 percent risk of extinction in 100 years is the

threshold of the minimal listing. So below 10 percent risk in 100

years is a safe level. Ten percent and above, indicates a vulnerable,

threatened, endangered species.

The numbers didn’t just come from nowhere. There were tremendous negotiations by biologists around the world. The logic of the

rule is pretty involved. Two out of three things should be correct,

and if this is right or that is right, then you move to the next line.

But the important thing about these rules: They are very transparent; they are clear; they are consistent; they’re accepted by the
28

world. Of course, we are still measuring in inches and pounds. We

don’t necessarily do what the world does in the United States, but

it might be good to look at what has been done.

These rules are doing quite well. They are extremely efficient

from the point of view of the efficiency of listing process, I think

about 10 times more efficient, I would say. They have analyzed and

reviewed, not necessarily listed, analyzed 18,000 species in 5 years,

and they continue to do that and regularly publish updates like

this. A crude estimate of wildlife efficiency of what we do per year

for the last year, 10 times would be a good estimate. The reason,

of course, is the clarity of the rules that allows it to be used efficiently.

So I would suggest that we take a good look at these rules and

try to evolve our system so it is more clear along this line, not necessarily adopting them literally, but generally moving along that

line. If we do that, we would improve the listing system, make it

more efficient, clear, transparent, and, hopefully, cut down those

lawsuits that you mentioned, because I think the rules should be

such that any individual or organization which wants to know

whether this species has to be listed or not one way or the other

has to come out with the same answer, using the same information.

Senator CRAPO. Well, thank you, Dr. Ginzburg.

Let me begin the questioning with you, Dr. Brosnan. As you indicated in your testimony, there are some disincentives for effective

peer review in the system that we now use. You have covered this

in some of your written and your oral testimony already, but I

would like to ask you to just kind of summarize for me, how do we

remove some of these disincentives, so that scientists are more willing to engage in peer review? How do we motivate scientists to provide those reviews?

Dr. BROSNAN. I think the first thing is to understand the scientific or the academic culture. There are few rewards for scientists

who engage in public service. In fact, there are major disincentives.

It doesn’t count toward tenure or promotion. It is viewed as time

taken away from publishing or doing basic research.

What we have found is that you need to provide rewards that are

appropriate to the profession. In our case we found that, for instance, a letter from the member of the National Academy of

Sciences or a senior scientist in that scientist field that goes in the

file can be very effective and can be an incentive.

Second, a financial reward is an incentive for two reasons. First,

it speaks to the seriousness of the effort and, second, it recognizes

the professionalism of the scientist and the professional duty that

they are performing.

A third issue that we found important is to provide an insulation

or a buffer. Many scientists don’t want to be dragged into a process

that goes on for years where they are taken into court, set up

against dueling scientists, and where their credibility as a scientist

becomes questioned by one side or another. If you can provide a

buffer that insulates a scientist from that process, that is very effective.

From the point of view of peer review, it is also important to in

one sense dissuade the scientist and find they become a manager.

As scientists, we’re used to making decisions and making state-
29

ments that we expect the world to follow. It is important to keep

a clear distinction between scientific input and a management decision.

Senator CRAPO. Thank you very much. Who should provide and

administer the peer review system?

Dr. BROSNAN. I think you have to recognize what you want from

the peer review system. From what I can see, you need three main

things. You want scientific excellence. You want scientific credibility and impartiality, and you want practical use from peer review. Peer review is not going to be used just for an academic publication. It is going to be used to make a natural resource decision

that has huge impacts on society.

Finally, you want buy-in from the stakeholders into the peer review process. Some of the models that have been proposed, S.

bill 1180, I think, suggests that the National Academy of Sciences

should run peer review. I don’t think that is a very good idea for

two reasons. One, the Academy tends to deal in broader issues and

have a much longer timeframe in producing its reports. Second,

many of them are not familiar with the practicality side of natural

resources. The academic model, again, lacks the practicality and

also the reward structure, and it is a very different system.

I think what we need is a new infrastructure. We need a National Center for Peer Review that allows a scientist both to be

independent, credible, and buffered.

Senator CRAPO. Thank you very much.

Dr. Wilcove, first of all, I have a note here that says that you

are an affiliate professor with the University of Idaho; is that

right?

Dr. WILCOVE. That is correct, Senator.

Senator CRAPO. Your stature has just increased. I’m glad to know

that.

[Laughter.]

As we have been discussing with Dr. Brosnan the question of

peer review, would you comment on the issues she has raised? Do

you agree with those? Or do you feel that we can address it in a

different way?

Dr. WILCOVE. I am certainly not opposed to peer review. I think

it is a good idea. Unfortunately, a lot of people in my field of ecology steer clear of doing anything that’s terribly useful or practical

like peer review. I think Dr. Brosnan has outlined some of the reasons why that is the case.

My suggestion would be to keep the administration of a peer review system within the Services because I think they can do it better and more efficiently than some outside entity which is not tied

into the movement of the various listing proposals and the like.

Having said that, I have to emphasize again that the track

record of the Services from a scientific perspective isn’t bad. We’re

not dealing with agencies that are making a lot of errors in terms

of putting undeserving plants and animals on the list. So I have

to say that it would not be my top priority to address. Frankly, I’m

more concerned about the lag time or the delay in getting species

that are in trouble onto the list.

Senator CRAPO. Let me ask you a question in that context. You

heard me earlier, I assume, discuss the volume of litigation that
30

the Service is now dealing with. I assume from you’re testifying

that your position would be that that litigation is a result primarily

of the fact that the Agency or the Service is not getting to the

issues quickly enough, but let me ask you in your own words to tell

me, why do you think we have so much litigation over the listing?

Dr. WILCOVE. Well, I think it fundamentally stems from the fact

that this is a big country with an awful lot of wildlife resources

that has had a booming economy for a long, long time. That means

we have a large number of plants and animals that are at some

risk of disappearing. These are problems that have built up literally over the course of a couple of centuries, and we have been

running the Endangered Species Act since 1973 and listing species

at what we think is a rapid rate, but, in reality, it is not relative

to the need out there. So there isn’t going to be an easy way to get

out of that.

I am certainly sympathetic to the Service’s dilemma now and I

would very much like to see more of these rare and often ignored

species get on the list. My thought would be, let’s try to address

this by giving them significantly more resources to do that sort of

work than we have previously given them. Even the increase that

the Services received in the current fiscal year is still small relative

to the need that is out there.

Senator CRAPO. Thank you. Let me ask you just one other quick

question. I don’t know if you have read it, but you heard Dr.

Ginzburg’s testimony about the potential to objectify the process

and make it more scientifically evaluatable. Would you support objective criteria for listing and delisting?

Dr. WILCOVE. Two thoughts on that: First, I actually compared

the track record of the Service against the criteria that Dr.

Ginzburg talked about. Indeed, the species that they are putting

on, by and large, fall within the categories of endangerment that

the World Conservation Union outlines. So if we had objective criteria in place, we probably would not be throwing out very many,

if any, of the species that are currently on the list.

Having said that, I think those criteria are thoughtful and very

useful, and I would not be opposed to raising with the Services the

possibility of incorporating them in their listing decisions.

Senator CRAPO. Thank you.

Dr. Ginzburg, I found your testimony to be very interesting. I am

wondering, would you support that the same criteria be used for

delisting as would be used for listing?

Dr. GINZBURG. Certainly. I think that they are clear and quantitative, unless something comes off.

Senator CRAPO. I think that the method that you suggest for determining a level of risk would be useful, although I remain concerned about the question of whether we have sufficient data or

adequate science. It is a question that is often thrown up to us.

How can the objective method that you talked about actually work

when, as so often happens, we have major gaps in the data?

Mr. GINZBURG. Well, it is better to have clear uncertainty in

quantitative data than an unclear, poetic statement of the Act. I

guess in the recent Presidential election, we all heard about the

fuzzy math—remember—that both candidates used? It actually is

an area of mathematics for about 30 years called fuzzy arithmetic.
31

Senator CRAPO. Oh, is that right?

[Laughter.]

Dr. GINZBURG. Yes, it exists for 30 years. While we have been

working on this, an application of this, through the listing, I am

applying this algebra sort of of uncertain numbers. What it is concerned with is how to do judgments and mathematical operations

with unclear values. They are still values. They are more than

words—— Senator CRAPO. Trying to objectify something that isn’t really

subject—— Mr. GINZBURG [continuing]. But the values have uncertainties associated with that. So fuzzy math is not just a joke in the election.

It is also a serious branch of mathematics.

Senator CRAPO. It’s actually called fuzzy math, huh?

Dr. GINZBURG. Yes, it is called fuzzy mathematics and it was invented in the United States about 30 years ago.

Senator CRAPO. Well, that is very interesting. It is a good thing

you didn’t bring that up during the elections.

[Laughter.]

Dr. GINZBURG. Yes, I mean, I don’t have time to explain what it

is, but it is pretty easy. In about 10 minutes I could explain, but

I don’t have that.

Senator CRAPO. Well, it just still seems to me that any method

that we use is going to be difficult to fill confident in if we have

major gaps in the data. But you’re telling me that—— Dr. GINZBURG. There is a way, and, also, the IUCN ruled specifically under their five categories of questions: How many individuals are left? How many populations are left? Whether the decline

is more than so much percent over the next 30 years, and so on.

There are various questions, but they recognize the data may not

be sufficient to answer all of them. So they allow the decision to

be made on part of them. So if you only know about the abundance

or only about the decline or only about the geographic spread, the

listing still takes place.

In fact, as you have more information, you could sort of read it

back and see which of the five criteria pushed you into that category because the others may say classified is OK and that one

may be vulnerable, things like that. But the absence of information

does not prevent listing or delisting. That is how IUCN rules have

been applied consistently for many years.

Senator CRAPO. OK, well, that makes sense although it still

seems to me—and maybe it is just a problem that we will have—

as long as we don’t have the absolute data, whether we try to

objectify the decision or subjectify the decision, we still live with it.

All right. Well, again, we’re running short on time. I wish we go

further, but I would like to thank this panel for both your written

and your oral testimony and for your input into our decisionmaking. Thank you very much.

I would like to call up our third and final panel: Mr. John

Echeverria, who is the director of the Environmental Policy Project

at Georgetown University Law Center; Mr. Steven Quarles, counsel

for the QuadState County Government Coalition and American

Forest and Paper Association; Mr. Steve Moyer, the vice president

of Conservation Programs at Trout Unlimited; Mr. Ralph Moss, di-
32

rector of Government Affairs at Seaboard Corporation, and Mr.

Zeke Grader, executive director of the Pacific Coast Federation of

Fishermen’s Associations.

Gentleman, we appreciate your being with us and we will proceed in the order that I read your names, which will be from your

right across the table. Again, I would like to remind you as well

to try to remember to watch the lights here, so that we can have

an opportunity for discussion.

Mr. Echeverria.

STATEMENT OF JOHN ECHEVERRIA, DIRECTOR, ENVIRONMENTAL POLICY PROJECT, GEORGETOWN UNIVERSITY LAW

CENTER, WASHINGTON, DC

Mr. ECHEVERRIA. Thank you, Mr. Chairman. My name is John

Echeverria, and I’m the director of the Environmental Policy

Project at Georgetown University Law Center in Washington, DC,

where I am also an adjunct professor. I appreciate the opportunity

to be here.

My written testimony addresses a number of issues, and I would

be happy to discuss those. But I thought in my brief oral testimony

I would focus on the issue of citizen suits.

The Administration’s recent budget submission to Congress includes a proposal that would prevent citizens from continuing to go

to Federal court to enforce deadlines in section 4 of the ESA for the

listing of threatened and endangered species and for the designation of critical habitat. In my view this proposal is unwise for two

reasons. First, it would destroy one of Congress’ most valuable tools

for ensuring that Federal agencies comply with the ESA as Congress intended. Second, it fails to address the most obvious solution

to the growing volume of ESA lawsuits being filed against the

agencies.

As an attorney, I acknowledge that lawyers and lawsuits are at

best a necessary evil. In an ideal world there would be little or

none of either one of them. Unfortunately, this is not an ideal

world, and I think we all recognize that lawyers and lawsuits are

necessary for a variety of purposes, including the vindication of

public and private rights. And I’m sure, whatever else Mr. Quarles

has to say, that he will agree with me on that.

The legislative history of the ESA makes clear that Congress included a specific provision authorizing citizen suits for a very sensible reason. As the committee is aware, Congress has the opportunity to act on major legislation such as the ESA on a relatively

infrequent basis. Therefore, an obvious concern for Congress has

been what steps the agencies will take or will not take to implement the law during the long periods when Congress is focusing on

other issues. Unfortunately, experience has shown that coalitions of

regulated businesses tend to exert enormous influence by lobbying

the agencies to delay implementation of the law or to adopt

strained interpretations of the law that will lessen their regulatory

burdens. These efforts are countered to a limited degree at least by

environmental advocates who attempt to speak on behalf of the

broad public interest protected by the law. Unfortunately, concentrated wealth and power frequently prevail over the broad public interest in this process. Academics talk about this phenomenon
33

using fancy terms like the collective action problem and agency

capture. Most citizens simply understand that money talks.

Citizen suits provide Congress a solution to this problem. By empowering individual groups and citizens to directly enforce the law

as Congress has written it, Congress creates an important check on

the agencies’ ability to subvert Congress’ will. The goal is not, as

some have suggested, to set up the courts as the arbiters of environmental disputes or to assign citizen groups around the country

some special policymaking responsibility. Instead, the goal is simply to use our established judicial procedures to see that Congress’

will is carried out. In many cases the mere threat of successful litigation can prevent an agency from flouting the will of Congress

and avoid the need for actual litigation.

Mr. Chairman, you asked the question, why is there so much litigation? The obvious answer is the enormous backlog of species listings and habitat designations that need to be carried out according

to the standards and schedules that Congress included in the Endangered Species Act.

There has been a lot of criticism of litigation as a serious problem. But it seems to me that describing ESA litigation as a problem is a little bit like blaming the canary in the coal mine for

chirping a little two loudly. The volume of litigation in this country

over the ESA is, in my judgment, less a problem than a symptom

of a problem.

I also want to observe that with respect to the Administration’s

proposal it is fair to observe that we have already been there and

done that, so to speak. Prior to 1982, the Endangered Species Act

did not have the kinds of specific enforceable deadlines that it has

today. Under the earlier regime the agencies got very little done.

As the legislative history of the 1982 amendments to the ESA reflects, Congress included enforceable deadlines in order to move the

agencies along.

Finally, I would simply observe that, if the Administration’s objective is to avoid unnecessary litigation rather than to gut the

ESA, a ready solution is at hand: increased appropriations to address the backlog of ESA listings and habitat designations.

I understand that the U.S. Fish and Wildlife Service has estimated that a relatively modest $120 million over a period of years

would eliminate the backlog and thereby eliminate the basis for

many of the suits being filed. As compared to eviscerating the citizens’ suit provision, increased funding levels will allow Congress to

reduce the volume of litigation against the agencies while simultaneously preserving an important tool to prevent agencies from ignoring congressional mandates.

Thank you, and I will be happy to respond to any questions.

Senator CRAPO. Thank you very much. And it is ‘‘Echeverria’’?

Mr. ECHEVERRIA. Echeverria.

Senator CRAPO. I’ll get it right. I’m sorry.

Mr. Quarles.
34

STATEMENT OF STEVEN P. QUARLES, COUNSEL, QUADSTATE

COUNTY OF GOVERNMENT COALITION AND AMERICAN FOREST AND PAPER ASSOCIATION, WASHINGTON, DC

Mr. QUARLES. Thank you. It’s a pleasure to be here. I am representing the American Forest and Paper Association and the

QuadState County Government Coalition, a coalition of six counties

in four States that share portions of the Mojave and the Colorado

Deserts.

Certainly the issue on which this subcommittee has chosen to

hold a hearing is absolutely timely. Over the 3 decades since enactment of the Endangered Species Act, we have had many disputes

over individual determinations of species’ listings, but now for the

first time, I think, we are beginning to see real contention over the

basic process of listing, including the underlying science and law.

That certainly has been heightened first by the announced moratorium of the Clinton Administration on consideration of new listings

other than those required by court order, and then by the legislative language that is contained in the Bush budget proposal.

What I would like to talk about in my short time is the

overbroad definition of species eligible for listing. I am going to emphasize the authority to list distinct population segments of

vertebrates; efforts by Congress and this committee to restrict the

use of that authority; how the authority has been expanded by the

U.S. Fish and Wildlife Service and National Marine Fisheries Service well beyond the expectations of Congress, and, in particular,

this committee; and the infiltration of that concept into other Endangered Species Act decisionmaking and listing. I also probably

will not have time, but do have suggestions for at least a couple

of ways of addressing these problems.

The Endangered Species Act, as has been noted, has really an

unusual definition of species. It’s not only true biological species,

but recognized subspecies and distinct population segments of

vertebrates. This is not the first definition of species in the ESA.

In 1973, when the ESA was first enacted, the definition was very

liberal. It included populations in common spatial arrangement. By

1978, Congress had had second thoughts about that very loose and

liberal definition of populations of sub-subspecies category and

passed what is now the definition of species that includes distinct

population segment.

But that whole definition of sub-subspecies still met with criticism, including withering criticism from the General Accounting

Office in their well-known ‘‘squirrels in the park’’ analogy in which

they said in testimony before this committee, ‘‘The squirrels in a

specific city park could be listed as endangered even though an

abundance of squirrels lived in other parks in the same city and

elsewhere.’’ This committee in 1979, in considering the 1979 amendments,

decided to retain that definition even though the GAO had asked

that the sub-subspecies category be deleted, but did issue a stern

admonition to the Services, one you mentioned earlier, ‘‘The committee is aware of the great potential for abuse of this authority

and expects Fish and Wildlife Service to use the ability to list populations sparingly and only when the biological evidence indicates

such action is warranted.’’
35

I would argue the Services have used the authority unsparingly.

The two policies that they put out in 1991 and 1996 have been

criticized by environmental lawyers, including Dan Rohlf, as rife

with discretion. The policies do nothing to limit and arguably substantially expand the authority to list distinct population segments—and, indeed, are expanding such listings rapidly.

In the last 5 years the Services have listed 38 distinct population

segments, five times the number they listed in the previous 5

years. There are 35 distinct population segments in the rulemaking

pipeline.

How have the Services been able to expand this authority? Well,

first, there is no scientific agreement on the distinct population segment. The Services stated in the preamble to their policies: ‘‘Available scientific information provides little specific enlightenment in

interpreting the phrase ‘distinct population segment.’ The term is

not commonly used in scientific discourse.’’ The National Research

Council admitted, even as it proposed a distinct population segment concept of its own, that such a concept was more a matter

‘‘of judgment’’ as much science. And Congress is complicit. Congress

has chosen not to define distinct population segment, and the legislative history provides no real guidance.

Examples of abuse are many. We have seen the designation of

distinct population segments in the lower 48 States without any

discussion of reproductive isolation, biological distinctness, or problems of abundance outside of the United States.

We have also seen one other misuse—significant misuse—of the

distinct population segment concept, and that is designating distinct population segments, or all but designating distinct population segments, after the listing is completed. The Services list a

species, subspecies, or a large population, but then engaged in decisionmaking under provisions throughout the rest of the Endangered Species Act on smaller populations that never more considered in rulemaking, never were the subject of notice and comment

and public participation. They divide what was a species or a subspecies or a large population segment into smaller recovery units

in the recovery plan each of which is subject to a separate recovery

goal, thereby extending the time in which the species remains on

the books as a threatened species or an endangered species, and

they also divide them into smaller populations when undertaking

section 7 consultations thereby making it easier to find jeopardy—

both clearly problems for landowners and private property interests.

I do have some suggestions for change which I would be happy

to share with the committee at the appropriate time.

Senator CRAPO. Thank you, Mr. Quarles.

Mr. Moyer.

STATEMENT OF STEVEN N. MOYER, VICE PRESIDENT OF CONSERVATION PROGRAMS, TROUT UNLIMITED, ARLINGTON,

VA

Mr. MOYER. Thank you, Mr. Chairman, Mr. Crapo. I really appreciate the opportunity to be here today to represent Trout Unlimited. Trout Unlimited is a national fisheries conservation group

dedicated to protection and restoration of the Nation’s trout and
36

salmon species and the watersheds on which they depend. We have

130,000 members in about 500 chapters across the country, and

our members generally are trout and salmon anglers who contribute a lot of their time and money back into protecting and restoring a resource that they love.

Because of declining populations of native trout and salmon

across the country, especially in the West, our members increasingly rely on the provisions of the Endangered Species Act to protect trout and salmon. So TU supports the Endangered Species Act

and considers it to be one of the most important laws that we have

for protecting and restoring trout and salmon populations.

I just wanted to begin by expressing my thanks to you, Mr.

Crapo, for supporting the Snake River salmon appropriations package that you did. I think that is a bold step and very constructive,

and fitting with your longstanding interest in that issue.

Senator CRAPO. Thank you.

Mr. MOYER. Now let me get straight to summarizing my summary by making the following statements.

TU believes that the listing and delisting processes as written in

law are fundamentally sound. Implementation of the processes by

the agencies is slowed unacceptably because of the huge listing

backlogs and insufficient funding, most importantly. Implementation of the listing process clearly needs to be improved, but in our

view the solution to the problem is not to weaken the process legislatively or administratively, but rather it is for the Bush Administration to propose and Congress to appropriate additional funding

for listing decisions.

On the question of science, in our experience, applying sound

science to listing and delisting decisions is not a substantial problem. We think the Services generally work very hard at getting the

science right and giving people adequate chance to comment upon

it.

Just on the current proposal that is before us that has been discussed, we don’t support the current Bush Administration proposal

to, among other things, restrict citizen lawsuit enforcement of the

listing deadlines. And, again, what we think is the right thing to

do is to, instead, appropriate a significant increase for listing.

Finally, one thing that I really wanted to raise, because I don’t

think it has been raised before, is that there are a number of good

opportunities for the subcommittee and the committee that the

committees can avail themselves of to really get at the root problem that we are talking about today, which is the substantial declines in species populations across the country. That is to support

conservation initiatives other than in the Endangered Species Act

which could actually reduce the need to list species in the first

place.

Three examples that I talked about in my testimony were the

CRA, the Conservation Reinvestment Act, the Fishable Waters Act,

and front and center are the conservation programs under the farm

bill. These are three pending issues that the committee will be

looking at that could really get at the root problem.

A couple of other points I would like to elaborate and emphasize,

and first is declining populations, especially of fish and wildlife.

Populations of species that are vital to sport and commercial fish-
37

eries are reaching threatened and endangered status, and there are

now 33 species of trout and salmon that are listed. These range all

the way from the rivers of Maine, where Atlantic salmon are listed,

to bulltrout of the intermountain West, to the Pacific salmon of the

Northwest and California.

The ESA listing and delisting processes are fundamentally

sound, we think, as I mentioned before. Congress wisely stated that

the decisions to list or delist species should be based solely on the

best available science. In our experience, the Services generally

have used this authority appropriately. We have had disagreements with the agencies over their interpretation of the science,

but in the main they have done a respectable job.

Similarly, ESA’s mandate to protect distinct population segments

is a wise, essential conservation tool, especially for species such as

trout and salmon, which consist of an array of populations like fibers in a tapestry that give resilience and strength to species.

These populations provide the genetic fitness that species need to

survive the vagaries of weather, environment, and human-contrived obstacles that threaten them.

Conservationists would generally like to see National Marine

Fisheries Service, for example, segment out the distinct populations

even further, because biologically it probably would be a helpful

thing to do in some cases. But, while we don’t always agree, again,

we will continue to debate these issues. We respect that the agencies have a difficult job to do in making these decisions and they

are trying hard to do them well.

I just wanted to end by making two more points. One is that listing of trout and salmon has benefited all the species that have

been listed. There’s some thought that, because there have been so

few delistings, that the species perhaps haven’t benefited by listing.

In fact, in our experience, all the species that have been listed have

gained some benefit.

Two I will mention in particular are the greenback cutthroat

trout in Colorado, the State fish of Colorado, and the Apache trout

in Arizona. Both species, once on death’s doorstep, have now been

restored to the point where very limited, very restrictive catch-andrelease fisheries can occur which provide great economic benefit to

communities and individuals in those States. So there’s two examples where the Endangered Species Act lifting has really helped,

but we think it has helped across the board.

Finally, I just wanted to mention again the opportunity that the

subcommittee and the committee have before them in other areas

besides the Endangered Species Act. The bills that I mentioned before I think are three good examples where the committee could

take very helpful action that would get at the root cause of the listing problem, which is that there’s a whole lot of species that need

to be listed.

So thanks very much for the opportunity to testify today.

Senator CRAPO. Thank you very much, Mr. Moyer.

Mr. Moss.
38

STATEMENT OF RALPH L. MOSS, DIRECTOR, GOVERNMENT

AFFAIRS, SEABOARD CORPORATION, WASHINGTON, DC, ON

BEHALF OF ATLANTIC SALMON OF MAINE

Mr. MOSS. Mr. Chairman, my name is Ralph L. Moss, and I’m

testifying on behalf of Atlantic Salmon of Maine, which is the largest salmon aquaculture company in North America. Seaboard Corporation is a major stockholder in Atlantic Salmon of Maine, and

I have been involved with this issue for the last 7 years. I appreciate the opportunity to testify before you this morning concerning

our firsthand experience with the recent joint decision of the U.S.

Fish and Wildlife Service and the National Marine Fisheries Service to list the Maine Atlantic salmon as endangered under the ESA.

In our particular case, we believe that this Act is being implemented in an arbitrary and heavy-handed manner that is both inconsistent with congressional intent and counterproductive for the

restoration of the species. We would like to be clear that our company is a strong partner in the State of Maine Atlantic Salmon

Conservation Plan and supports salmon restoration in Maine rivers. But, like Maine’s Governor, Angus King, and the members of

our congressional delegation, our company opposes the Services’ decision to list these fish as an endangered species. The listing is fundamentally wrong for scientific, legal, and policy reasons.

Maine salmon runs are restoration fish, the product of more than

120 years of hatchery stocking of non-indigenous salmon into these

rivers and do not qualify as a distinct population segment for ESA

listing. The Maine listing represents a dangerous backslide by the

Services into an inflexible interpretation of the ESA that fails to

honor the State conservation plans and creates an unsustainable

burden on Federal wildlife programs.

It is widely recognized that the Federal Government alone cannot recover endangered or threatened species. The States, with

their traditional authority over wildlife management and land use

planning, are ideally positioned to fashion conservation plans that

are custom-tailored to the resource, its habitat, and local conditions. This is especially true in Maine. Virtually all salmon habitat

is in private landownership, and only the voluntary cooperation of

landowners will enable salmon habitat upgrades.

In Maine’s case, the Services initially recognized the value of the

State’s conservation plan. This plan was developed by a task force

which included Federal fishery scientists. The Maine plan provides

5-year action plan to recover the species with specific priority actions for each of the rivers. The plan gives top priorities to the

projects that directly benefit the resource and provides creative solutions for the agricultural, forestry, and aquaculture areas to minimize stock impacts and disruption of the Downeast businesses.

In December 1997, the Services celebrated the Maine plan as a

national model that would open a new chapter in conservation history. The Services determined that a threatened ESA listing of the

runs was not warranted because the State plan offered sufficient

protections, but less than 2 years later, apparently in response to

pressure from a lawsuit filed by environmental groups, the Services

abruptly reversed course and decided to list Maine Atlantic salmon

as endangered. The Services failed to provide a credible rationale
39

for the listing or to demonstrate any truly changed circumstances

in the status of the Maine run.

The State of Maine put $2 million into their plan. Our company alone put $200,000, at the State’s request, into this plan. This was

for an innovative adult restoration stocking program, raising wild

fish from the river for later release, and natural spawning. Although highly successful to date, the adult stocking program’s future is uncertain now with the listing.

By rushing into the listing, the Services effectively derailed the

State plan. There is no appetite now for dealing with the Services

on the part of the industry. Given their failure to be guided by the

best available science and the poor track record on pragmatic solutions, the Services turned a deaf ear to the ESA mandate that the

best scientific evidence be used to make listing determinations and

failed to heed congressional cautions to use their power to list distinct population segments sparingly.

We heard the Services’ representatives repeat many times in the

Maine listing hearings that, although the genetic evidence was incomplete and that the genetic heritage of the Maine salmon was

not clear, the precautionary principle required that the salmon be

listed, given the low population levels. The agencies’ growing reliance upon the precautionary principle in ESA represents a fundamental conflict with statutory authority and congressional intent

on ESA listings.

I could go on, and I will be allowed during the questions. I hope

to be able to make some suggestions, but I would like to conclude

by saying that we, as an industry, have vowed to work with the

State. We hope that this decision can be reversed, and we are prepared to work with you and your committee on this issue.

Senator CRAPO. Thank you very much, Mr. Moss.

Mr. Grader.

STATEMENT OF ZEKE GRADER, EXECUTIVE DIRECTOR, PACIFIC COAST FEDERATION OF FISHERMEN’S ASSOCIATIONS,

SAN FRANCISCO, CA

Mr. GRADER. Thank you, Mr. Chairman. I appreciate this opportunity to discuss with you today the issues of listing and delisting

of species under the Endangered Species Act. Our organization has

had considerable experience working with the Endangered Species

Act since at least 1986. My organization, as the name might imply,

represents working men and women in the West Coast commercial

fishing fleet. These people depend on fish, the productivity of the

oceans and our rivers, for their livelihoods and they’re food producers.

You have copies of our written comments, which are fairly extensive. Rather than summarize or repeat those, what I would like to

do, rather, Mr. Chairman, is talk about one specific instance, one

particular species, and give an example of what I think works and

doesn’t work with the listing and delisting process. That species I

would like to talk about is the Sacramento winter run chinook

salmon.

This, as you may know, was the first Pacific salmon listed under

the Endangered Species Act, and it actually goes back to the efforts

in 1986. This species, I should add, numbered about 120,000
40

spawners in 1969. This was a unique species along the Pacific

Coast that spawned in the summertime, even during hot weather.

It was a run that Livingston Stone wrote admiringly about when

he first came to the West Coast on behalf of the Fish Commissioner

in 1870. He was looking at problems with Pacific salmon.

Like I said, in 1969 there were 120,000 winter-run chinook

spawners. By 1986 that number had declined to some 2,000 fish.

The warning was sounded by the American Fisheries Society,

which is the professional organization of fishery scientists in this

Nation. That year AFS petitioned for listing of winter-run salmon

under the ESA. They cited the various reasons for the causes of the

declines—everything from warm water releases from a major Bureau of Reclamation reservoir at Shasta Lake, diversions from an

irrigation diversion dam or irrigation projects on the Upper River

that were entraining and putting fish into the fields, juvenile fish;

a diversion dam downstream that was causing problems—creating

habitat for predators, as well as problems further downstream in

the Delta—the Sacramento-San Joaquin Delta, from two major

pumping operations, State and Federal, as well as pollution from

a Superfund site originating at an old mining operation.

Shortly after the petition was filed and a lawsuit was threatened,

the agencies took upon themselves, the State and Federal agencies,

to come together with a 10-point plan for the recovery of these fish.

They looked at some of the issues that the American Fisheries Society had laid out.

But what they came up with was basically what we call the 10-

point handshake. None of it was enforceable except for the restrictions on fishing in the river by the recreational fishermen. Ironically enough, that—the fishing—was not listed by the American

Fisheries Society as one of the problems that had led to the decline

of the fish.

By 1989 the run had declined to 400 fish. The fishery agencies

still had not acted. Finally, the California Fish and Game Commission decided to act and did list the run under the State’s endangered species act, more or less embarrassing the Federal agency

the National Marine Fisheries Service to finally take action.

By 1991 the run was down to 191 fish and was quickly on the

way to extinction. At that point my organization called together the

State and Federal agencies that were responsible. It is ironic that

a group of fishermen has to pull the agencies together, but that’s,

indeed, what happened, and said, we’ve got to do something. We

embarked on a captive brood stock program, among other things,

and started demanding enforcement of actions designed to address

the declines.

Shortly after that, and under some threats from lawsuits from

private groups such as our own, the American Fisheries Society

and some of the recreational fishing groups, the Agency did take

some action against some upstream water diverters. A $100 million

plan was put in place to finally correct a temperature control at the

Shasta Dam, and fish passage at the Red Bluff diversion dam was

taken care of by lifting the gates during critical passage periods.

Moreover, the State and Federal pumps in the Delta were curtailed

during the critical migration periods.
41

What happened, then, is that the Agency did finally act hesitantly when the run was almost near extinction, and we have seen

progress over the last few years. The Act, the ESA, does, in fact,

work to restore fish. I think the winter run are a classic example.

We are up to between an estimated 3,000 to 10,000 fish now. We

are on our way to recovery.

But the concern with all of this is that we have to do something

about getting the agencies to act in a timely fashion, not waiting

until we’re on the brink of extinction before we go to list these fish.

Obviously, more funding is needed in the listing process. But, probably more important, we need funding in the delisting area to

make sure that we can put in place those type of corrections for

addressing habitat and other problems that caused the decline in

the first place, so that we can then promptly and quickly get the

runs back and recovered and then have them delisted. So funds are

needed, yes, for listing, but we also need to be looking, too, as well

as appropriations, to get on with delisting these species. That is

going to take money, Mr. Chairman. Thank you.

Senator CRAPO. Thank you very much, Mr. Grader.

Let me go with my questions. First to you, Mr. Quarles, I wanted

to follow up with the comment that you made when you were talking about distinct population segments. Either in your written testimony or your oral testimony—I can’t remember which—there was

something that caught my attention about the fact that the Services are apparently listing recovery units that are even smaller

than distinct population segments; is that right?

Mr. QUARLES. What they’re doing, which we find very disturbing,

is they will list a species, a subspecies, or a distinct population segment, and then in implementing the rest of the Act, they will adhere to the category or the level that was listed.

Senator CRAPO. Right.

Mr. QUARLES. For instance, with red-cockaded woodpeckers, they

listed a very large—now I can’t remember whether it was a species

or subspecies—but a bird that is found throughout the Southeast.

Instead, when they do jeopardy determinations under the consultation process, they basically, without rulemaking, simply establish

a small population of the wookpecker and determine whether the

Agency action—timber harvesting or whatever—is jeopardizing

that population, rather than jeopardizing the species which was actually listed.

The same thing happens in recovery plans. We’re seeing more

and more often that the Services will list a population like the grizzly bear or the Mojave population of the desert tortoise, and then

in recovery plans, without any rulemaking, basically, relist as recovery units or distinct population segments a whole number of

smaller populations. We believe that is clearly contrary to the Act.

Senator CRAPO. In your testimony you said you had some recommendations for how to solve the problem. What would those be?

Mr. QUARLES. Well, basically, it would be to enact into law what

this committee said in its committee report in 1979. My view is

that the way the Endangered Species Act now reads there is suggestion that all three categories, if found, must be listed—species,

subspecies, and distinct population segments—if they’re at risk in

a portion of their range. My view would be to make listings of spe-
42

cies and subspecies mandatory, but to make listings of sub-subspecies or distinct population segments discretionary, and to put

into statutory form your command that that be done sparingly, perhaps putting a burden of proof on the Agency that it must have legally reviewable biological reasons for designating a distinct population segment.

Second, the law should be amended to make it clear that, once

a species is listed as a species, subspecies, or distinct population

segment, it must be treated in that form in decisions made under

the rest of the Act—where the term ‘‘species’’ is used in consultation, in recovery, and in delisting.

Finally, I would, since no one else has, support the proposed legislative provision in the Bush budget. I believe it is far more sophisticated than the seldom mentioned November policy of Secretary Babbitt, which was to put a moratorium on all listings that

were not ordered by a court. I believe that the Bush proposal provides an opportunity for as many listings as would have occurred

under the Babbitt moratorium, but with the sophisticated, scientific expertise of the Agency prioritizing those that ought to be

listed in a timely manner.

Finally, I would disagree that the Bush proposal removes citizen

suit rights. All it does is eliminate the statutory listing and deadline under which many citizen suits are brought, but it does not

stop a citizen to bring a suit, saying the failure to list is arbitrary— that the species is so endangered that the Agency just is acting in

an arbitrary manner under the APA. There clearly is still an opportunity for citizens’ suits. So I disagree that it denies citizens’ suit

ability.

Senator CRAPO. Well, let me talk with the panel in whole about

that issue of litigation. Mr. Echeverria, you indicated that—and I

think Mr. Moyer and Mr. Grader all have indicated concern with

the Administration’s proposal for the moratorium, which actually

was begun in the previous Administration, and I think in both situations was a response to the type of circumstance that we heard

in the testimony from the first panel in terms of the concern about

the resources that are being diverted into litigation.

It seems to me that we have a mounting issue here. I understand

the point that is made with regard to the fact that we can increase

resources, so that we can deal with the increased need for listing,

but let me ask a question, and maybe, Mr. Echeverria, you can answer this. The litigation that I have described here in this hearing

relates only to the listing and delisting process. Do we have similar

amounts of litigation in other parts of the statute that the agencies

face as they seek to administer the Endangered Species Act?

Mr. ECHEVERRIA. I want to respond as well to some of the points

Mr. Quarles has made but let me first respond directly to your

question. I think the majority of the litigation now being pursued

under the Endangered Species Act is relatively straightforward litigation dealing with the failure of the agencies to comply with nondiscretionary duties to list or to designate critical habitat. In my

prepared testimony I compare a lot of the litigation that is being

filed, in terms of its complexity, to determining whether or not

somebody has violated a 2-hour parking limitation. These are not

adventurous, novel pieces of litigation being filed. They are essen-
43

tially enforcement actions directing the Agency to comply with the

deadlines that Congress has very carefully and very specifically set

forth in the statute.

I want to take issue with Mr. Quarles’ point that the proposed

rider does not undermine citizen suits. What the proposed rider

does do is it makes a current obligation of the agencies nonexistent,

and, therefore, there’s no legal duty. Obviously, no one can sue to

enforce a nonexistent duty. So although it may in theory leave the

citizen suit provision in effect, the proposal rider eliminates the

legal duty that the agencies now have that provides the basis for

citizen suits.

On the question of resource diversion, I would question the extent to which resources are being diverted. I wonder, for example,

if either the U.S. Fish and Wildlife Service or the NMFS contends

that any of the species that have been listed in response to citizen

suits are not deserving of listings based on the underlying science.

And, similarly, with respect to critical habitat designations, whether they feel that any of the critical habitat designations they’ve

made in response to litigation aren’t fully warranted by the science.

I think the fact of the matter is that there is an enormous backlog of work, a lot of scientifically justified work to be done in terms

of listing species and designating critical habitat. The litigation

that has gone forward has only gone a small way in forcing the

agencies to do the work that needs to be done and that is scientifically justified.

Senator CRAPO. Do you think that litigation is the most efficient

way to make this happen? I guess the question I am asking is, we

have this same debate in the health care arena right now as to

whether we should try to find some way to reduce the amount of

litigation over health care. We have the same debate in the Superfund debate, the same issues here in the Endangered Species Act.

In each of those areas we see tremendous amounts of dollars, of

Federal appropriations as well dollars from other areas, whether it

be State and local government or the private sector, being, I’m

going to use the word, diverted but being put into litigation efforts

which at first blush at least seem to be an incredible amount of resources being put into courtroom actions when they could be put

into recovery actions or into some type of environmental restoration.

So my question is, without challenging the notion that we should

have the right as citizens to enforce the Act, isn’t there a way that

we could somehow improve it so that we have a reduction in the

amount of resources that we are committing to litigation? I don’t

limit that just to Mr. Echeverria, but anybody.

Mr. ECHEVERRIA. Well, I will just comment briefly. I think the

agencies are being put in a very narrow box. On the one hand, they

are being told to list endangered species and to designate critical

habitat, and those obligations are enforceable through citizens’

suits. On the other hand, they’re not being given the resources to

do the work. It seems to me that those two factors together are producing this boomlet in litigation.

If the agencies had the resources to do the job, even if they didn’t

have $100 million over the next several years, if they had a signifi-
44

cant increase in resources, that would allow them to work down the

backlog and it would eliminate a lot of these lawsuits.

Also, if the agencies had enough resources, simply the threat of

litigation, the possibility of litigation, would be enough to make the

agencies aware of their legal obligations, encourage them to comply

with their legal obligations, and avoid the need for the filing of lawsuits in the first place.

Senator CRAPO. Anyone else want to respond on that?

Mr. Grader?

Mr. GRADER. Yes, Mr. Chairman. I think there are ways of dealing with the litigation, but I don’t think they’re necessarily very

popular. That would be, first of all, some appropriations so that we

can deal with these species before they get to the critical point

where they qualify for listing, and that is doing a better job of protecting some of these habitats.

The Pacific salmon crisis didn’t happen overnight. We had warnings back in 1971, when the California Citizens’ Advisory Committee on Salmon and Steelhead Trout came out with a document

called ‘‘An Environmental Tragedy,’’ outlining clearly what was

going to happen, and people blew it off. If we would have acted

then, many of these stocks would not have been listed.

We know back in the 1980’s, when we put together the programs

for restoring Columbia River salmon stocks, what was going to

happen and we chose to ignore the warning signs.

Second, when we get to a situation where species clearly are

threatened or in danger of being extinct, the agencies simply have

not acted quick enough. I mean, there’s been criticism here today

of the Bush Administration. Well, I can tell you under the Clinton

Administration we were highly disturbed when it appeared that,

particularly in the Pacific Northwest, they seemed to want to protect the Endangered Species Act by protecting it from itself; that

is, not enforcing it until it was nearly too late for the species. The

listing actions by the Agency were often only after it was brought

by litigation. None of us want to be in court. We want to get these

species recovered. For my members, we want to bring them back

to productivity so we can sustain our livelihoods.

Senator CRAPO. Mr. Moss?

Mr. MOSS. Yes, and I would, again, go back to the State of Maine

plan. The State of Maine has known for a long time of the problem

with the Atlantic salmon. The State very sensibly came up with a

plan that again had the input of the Federal Government, the U.S.

Fish and Wildlife Service, the National Marine Fisheries, and the

industry. We have worked spending hundreds of thousands of dollars trying to avoid a listing, trying to create restoration programs.

In fact, Governor King was in consultation with the Federal agencies at the same time that Secretary Babbitt was issuing the listing. There was duplicity and the Federal Government was not

straightforward with us in their dealings.

We had committed ourselves as an industry, with the State of

Maine, to restore the Atlantic salmon, to preserve the Atlantic

salmon. Then our feet were kicked out from under us by the Department of the Interior in the listing. It makes no sense. If you’re

trying to exert a good-faith effort and you have your feet kicked out
45

from under you by the same agency that you’re supposedly working

with, there’s a duplicity that should not be allowed to stand.

Senator CRAPO. Mr. Moyer and then Mr. Quarles.

Mr. MOYER. Chairman Crapo, just one observation that I would

have on your question is that I think there is an opportunity for

the Administration and probably this committee to deal with conservationists who are bringing these suits and with others in the

regulated industry and make a proposal which would be: If specified amounts of increased funding were to occur over a time period,

5 or 10 years, to get at the backlog, then perhaps there would be

more understanding among the conservationists about going to

court to getting issues resolved.

I think the time is right, and perhaps this situation is tailormade

for such a long-term plan that would have increased funding that

would conservationists bringing the suit some assurance that the

backlog would be cleared over a reasonable amount of time. So

that’s just one idea that I had that I think might have some merit.

Senator CRAPO. Mr. Quarles?

Mr. QUARLES. Yes, two points I wish to make: First of all, I think

this is one place where, with a huge caveat, the regulated community is probably in agreement with the environmental community,

and that is the lack of resources for the agencies. They are being

starved.

The one thing that we would say, however, is that if more funding is to be given to listing, there must be a comparable amount

of funding given to those actions that are important to landowners

and the regulated community. Just as deadlines for listing are

being missed consistently by the Services, so are deadlines for consultation on agency permits needed by landowners to develop their

land and on Fish and Wildlife Service manual deadlines for processing habitat conservation plans and issuing incidental take permits.

So the simple matter is it only compounds the problem for landowners if, in fact, the money is placed on listing more species, and

at the same time the Services continue to be starved in those programs or procedures that provide landowner relief. I think that’s

important.

Then one other comment I might make. This is my clients; I’ve

never checked it with them. I think there is possibility of compromise even on the issue of the Bush proposal long term. I think

it’s needed short term to get the Agency back on its feet.

But one possibility is we now have arbitrary deadlines for listing

in the Endangered Species Act, and they’re the same arbitrary

deadlines for both threatened and endangered species. It seems to

me that the Act could be written so that at the time a petition is

determined as prudent or at the time the Agency begins the listing

process on its own behalf, that the scientists themselves set a deadline for that process based upon the degree of risk and the data

gaps that may exist. Once that deadline is set by the scientists in

the Agency with the best science, then that deadline becomes enforceable by citizen suit if the Agency fail to meet it. But it will

allow the Services to set deadlines based upon the true degree of

risk to the particular species involved.
46

Senator CRAPO. Well, thank you. In the remaining time that we

have, I would like to kind of get into a broad question. Really this

question is raised in my mind by all of your testimony, probably

most significantly Mr. Moyer’s point that there are conservation

initiatives in other areas than the Endangered Species Act in

which we can make a lot of progress. Mr. Grader has talked about

the difficulty in the California situation of getting the action necessary from the Federal agencies under the statute. Mr. Moss has

talked about the fact that the action under the statute derailed

very positive efforts that were being undertaken in Maine. Mr.

Moyer talked about the need to reinfuse resources into CRA or to

the Fishable Waters Act or the conservation title of the farm bill.

By the way, I am very glad that you referenced that, Mr. Moyer,

because I believe that a lot of the things that we are doing in those

areas are at least hopefully going to make a big difference. In fact,

as things would have it, I end up being the chairman of the Subcommittee on the Agriculture Committee that is working on the

conservation title. So maybe we can find some ways to make

progress.

But here’s my question, and it’s kind of a broad one which I

would just like to get some discussion on: It seems to me that from

the testimony that we have heard from the second panel, there are

literally thousands of species out there that, at least according to

some on that panel, should be listed. I don’t know what the ultimate number is that should be listed, but if we assume that the

problem here is that we don’t have enough resources to list all the

species that are waiting to be listed, we have to assume that there

will be a significant number of listed species if we were to proceed

along the lines that have been suggested by some.

Each time a species is listed, then under the Act we need to proceed and recover the species and take the steps necessary under

the Act. As I indicated earlier, in just the set of species that we’re

dealing with salmon and steelhead in the Pacific Northwest, it appears that we are looking at the need for—well, the recent proposal

I made was somewhere just under $700 million a year for some undetermined amount of years, but a large number of years, just in

that group of species. I don’t know whether that group is unique

in terms of the amount of money that it will take to recover, but

I hope that it is and that we aren’t looking at those kinds of numbers across the board for all of these various numbers of species.

But my point is we’re talking today only about the listing process

and the fact that we need to put more money into the process of

getting species listed. Then we’re going to have to take the next

steps and put more money into getting the species that are listed

recovered and delisted. It seems to me that we are talking about

a need, a financial need, there that I don’t think anybody could put

a handle on right now, but it is probably going to exceed what any

Administration, Republican or Democrat, can meet in terms of the

budget numbers that we are looking at, which raises the question

to me:

What do we do with scarce resources? Do we continue—is the

Endangered Species Act the beginning or the end or the middle, or

whatever, of species protection? Do we look at CRA, the Fishable

Waters Act, and the conservation title in the farm bill, the Clean
47

Water Act, or any number of other environmental statutes and put

our dollars into those acts or to those efforts, so that we can try

to avoid or at least improve the opportunity for action under the

Endangered Species Act? Is the Endangered Species Act the Act

that is supposed to kick in when these other efforts have failed and

the species is threatened or endangered? Or is the Endangered

Species Act to be sort of the mothership of all environmental actions, which is where all of our resources go in the first instance,

and we then fund these other areas after we have funded the Endangered Species Act requirements?

It is a difficult question that I am asking, I think, but I would

like to have your input on just, what is the purpose of the Endangered Species Act and where should we put our resources? Anybody

want to take a shot at that?

Mr. MOYER. I’ll do that because I think your health care analogy

was a good one. The Endangered Species Act has largely been the

emergency room triage. I think the point behind the thrust of my

testimony was that much more needs to be done on the preventative care side. That’s clearly got to be the cheapest and best way

to conserve species, to keep them healthy when they’re healthy and

keep them out of the emergency room.

So that’s why I think there is a real need for Congress and for

the committee to look at ways that they can do that. I don’t have

a grand vision of how that would be in 10 or 20 years, but I just

see the next year or two and I think there’s some really good opportunities that I mentioned that you could grasp to really focus on

preventative care rather than emergency room care.

Senator CRAPO. I would like to work with you on some of those

opportunities.

Mr. Moss.

Mr. MOSS. I would like to join that statement and again refer to

what the State of Maine was attempting to do, which was derailed.

We now have a situation in which our industry is no longer trustful

of the Federal Government.

I would like to make a statement. We as business people are not

anti-environmental; we say this in Maine all the time. People approach us, ‘‘How can you do this? You’re destroying the species.

You’re destroying the habitat.’’ Well, we are not, and we try to explain to them that it is not in our best interest in any way to destroy. We are conservationists. We are employing people, producing

a sound product. That is why we joined with the State of Maine,

with the scientists they brought in, the independent scientists, with

the State agencies, and with the Federal agencies to create a State

conservation plan for the Atlantic salmon.

I would say that the Endangered Species Act has to be reviewed

so that there aren’t these kinds of abuses; so that they can’t come

in and derail a plan that was making progress. Now they’ve derailed it, and that progress is effectively stopped. There is not

enough Federal money appropriated to take up from the point that

the State’s plan was derailed. There must be a review of this act

and the abuses of the Act.

Mr. GRADER. Let me just add, Senator, however, we had just the

opposite occurrence in California where it took the ESA to put recovery back on track, because, frankly—and this is a problem we’re
48

seeing—it is not just money. I once had a colleague, Molly Thomas,

and I think she stated the problem very well. She said, ‘‘Fish don’t

swim in money.’’ Fixing the salmon problem and some of these

other species problems is going to take more than money. It’s going

to take a change of will. It’s going to take some changes on the

parts of agencies.

Right now part of our problem, I think, frankly, in California and

the Pacific Northwest is not necessarily a dearth of money for

salmon restoration; it is just the intransigence of some agencies not

wanting to act. We have a joke in California that our biggest river

is denial, and denial, in fact, is what often is happening. Because

agencies just simply won’t change until they are forced them to act.

It’s very expensive getting them to that point where they finally relent, if they ever do.

We have talked about the need for science. Well, part of the problem is we’re not adhering to science. We have biological opinions,

for example, in the Columbia River where the agencies have chosen

to ignore their own scientists. Everybody is screaming for peer review. I would just like to see the first step is that the agencies

begin listening to their science before we hear from others screaming that we need to have peer review and better science. We can

start by having better science with the agencies listening to their

scientists. I think that would certainly speed things up and could

bring about recovery in a much less expensive way.

Senator CRAPO. Thank you.

Mr. Echeverria.

Mr. ECHEVERRIA. I have a couple of brief thoughts. First of all,

I want to say that is a very thoughtful question and you’ve nominated yourself for a trip down the hill to Georgetown University

Law Center to explain to our students the complexities of the Endangered Species Act.

[Laughter.]

I think you identify an important question about costs because

we have been focusing today on administrative costs and the simple agency expenditures required to identify critical habitat and list

endangered species. Those costs are not insignificant, but they are

insignificant in comparison with the full public and private costs of

carrying out species conservation, once we have identified the habitat that needs to be protected and the species that are endangered.

The the rubber hits the road, so to speak, when it comes to private land and the costs entailed in achieving species conservation

on private land. This inevitably raises the whole property rights

question, the takings question, and whether or not the burdens of

carrying out species conservation can fairly and reasonably be imposed on private landowners or whether, instead, those are legitimately public costs and the Federal taxpayer has to pay for those

costs through CARA, the Fish and Wildlife Foundation, or what

some people have described as a New Marshall Plan for Species

Conservation, something that could be very expensive.

Just a couple of thoughts on this: One key point to emphasize is

that wildlife is a public property resource. Under the laws of each

of the 50 States, wild animals, whether they are threatened or not,

are public property that the State owns on behalf of all the citizens

of the State. The courts have broadly held in a variety of different
49

contexts that restricting private actions on private lands in order

to protect a public property resource doesn’t result in a constitutional taking under the Fifth Amendment. Thus, keeping in mind

the fact that private real property rights are at stake, there’s also

a public property right involved here which is also important.

The second observation I want to make is that public payment

programs, while useful in some circumstances, have a potential for

abuse. I want to cite one example. There’s a piece of proposed legislation moving through Congress dealing with a 1,500-acre property

in Utah which is proposed to be included in a tortoise conservation

area. This is a property that the owner bought apparently with full

knowledge of the endangered species problems for, according to a

recent press account, $1.1 million. The Fish and Wildlife Service

has been trying to acquire this property. The owner acquired the

property 11 years ago, and undoubtedly has spent some additional

money since then. But he recently rejected a proposal from the Department of the Interior to purchase the property for some $28 million, claiming that he should be entitled to more than that. It

seems to me that this case is symptomatic of a potential problem,

which is that those confronting endangered species problems may

demand too much of the Federal taxpayer. Federal financial assistance programs for wildlife conservation could lead to some of the

kinds of abuses we’ve seen in other major Federal funding programs.

My ultimate conclusion is that the Federal taxpayer can’t buy

our way out of this problem. There is a place for financial incentives and financial assistance, but over the long term what we need

is a change in values and a change in investment expectations. We

need to put in place a flexible regulatory process that over the long

term directs investors to invest in activities that don’t present endangered species problems and discourages investment in projects

that create more endangered species problems. Clearly, we need

over the long term to reorient the economy in a way that reduces

ESA conflicts and to avoid public policies that exacerbate those

kinds of conflicts.

Those are somewhat general comments in response to a general

question, but I appreciate the opportunity to comment on your very

thoughtful question.

Senator CRAPO. Thank you.

Mr. Quarles?

Mr. QUARLES. Yes. Unfortunately, I don’t have an answer, but I

do have a concern. First of all, I heard it said that fish don’t swim

in money. Many landowners who have salmon habitat think that

fish swim in their money. That’s one of the problems.

Agencies like the Services that are desperate to husband the resources that they have have a real temptation—and one that I fully

understand—having served in the Department of the Interior—to

try to transfer as much of the responsibility as possible to the regulated party; let the regulated party spend the money rather than

the Government. That is one thing that concerns me deeply.

I will give you only one minor example, which, unfortunately, if

Gary Frazer is still sitting behind me, he’s heard me talk about too

many times before, which is my concern about designating critical

habitat—and I know we’re not talking about that in general—but
50

the regulation requires the agencies to designate critical habitat by

map boundaries. That’s a very expensive process.

What we are seeing more and more is that the Service will draw

very large map boundaries, name constituent elements that are important to the critical habitat, and then require the individual

landowners to hire the biologists to determine whether or not their

land has the constituent elements that would be critical habitat. So

even though the Services are still mapping, they’re leaving the real

responsibility of determining what is and is not critical habitat to

the landowner in some of their more recent listings rather than to

the Agency itself.

I fear there is the danger of transferring significant responsibility, monetary responsibility, to the landowner as a way of husbanding taxpayer dollars. I think that would be inappropriate.

Senator CRAPO. Well, thank you. Obviously, this is an extremely

complex issue, and we’re just talking about sort of the initiation

part of it now with regard to the listing process.

We have run out of time for the hearing. So I won’t be able to

ask any more questions. I should remind you that the record will

remain open for 2 weeks. And all of the witnesses may receive

questions from some of the Senators who were not here. You are

also welcome to supplement what you have provided to us during

that 2 weeks, if you feel that there is additional information that

you would like to provide or things that you didn’t get a chance to

say or further thoughts that you have had. I can assure you that

the material you provide is going to be carefully reviewed.

Senator CRAPO. I think all of the witnesses today have provided

helpful information. This is obviously an issue on which it is going

to be difficult to find consensus, but it is one on which I believe

we have identified a number of areas in which we can make improvements and a number of areas in which our effort will potentially yield some significant results.

So, again, I thank you for your participation in this hearing and

encourage you to continue to work with this committee as we seek

ways to reform the Act and reform the administration of the Act,

and to ultimately achieve our objective of recovering and strengthening species and improving our environment in this country.

With that, the hearing is adjourned. Thank you very much.

[Whereupon, at 12:14 p.m., the subcommittee was adjourned, to

reconvene at the call of the Chair.]

[Additional statements submitted for the record follow:]

STATEMENT OF HON. BOB SMITH, U.S. SENATOR FROM THE STATE OF

NEW HAMPSHIRE

Good morning and thank you Mr. Chairman. I am delighted to be here and discuss this very import issue.

The Endangered Species Act (ESA) was enacted in 1973 as an attempt to protect

species with diminishing populations. The ESA makes it illegal to take or harm any

listed species. It also prohibits any Federal action that will jeopardize the future of

any listed species or critical habitat, and requires the development of recovery plans

for listed species. The main idea behind ESA was to list a species and then recover

that species so it could be delisted.

Unfortunately, it hasn’t worked out that way. To date, 1243 species have been

listed, yet only 9 have been delisted via recovery. Nineteen species have been

delisted for other reasons, including extinction. While there are a few success stories, clearly the ESA has not worked as it was intended. The fact that only 9 listed

species have been sufficiently recovered to be delisted should be cause for concern.
51

There have been attempts to address the flaws in the Act—the most recent serious attempt was by Senator Kempthorne in the 105th Congress—legislation that I

cosponsored. That bill placed a strong emphasis on science—and I believe that to

be critical.

ESA can be an emotional issue—and it is precisely for that reason that we must

ensure that decisions are made based on science. Science that is peer-reviewed, defensible and non-partisan.

There have also been numerous concerns about the role of the private property

owners and how ESA impacts them. Senator Kempthorne’s bill would have expanded the participation of the public and provide new incentives for private property owners to preserve species. In short—it set out a more cooperative approach

for dealing with species preservation—getting away from a top-down regulatory regime.

Needless to say, I strongly support this type of approach. My goal is an approach

that will preserve species in the most effective manner possible and I believe that

means working with, not against land owners. Make no mistake—I am a staunch

defender of private property owners. I am also a firm believer that our true conservationists are those who live off of the land—who take being stewards of the land

very seriously. In fact, the great majority of species are on private lands. We should

recognize and embrace this fact by providing them incentives to help ensure that

these species, both listed and delisted, are protected and private property rights preserved.

It is worth noting that, along with Senator Crapo, Senator Reid and others, I will

soon be introducing a Comprehensive Conservation funding bill—this is not an ESA

fix, but a separate bill that will, among other things, establish a new competitive

matching grant fund that will allow private landowners and family farms to receive

assistance to protect endangered and threatened species on their land. It is my hope

my Conservation bill will help private landowners do what they really want to do—

but it is not a fix for ESA.

I look forward to working with the subcommittee chairman, Senator Crapo, as

well as Senator Graham and Senator Reid to address the ESA—possibly moving

rifle shot reforms.

Mr. Chairman—thank you again for your efforts on this issue.

STATEMENT OF HON. HARRY REID, U.S. SENATOR FROM THE STATE OF NEVADA

The timing of this subcommittee hearing on the listing and delisting of species

under the ESA couldn’t be better. Why? Because the Administration’s budget recently made two very strong statements about these ESA programs. Two completely

wrongheaded statements. First, take science. I’ve read the testimony that will be

presented here today. No one disputes that listing decisions—indeed all decisions

under the ESA should be based upon the best science possible.

The Administration itself repeats the ‘‘sound science’’ mantra in its testimony, and

throughout its budget request for ESA programs generally.

Sound science, to me, means good science, and we know that good science isn’t

cheap. But this Administration’s budget cuts ESA science funding, along with funding for recovery plans, habitat conservation plans and candidate conservation

plans—all the things we know are critical to achieving success under the Act.

Instead, the budget is a sop—it cuts these programs and tells our threatened and

endangered species to look to the Land and Water Conservation Fund stateside

grants for the funding to stay alive.

In my State of Nevada that will mean that desert tortoises, Lahontan cutthroat

trout and Armagosa toads will compete with pools, ballparks and recreation centers

for funding.

One example of this sop hits close to home. This budget cuts a program I helped

start called the Nevada Biodiversity Initiative. We started it in 1993, but as a result

of its tremendous success, it became part of the President’s budget 5 years ago.

The Initiative has helped provide the scientific understanding of imperiled species

throughout the West, and has helped direct conservation and recovery efforts in a

scientifically effective way. The Administration zeroes out the Initiative in its budget. It cuts the science that is the foundation for every ESA-related activity in Nevada.

The second wrongheaded statement the Administration makes in its budget is to

ask for a rider to prohibit citizens from petitioning the FWS to list species as threatened or endangered, or from designating critical habitat.
52

The Administration argues that the rider is necessary because compliance with

citizen generated court orders will consume the entire budget for listings and critical

habitat.

The Service argues that this litigation forces it to protect species under the Act

based upon citizen and court priorities rather than according to its own priorities.

That argument simply doesn’t hold up. The overwhelming majority of litigation

over listings arises when the FWS fails to meet a statutory deadline to respond to

a citizen petition to list. In responding to that petition, the FWS can decide to list

a species, not to list it, or can put it on a candidate list and assign it a low priority

for listing based upon listing guidance that’s been in place since 1983. Is there a

lot of litigation over the priority the FWS assigns to citizen-petitioned listings? Are

citizens going in and reordering the priorities the FWS sets?

No. The suits force the Service to meet deadlines. Citizens, at least in this context, are not determining the listing priority of species. Do citizen suits often prompt

important listings that might not happen because of political opposition?

Yes. Salmon, spotted owls, and—in Nevada—the desert tortoise, were all listed as

a result of citizen suits. What’s the answer to the backlog?

What about increasing the funding for the listing program? The Service estimates

that it would take roughly $80–120 million to clear up the backlog. We could develop a 5-year plan to get this work done, rather than shutting the courthouse door

to our citizens.

While we all might disagree about some of the topics to be discussed here today,

we should all be able to reach agreement that the ESA can’t achieve its goal of restoring threatened and endangered species if we starve it of funding.

STATEMENT OF HON. MAX BAUCUS, U.S. SENATOR FROM THE STATE OF MONTANA

Thank you Mr. Chairman for holding this important and timely hearing on the

listing and delisting procedures of the Endangered Species Act. I would like to

thank our distinguished panel of guests for appearing today to testify.

I believe strongly in preserving this country’s unique biodiversity and I believe

strongly in the mission of the ESA.

However, I have always been willing to explore ways to make the Act more effective in protecting and recovering endangered and threatened species, and more sensitive to the legitimate concerns of States and private landowners. I’ve worked hard

on ESA reform in past Congresses, working with my colleagues on this committee

to craft a bipartisan ESA re-authorization bill in the 105th Congress.

Our bill made significant improvements to the Act, improvements that we felt

made the Act a more effective tool in the identification and recovery of endangered

or threatened species. It’s a shame that the bill did not pass. It wasn’t perfect, but

I believe it would have made a real difference, not only to overall species recovery

efforts, but to the States and local communities that often find themselves at odds

with the mandates of the ESA. The bill contained provisions that addressed some

of the concerns that will be raised today about the listing process, such as independent peer review of listing and delisting decisions and more transparency in the

listing process.

And yet, after all that time and effort, here we stand today, trying to figure out

what’s gone wrong with the listing process, a process that I’ve heard called both

‘‘broke and broken.’’ Some say that the Fish and Wildlife Service is paralyzed, that

it has too much work, not enough money, and is buried under citizen lawsuits. Only

the most desperate cases get any protection. This in turn makes it more time consuming and expensive to help species recover, which in turn makes the Act seem

that much more of a burden on private citizens.

I find this incredibly frustrating. We’ve had opportunities to make the ESA more

efficient, effective, and more sensitive to private landowners and States, and we

haven’t capitalized on them. We continue to chronically underfund the entire Endangered Species Program, leading to the current crisis in the listing program that

we’re discussing today—species that warrant protection that aren’t getting it, and

their conditions are deteriorating, and listed species aren’t being recovered to the

point where they may be delisted.

I believe the current outcry over excessive court involvement in the listing process

is a symptom of a far larger problem—an agency that is underfunded and overworked and that just can’t get the job done. But, let me be clear, I don’t think the

answer is to yank the people’s ability of to petition the Service to list a species, or

to designate critical habitat. The last thing we want is less public participation in

the Federal decisionmaking process. Federal Agencies face substantial political pressures, from all sides, especially in an area as controversial as the implementation
53

of the ESA. Although some may view the process as having been abused by certain

groups, and in some instances that may be true, the petition process is an important

vehicle for local government and citizens to be heard in the larger national debate

over endangered species. And, the shoe could easily land on the other foot—what

if a citizen’s group wants to oppose a proposed listing?

After all, this is not a new issue for any of us. As you should recall, we worked

to improve State involvement in the process, to improve incentives for landowners

to conserve species on private lands, to encourage better science at all stages of species recovery, from listing to delisting. For a variety of reasons, we just didn’t deliver.

Clearly we’ve learned that gutting the Act is not the answer, nor is it something

I support, or that I believe a majority of my colleagues support. But we should also

have learned that continuing to underfund the Agency is not an appropriate or useful response, either. To simply padlock the Agency’s toolbox, does little to address

the daily list of chores we call upon the Agency to accomplish. A lot of Federal and

State agencies depend upon the U.S. Fish and Wildlife Service, and the National

Marine Fisheries Service, to do its job, to do it well, and to do it in a timely fashion.

So, let me paint you a picture. Highway projects fund nearly 14,000 good-paying

jobs for Montanans. In Montana the Fish and Wildlife Service is stretched thin.

When a city, county or the State wants to widen a road, install a culvert, rebuild

a bridge, before you can show up with the flagger or the concrete mixer or the heavy

equipment, the project is often effectively tabled before it’s begun for lack of enough

agency support to complete routine biological opinions and assessments. Every Congress, I work hard to get money for Montana highway projects, which does Montanans little good when they have to wait months or even years for an ESA consultation process to be completed. The same can be said of time-sensitive salvage

timber sales in Montana’s National Forests, and other projects that support the livelihoods of people in my State.

The ESA was never, never supposed to trump good and necessary projects that

can and should move forward. I know that this hearing is not about ESA consultations or other functions of the Fish and Wildlife Service under the ESA, but they

are a good analogy to the problems the Service is facing under its listing program.

The U.S. Fish and Wildlife Service’s budget has not increased significantly since a

1990 Department of the Interior Inspector General’s Report stated: It is obvious that

the Service’s mission cannot be fully accomplished at present funding levels.

I believe a lack funding has severely compromised the effectiveness of the Service

in carrying out its duties under the ESA, resulting in project delays and frustration

at the local, State and Federal level. No one’s interests are served in this situation,

not the local, county, State, or Federal Government’s, not the private citizen’s, not

the public’s, and not endangered species. It’s easy to accuse a Federal agency of

dragging its feet. But, it’s far more challenging to fund the Agency at an appropriate

level, to give it the resources it needs to do properly the job we ask of it.

I realize that the preservation of endangered and threatened species entails considerable financial burdens that should not fall solely on the U.S. taxpayer, and that

we need to search constantly for new and innovative ways to preserve species and

their habitats as our population continues to expand and our economy to grow. We

owe it to our children and grandchildren, and all those who come after them. But

again, increased funding would give the Fish and Wildlife Service more flexibility

to be creative, to work with landowners, local communities and States to set priorities and to protect species and their habitats before they sit on the brink of extinction. Before the Federal Government has step in and contemplate a listing.

We owe it to the citizens of this country to follow-through on the duties we in

Congress have imposed on the U.S. Fish and Wildlife Service and the National Marine Fisheries Service.

Again, I look forward to the testimony of the witnesses on this important issue

and I thank them for their time.

STATEMENT OF GARY FRAZER, ASSISTANT DIRECTOR FOR ENDANGERED SPECIES, U.S.

FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR

Mr. Chairman, I appreciate this opportunity to discuss how the U.S. Fish and

Wildlife Service carries out its duties related to listing and delisting species under

the Endangered Species Act (ESA or Act). Our procedures, some prescribed by statute and others by agency regulations or policies, are all focused upon ensuring that

our decisions are objective, based on good science, and made in the open with peer

review and public participation throughout.
54

The Fish and Wildlife Service (Service or FWS) is committed to making the Endangered Species Act work in the eyes of the public, the Congress, and the courts

so as to accomplish its purpose of conserving threatened and endangered species

and protecting the ecosystems upon which they depend. This is a challenging task,

involving precious and irreplaceable natural resources, a complex statute, and many

stakeholders with deeply held and often conflicting interests.

In this environment, the following principles provide the foundation for the Administration of our listing and delisting activities—ensure that our decisions are

based on the best available science, seek independent peer review of our decisions,

provide for public participation throughout our decision process, and ensure that our

decision process is understandable and transparent.

SCIENCE, PEER REVIEW, AND PUBLIC PARTICIPATION IN THE LISTING AND

DELISTING PROCESS

The Endangered Species Act requires listing determinations to be made solely on

the basis of the best scientific and commercial data available. The careful evaluation

of scientific evidence is fundamental to the assessment of species for listing or

delisting under the ESA. The Service strives to make the most of scientific advances

that improve our ability to understand nature and its processes. Our joint Fish and

Wildlife Service/National Marine Fisheries Service (NMFS) ‘‘Policy on Information

Standards Under the Endangered Species Act’’, published in the Federal Register on

July 1, 1994 (59 FR 34271), provides criteria, establishes procedures, and provides

guidance to our field biologists and managers regarding the use of scientific information in our decision process.

This ‘‘Policy on Information Standards’’ requires our biologists and managers to

ensure that the information we use is reliable, credible, and represents the best

data available; to impartially evaluate information that disputes existing positions

or decisions of the Service; to document their evaluation of the available scientific

and commercial data; to use primary and original sources of information as the

basis for recommendations, where consistent with the Act and our obligation to use

the best information available; and to conduct management-level reviews of the documents developed by staff biologists to verify and assure the quality of the science

used in the decision process.

The ESA, the Administrative Procedures Act, and the regulations governing our

listing and delisting activities ensure that States, tribes, other agencies, and the

public have ample opportunity to participate in our listing and delisting actions.

These established processes ensure that the public can participate fully in listing

and delisting decisions. In addition, the requirement that the Service maintain and

make available the administrative record in support of its decisionmaking assists

in making the decision process open and transparent.

To further ensure that sound science underlies our decisions, the Service and

NMFS established a joint ‘‘Policy for Peer Review in Endangered Species Act Activities’’, published in the Federal Register on July 1, 1994 (59 FR 34270). This policy

works to ensure that independent peer review is incorporated throughout our listing

and recovery programs in a manner that complements, but does not circumvent or

supercede, other established public participation processes.

In recognition of the unique capability of State fish and wildlife agencies to assist

in implementing all aspects of the ESA, the Service and NMFS developed a joint

‘‘Policy Regarding the Role of State Agencies in Endangered Species Act Activities’’,

published in the Federal Register on July 1, 1994 (59 FR 34275). This policy recognizes that States possess broad trustee authorities over fish, wildlife, and plants and

their habitats within their borders, as well as scientific data and valuable expertise

on the status and distribution of such wildlife. The policy requires the Services to

solicit State agency expertise and participation in the following activities, among

others: determining which species should be included on the list of candidate species, conducting population status inventories and geographical distribution surveys,

responding to listing petitions, preparing proposed and final listing and delisting

rules, and designing and implementing recovery efforts.

The Executive Order 13175 of November 6, 2000, on government-to-government

relations with Native American tribal governments also requires us to consult with

the tribes on matters that affect them. Consistent with this and our Federal trust

responsibility, we consult to the extent possible with Indian Tribes having tribal

trust resources, tribally-owned fee lands, or tribal rights that might be affected by

ESA activities.
55

THE LISTING PROCESS

Listing under the Endangered Species Act becomes necessary when a species declines to the point where it is in danger of extinction throughout all or a significant

portion of its range (an ‘‘endangered species’’) or it is likely to become endangered

in the foreseeable future (a ‘‘threatened species’’). The Secretary is required to list

or reclassify a species if, after reviewing the species’ status using the best scientific

and commercial data available, it is found that the species is endangered or threatened because of any one or a combination of the following factors: • the present or threatened destruction, modification, or curtailment of its habitat

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

• disease or predation;

• the inadequacy of existing regulatory mechanisms; and

• other natural or manmade factors affecting its continued existence.

There are two processes to identify species in need of listing. The first is the candidate assessment process, which is initiated by the Service. The second is a petition

process, which is available to the public.

Part of the Service’s Candidate Conservation program is the candidate assessment

process, through which the Service searches for species of fish, wildlife and plants

that may be at risk and in need of protection under the Act. In identifying candidate

species, we rely on our own biological surveys, including status surveys conducted

for the purpose of candidate assessment, information from State Natural Heritage

Programs, other Federal and State agencies, knowledgeable scientists, and public

and private natural resources organizations.

Each year, the Service publishes in the Federal Register the Candidate Notice of

Review (CNOR). The CNOR identifies the species that we believe are candidates for

listing under the Endangered Species Act. The CNOR lists those species previously

identified as candidates, species for which petitions have resulted in ‘‘warranted but

precluded’’ findings, as discussed below, during the prior year, and other species

that appear to warrant listing under the ESA. When we identify a species as a candidate for listing, we have sufficient scientific information available to support a

proposed rule to evaluate whether the species should be added to the list of threatened and endangered species. However, preparation of the proposed rule is precluded by higher-priority listing actions. We publish the CNOR, make individual

candidate assessment forms available to the public, and solicit additional information about the status of candidate species, the threats they face, and conservation

actions that are being implemented that may benefit the species. We accept information from the public about candidate species at any time. We use the public’s

comments in the preparation of listing rules for the highest priority candidates, and

in revisions to subsequent CNORs. In addition, publication of the list of candidate

species provides important information about potential listings that can be used by

planners and developers.

The CNOR also serves to explain to the public our long-standing science-based

priority system for adding species to the list, which was published in the Federal

Register on September 1, 1983 (48 FR 43098–43105). Each candidate species is assigned a listing priority number (LPN), based on the immediacy and magnitude of

the threats faced by the species and on its taxonomic distinctiveness. The candidate

assessment forms, which are available to the public upon request, document our

reasons for assigning a particular LPN to each candidate species. We use the LPN

to prioritize listing actions. Species with lower LPNs are given a higher priority for

action.

The second process for identifying species that may warrant listing is the petition

process. Section 4 of the Act allows any interested person to petition the Secretary

of the Interior either to add a species to, or remove a species from, the lists of

threatened and endangered species. The Services ensure consistent and rigorous

analysis of petitions by following the interagency ‘‘Petition Management Guidance’’

issued in July 1996.

Upon receipt of a petition, the Service must respond, within 90 days when practicable, with a finding as to whether the petition provides substantial scientific or

commercial information indicating that the petitioned action may be warranted. If

the Service determines that the petition did not provide such substantial information, the 90-day finding concludes the petition review process. However, if the Service determines that the petition does provide substantial information, the Service

initiates a status review and issues an additional finding within 12 months of the

receipt of the petition.

There are three possible outcomes of the ‘‘12-month finding’’ (1) listing is not warranted, and no further action is taken; (2) listing is warranted, and a listing pro-
56

posal is promptly prepared; or (3) listing is warranted, but immediate action is precluded by higher priority actions. A ‘‘warranted but precluded’’ finding is made on

the basis of the species’ listing priority number and the listing workload. In such

cases, preparation of a listing proposal is delayed until higher priority actions are

completed.

We issue a proposed rule to list species when we have sufficient information to

show that listing is warranted (as result of either process). If the issuance of the

proposed rule is precluded by work on other higher priority listing actions, we add

the species to our candidate list to be prioritized for a future listing proposal.

Our listing and delisting actions are informal rulemakings, published in proposed

and final rule form in the Federal Register, and leading to revisions to Title 50, Part

17 of the Code of Federal Regulations. Once a proposal is published, the Service

must allow for a public comment period on the proposal; provide actual notice of the

proposed regulation to appropriate State, tribal, and local government agencies;

publish a summary of the proposal in a newspaper of general circulation in areas

where the species occurs; and hold a public hearing, if requested. See 16 U.S.C.

§ 1533(b)(5). The Service’s implementing regulations require that the public comment period on a listing proposal be at least 60 days long. See 50 C.F.R.

§ 424.16(c)(2). Since public participation is so important to effective conservation efforts, the Service will often hold multiple public hearings and extend the comment

period beyond the minimum required by the law and regulation.

We always solicit independent peer review of our listing proposals, and incorporate comments and recommendations that we receive. We have found such peer

review to be a valuable element of the decision process. However, it is sometimes

difficult to obtain the participation of experts in this process. Experts in academia

and other agencies have other demands for their time and attention, and incentives

to contribute their expertise to our listing efforts are not always apparent. We have

also found that species experts may be reluctant to become involved when they view

the listing action as likely to lead to subsequent litigation. The potential demands

upon their time and reputations associated with depositions, cross examination, and

other legal proceedings create a genuine disincentive for some experts. We are continuing, however, to explore ways to increase participation in and improve the effectiveness of the independent peer review process.

The Service reviews petitions, adds species to the list, reclassifies species from

threatened to endangered, and designates critical habitat using funds appropriated

specifically to our Listing program for these purposes. (Delisting and reclassification

from endangered to threatened are part of the recovery process and are funded

through the Recovery program.) The workload associated with these listing activities has for several years exceeded the resources available to the Service for listing,

and a substantial backlog of listing actions has accumulated. To manage this backlog within appropriated resources, the Service, since fiscal year 1996, has employed

a Listing Priority Guidance system to assign relative priorities to the listing actions

to be carried out under section 4 of the Act. The objective of the Listing Priority

Guidance is to focus available resources on those listing actions that have the greatest biological benefit to species in need of protection under the Act.

Unfortunately, most courts have not afforded deference to this priority system,

and have instead concluded that they have no discretion but to order us to act as

soon as possible on whatever backlogged action comes before them. As a result,

court ordered actions have consumed essentially all of the listing budget this fiscal

year. The Service does not have any remaining resources or staff to place new species on the list of threatened and endangered species or to respond to citizen petitions to list new species. In short, the Service does not currently have a balanced

and effective listing program.

The President is continuing efforts begun by the last Administration to break this

gridlock and get back to the important business of protecting imperiled species. We

are asking Congress, through the fiscal year 2002 budget request, to help us address

our backlog in two ways. We are seeking increased funding for our listing program

so that we can begin to reduce the backlog of listing actions, and we are asking Congress to concur that these funds should be spent pursuant to current court orders

or settlement agreements and on those listing actions that provide the greatest benefit for species at risk of extinction. This proposal would not change any of the underlying substantive requirements of the Act, but would allow the Service to use its

resources to protect the species that are in greatest need of listing. The Service

hopes to engage the public and interested groups in the development of a revised

listing priority system and to put the resulting priority system out for public review

and comment.

We recognize that this proposal has resulted in considerable controversy. While

the problem is real and needs to be addressed, we would welcome the opportunity
57

to work with this committee and other interested members to craft a solution that

meets with wide approval.

DISTINCT POPULATION SEGMENTS

In carrying out our listing duties under the ESA, the Service has proposed and

finalized rules to list a number of ‘‘distinct population segments’’ (DPS’s) of species.

Mr. Chairman, I would like to take this opportunity to explain how the Service decides whether to list a species as a ‘‘distinct population segment’’. The ESA’s definition of ‘‘species’’ includes ‘‘any subspecies of fish or wildlife or

plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.’’ 16 U.S.C. § 1532(16); 50 C.F.R. § 424.10(k).

This definition allows for listing at levels below taxonomically recognized species or

subspecies. Accordingly, a DPS of vertebrate fish or wildlife may be listed as a ‘‘species’’ under the ESA.

The Service and the National Marine Fisheries Service (NMFS) have long recognized the importance of interpreting the term ‘‘distinct population segment’’ in a

clear and consistent fashion. We collaboratively developed a policy to clarify our interpretation of DPS’s for the purposes of listing, delisting, and reclassifying species

under the ESA, and published that draft policy in December 1994 (59 FR 65885).

The intent of the policy was to provide a well conceived analytical framework for

considering whether to list, delist, or reclassify distinct populations segments of

vertebrate species. The policy was also developed to ensure that DPS listing activities are carried out consistently throughout both agencies.

As is the case with the rulemaking process for listing species, we strive to develop

our policies in a transparent process that solicits and incorporates public input and

responds to public concerns. We solicited public review and comment on the draft

DPS policy. After receiving, analyzing, and responding to public comments, the

Service and NMFS published the final joint DPS policy on February 7, 1996 (61 FR

4722).

In the policy, we noted that listing a DPS would serve to protect and conserve

species and the ecosystems upon which they depend before large-scale decline occurs

that would necessitate listing a species or subspecies throughout its entire range.

This may allow protection and recovery of declining organisms in a more timely and

less costly manner, and on a smaller scale than the more costly and extensive efforts that might be needed to recover an entire species or subspecies. The Services’

ability to address local issues (without the need to list, recover, and consult rangewide) will result in a more effective program.

Under the DPS Policy, the listing of a DPS involves a three-stage, sequential process. First, the Service decides whether the population is ‘‘discrete.’’ Second, it determines whether it is ‘‘significant.’’ If a population is both ‘‘discrete’’ and ‘‘significant,’’

it constitutes a DPS. Third, the Service applies the listing criteria, 16 U.S.C.

§ 1533(a)(1), outlined earlier in this statement, to determine whether to list the DPS

as endangered or threatened.

A population segment may be considered discrete if it is either (1) markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors, and/or (2) delimited by international governmental boundaries across which differences in control of exploitation, management

of habitat, conservation status, or regulatory mechanisms exist that are significant

in light of section 4(a)(1)(D) of the ESA.

If a population segment is determined to be discrete under one, or both, of these

conditions, its biological and ecological significance will then be considered in light

of Congressional guidance (see Senate Report 151, 96th Congress, 1st Session) that

the authority to list DPS’s be used ‘‘sparingly’’ while encouraging the conservation

of genetic diversity. In making this ‘‘significance’’ determination, the Services consider the available scientific evidence of the DPS’s importance to the taxon to which

it belongs. This consideration may include, but is not limited to, the following: (1)

persistence of the discrete population segment in an ecological setting unusual or

unique for the taxon; (2) evidence that loss of the discrete population segment would

result in a significant gap in the range of a taxon; (3) evidence that the discrete

population segment represents the only surviving natural occurrence of a taxon that

may be more abundant elsewhere as an introduced population outside its historic

range; or (4) evidence that the discrete population segment differs markedly from

other populations of the species in its genetic characteristics.

The Policy’s guidelines permit the use of agency discretion in evaluating discreteness and significance. Indeed, the Policy provides that:

‘‘[b]ecause precise circumstances are likely to vary considerably from case to

case, it is not possible to describe prospectively all the class of information that
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might bear on the biological and ecological importance of a discrete population

segment.’’ Id.

In responding to public comment on the draft version of the Policy published in

the Federal Register, we stated ‘‘that the use of international boundaries as a measure of discreteness may introduce an artificial and nonbiological element to the recognition of DPS’s,’’ and that such determination ‘‘is sometimes undertaken as a matter of policy rather than science.’’ The policy further noted that ‘‘it appears to be

reasonable for national legislation, which has its principal effects on a national

scale, to recognize units delimited by international boundaries when these coincide

with differences in the management, status, or exploitation of a species.’’

Moreover, the policy recognizes that the ‘‘[r]ecognition of international boundaries

in this way is also consistent with practice under the Convention on International

Trade in Endangered Species of Wild Fauna and Flora [CITES], which is implemented in the United States by the Act.’’ Under CITES, species protection may vary

from country to country (e.g., prohibiting commercial trade for a species from one

country, but not from another) depending on their management of the species. When

appropriate, the ESA listings for species included in CITES can be specific to a

country in order to reflect those management differences and support effective implementation of CITES (e.g., for the salt water crocodile).

THE RECOVERY PROCESS

Recovery of threatened and endangered species is the process by which the decline

of an endangered or threatened species is arrested or reversed, and the threats to

its survival are neutralized, so that long-term survival in nature can be ensured.

The goal of the recovery process is to restore listed species to a point where they

are secure, self-sustaining components of their ecosystems which do not require the

protections of the ESA, and can be delisted.

For almost all species, a recovery plan is essential as a road map for the recovery

process. A recovery outline, the first step in recovery planning, guides the development of a recovery plan that identifies Federal, State, tribal, and private actions

needed to achieve recovery. The Service’s policy is to complete a recovery outline

within 60 days of listing a species. A recovery outline identifies the major and most

imminent threats to a species, and the actions and partners needed to immediately

begin reducing these threats while a recovery plan is being developed.

The ESA states that recovery plans shall be developed for the conservation and

survival of threatened and endangered species unless such a plan will not promote

the conservation of the species. There are very few exceptions to the need for a recovery plan, and most of these exceptions are for species that occur under very localized circumstances where other plans, such as a forest management plan, already

contain the actions needed to recover the listed species.

Therefore, it is the case for most species that immediately upon listing the Service

also begins the recovery planning process. A first step in the process is to identify

the participants of a recovery team that will work to craft the recovery plan for a

listed species. To guide our actions during the recovery process, the Service uses our

May 1990 ‘‘Policy and Guidelines for Planning and Coordinating Recovery of Endangered and Threatened Species’’ and the following 1994 joint FWS/NMFS policies:

• Policy for Peer Review of ESA Activities—incorporates independent peer review

into recovery actions, including the writing of recovery plans;

• Policy on Information Standards—directs that the best available scientific and

commercial information be used when determining what actions are needed to recover species; and

• Policy on Recovery Plan Participation and Implementation (published in the

Federal Register on July 1, 1994 (59 FR 34272)—directs the Service to solicit the

participation of State, tribal, and Federal agencies, academic institutions, private individuals, and economic interests when determining the recovery actions needed to

recover species.

The latter policy directed the Service to diversify the areas of expertise represented on a recovery team, develop multiple species plans when possible, minimize

the social and economic impacts of implementing recovery actions, and involve representatives of affected groups and provide stakeholders the opportunity to participate in recovery plan development.

Because the Service bases our recovery decisions on sound science, we seek to involve experts in these decisions and include them on recovery teams. Therefore,

when we initiate the recovery planning process for a listed species, we endeavor to

identify experts on the species and its habitat, as well as the most knowledgeable

individuals on land use and land management within the range of the species.
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The Service must balance the need to have as many participants as possible on

a recovery team, with the need to ensure that the size of the team does not compromise its efficiency. We often work primarily as the facilitator on recovery teams,

providing guidance for experts on the team from other Federal agencies, State agencies, tribes, or the private sector.

In addition, the Service often uses one or more ‘‘recovery implementation teams’’ during the recovery planning process to allow for broader public participation. Participation on these teams is usually possible for any concerned individual that wishes to volunteer. As a recovery plan is drafted, the proposed, necessary recovery actions identified by the recovery team are presented to the implementation teams for

their review. The implementation teams, which are often composed of members of

the public and agencies whose interests may be affected by the recovery needs, provide valuable reviews of the feasibility of the proposed actions. The proposed actions

may be modified based on the reviews and comments of the implementation teams.

It is the Service’s intent to complete draft recovery plans for species within 11⁄2

years from the time of listing. Once complete, draft recovery plans are available for

public review and comment. A notice of availability is published and comments are

solicited. Today, it is not unusual for the Service to receive hundreds, sometimes

thousands, of comments on a single plan. These comments come from a wide range

of interests: from advocates for the environment to private citizens who are worried

about what effects the recovery of the species may have on their livelihoods.

The Service uses the recovery team to consider each comment on a recovery plan,

and, where needed, incorporate the comments into the final recovery plan. A record

of how comments on a recovery plan are considered is kept and made available for

public review. When a final recovery plan has been completed and approved by the

Service’s appropriate Regional Director, it is made available to all interested parties.

A Notice of Availability is published in the Federal Register and the Service ensures

that all of the recognized concerned public is aware of the completion of the plan.

In addition, notices are often placed in newspapers throughout the range of the species.

A recovery plan must address the threats to the species, describe the actions

needed to recover the species, provide an implementation schedule of when the actions will be completed, identify the parties who will have primary responsibility for

undertaking the actions, and assess the estimated costs of implementing the recovery plan. In addition, a recovery plan identifies the criteria that will be used to determine when a species may be sufficiently recovered to be downlisted from endangered to threatened, or delisted and removed from the list of species protected by

the ESA.

The Service is increasing its use of multi-species recovery plans. At least 20 multispecies plans have been finalized since 1998. Addressing the recovery of multiple

listed species in a single, multi-species, ecosystem-based approach is efficient in addressing common habitat needs and shared threats. This approach is often more

cost effective and efficient than addressing species through single-species recovery

plans.

Recovery plans must be dynamic documents. New information is constantly becoming available. As new information is recognized that may affect a species’ recovery, the recovery team for the species may be reconvened to assess the information

and determine if the plan needs to be revised. At the very minimum, the Service

reviews plans every 5 years to determine if changes are needed. If significant

changes to a plan are needed, then, following the process already outlined, a new

draft plan is prepared, participation and comment is invited from all interested parties, and a new final recovery plan may result.

The Service is proud that, as of the beginning of this year, 88 percent of the species for which a recovery plan is required and due have approved recovery plans.

Recovery plans are not prepared for some listed species, particularly international

species not found in North America.

Recovery implementation is the undertaking of the actions needed to accomplish

recovery plan tasks in a systematic manner. Implementation involves strategic planning and requires the tracking of results to determine if recovery actions are working and whether a recovery plan’s objectives are being met. Recovery actions are

prioritized. Priority 1 actions are those that must be taken to prevent extinction or

to prevent the species from irreversible decline. Priority 2 actions are the actions

that are needed to prevent a significant decline in a species’ population or habitat,

or would prevent some other significant negative impact. Finally, priority 3 actions

are those actions that must be take to provide for a full recovery of a species.

In most cases, successful species recovery is too large a task for any one agency

or interest group. Implementation must involve all affected parties, consider social

and economic impacts, and must be scientifically sound. The Service must engage
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the multiple stakeholders throughout the recovery implementation process, and encourage them to effectively sustain, conserve and ultimately recover endangered and

threatened species so that they may be delisted.

An example of stakeholder involvement in the recovery process is the multi-species recovery effort in the Southwestern United States involving the cactus ferruginous pygmy-owl and the threatened and endangered big river fish in the Lower Colorado River. The threats faced by these species include an increasing loss of both

arid and aquatic natural habitat due to rapid population growth in southern Arizona, Nevada and California. The loss of habitat necessitates working with diverse

and broad groups of stakeholders during recovery implementation to balance species

conservation, economic viability, and ‘‘people protection’’. In the Southwest, the efforts of recovery implementation teams include participation by water, power, and

wildlife agencies and municipalities, ranchers, and cultural and historical entities,

all acting for the common good. Such interaction leads to enlightened understanding

about how improved land and water quality and habitat cohesiveness assists species

recovery while providing healthy habitats for everyone.

It usually takes many years, often decades, for a species to decline to the point

where it needs the protection of the ESA. Likewise, recovery of a species is also a

process that usually requires significant time to accomplish. Instances where habitat loss and degradation constitute the main threats to a species usually makes it

more difficult to recover the species. Often the participants in the recovery planning

and implementation for a species will change as time passes. The constant is the

Service’s direction of the recovery implementation process, ensuring that the best

scientific and commercial information is used, that all willing participants are provided the opportunity to comment and participate, and that the progress toward recovery is monitored and, when necessary, changed through adaptive management.

THE DELISTING PROCESS

The same scientific rigor and full public participation is used in delisting species

as was used in the listing of species. The Service regularly assesses the criteria listed in the recovery plan that are used to define when a species has sufficiently recovered to be reclassified as either a threatened species (recovered from being endangered) or as a fully recovered species and removed from the list of species protected

by the ESA.

Likewise, the most recent scientific and commercial data, after being subjected to

peer review, are used to assess the current status of the species. Often, the factors

used to determine whether a species has recovered include the species’ population

size, recruitment, stability of habitat in terms of habitat quality and quantity, the

degree to which habitat areas are connected to one another, and the control or elimination of the threats that led to the need to list the species.

The ability to list distinct population segments may also play an important role

in the recovery of listed vertebrate species. Many species were listed before the ESA

was amended in 1978 to allow the listing of distinct population segments. Therefore,

the Service may consider that a portion of a listed species has recovered sufficiently

to warrant downlisting or delisting. Of course, this population, and the populations

of the species that may not have reached the recovery goals, must conform to the

same criteria of substantiality and distinction that are used to list distinct population segments. If this is the case, then the Service may be able to use a distinct

population segment to delist or downlist a portion of the species. This will provide

regulatory relief for the public within the range of the recovered distinct population

segment. As always, the Service uses the best scientific and commercial data, along

with the opinions of experts and the public, when making these decisions.

As already mentioned during the previous review of the listing process, the public

has the opportunity to petition the Service to delist a species at any time. Likewise,

as already discussed, the petition will trigger a process where the petition is first

reviewed for presenting substantial information, and, if it passes that test, within

12 months the action requested in the petition will be assessed, using the best peer

reviewed scientific and commercial data and the opinions of experts. If it is judged

that the petitioned action is warranted, the Service will move to propose delisting

the species.

Outside of the petition process, as recovery of a species becomes more imminent,

the recovery team is requested to assess the evidence that the species may have

reached the goals identified for its recovery. Again, only the best peer reviewed scientific and commercial data are used, along with the opinions of experts on the species, its habitat, and land management practices. If the status of the species has

improved sufficiently, then a proposal to downlist or delist the species will be prepared.
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As is the case for the process of listing a species, a proposal to reclassify a species

is published in the Federal Register and announced in selected newspapers throughout the range of the species. The Service schedules public meetings during the comment period for a reclassification so that all of the concerned public will have the

opportunity to provide comments on the proposed action. All comments are carefully

considered and a record, available to the public, is kept on the decisions made with

respect to the comments.

If, after this process, it is determined that a species has recovered sufficiently to

merit reclassification, then a final decision is made and published. A decision to reclassify a species from threatened to endangered likely requires a new recovery plan

be developed, and the process already described will once again be initiated. A determination that a species has fully recovered will result in the species being removed from the list of species protected by the ESA.

As acknowledged earlier, species are usually listed as a result of factors that

caused their decline over many years, often decades or even centuries. As a result,

recovery of listed species requires time and resources. It is the goal of the Service

to recover species as quickly as possible. Since 1998, the Service has specifically targeted $1 million each year to listed species that are nearing recovery. This funding

provides the extra resources needed to either downlist or delist the species and ensures that they get this focused attention.

We have had success. Recently the Service was successful in taking the peregrine

falcon off of the list of species protected by the ESA. The falcon was primarily

threatened by pesticides and habitat loss, and the efforts of many agencies and individuals, over more than 30 years, were needed to recover the falcon. Likewise, just

this year the Aleutian Canada goose was delisted. The goose was one of the first

species to be protected under the ESA. Through cooperation with State governments

and partnerships with private landowners, the threats posed by introduced foxes

and habitat losses were reduced and recovery of the goose was accomplished.

Likewise, the bald eagle, our Nation’s symbol, is on the verge of complete recovery. Once the Service has resolved how the delisting of the bald eagle will be addressed in our implementation of other wildlife laws, such as the Bald and Golden

Eagle Protection Act, the Service will be able to proceed with this historic event.

In all, as a result of recovery activities, the Service plans to delist or downlist four

more species in fiscal year 2001 and at least six species in fiscal year 2002.

CONCLUSION

In closing, I would like to emphasize the importance the Service places upon having a science based, open decision process in which the affected public can participate fully. Our listing and delisting decisions are sometimes difficult and contentious, and not all parties will agree with our final decision. But it is critical that

the public and the Congress view our work as honest and objective efforts to reach

a decision required of us by the Act. Our success in implementing the Endangered

Species Act is tied to that trust.

Mr. Chairman, this concludes my prepared testimony. Thank you for your interest

in the Endangered Species Act and the way it is implemented, and for the opportunity to testify. I would be pleased to respond to any questions you and other members of the committee might have.

STATEMENT OF DON KNOWLES, DIRECTOR, OFFICE OF PROTECTED RESOURCES, NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE

Mr. Chairman, my name is Don Knowles and I am Director of the Office of Protected Resources in the National Marine Fisheries Service (NMFS), an agency of the

National Oceanic and Atmospheric Administration. Thank you for the opportunity

to testify on the process we use to list and delist species under the Endangered Species Act (ESA).

The ESA provides for the recovery of threatened and endangered species and the

conservation of their ecosystems. Terms such as conservation, species, threatened,

endangered, and critical habitat are defined in the Act. Section 4 elaborates on listing, delisting, critical habitat and recovery. This section states that listing determinations are to be made solely on the basis of the best scientific and commercial

data available after conducting a review of the status of the species and after taking

into account those conservation efforts, if any, being made by any locality, State, foreign Nation or tribal government. In the 1988 amendments to the Act, the word

‘‘solely’’ was added to the above criteria to expedite the listing process and to prevent non-biological considerations, such as economic impacts, from affecting listing
62

determinations. The Act also requires recovery plans that include specific management actions that will achieve the plan’s goal. Plans must include measurable criteria, which, when met, will result in removing the species from the list.

Implementing regulations for listing, delisting, or designation of critical habitat

were developed jointly with the U.S. Fish and Wildlife Service (FWS). The process

for listing usually begins when we receive a petition to list a species. In some cases,

when we have information indicating that a species may warrant listing, NMFS will

begin the process without a petition. The next step is to evaluate the status of the

species, that is, to conduct a status review. Based on the status of the species and

after taking into account efforts made by others, NMFS will determine whether it

is warranted to propose to list a species. Within 1 year of the proposal, NMFS will

make a final determination on whether listing is warranted. In addition to implementing regulations, we have issued joint policies that elaborate on the listing and

delisting process. For example, in 1994 NMFS and FWS issued a policy to clarify

the role of peer review in ESA activities and a policy to provide criteria, establish

procedures, and provide guidance to ensure that decisions made by the Services

under the ESA meet the law’s requirements. NMFS has also issued guidance on listing and recovery priorities as well as guidance on developing recovery plans. We

plan to update the recovery plan guidance this year.

OVERVIEW OF NMFS’ PROTECTED SPECIES PROGRAM

NMFS is currently responsible for 55 species listed under the ESA, including marine mammals, sea turtles, plants, salmon and other fish. Of these, 26 are salmon

and steelhead in California and the Pacific Northwest (Alaska currently contains no

listed salmon species). Only one NMFS species, the California gray whale, has recovered to the point where it could be delisted. However, several other species have

stabilized and we consider this a successful result of the ESA.

To be sure, NMFS’ listing decisions have been the subject of litigation, especially

with regard to West Coast salmon and steelhead. NMFS has lost some cases and

learned valuable lessons. To address the issue of whether NMFS’ decisions were

based on the best available science, NMFS collected information from the Pacific

Salmon Biological Technical Committees and interested parties in Washington, Oregon, Idaho and California. NMFS also established a Biological Review Team (BRT)

to review available information. While these efforts have not eliminated lawsuits,

they have helped NMFS gather the best available science. For all the species under

NMFS’ jurisdiction, NMFS continues to look for new ways to ensure that it uses the

best available science in its decisionmaking.

Mr. Chairman, thank you for this opportunity to testify. I look forward to answering any questions.

RESPONSES BY DON KNOWLES TO ADDITIONAL QUESTIONS FROM SENATOR BAUCUS

Question 1. Mr. Knowles, you are involved with these issues every day; please be

honest, what do you see as the main problems with the ESA listing and delisting

process? And please, be specific.

Response. The National Marine Fisheries Service (NMFS) is not in the same situation as the U.S. Fish and Wildlife Service concerning listing and delisting species.

We are responsible for fewer species. Therefore, we have been able to list species

and designate critical habitat close to the time limits proscribed by the Endangered

Species Act. However, we do see a number of issues that affect the listing/delisting

process. For example, by the time most species are listed, they have reached a point

where their recovery is extremely difficult. If we strengthen our partnerships with

States, tribes and private landowners so that we are working together to conserve

species, we will lessen our dependence on the ESA as the primary source, and often

the last resort, for species protection. Also, the timing is off for designating critical

habitat at the time of listing. It would be more appropriate to designate critical

habitat in conjunction with developing a recovery plan. We need to add more credibility to our listing, delisting and critical habitat decisions by making them more

transparent. This would involve expanding opportunities for public participation and

diversifying the make-up of recovery teams.

Question 2. What do you need to be able to do your job under the Endangered

Species Act? A pot of money? Do you think you have adequate resources? I know

that this hearing is confined to the listing and delisting process, but please answer

my question in the context of your larger duties under the ESA. Why is it, for instance, that salvage timber sales in Montana just can’t go forward? Because there

aren’t enough biologists on the ground to do consultations under section 7?
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Response. We are able to do the highest priority items with current funding. Our

budget requests target the needs of specific groups of species (e.g. Pacific salmon,

sea turtles, marine mammals) and not specific ESA programs such as listing, critical habitats and section 7 consultations. This gives NMFS the flexibility to use our

allocated funds for a variety of ESA programs, and wherever the need is greatest

at the time. As for section 7 consultations on salvage timber sales in Montana,

NMFS is not involved in habitat-related issues in Montana.

Question 3. Do you think that a lot of complaints and concerns about your agency’s implementation of the ESA, such as in the listing process, is a symptom of a

much larger problem—a lack of adequate funding? What else is contributing to your

problems here?

Response. The larger issue is not the implementation of the ESA itself, but how

it brings to light the ever-increasing demand for resources, especially habitat. Preventing the extinction of wildlife and plants becomes more and more difficult as

their habitat is lost due to population growth and development. Yes, we need adequate resources to recover species, but we also need time to make the changes necessary to conserve the species as well as time for the changes to be effective. Often,

the Federal agencies cannot say with authority exactly what measures need to be

carried out to recover a species. Landowners and State and local governments are

left with uncertainty about how their future may be affected by efforts to recover

species. Therefore, the agencies responsible for implementing the ESA must be able

to develop quickly the scientific information necessary to know what actions are

needed to conserve species and there should be incentives that will increase public

support to carry out these activities.

Question 4. Do you honestly believe that the citizen petition process is the real

problem here? Do you honestly believe that getting rid of the provision will improve

the ability of the Service to list or delist species. That it will improve the ability

of the Service to do its job?

Response. As we responded in question 1, NMFS has been able to list species and

designate critical habitat within or close to the time limits proscribed by the Endangered Species Act. So, we do not consider the provision in the ESA that allows citizens to petition NMFS to list, delist, or designate critical habitat a problem.

Question 5. Should a listing decision be left solely to the Services?

Response. The listing decision, which in the end should be made solely by the

Services, is reviewed by many sources prior to that decision. For example, in response to a petition for NMFS to list several populations of West Coast steelhead,

NMFS assessed the best available data by including information from the Pacific

Biological Technical Committees and interested parties in Washington, Oregon,

Idaho and California. The committees included scientists from Federal, State and

local resource agencies, Indian tribes, industries, universities, professional societies

and public interest groups with technical expertise. NMFS then established a Biological Review Team (BRT) composed of NMFS scientists and managers as well as

scientists from other Federal agencies to conduct a coastwide status review for west

coast steelhead. Based on the result of the BRT report and after considering other

information and existing conservation measures, NMFS identified which of the

steelhead populations should be proposed for listing and those that did not warrant

listing.

Question 6. What do you think that expanded peer review would add to the listing

and delisting process?

Response. It is a published policy of the Services to incorporate independent peer

review in listing and recovery activities, during the public comment period. For listing, we solicit the expert opinions of those appropriate and independent specialists

regarding pertinent scientific or commercial data and assumptions relating to the

taxonomy, population models and supportive biological and ecological information

for species under consideration for listing. We summarize in the final document the

opinions of all independent peer reviewers and include all reports, opinions and

other data in the administrative record of the final decision. We also solicit peer review to obtain all available information from appropriate local, State and Federal

agencies, tribal governments, academic and scientific groups and any other party

who may possess information during the development of draft recovery plans. Where

appropriate, we have scientific data related to implementation of recovery peer reviewed, and we include these opinions in the final recovery plan. However, I believe

the real issue concerning the use of peer review is to increase the credibility of ESA

decisionmaking. Therefore, we continue our commitment to obtaining and using the

best scientific information available for our ESA decisions, having this information
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peer reviewed, and ensuring that the public has access to the results of the peer

review.

STATEMENT OF DEBORAH M. BROSNAN, PRESIDENT AND FOUNDER, SUSTAINABLE

ECOSYSTEMS INSTITUTE

Good morning. I am Deborah Brosnan, president and founder of the Sustainable

Ecosystems Institute (SEI). The institute is a public-benefit non-profit organization,

that provides impartial scientific support for conservation. We are rigorously nonpartisan, and seek science-based, cooperative solutions that benefit both the environment and the human communities that depend on it. Currently over 300 scientists work with the institute to provide support to government, the private sector

and citizen groups. Our work ranges from fundamental research to mediation, and

the integration of science with policy.

Since our inception in 1992, the institute has worked to strengthen scientific principles and methods integral to the application of the Endangered Species Act. The

ESA remains a key piece of the Nation’s environmental laws. In common with many

other scientists, we support legislation that protects the biodiversity that, ultimately, supports us.

In recent years, there has been extensive comment and critique of management

under ESA. These critiques come from every side of the debate, but contain some

themes that are common to all points of view. All parties, for instance, agree that

the role of science needs to be enhanced. There are many calls for a wider and more

effective use of independent and impartial scientific analysis. Of course, the Fish

and Wildlife and National Marine Fishery Services (USFWS and NMFS) have committed to the use of scientific excellence, and indeed employ many fine scientists.

However they would probably be the first to acknowledge the need for more resources, and better integration of their efforts with the Nation’s other scientific resources. This is a point of view shared across the political spectrum.

Central to the idea of improving ESA science is the concept of peer review. Peer

review is the scientific equivalent of quality control—it is our profession’s method

of ensuring that analyses are carried out appropriately, that the best data are used,

and that the conclusions drawn are appropriate. Peer review is a normal scientific

process, for which there are long-established protocols, and which is widely applied

to decisions about scientific publication and funding. However more practical applications, for instance to management of resources, are less frequent. The Magnusson

Act is an example of an explicit application of peer review to an important conservation issue.

It is already the policy of NMFS and UWFWS that important decisions, such as

listing actions, are subject to external peer review. However the widespread calls

for increased use of peer review, as outlined in my accompanying table, testify to

the general feeling that a more systematic and open process is desirable. At least

63 organizations, groups or individuals have separately called for inclusion of peer

review into ESA revisions. The information in the table is revealing: resource user

groups call for review of listing actions, while environmental organizations call for

review of Habitat Conservation Plans and Recovery Plans. Essentially, each group

wants to have impartial review of actions affecting their particular concerns. They

are united in their common belief that an independent review would lead to better

decisions and more effective management.

Perhaps these different groups all believe that their views on resource management would prevail following peer review. If so, they are mistaken. Science is value

neutral. It can sometimes appear to favor one political point of view, sometimes another, though in fact it favors none. Scientific peer review can however be of great

use in ensuring that good science is appropriately incorporated into management actions, in making decisions transparent, in ensuring that a fair and reasonable process is followed, and in making better decisions for natural resources. If the different

groups want to see that conservation decisions are based on the best science, then

peer review can indeed help. There is nothing to fear about the idea of peer review;

however I will also argue that it is important to have a well thought-out, and systematic process.

In the past few months, SEI has begun a pilot process to assist the Fish and Wildlife Service with peer review. This is a pro-bono effort by our scientists, and supports the Service’s existing policies and processes. Regional offices have been encouraged by the Service’s Director to use SEI’s assistance in finding and enlisting outside reviews. We have organized the National Network for Conservation Science,

consisting of 300 volunteers, who provide help to the Service. Network participants

are faculty at major universities and other experts, including 6 members of the National Academy of Sciences.
65

It is early days in this experiment, but we can provide some information on success rates. In the accompanying graphic I show that the Service has diligently

sought out peer reviewers on their recent regulatory actions—often without recourse

to SEI help. Sometimes they have been successful in obtaining reviews, as in the

case of listing of the Alabama Sturgeon and other issues. Sometimes, however, the

Service has sought reviews, but has not been successful in getting cooperation from

the independent scientists. For instance, on Critical Habitat of the Arkansas Shiner,

the Desert Bighorn and the California Gnatcatcher, all affecting large areas of habitat, no review was received from any of the 17 scientists approached by the Service.

SEI usually has higher success rates in our program for the Service and other reviews. Typically we obtain 96 percent response rates.

I believe the elevated response rates are explained by several factors. First, we

have provided an infrastructure that allows the effective engagement of interested

scientists, and ensures that such scientists are willing and able to respond, within

the limited timeframes of agency actions. Second, as practicing scientists, we ‘‘speak

the same language’’ as the reviewers, and can explain our needs effectively. There

is a substantial difference between the cultures of academia and regulatory agencies, so that the needs of one are not apparent to the other. Third, we provide rewards to reviewers, either financial or professional, that encourages their response.

Fourth, we act as a buffer to protect the integrity of the scientist and science. We

look forward to further development of this review program with the Service, and

believe that innovative, cooperative programs could meet many of the goals of all

interested parties.

Peer review is not however a panacea. As I have previously outlined in an article

for the National Academy (attached) simple extension of the academic model of peer

review to applied management decisions can lead to significant problems. Peer review itself needs to be reexamined and carefully designed in order for it to be effective. Some examples: peer review in public decisionmaking cannot be anonymous as

in academia; the standard of proof criterion is different in the different contexts; decisions have to be made even when science is incomplete, or we will face ‘paralysis

by analysis’. Because the science is used in a non-academic and management arena,

it is important to maintain the integrity of the science and scientists. Scientists

should not be asked to become managers or to defend a manager’s preferred option.

The lessons we have learned so far have been useful. Working within existing

policies of the regulatory agencies, peer review can indeed contribute to effective

management. Academic models of review, and existing infrastructures are however

insufficient to the task. With the USFWS and our other partners we have begun

a process to build the necessary structures—improvements are definitely possible,

and resources will be needed. We estimate that a national program to provide peer

review would cost between $3 to $5 million annually (of course as a non-profit we

cost a lot less than a Federal agency would.) Peer review is a serious and professional undertaking. An ad hoc or poorly thought-out approach will lead to frustration. However, if properly implemented, peer review can contribute much to the

ESA and other natural resources decisions.

Sustainable Ecosystems Institute

Examples of Calls for Peer Review Under the Endangered Species Act

Organization

Where is Peer Review Desired?

How to Implement Peer Review? General Who Pays For It?

Peer

Review

Listing HCP Other

Ecological Society of

American Ad Hoc Committee on Endangered

Species.

X No X ................ .......................................

9 Current and Past Presidents of Ecological Societies.

.......... ................ .......... Recovery

Plans.

.......................................

Society of American ........ .......... X .......... ................ .......................................

Society for Integrative

and Comparative Biology.

X ................ X ................ Independent Scientist

Panel.

Federal Government

Wildlife Society ................ .......... X .......... Recovery

Plans.

.......................................
66

Sustainable Ecosystems Institute—Continued

Examples of Calls for Peer Review Under the Endangered Species Act

Organization

Where is Peer Review Desired?

How to Implement Peer Review? General Who Pays For It?

Peer

Review

Listing HCP Other

Senator Ashcroft .............. .......... X .......... ................ .......................................

Senator Lieberman .......... .......... X .......... Recovery

Plans.

.......................................

Congressman Steve

Largent.

X X .......... ................ .......................................

National Governor’s Association.X ................ .......... ................ .......................................

Western Governor’s Association.X ................ .......... ................ Independent experts

chosen by USFWS

and the States.

Task force to funding

Southern Governor’s Association.X X .......... ................ .......................................

Governor Marc Racicot

(MT).

.......... X .......... ................ Scientific review and

cost/benefit analysis.

Government task force

finds a way to fund

the process

State of Washington ....... X ................ X ................ Independent Scientific

Review Board appointed by the Governor.

Association of California

Water Agencies.

.......... X .......... ................ Scientific review and

cost/benefit analysis.

Federal Government

NW Power Planning Council.X ................ .......... ................ Independent Scientific

Review Team appointed by NWPPC

(Chair) and NMFS

(Regional Director).

Council

National Association of

Conservation Districts.

.......... X X ................ Independent review

from industry and

university scientists

on critical habitat.

National Land and Conservation Fund. Listing petitioners if

frivolous petition

American Public Power

Association.

X ................ .......... ................ .......................................

Audubon, Greenpeace,

National Wildlife Federation, Environmental

Information Center (in

joint communication).

X ................ X ................ ndependent Scientific

Review.

Imply Federal Government

California Native Plant

Society.

.......... X X ................ Science Advisory Panel Imply Government

Defenders of Wildlife ....... X ................ X ................ Call for scientific and

community review.

Environmental Protection

Information Center.

.......... ................ X ................ .......................................

Forests Forever ................ .......... Opposed .......... ................ .......................................

National Wildlife Federation........... ................ X ................ .......................................

New Jersey Audubon ........ .......... ................ X ................ ....................................... Applicant

NW Ecosystem Alliance ... .......... ................ X ................ Critical Habitat .............

Natural Resource Defense

Council.

.......... ................ X ................ Independent Oversight

Committee.

Imply Government

SW Center for Biological

Diversity.

X ................ .......... ................ National Academy of

Science Nominations.

Federal taxes, permit

fees, damages from

E.S.A. lawsuits

Pacific Coast Federation

of Fishermen’s Associations.

X ................ .......... ................ Opposed to stake-holder

representation.

American Farm Bureau

Federation.

X X X ................ .......................................

Farm Bureau ................... X ................ .......... ................ .......................................
67

Sustainable Ecosystems Institute—Continued

Examples of Calls for Peer Review Under the Endangered Species Act

Organization

Where is Peer Review Desired?

How to Implement Peer Re- view? General Who Pays For It? Peer

Review

Listing HCP Other

Fairy Shrimp Study Group

(California businesses

and farmers).

.......... X .......... ................ .......................................

American Angus Association........... X .......... ................ National Academy of

Sciences.

Cattlemen’s Association .. .......... X .......... ................ .......................................

Cattlemen on the Hill ..... .......... X .......... Critical

Habitat.

Blind panel, including

natural resource user

groups, states, and

land grant colleges.

American Sheep Industry

Association.

.......... X .......... ................ ....................................... Local Government

National Association of

Wheat Growers.

.......... X .......... ................ .......................................

California Women for Agriculture........... X .......... ................ Independent review .......

American Water Works

Association.

X ................ .......... ................ .......................................

American Society of Civil

Engineers.

X ................ .......... ................ .......................................

American Road and

Transportation Builders

Association.

X ................ .......... ................ .......................................

Inland Rivers, Ports, Terminals, Inc. BOD........... X .......... ................ Panel of scientific review.

King County Navigation

Bar.

.......... ................ X ................ Independent Recovery ...

Building Owners and

Managers Association.

.......... X X ................ Scientists and affected

community.

International Council of

Shopping Centers.

X ................ .......... ................ .......................................

Utah Association of Realtors.X ................ .......... ................ .......................................

American Forest and

Paper Association.

X ................ .......... ................ Independent review cost

benefit analysis.

Pulp and Paperworkers

Resource Council.

.......... X .......... Recovery .......................................

Boise Cascade Corporation........... X .......... ................ Scientific, economic and

social review.

Federal Government

NW Forest Resource

Council.

X ................ X ................ Double-blind peer review. Want affected

party representation.

Federal Government

Club 20 ........................... X ................ .......... ................ Independent cost/benefit analysis.Imply Federal Government

Family Business First ...... .......... X .......... ................ .......................................

Family Business Fund ..... .......... X .......... ................ .......................................

National Grange of the

Order of Patrons of

Husbandry.

X X .......... ................ .......................................

Multiple Grange, Forestry,

Industry Associations.

X ................ .......... ................ Public Input ..................

National Endangered Species Act Coalition.X X X ................ National Academy of

Sciences nominates

scientists.

Federal and State Government

James McClure to

NESARC.

X X X Habitat

Designations.

Peer scientists and affected parties.Federal Government
68

Sustainable Ecosystems Institute—Continued

Examples of Calls for Peer Review Under the Endangered Species Act

Organization

Where is Peer Review Desired?

How to Implement Peer Re- view? General Who Pays For It? Peer

Review

Listing HCP Other

National Wilderness Institute........... X .......... ................ ....................................... Imply Federal Government

Cattle ranchers and environmental coalition in

New Mexico.

X ................ .......... ................ Scientific and public

input.

People for the USA! ........ .......... ................ .......... Data ....... .......................................

L.A. Times ........................ X ................ .......... ................ .......................................

National Jewish Community Relations Advisory

Council.

X X .......... ................ Scientific review ........... Federal Government

Church of the Brethren ... .......... Opposed .......... ................ .......................................

California Environmental

Dialogue.

X ................ .......... ................ Permanent program

with standing committees.

Government

Meridian Institute Workshop.X X X ................ Societies and services

with data base of

experts.

Services HCP applicants

[From Issues in Science and Technology, Volume XVI, Number 3, 2000]

Perspectives

CAN PEER REVIEW HELP RESOLVE NATURAL RESOURCE CONFLICTS?

(By Deborah M. Brosnan)

Congress, businesses, environmental organizations, and religious groups are all

calling for peer review systems to resolve conflicts over the protection of this Nation’s natural resources. A recent opinion poll found that 88 percent of Americans

support the use of peer review in the application of the Endangered Species Act

(ESA). The rising interest in peer review is the result of widespread unhappiness

with natural resource policies, including ESA listing decisions and the establishment of ESA-sanctioned Habitat Conservation Plans (HCPs). The many interest

groups believe that scientific peer review will support their particular viewpoints.

The obvious problem is that they can’t all be right.

A more important problem is that peer review as traditionally applied to examine

scientific research is inadequate for supporting decisions about managing species,

lands, and other natural resources. It does not take into account the complex political, social, and economic factors that must be factored into natural resource decisions.

Peer review can provide a basis for improving natural resource decisions, for reconsidering past decisions, and for settling disagreements. But to function effectively, the review system needs to be much different from the one used widely in

academia today. In the meantime, traditional peer review is being applied on an ad

hoc basis to important endangered species and habitat conservation issues, leading

to contentious outcomes. In the rush to implement a popular policy, we are setting

a precedent that is only institutionalizing our confusion.

EVERYONE WANTS IT

It is heartening that all sides want independent peer review; it seems that everyone acknowledges that better decisionmaking is needed. A survey by the Sustainable Ecosystems Institute found that at least 60 farming, ranching, logging, industrial, ecological, wildlife, religious, and Governors organizations are calling for scientific review in the application of the ESA. This includes reviews of HCPs, which

are agreements between government agencies and private landowners that govern

the degree to which those owners can develop, log, or farm land where endangered

species live.
69

Why are so many diverse groups eager to embrace peer review? There is widespread distrust of the regulatory agencies involved in ESA and dissatisfaction with

their administration of the Act. Many groups believe that agencies are making the

wrong decisions. Disagreements among interested parties often end up in litigation,

where judges, not scientists, make rulings on scientific merit. Most decisions to list

species in the West, including those involving the northern spotted owl, marbled

murrelet, and bull trout, have been made after lawsuits. Similarly, one approved

HCP—the Fort Morgan Paradise Joint Venture project in Alabama, which would

have affected the endangered Alabama beach mouse—was successfully challenged in

court on the basis of inadequate science.

Many organizations see science as a way of reducing litigation. After all, judges

are not scientists or land managers and are apt to make the wrong technical decision. Court actions are costly. Any means of reducing vulnerability to lawsuits is

roundly favored.

There are striking differences in opinion as to where peer review is needed. Simply put, each group favors review of actions that it finds unpalatable. Development

groups want fewer species listings and therefore demand review of listing decisions.

Some professional and environmental societies oppose peer review of listings because they will unnecessarily delay much-needed conservation measures. Environmental groups are concerned about habitat loss under HCPs and want them independently reviewed.

Regardless of their perspective, most groups want less litigation, less agency control, and greater objectivity. Many also see peer review as a tool for overturning

wrong decisions. Regulatory agencies want to reduce vulnerability to litigation and

develop greater public support. Agency staff, frequently doing a difficult task with

inadequate resources, would prefer to have a strong system to rely on. It is always

better to have a chance to do it right than to do it over.

THE LURE OF HASTY IMPLEMENTATION

The move to implement some form of peer review is already under way. For example, the Magnuson Stevens Fisheries Conservation and Management Act calls for

peer review in arbitrating disagreements over fisheries harvest levels. The U.S. Forest Service now calls for science consistency checks to review decisions about forest

management. Unfortunately, the rush to implement random forms of peer review

has created many ad hoc and ill-conceived methodologies.

Enthusiasm for peer review is so high that it is now central to efforts to reform

ESA. In 1997, the Senate introduced the Endangered Species Recovery Act, which

would have required peer review and designated the National Academy of Sciences

(NAS) to oversee the review process. But few academy members or the scientists

who serve on NAS committees have made their careers in applied science or have

worked in an area in which legal and regulatory decisions are paramount. The bill

was shot down, but the Governors of the western States have asked the Senate to

reintroduce similar legislation in 2000. Whether or not legislation is taken up, it is

clear that Congress wants better science behind natural resource decisions and sees

peer review as the way to achieve it.

Most legislative and agency measures calling for peer review, however, do not describe how it should be structured, other than to say that it should be carried out

by independent scientists. Yet an ill-conceived review process will just compound the

problems. Furthermore, there is a tacit assumption that the pure academic model

will be used. Although it is appealing to think that this system would work as well

for management and policy decisions as it does for pure research findings, it won’t.

Traditional peer review cannot be applied as some kind of quality control in a political arena. Indeed, some attempts to use peer review in this way have backfired.

WHAT CAN GO WRONG

Development of the management plan for the Tongass National Forest, covering

17 million acres in Alaska, illustrates several problems in applying academic peer

review to natural resource management. To make a more science-based decision regarding the management and protection of old-growth forests and associated wildlife

species, the Forest Service set up an internal scientific review team that worked

with forest managers on the plans. Because of Federal laws governing the use of

nonagency biologists, the Service sent drafts to external reviewers, most of whom

were academics. In reviewing the plan and the methodology, the Service concluded

that science had been effectively incorporated and that managers and scientists had

worked well together. Indeed, Service officials have portrayed the plan as a watershed event, bringing the Service’s research and management arms together.
70

The conclusion of the external review committee was different. It independently

issued a statement that was critical of the management proposed in the plan, concluding that, in certain aspects, none of the proposed actions in the plan reflected

the reviewers’ comments. The committee insisted that ‘‘the Service must consider

other alternatives that respond more directly to the consistent advice it has received

from the scientific community before adopting a plan for the Tongass.’’ The reviewers noted that there were specific management actions that should be carried out

immediately to protect critical habitat but that were not part of the plan. These included eliminating road building in certain types of forest and adjusting the ratio

of high-quality and low-quality trees that would be cut in order to protect oldgrowth forests.

The Tongass experience holds several lessons. First, internal and independent reviewers reached opposite conclusions; decisionmakers were left to determine which

set of opinions to follow. Whatever the choice, a record of dissent has been established that increases vulnerability to legal challenge and political interference. Second, the independent scientists felt ignored, which again increases the vulnerability

of the decisions. Third, the independent scientists made clear management recommendations, believing that science alone should drive management decisions;

most managers will disagree with this point of view. Thus, peer review in the

Tongass case raised new problems. Confusion of roles and objectives was a major

cause of these difficulties.

A different set of issues has arisen with the use of peer review in establishing

two HCPs—one involving grasslands and butterflies in the San Bruno Mountains

south of San Francisco, the other involving Pacific Lumber and old-growth forests

near Redwood National Park. In both cases, scientific review panels were used from

an early stage to guide interpretation of the science. The panels were advisory and

scrupulously avoided management recommendations, sometimes to the frustration

of decisionmakers. The panels avoided setting levels of acceptable risk and tended

to use conservative scientific standards.

Another example comes from the State of Oregon Northwest Forest HCP, now

being negotiated to cover 200,000 acres of second-growth forest that is home to spotted owls, murrelets, and salmon. The Oregon Department of Forestry sought reviews of their already-developed plan from 23 independent scientists representing

a range of interest groups and expertise. Not surprisingly, diametrically opposed

opinions were expressed on several issues. It will now be difficult to apply these reviews without further arbitration.

Hints of more endemic problems come from the Fish and Wildlife Service’s use

of peer review for listing decisions. Typically, a few reviewers are selected from a

group of scientists who are ‘‘involved’’ in the issue. But the Service now reports that

at best only one in six scientists contacted even replies to the request that they be

a reviewer. If they do volunteer, they are often late with their responses or don’t

respond at all. Two problems are becoming clear: There is no professional or monetary benefit from being a reviewer, and many scientists are wary of becoming

caught up in politicized review processes, which can become drawn out and expose

them to attacks by interest groups.

Certain actions can determine the effectiveness of a peer review process: how it

is structured, who runs it, who the reviewers are, and how they are instructed and

rewarded. Lack of attention to details and blanket application of an academic model

has already led to problems and will continue to do so.

CLEARING THE MINEFIELD

Peer review has always been a closed system, confined to the scientific community, in which the recommendations of usually anonymous reviewers determine the

fate of research proposals or manuscripts. When scientific review is used outside

this arena, problems arise because scientists, policymakers, managers, advocacy

groups, and the public lack a common culture and language. Few scientists are

trained or experienced in how policymakers or managers understand or use science.

Scientists may be tempted to comment on management decisions and indeed are

often encouraged to do so. However, they are rarely qualified to make such pronouncements. Natural resource managers must make decisions based on many factors, of which science is just one. Inserting academic peer review into a management

context creates a minefield that leads to everything from misunderstanding to disaster.

More appropriate applications of peer review can be designed once the major differences between academic and management science are understood. They involve:
71

Final decisions.—Scientists are trained to be critical and cautious and to make only

statements that are well supported. Managers must make decisions with whatever information is available. Scientists usually send incomplete work back for

further study; managers typically cannot. Managers must also weigh legal concerns, public interest, economics, and other factors that may have little basis

in hard data.

Best available science.—Managers are instructed to use the best available science.

Scientists may regard such data as incomplete or inadequate. Reviewers’ statements that the evidence in hand does not meet normal scientific standards will

be irrelevant to a decisionmaker who lacks alternatives and must by law make

a decision.

Competing ideas.—In pure science, two competing theories may be equally supported by data, and both may produce publishable work. Management needs to

know which is best to apply to the issue in question.

Reviewers as advocates.—In academia, it is assumed that a reviewer is impartial

and sets aside any personal biases. In management situations, it is assumed

that reviews solicited from environmental advocates or development interests

will reflect those points of view.

Speed.—Academic reviews are completed at a leisurely pace. This is not acceptable

in management situations.

Anonymity and retaliation.—Academic reviews are typically anonymous to encourage frankness and discourage professional retaliation. Reviews in management

situations usually must be open to promote dialog. Some scientists will be reluctant to make strong statements if they are subject to public scrutiny.

Qualified versus independent.—Often the scientists best qualified to be reviewers of

a natural resource issue are already involved in it. Many HCP applicants, for

example, do not want ‘‘inexperienced’’ reviewers from the professional societies.

They prefer ‘‘experienced’’ scientists who understand the rationale and techniques of an HCP. This sets up a tension between demonstrable independence

and depth of understanding.

Language.—Managers and decisionmakers may not be familiar with the language

of science. Statistical issues are particularly likely to cause confusion.

Reward structure.—In academic science, reviews are performed free of charge for

the common good and to add to scientific discourse. Hence they are typically

given a low priority. In management situations, this will not work. Rewards—

financial and otherwise—are necessary for timeliness and simply to encourage

reviewers’ interest in the first place.

A NEW MODEL

The troublesome experiences in recent cases such as the Tongass and appreciation

of the different roles of academic and management science reviewers point the way

to more effective integration of peer review into resource management decisions.

The following principles provide a starting point:

• The goals of peer review in each case must be clearly stated.

• Clear roles for reviewers must be spelled out.

• Impartiality must be maintained to establish credibility.

• A balance must be sought between independence and expertise of reviewers.

• Training of reviewers may be necessary.

• A reward structure must be specified.

• Early involvement of scientists will give better results than will post-hoc evaluations.

Three other lessons are evident. First, because academic scientists are rarely familiar with management, the individual or organization coordinating the review

needs to be experienced in both fields. The traditional sources of these ‘‘science managers’’—academic institutions, professional societies, or regulatory agencies—either

lack the necessary experience or are not seen as independent. We need a new system for administering peer review.

Second, a mediator or interpreter who clarifies roles and eliminates misunderstandings can be highly effective. Scientists may need pressing on some points and

at other times may need to be dissuaded from trying to be managers. Conversely,

managers who lack advanced training in disciplines such as statistics may need help

in interpreting scientific statements on issues such as risk. The interpreter can also
72

be a gatekeeper for scientific integrity, ensuring that reviewers do not become advocates, either voluntarily or under pressure.

Third, a panel structure gives more consistently useful results. This is probably

the result of panelists discussing issues among themselves. Although panels can

produce conflicting opinions, they appear more likely to give unequivocal results

than would a set of individual reviews.

There is enthusiasm for science and peer review among most parties involved

with ESA and general natural resource management. But there is little consensus

on how to make the process succeed.

Nationally, we lack the necessary infrastructure for implementing peer review as

a useful tool. In each case, environmentalists, developers, and any other regulated

parties should be asked to design the appropriate system, because they will then

accept its results. This means that advice on forming such groups and oversight of

their progress would be needed. Peer review cannot be guided by managers alone

nor by scientists alone. We need independent technical groups that have the necessary diverse skills but are seen as impartial.

Whichever route is taken, a better approach to peer review must be created. The

rush to impose the old academic model must stop before it creates even more problems. By taking the time to properly devise review systems, we can ensure that the

scientific voice is effective, understood, and utilized.

Threatened and Endangered Species System (TESS)

Delisted Species Report as of 5/7/01

Date Species First ListedDate

Delisted Species Name Reason Delisted

03/11/67 .......... 06/04/87 Alligator, American (Alligator mississippiensis ........................ Recovered

02/17/84 .......... 02/06/96 Bidens, cuneate (Bidens cuneata) ............................................ Taxonomic revision

04/28/76 .......... 08/31/84 Butterfly, Bahama swallowtail (Heraclides andraemon

bonhotei).

Act amendment

10/26/79 .......... 06/24/99 Cactus, Lloyd’s hedgehog (Echinocereus lloydii) ...................... Taxonomic revision

11/07/79 .......... 09/22/93 Cactus, spineless hedgehod (Echinocereus triglochidiatus

inermis).

Not a listable entity

03/11/67 .......... 09/02/83 Cisco, longjaw (Coregonus alpenae) ......................................... Extinct

06/02/70 .......... 09/12/85 Dove, Palau ground (Gallicolumba canifrons) .......................... Recovered

03/11/67 .......... 07/25/78 Duck, Mexican (U.S.A. only) (Anas ‘‘diazi’’) .............................. Taxonomic revision

06/02/70 .......... 08/25/99 Falcon, American peregrine (Falco peregrinus anatum) ........... Recovered

06/02/70 .......... 10/05/94 Falcon, Arctic peregrine (Falco peregrinus tundrius) ............... Recovered

06/02/70 .......... 09/12/85 Flycatcher, Palau fantail (Rhipidura lepida) ............................ Recovered

04/30/80 .......... 12/04/87 Gambusia, Amistad (Gambusia amistadensis) ........................ Extinct

04/29/86 .......... 06/18/93 Globeberry, Tumamoc (Tumamoca macdougalii) ...................... New information discovered

03/11/67 .......... 03/20/01 Goose, Aleutian Canada (Branta canadensis leucopareia) ...... Recovered

10/11/79 .......... 11/27/89 Hedgehog cactus, purple-spined (Echinocereus engelmannii

purpureus).

Taxonomic revision

12/30/74 .......... 03/09/95 Kangaroo, eastern gray (Macropus giganteus) ......................... Recovered

12/30/74 .......... 03/09/95 Kangaroo, red (Macropus rufus) ............................................... Recovered

12/30/74 .......... 03/09/95 Kangaroo, western gray (Macropus fuliginosus) ....................... Recovered

04/26/78 .......... 09/14/89 Milk-vetch, Rydberg (Astragalus perianus) ............................... New information discovered

06/02/70 .......... 09/12/85 Owl, Palau (Pyroglaux podargina) ............................................. Recovered

06/14/76 .......... 01/09/84 Pearlymussel, Sampson’s (Epioblasma sampsoni) ................... Extinct

06/02/70 .......... 02/04/85 Pelican, brown (U.S. Atlantic Coast, FL, AL) (Pelecanus

occidentalis).

Recovered

07/13/82 .......... 09/22/93 Pennyroyal, Mckittrick (Hedeoma apiculatum) .......................... New information discovered

03/11/67 .......... 09/02/83 Pike, blue (Stizostedion vitreum glaucum) ............................... Extinct

10/13/70 .......... 01/15/82 Pupfish, Tecopa (Cypinodon nevadenis calidae) ...................... Extinct

09/26/86 .......... 02/28/009 Shrew, Dismal Swamp southeastern (Sorex longirostris

fisheri).

New information discovered

03/11/67 .......... 12/12/90 Sparrow, dusky seaside (Ammodramus maritimus nigrescens) Extinct

06/04/73 .......... 10/12/83 Sparrow, Santa Barbara song (Melospiza melodia graminea) Extinct

11/11/77 .......... 11/22/83 Treefrog, pine barrens (FL pop.) (Hyla andersonii) ................... New information discovered

09/13/96 .......... 04/26/00 Trout, coastal cutthroat (Umpqua R.) (Oncorhynchus clarki

clarki).

Taxonomic revision
73

Threatened and Endangered Species System (TESS)—Continued

Delisted Species Report as of 5/7/01

Date Species First ListedDate

Delisted Species Name Reason Delisted

06/14/76 .......... 02/29/84 Turtle, Indian flap-shelled (Lissemys punctata punctata) ....... Erroneous data

06/02/70 .......... 06/16/94 Whale, gray (except where listed) (Eschrichtius robustus) ...... Recovered
74
75
76

1Wilcove, D.S., M. McMillan, and K.C. Winston. 1993. What exactly is an endangered species?

An analysis of the U.S. endangered species list: 1985–1991. Conservation Biology 7: 87–93. 2 IUCN/World Conservation Union. 1994. IUCN red list categories. Prepared by the IUCN

Species Survival Commission, 30 November. 3S. Andelman, pers. comm., May 4, 2001.

STATEMENT OF DAVID S. WILCOVE, SENIOR ECOLOGIST, ENVIRONMENTAL DEFENSE

Two simple questions underlie much of the controversy pertaining to the listing

of plants and animals as threatened or endangered under the Endangered Species

Act. Developers, loggers, miners, business leaders, and other members of the regulated community wonder whether all of the species currently on the endangered species list are truly in danger of disappearing. Because the Endangered Species Act

can pose significant economic costs to these people, they are understandably concerned that only species truly at risk of extinction be afforded such protection. Conservationists, on the other hand, worry that many rare plants and animals are not

making it onto the endangered species list and are therefore being denied the protection they desperately need. Neglect becomes a prelude to extinction.

The best available scientific information indicates that the answer to the first

question—are lots of undeserving species somehow finding their way onto the endangered species list?—is a resounding ‘‘no.’’ And new data demonstrate that the

answer to the second question—are lots of gravely imperiled species somehow failing

to receive protection under the Endangered Species Act?—is an equally resounding

‘‘yes.’’ Below, I review these studies and their implications for administration of the

Endangered Species Act.

In 1993, Margaret McMillan, Keith Winston, and I published a paper in the peerreviewed journal Conservation Biology in which we examined the population sizes

of U.S. species proposed for listing or added to the endangered species list from

1985–1991 (inclusive).1 Nearly 500 plants and animals were either proposed for listing or added to the list during that 7-year period. We discovered that the median

population size of a vertebrate animal (mammal, bird, reptile, amphibian, or fish)

at time of listing was 1,075 individuals. The median population size of an invertebrate animal at time of listing was fewer than 1,000 individuals, while for plants,

it was fewer than 120 individuals. (In fact, 39 plant species were listed when 10

or fewer individuals were known to exist.) These low numbers of individuals were

clustered in a small number of populations: For animals, the median number of populations at time of listing was fewer than 3; for plants, it was 4. By any scientific

standard, such low numbers make these species highly vulnerable to extinction.2

One way to highlight this point is to note that half the animals added to our endangered species list are rarer even than the giant panda.

More recently, Dr. Sandy Andelman of the National Center for Ecological Analysis

and Synthesis at the University of California—Santa Barbara has updated our

study, using listing data from 1996–2000. She, too, found that the population sizes

of plants and animals added to the endangered species list during this period were

extremely low, meaning these species were highly vulnerable to extinction and worthy of Federal protection.3 For vertebrate animals, in fact, the population sizes of

those species added from 1996–2000 were even lower than the population sizes of

species added from 1985–1991.

Thus, the scientific studies done to date—as opposed to the rhetoric often heard

from opponents of the Endangered Species Act—strongly support the idea that the

species finding their way onto the endangered species list fully fit the statutory definitions of ‘‘endangered’’ and ‘‘threatened’’ species.

Of course, it can be argued that the numbers I have cited are only as good as

the data upon which they are based. If the U.S. Fish and Wildlife Service relies

upon incomplete or inaccurate data when it decides to list a species, then it could

end up listing a species that, upon further investigation, turns out to be fairly common. Supporters of this hypothesis are quick to point out that previously unknown

populations of rare plants and animals are sometimes discovered after a species has

been listed. The reason is simple: By putting a regulatory spotlight on a particular

rare species, the Endangered Species Act forces developers, Federal agencies, and

others to search more diligently for it.

The fact that additional populations are discovered is not, by itself, evidence of

a problem with the listing process. Most ecologists would predict that, with more

searching, more populations would be found. A problem arises only when the number of new populations is so great as to make one question whether the species ever

belonged on the endangered species list. Thus, it is worth noting that of the more

than 1,200 plants and animals that have been placed on the endangered species list

since 1973, only 5 have been removed from the list because they turned out to be
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4These are Tumamoc globeberry, Rydberg milk-vetch, McKittrick pennyroyal, pine barrens

tree frog (Florida population), and Dismal Swamp southeastern shrew. See: D. Wilcove and M.

McMillan. 1994. An analysis of erroneous listing proposals and decisions under the Endangered

Species Act. Environmental Defense, Washington, DC; http://ecos.fws.gov/webpage/webpage— delisted.html. These numbers are current as of May 4, 2001. 5Stein, B.A., L.S. Kutner, and J.S. Adams. 2000. Precious heritage: The status of biodiversity

in the United States. Oxford University Press, Oxford, UK. 6Stein et al. (2000), Table 4.2, p. 97.

7Stein et al. (2000), Table 4.4, p. 104.

far commoner than originally believed.4 This amounts to less than one-half of 1 percent of the total list. Approximately 7 additional species have been removed from

the list because additional studies revealed that they were not valid taxonomic entities (i.e., they turned out not to be distinct species, subspecies, or populations as

required by the law).

In summary, the available evidence clearly indicates that virtually all of the U.S.

plants and animals added to the endangered species list represent valid taxonomic

entities at genuine risk of extinction.

To answer the second key question—Are there significant numbers of imperiled

species in the United States that have not been added to the Federal endangered

species list? We are fortunate to have available a new book produced by The Nature

Conservancy (TNC) and the Association for Biodiversity Information (ABI).5 Precious Heritage: The Status of Biodiversity in the United States is a compilation and

analysis of data gathered by the natural heritage programs now established in all

50 States, plus TNC and ABI. It provides what is unquestionably the most up-todate and complete picture of the status of American wildlife.

TNC and ABI rank plant and animal species on a scale from 1–5. Species classified as G1 (the ‘‘G’’ indicating that the rank in question pertains to the entire or ‘‘global’’ range of the species) are considered ‘‘critically imperiled.’’ Such species typically occur in 5 or fewer places or have a total population of 1,000 or fewer individuals. A G2 species occurs in 6 to 20 places or has 1,000 to 3,000 individuals left.

It is considered ‘‘imperiled.’’ A G3 species is classified as ‘‘vulnerable.’’ It typically

occurs in 21 to 100 places or has 3,000 to 10,000 individuals remaining. Species

ranked G4 or G5 are in no immediate danger.6 Note that all of these ranks are

based on numbers of individuals and populations; they do not take into consideration the degree or immediacy of the threats facing these species.

The authors of Precious Heritage have identified no fewer than 1,385 U.S. plants

and animals with a rank of G1 (critically imperiled). An additional 1,737 species are

classified as G2 (imperiled), while 3,338 are classified as G3 (vulnerable).7 By any

reasonable measure, all of the species ranked G1 or G2 would qualify for listing as

endangered or threatened under the Endangered Species Act; these two categories

alone contain well over 3,000 species—more than double the current endangered

species list. And in all likelihood, a significant fraction of the species classified as

G3 (vulnerable) would pass muster for listing, too. Thus, there are a great many

rare plants and animals that are at risk of extinction but are not yet protected

under the Endangered Species Act. Given what we now know about the endangered

species list, what steps can be taken to reduce the risk of erroneous listings and

to increase the proportion of deserving species covered by the Endangered Species

Act? Although the risk of an erroneous listing is small, Congress can reduce it even

further by providing additional funds for biological inventories and taxonomic research.

To reduce the backlog of deserving species awaiting protection, Congress must

greatly increase funds to the U.S. Fish and Wildlife Service and National Marine

Fisheries Service for listing activities. From 1991–2000, the U.S. Fish and Wildlife

Service added an average of 63 U.S. species per year to the list. At that rate, assuming a backlog of about 2,000 imperiled, unlisted species, it would take the Service

nearly 32 years to catch up. By that time, many of these rare plants and animals

may be gone. A reasonable goal would be to erase this backlog within a decade.

Doing so would require a tripling of the annual appropriation to the Service for listing and related activities, to approximately $20 million in fiscal year 2002.

Finally, we must not forget that simply placing a rare plant or animal on the endangered species list does not guarantee its survival, much less its recovery. If, as

the data indicate, most species are added to the list only when their populations

have reached critically low levels, then we must find ways to increase those populations. Doing so usually entails restoring or enhancing their habitats. For species

that depend upon private lands, the key to restoring their habitats is to enlist the

cooperation of the landowners. Incentive-based approaches, such as the U.S. Fish

and Wildlife Service’s safe harbor program or its Endangered Species Landowner Incentive Program, have proved to be very successful in making landowners active
78

participants in recovery efforts. More support for programs such as these will go a

long way toward saving our imperiled wildlife while removing much of the controversy associated with the Endangered Species Act.

STATEMENT OF LEV GINZBURG, STATE UNIVERSITY OF NEW YORK AT STONY BROOK

AND APPLIED BIOMATHEMATICS

Determination of endangerment status is one of the most critical steps for reaching the objectives of the Endangered Species Act; it is crucial for implementing effective conservation strategies and for apportioning limited financial and human resources for species conservation. Yet, the protocol used by the U.S. Fish and Wildlife

Service for listing species under the Endangered Species Act has been criticized as

being arbitrary, because the system lacks explicit guidelines by which these decisions are made.

A risk classification system utilizing explicit guidelines and quantitative data

would promote consistency in listing decisions and expedite the listing process. One

such system has received wide acceptance from the international community and

has been hailed by the National Research Council as the ‘‘most important scientific

effort to date to reach consensus on standard criteria for assigning taxa to threat

categories in a uniform, objective manner.’’ This system was developed by the World

Conservation Union (IUCN, formerly known as the International Union for the Conservation of Nature). IUCN is the principal international organization involved with

categorizing species by extinction risk. Since the 1960’s, it has been producing Red

Data Books and Red Lists, which are among the most important tools for monitoring biodiversity at a global level.

Under the system used by the U.S. Fish and Wildlife Service, a species qualifies

for listing if its populations meet one of five qualitative criteria, such as present or

expected future loss of habitat, overharvesting, disease or predation. Species that

qualify for listing are then ranked based on magnitude of threat, immediacy of

threat, and taxonomic distinctiveness. There are no threshold values for deciding

the magnitude or immediacy of threat. The final decision to list a species as either

endangered or threatened is based on the level of perceived extinction risk. An endangered species is defined as being ‘‘in danger of extinction throughout all or in

a significant part of its range’’ and a threatened species is ‘‘likely to become endangered throughout all or a significant part of its range’’.

The IUCN listing process is carried out by its specialist groups, each concerned

with a particular taxonomic group. Species satisfying one of five criteria, based on

thresholds of ecological variables such as population size, population growth trend,

geographic distribution, and extinction probability, are classified into one of IUCN’s

three threatened categories of Critically endangered, Endangered, and Vulnerable.

Species not meeting these criteria are given the status Least Concern. Threshold

ranges of quantitative variables within each of five criteria separate each category

of endangerment. In all, 12 quantitative variables are examined for each species

under this system. If not all relevant data are available, as is often the case; a species may still be evaluated under this system because of the many variables examined.

The IUCN listing process was developed under wide consultation and is now recognized internationally by the public and scientific community. The lists of threatened species developed by IUCN are among the most widely used by conservationists around the world. The IUCN criteria were designed to detect risk factors for

organisms of widely different taxonomic groups. While not all criteria may be relevant for a particular taxon, there are criteria relevant for assessing extinction

threat of all groups (except microorganisms).

One difference between the IUCN and FWS systems is the efficiency and speed

of the listing process. The most recent IUCN Red List includes over 18,000 species

that have been assessed in the 5 years since the new IUCN system took effect. By

contrast, the number of species listed by the FWS in the last 20 years is about onetenth of this number.

Resources for conservation of species are limited. It is, therefore, imperative that

decisions are made carefully to focus on species that will benefit most from conservation actions. In addition, many species at risk of extinction cannot afford an

inefficient listing protocol. These considerations are mentioned in the endangered

Species Act of 1973, yet the present process is both slow and subjective.

The most important difference between the IUCN and FWS systems is their

transparency. The FWS relies heavily on qualitative criteria and expert judgment,

and therefore often seen as ambiguous and subjective. The IUCN system is based

on objective criteria, and results in efficient and scientifically defensible decisions.
79

1The pertinent language, which some environmental advocates have called an ‘‘extinction

rider,’’ reads as follows: ‘‘That notwithstanding the specific timeframes and deadlines of section 4(a) and (b) of the Endangered Species Act of 1973, as amended, not to exceed $8,476,000 shall

be used for implementing subsections (a), (b), (c)(1), (c)(2)(B)(iii) and (e) of section 4 for species

that are indigenous to the United States, to be expended solely for (1) complying with court orders or settlements in effect as of the date of the passage of this law, and (2) undertaking such

other actions as determined by the Secretary to be consistent with the priorities established by

a listing priority system to implement these subsections and subject to the requirements of this

appropriation.’’

It makes use of explicit guidelines for evaluating different variables that contribute

to extinction risk and uses quantitative thresholds to determine degree of

endangerment. As a result, decisions are consistent between people and specific reasons for each listing decision are clearly defined.

For most species, data that are valuable for evaluating extinction risk are deficient in one or more areas. It may not be possible to gather all relevant data for

some species. Data collection may be costly or delaying action to gather all relevant

data may place that species in greater danger of extinction. The IUCN system uses

multiple criteria to accommodate this problem. Because meeting any one criterion

is sufficient for listing, it is possible to list a species in a high threat category if

sufficient data is only available for one criterion.

There is always some uncertainty involved in estimating extinction risk in the

form of measurement error, probabilistic predictions, or semantic ambiguity. When

this uncertainty is simplified for analysis, it is difficult to prevent human biases

from entering the decisionmaking process. New methods have been developed that

allow the evaluation of species according to the criteria of IUCN while objectively

dealing with uncertainty in data. This allows efficient and non-biased classification

of species of concern. However, such methods of dealing with uncertainty are applicable only to protocols that are based on objective, quantitative criteria, rather than

subjective opinions.

To improve the Federal system under which threatened and endangered species

are listed, it is essential that more explicit criteria and clear thresholds be incorporated, as in the IUCN system. There is a large amount of similarity in the nature

of the factors considered under the USFWS and IUCN listing systems. A system

similar to that of IUCN can easily be implemented in the United States, without

requiring a change in the Endangered Species Act itself. Such a change will make

the Act more efficient, objective, and science-based in dealing with the listing and

delisting of threatened and endangered species.

STATEMENT OF JOHN D. ECHEVERRIA, DIRECTOR, ENVIRONMENTAL POLICY PROJECT, GEORGETOWN UNIVERSITY LAW SCHOOL

My name is John D. Echeverria. I am the director of the Environmental Policy

Project and an Adjunct Professor at Georgetown University Law Center. The mission of the Environmental Policy Project is to conduct research and education on

legal and policy issues relating to protection of the environment and conservation

of natural resources. I appreciate the opportunity to testify today. In my testimony

I will address three issues: (1) the proposal in the Administration’s recent budget

submission to Congress to effectively bar citizens from going to court to enforce certain provisions of the Endangered Species Act (ESA); (2) some of the likely difficulties and counter-productive consequences of seeking to advance species conservation

goals through taxpayer-funded ‘‘incentive’’ programs; and (3) the value of critical

habitat designations in furthering the objectives of the ESA.

CONGRESS SHOULD REJECT THE PROPOSED ESA ‘‘EXTINCTION RIDER’’

The recent Administration budget submission to Congress includes a proposal to

effectively bar citizens from continuing to go to Federal court to enforce deadlines

in the ESA for the listing of threatened and endangered species and for the designation of critical habitat.1 In my view this proposal is unwise for two reasons: first,

it would undermine one of Congress’ most valuable tools for ensuring that Federal

agencies comply with the ESA and other environmental laws; and, second, it fails

to address the most obvious solution to the growing volume of lawsuits being filed

against the agencies: additional funding for the agencies so that they can perform

their statutory responsibilities in timely fashion.

Environmental groups and others do not file lawsuits under the ESA simply because they believe it is in their self-interest to do so. Rather, they sue because Congress itself has specifically authorized and encouraged the filing these suits. Section

11(g) of the ESA provides in part ‘‘any person may commence a civil suit . . . to
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enjoin any person, including the United States and any other governmental instrumentality or agency . . . who is alleged to be in violation of any provision of this

chapter or regulation issued under the authority thereof.’’ This so-called citizen-suit

provision is similar to the citizen-suit provisions included in other major Federal environmental laws. See, e.g., 33 U.S.C. 1365 (Clean Water Act citizen suit provision);

42 U.S.C. 7604 (Clean Air Act citizen suit provision).

It is important to emphasize that Congress has not authorized the filing of these

suits on any of a variety of different, or potentially novel, legal theories. Rather, section 11 simply authorizes suit for ‘‘violations’’ of the ESA and ESA implementing

regulations. Most citizen suits brought under the ESA involve entirely straightforward application of clear law to undisputed facts. In many cases, the legal issue

presented is no more complicated than the question of whether a motorist has committed a parking meter violation.

The reason Congress has authorized these kinds of straight-forward lawsuits—in

the Endangered Species Act and in many other laws—is because this type of litigation—or, equally important, the threat of such litigation—is an effective tool for ensuring that the agencies actually carry out the law as written. Congress has the opportunity to enact or thoroughly amend major statutes, such as the environmental

laws, on a relatively infrequent basis. Over a decade has passed, for example, since

Congress adopted major amendments to the ESA. On the infrequent occasions when

Congress enacts major legislation, it is typically only after sustained public debate

and focused congressional attention to the issues.

The difficulty frequently starts, as Congress has discovered through repeated,

painful experiences, when the agencies begin to implement the legislation Congress

has enacted. After legislation passes, public attention to an issue typically wanes.

Coalitions of regulated businesses affected by new legislation typically lobby the

agencies to delay its implementation or to adopt strained interpretations of the law

that will lessen their regulatory burdens. These efforts are countered, to a limited

degree at least, by environmental advocates, who attempt to speak on behalf of the

broad public interest protected by the new law. Unfortunately, concentrated wealth

and power frequently prevails over the broad public interest in this process. As a

result, agency implementation of environmental laws all too frequently threatens to

subvert the will of Congress, almost always in the direction of less environmental

protection than Congress intended.

Citizens suits provide a solution to this problem. By empowering individual

groups and citizens to directly enforce the law Congress has written, Congress creates an important check on the agencies’ ability to subvert Congress’ will. The goal

is not to set up the courts as the arbiters of environmental disputes or to assign

citizens groups around the country some special policymaking responsibility. Instead, the goal is simply to enlist our established judicial procedures and willing

lawyers (motivated by a promise of attorneys fees if they bring a successful suit)

in the effort to see that Congress’ will is carried out. Ideally, the mere threat of successful litigation will prevent an agency from flouting the will of Congress and avoid

the need for actual litigation.

The late Judge J. Skelley Wright, of the U.S. Court of Appeals for the D.C. Circuit, spoke eloquently about the issue of enforcement of environmental laws 30

years ago in a landmark case, Calvert Cliffs Coordinating Committee, Inc. v. U.S.

Atomic Energy Commission, 449 F.2d 1109 (D.C. Cir 1971). Referring to the National Environmental Policy Act and other environmental legislation, he observed

that ‘‘recently enacted statutes attest to the commitment of the Government to control, at long last, the destructive engine of material ‘progress.’ ’’ The next step, he

said, was to see that ‘‘important legislative purposes, heralded in the halls of Congress, are not lost or misdirected in the vast halls of the Federal bureaucracy.’’ The

citizen suit is Congress’ most effective tool for ensuring that its objectives are not

‘‘lost or misdirected.’’ The Administration’s budget proposal, on the other hand,

would encourage legal mandates to become lost or misdirected, weakening both the

ESA and the authority of Congress.

In addition, the proposal in the Administration’s budget submission fails to address one the most obvious and immediate causes of the growing volume of lawsuits

being filed under the ESA. Environmental groups are in a position to sue over the

failure of the government to list species and designate critical habitat because the

agencies have a backlog of work that leads them to repeatedly violate their mandatory duties to carry out these steps under ESA. A major reason for these failures

on the part of the agencies is a longstanding shortfall in funding to support the necessary scientific and other technical work. Congress could achieve significant

progress in limiting the volume of lawsuits under the ESA by increasing appropriations to the agencies. As compared to the approach of eviscerating the citizen-suit

provision, increased funding levels will allow Congress to reduce the volume of liti-
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2See Environmental Defense Fund, ‘‘Why Takings Bills Threaten the Property Rights and

Values of Most Landowners (1995).’’ 3 Id.

gation against the agencies while simultaneously preserving an important tool to

prevent agencies from ignoring congressional mandates.

THE POTENTIAL UNINTENDED CONSEQUENCES OF ‘‘INCENTIVES’’

A great deal of attention has recently focused on the proposed use of financial

payments to property owners—so-called ‘‘incentives’’—as a complement, or possibly

even as an alternative, to enforcement of the ESA. Financial incentives may have

a potentially valuable, limited role to play in species conservation. In my view, however, the extensive use of incentive payments would create many difficulties and

would likely be counterproductive to the goal of protecting and restoring threatened

and endangered species.

First, according to some, expansive taxpayer-funded incentive programs can be

justified on the ground that endangered species regulations routinely result in constitutional ‘‘takings’’ mandating the payment of compensation under the Takings

Clause of the Fifth Amendment. Congress should agree up front to arrange payments to landowners subject to the ESA, according to this argument, to avoid the

filing of takings claims by aggrieved property owners after the fact.

In reality, however, ESA restrictions rarely if ever result in constitutional takings.

Indeed, while a number of takings claims have been brought under the ESA, I am

not aware of a single case in which it has been definitively determined that a Federal ESA regulation has resulted in a taking. There are several explanations. First,

the ESA is a relatively flexible law which rarely if ever produces the kind of severe

economic impact that rises to the level of a constitutional taking. Second, wildlife

has long been understood to be a public property resource which the public has

broad authority to protect from harm or destruction. Because restrictions on an

owner’s actions that threaten wildlife prevent a trespass on public property rights

such restrictions cannot logically be said to result in a taking of private property

rights.

Second, the proposal to pay financial incentives to those subject to the ESA also

raises significant questions of fairness, especially if the incentives would be funded

out of general tax revenues. The value of land for development and for other forms

of profitable exploitation reflects in large part the value-enhancing effect of public

investments, from the public highway system to agricultural subsidies. Because a

good deal of private property value is publicly created, an owner has no legitimate

claim on the public fisc simply because he cannot exploit a property’s full economic

potential. A fairness problem also arises from the fact that a relatively small number of firms and individuals with large land holdings are likely to benefit the most

from incentive programs. Approximately 125,000 timber or farm owners, less than

two-tenths of 1 percent of all private landowners, own 38 percent of all the private

land in the United States.2 Timber and farm interests that amount to less than 3

percent of all landowners own more than 80 percent of all private land.3 Thus, land

owner incentive programs have a significant potential to create a significant new

subsidy program for the relatively well-to-do at the expense of the ordinary taxpayer.

Finally, paying financial ‘‘incentives’’ to land owners has the potential to lead to

over-investment in land the development of which could lead to endangered species

problems. The ultimate goal of public policy should be to encourage investors to direct their attention to projects that avoid ESA (and other problems) rather in the

direction of projects that can give rise to such problems. The ready availability of

financial assistance to investors facing ESA problems would provide little incentive

to investors to avoid investment opportunities that carry this type of risk. Ironically,

therefore, financial assistance to landowners, while potentially useful in avoiding

political conflicts in the short-term, could lead to more numerous and more serious

clashes between development interests and ESA concerns over the long-term.

The nature of the problem can be illustrated in a number of ways. It is widely

recognized that the availability of low-cost Federal flood insurance in flood plain

areas, rather than protecting property in areas subject to flooding, has actually increased development in flood plains and exposed more property to the risk of flooding. In the view of some, International Monetary Fund bailouts of debtor nations,

while useful in the short-term, have encouraged some nations to engage in too much

borrowing and fiscal irresponsibility in the long-run. So too in the case of ESA incentives, by lowering the likely cost of investing in areas that present serious ESA

problems, the availability of incentive payments could actually encourage investors
82

to invest more in these areas, tending to exacerbate rather than reduce development

conflicts.

As I suggested, this is not to indicate that financial incentives have no place in

species conservation. In some cases, short of outright public acquisition of the property, the only way to achieve effective habitat management may to enlist the land

owner as an active manager of land on behalf of the environment. The rather special

case of managing woodpecker habitat in North Carolina, for example, provides an

example of where public payments to enlist land owner cooperation may be useful

and necessary. But in the general run of cases, where the basic issues are whether

natural habitat can be destroyed for development, additional water withdrawn for

irrigation or other purposes, or additional trees cut for commercial purposes, taxpayer-funded payments to landowners who face ESA problems are more problematic.

At a minimum, these concerns about the potentially perverse effects of incentive

payments warrant caution in the design of incentive program. For example, a

stronger case can be made for incentive payments to the subset of owners who can

demonstrate that the enactment and implementation of the ESA seriously disrupted

settled development plans than to investors who now or in the future make investments in the face of foreseeable ESA problems. Limiting incentive payments to owners whose plans have been significantly disrupted by new legal enactments would

have the twin advantages of focusing financial assistance on those owners likely to

have the strongest equitable claims to public financial assistance while simultaneously sending a clear message that such assistance will not be made available to

owners who voluntarily make an investment in the face of known environmental

problems.

THE VALUE OF CRITICAL HABITAT DESIGNATIONS

Finally, I wish to offer a brief word in favor of critical habitat designations and

of the current legal requirement that critical habitat be designated concurrently

with the identification of a species as threatened or endangered.

In the view of some, critical habitat designation is superfluous because it adds little to the legal mandates to avoid ‘‘jeopardy’’ to species under section 7 of the Act

or to avoid a ‘‘take’’ of a species under section 9. In a sense this is a fair and accurate statement because a Federal agency likely can halt or control any activity

based on section 7 or 9 which would adversely affect critical habitat. The critical

role of habitat designation—and the reason Congress included separate proscriptions in section 7 against jeopardizing species and destroying critical habitat—is

that it serves to constrain agency discretion. In practice, both the terms ‘‘jeopardy

and ‘‘take’’ are rather elastic. The agencies therefore have a fair amount of discretion in applying these terms in particular cases. Certainly the courts are compelled

to accord substantial deference to an agency’s determination that a particular action

will not jeopardize a species or produce an illegal take. By contrast, once critical

habitat is defined and drawn on a map, the ESA’s relatively clear prohibitions

against actions that would result in the ‘‘destruction or adverse modification’’ of critical habitat presents a fairly straightforward obligation for the agencies to follow

and for the courts to apply. For the reasons discussed above, there are compelling

reasons to believe that the agencies, subject to constant pressure from the regulated

community, will fail over time to carry out their ESA obligations as Congress intended. An enforceable command to the agencies to promptly designate and protect

critical habitat helps ensure that Congress’ ESA goals will actually be achieved.

The concern has been expressed that the requirement to designate critical habitat

imposes an unreasonably heavy burden on the Agency at a point in time when it

has only begun to identify the threats to the species and to devise a recovery strategy. However, the Act makes clear that the initial designation need not be definitive. The Act directs the Agency to rely on the ‘‘best scientific and commercial data

available’’ and explicitly indicates that an agency may ‘‘from time-to-time . . . revise

. . . [the] designation.’’

Furthermore, an agency is directed to take into consideration ‘‘the economic impact, and any other relevant impact, of specifying any particular area as critical

habitat.’’ Thus, an agency has wide latitude in selecting the factors to apply in designating critical habitat. Given the significant flexibility built into the Act, it cannot

reasonably be said that the habitat designation requirement imposes an unreasonable strait jacket.

Thank you for the opportunity to testify. I would be happy to respond to any questions.
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STATEMENT OF STEVEN P. QUARLES ON BEHALF OF THE AMERICAN FOREST & PAPER

ASSOCIATION AND THE QUADSTATE COUNTY GOVERNMENT COALITION

My name is Steven P. Quarles. I am counsel to, and appearing on behalf of the

American Forest & Paper Association (AF&PA) and the QuadState County Government Coalition. AF&PA is the national trade association representing the forest

products industry. It has more than 130 member companies that grow, harvest, and

process wood and wood fiber and manufacture a wide variety of products including

pulp, paper, paperboard and wood products. AF&PA has more than 60 association

members that represent all facets of the forest products industry and represent

more than 10,000 companies. AF&PA’s member companies, as a condition of membership, must also commit to conduct their business in accordance with the principles and objectives of the Sustainable Forestry Initiative (SFI)SM program.

QuadState County Government Coalition is a coalition of six counties in the four

States that share portions of Mojave and Colorado Deserts—Mojave County in Arizona; Imperial, Kern and San Bernardino Counties in California; Lincoln County in

Nevada; and Washington County in Utah. The Coalition’s principal concern is the

effect of the listing of the Mojave population of the desert tortoise on its member

counties’ economic and revenue bases, their public works, and the businesses and

properties of their constituents.

The topic to which the subcommittee has devoted this hearing is timely and significant. Individual determinations or ‘‘listings’’ of species to be endangered species

or threatened species (‘‘listed species’’) under the Endangered Species Act (‘‘ESA’’)

have frequently been contentious because the stakes are high; imposed with the listings is the full panoply of the ESA’s controls over human behavior to benefit the

listed species. However, for most of the ESA’s life span of nearly three decades, the

general process (and the underlying science and law) of listing species as endangered species or threatened species has not garnered the same degree of controversy, or at least attention, as many of the other processes and decisions under

that Act.

Controversy over and attention to the species’ listing process are now at hand,

however—triggered by recent actions of both the Clinton and Bush Administrations.

On November 17, 2000, FWS Director Jamie Clark announced that the Agency lacks

sufficient funds to conduct any species’ listings, including responding to any listing

petitions, in fiscal year 2001 beyond those mandated by court order. This Clinton

listings moratorium was followed by a legislative proposal in President Bush’s budget to waive for fiscal year 2002 the ESA’s statutory deadline for species listings (and

designations of critical habitat) and to limit use of the available funding to implementing already issued court orders and those listings (and designations) the Secretary of the Interior in her discretion determines to be important. Both the Clinton

moratorium and the Bush budget language, if enacted, should spawn litigation and

enlist the judiciary in the intensifying species’ listing controversy.

My topic will focus on one issue: the overbroad definition of ‘‘species’’ eligible for

listing under the ESA. In particular, I will emphasize the authority to list distinct

population segments of vertebrates, efforts by Congress to determine the use of that

authority, and how that authority has been abused by the ESA-implementing agencies (the U.S. Fish and Wildlife Service (‘‘FWS’’) and the National Marine Fisheries

Service (‘‘NMFS’’) (collectively, the ‘‘Services)). The Services’ abuse of the distinct

population segment concept has resulted in the expansion of their species’ listing

authority well beyond the expectations of Congress and, in particular, this committee, and the infiltration of the concept into other ESA decisionmaking processes

for which it was not authorized or intended. I conclude with suggestions on ways

Congress, in this time of funding scarcity, could limit the applicability of the distinct

population segment concept for listing vertebrate species—a concept that provides

the least amount of protection for genetic heritage, a principal purpose of the ESA.

BACKGROUND

The ESA only permits the Services to list an endangered species or threatened

species if it is a ‘‘species’’ unit as defined by ESA § 3(16), and only if that ‘‘species’’

unit meets the definitions of ‘‘endangered species’’ or ‘‘threatened species’’ in ESA

§ 3(6) and 3(20) which requires a degree of risk over a ‘‘significant portion of [the]

range’’ occupied by the species unit. 16 U.S.C. §§ 1532(6) and (20), 1533(a)(1) (FWS

shall ‘‘determine whether any species is an endangered species or threatened species’’), (a)(2), (a)(3), (b)(1), (b)(3)(A), and (b)(6)(A) (final ‘‘determination as to whether

a species is an endangered species or a threatened species’’).

The ESA defines the crucial term ‘‘species’’ in an unusual way. An ESA-listable

‘‘species’’ unit includes not only a true biological species (those individuals that can

interbreed and produce viable offspring), but also a recognized ‘‘subspecies of fish
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or wildlife or plants,’’ and—in the case of a vertebrate species—‘‘any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when

mature’’ (‘‘DPS’’). 16 U.S.C. § 1532(16).

The ESA listing of any ‘‘species’’ unit has adverse consequences for private and

public land uses within the range of that species. ESA § 9 and regulations prohibit

the ‘‘take’’ of almost all listed wildlife species—the ‘‘take’’ prohibition bars any economic land use which would inadvertently harm even one member of that wildlife

species. See 16 U.S.C. § 1538(a)(1); 50 C.F.R. §§ 17.3 and 222.102; Babbitt v. Sweet

Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995). Further,

federally-assisted actions cannot be approved until an ESA § 7 consultation procedure has been completed, and must be disapproved if the action is likely to jeopardize the existence of the listed species unit. See 16 U.S.C. § 1536.

Each of the three branches of government has treated the authority to list distinct

population segments of vertebrates in a strikingly different manner. If the analogy

were to ships, two of the branches—Congress and the Executive—have passed in the

night sailing in opposite directions; the third—the Judiciary—has never left port.

Since the ESA’s enactment, Congress has made several efforts to reduce, met by

countervailing efforts of the Services to expand, the scope of listings below the subspecies level. The Federal courts have rarely been asked to pass judgment on these

opposing efforts.

CONGRESSIONAL EFFORTS TO CONSTRAIN LISTINGS OF DISTINCT POPULATIONS

Distinct population segments did not enjoy protection under the ESA’s predecessors. The Endangered Species Preservation Act of 1966 referred only to ‘‘species’’;

‘‘subspecies’’ were added in the Endangered Species Conservation Act of 1969. The

ESA’s first attempt to provide protection to species units below subspecies was quite

liberal. As enacted in 1973, the ESA defined ‘‘species’’ to ‘‘include[] any subspecies

of fish or wildlife or plants and any other group of fish or wildlife of the same species or smaller taxa in common spatial arrangement that interbreed when mature.’’

Contrary to popular belief, many of the populations of charismatic megafauna

that have been designated as endangered or threatened species were listed under

this early, quite generous ‘‘common spatial arrangement’’ standard-less standard.

These include species, such as the grizzly bear and bald eagle, that may have been

rare in the lower 48 States but are common in Canada and Alaska. The listing documents made no attempt to demonstrate any degree of distinctness between the

lower 48 species unit and the northern species unit; instead, they readily admitted

that the two species units were not reproductively segregated and had no genetic

or other biological differences. Moreover, the FWS made no effort to determine

whether these ‘‘species’’ were suffering declines in Canada (or, for that matter, in

the rest of the United States, i.e., Alaska). Indeed, as one author noted, the FWS

engaged in the ludicrous fiction of ‘‘defin[ing] the grizzlies’ entire range as the lower

48 States even though it was obviously well aware that grizzlies existed in Canada

and Alaska.’’ (Daniel Rohlf, ‘‘There’s Something Fishy Going On Here: A Critique

of the National Marine Fisheries Service’s Definition of Species Under the Endangered Species Act’’, 24, Envtl. L. 617, 653 (1994).)

By 1978, Congress had had second thoughts about this loose ‘‘common spatial arrangement’’ authority for species’ listings. To restrict sub-subspecies listings, Congress amended the ESA by replacing the original definition of species with the

present definition and its DPS language. Criticism continued, however; none more

withering than that of the General Accounting Office (‘‘GAO’’). In 1979 testimony

before this committee and a report, the GAO raised concern over any loose definition

of a ‘‘distinct population’’ in what has become the well-known squirrels-in-the-park

analogy. The Agency stated that the definition:

permitted FWS to list populations of species, regardless of their size, location,

or total numbers. Thus, squirrels in a specific city park could be listed as endangered, even though an abundance of squirrels lived in other parks in the

same city and elsewhere. . . . Such listings could increase the number of potential conflicts between endangered and threatened species and Federal, State,

and private projects and programs. . . . However, the purpose of the Endangered Species Act is to conserve endangered and threatened species and their

critical habitats, not preserve every individual animal and plant.

Endangered Species—A Controversial Issue Needing Resolution 52, 58 (GAO Rep.

CED–79–65, 1979). Although the particular quote referred to the 1973 ‘‘species’’ definition, two lawyers and a scientist from NMFS pointed out in a law review article

that subsequent GAO statements indicated the same concern was relevant to the

revised 1978 ‘‘species’’ definition. (Karl Gleaves, Michael Kuruc, Patricia Montanio,
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‘‘The Meaning of ‘Species’ Under the Endangered Species Act,’’ 13 Pub. Land L. Rev.

25, 31, n.30 (1992).)

This committee took note of the GAO’s criticism (even if it viewed the problem

as FWS’s interpretation of the statutory definition) and the GAO’s suggestion that

the authority to list DPSs be deleted from the ESA. However, after FWS and others

emphasized the importance of the listing flexibility afforded by the DPS portion of

the ‘‘species’’ definition, this committee decided to retain that definition in the 1979

ESA amendments and issue a stern admonition to the Services to use the DPS listing authority ‘‘sparingly’’:

[T]he General Accounting Office recommended that the subcommittee consider an amendment to the definition of species currently contained in the Act

which would prevent the FWS from listing geographically limited populations

of vertebrates as threatened or endangered. It is the GAO’s contention . . . that

FWS has interpreted the term ‘‘species’’ to include any population of the animal,

regardless of its size, location, or total numbers. According to the GAO, this

could result in the listing of squirrels in a specific city park, even if there is

an abundance of squirrels in other parks in the same city, or elsewhere in the

country. . . . [T]he committee is aware of the great potential for abuse of this

authority and expects FWS to use the ability to list populations sparingly and

only when the biological evidence indicates that such action is warranted.

S. Rep. No. 151, 96th Cong., 1st Sess. (1979) at 6–7 (emphasis added).

THE SERVICES’ UNRESTRAINED USE OF THE DISTINCT POPULATION SEGMENT

LISTING AUTHORITY

Contrary to the ‘‘sparingly’’ stricture of this committee, the Services have been

more unsparing in their use of the DPS listing authority. They produced two documents purportedly defining and confining their DPS authority—NMFS’s ‘‘Policy on

Applying the Definition of Species Under the Endangered Species Act to Pacific

Salmon,’’ 56 Fed. Reg. 58612 (Nov. 20, 1991), which established the DPS concept

of ‘‘evolutionarily significant unit’’ (‘‘ESU’’), and the Services’ joint ‘‘Policy Regarding

the Recognition of Distinct Vertebrate Population Segments Under the Endangered

Species Act’’, 61 Fed. Reg. 4722 (Feb. 7, 1996). Both documents quoted, and paid

lip service to, this committee’s ‘‘sparingly’’ admonition. However, the Services’ actual

performance in listing DPSs is clear evidence that their DPS policies do nothing to

limit and, arguably, substantially expand the authority to list DPSs.

According to a draft manuscript prepared by the Pierce Atwood law firm for an

upcoming edition of the American Bar Association’s Natural Resources and Environment magazine, since the existing ‘‘species’’ definition was added to the ESA in

1978, 59 DPSs have been listed by the Services, with the precise number dependant

upon interpretation of decisions that, initially, did not always clearly identify the

listings as DPSs. I suspect that there could be vigorous debate over whether 59 DPS

listings in 22 years represents sparing use of the DPS listing authority. But once

the trend—a rapid increase in DPS listings in the last several years—is examined,

the nays should have it. The pace of DPS listings was relatively constant for the

first 17 years (7 in 1978–1985; 6 in 1986–1990 (including NMFS’ first listing of a

West Coast salmonid DPS); and 8 in 1991–1995). From 1996 through 2000, the

Services have listed 38 DPSs, more than quadrupling the number of listings of the

previous 5 years. This trend can be expected to continue; about 35 DPSs are currently involved in rulemaking processes.

By contrast, despite the existence of the Services’ two policies which ostensibly

were to bring rigor to the DPS listing process, the Pierce Atwood authors could find

only 13 instances over the past 22 years when either of the Services concluded that

a particular population did not qualify as a DPS (excluding instances where DPS

status was denied for delisting purposes and where a DPS existed but was not listed

for conservation reasons). The Services have concluded that species units have

qualified as DPSs more than 80 percent of the time. These statistics suggest that

the Services rarely determine that a species unit—identified by petitioners or by

themselves—does not qualify as a DPS, notwithstanding Congress’ admonition to

use the DPS listing authority ‘‘sparingly.’’

REASONS FOR THE LIBERAL USE OF THE DISTINCT POPULATION SEGMENT

LISTING AUTHORITY

How did this frequent use of the DPS listing authority happen in the face of the

Congressional caution? I can think of at least three reasons.

1. No scientific agreement on the DPS concept. In general, common and consistent

scientific understanding and usage of any units below the species level is absent.
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As one scientist put it: ‘‘The discussion of what makes a subunit within a species,

be it a subspecies, race, ecotype, variety, or stock is such a durable source of dispute

among systematic biologists that scientific consensus may never be achieved.’’ (Robert Taylor, ‘‘Biological Uncertainty in the Endangered Species Act,’’ 7 Natural Resources and the Environment 6 (1993).)

This scientific uncertainty becomes more severe at the DPS level. In the preamble

to their 1996 joint DPS policy, the Services stated: ‘‘Available scientific information

provides little specific enlightenment in interpreting the phrase ‘distinct population

segment.’ This term is not commonly used in scientific discourse, although ‘population’ is an important term in a variety of contexts.’’ 61 Fed. Reg. 4722. With so

little common scientific understanding of, or agreement on, the term DPS, it is too

easy for the Services to use ‘‘the best scientific and commercial data available’’, as

required by ESA § 4(b) for listing decisions, to reach whatever conclusion they may

wish. 16 U.S.C. § 1533(b)(1)(A). A committee of the National Research Council, in

a 1995 report commissioned by Members of Congress, while supporting a population

listing concept of its own devising (‘‘evolutionary unit’’), admitted that even the one

criterion everyone—Congress, the 1991 NMFS policy, and the (later) 1996 joint

Services’ policy—could agree on for a listable population—‘‘distinctness’’—is as much

a matter of judgment as science:

The most difficult questions generally arise at taxonomic levels below the subspecies level. Because evolutionary units at such levels are not discrete but exist

along a continuum, it is a policy judgment as well as a scientific judgment to

determine the significance of an evolutionary unit. . . . [S]cience alone does not

lead to a conclusion that any objectively definable degree of distinction is more

significant than another.

National Research Council, Science and the Endangered Species Act, 56 (1995) (emphasis added).

In other words, DPS is in the eye of the beholder.

2. The DPS policies of the Services are riddled with discretion. Certainly, an important purpose of the Services’ two DPS policies was to provide a measure of scientific rigor to the DPS decisionmaking in the listing process. The fact is they only

pretend to do so. As one critic wrote about the more thoroughly analyzed and justified 1991 NMFS policy:

Much like the Wizard of Oz employed smoke and mirrors to lend him an air

of might and wisdom, NMFS invokes science in an effort to portray its definitions of distinct populations eligible for listing as beyond question. When one

looks behind the curtain, however, it becomes apparent that NMF’s ESU policy

merely trades the discretion inherent in historic approaches to listing populations for a more technically complex but equally discretionary scheme. The

tremendous discretion inherent in NMFS’ ESU policy stems from two related

sources: scientific uncertainty and extremely imprecise definitions of the two

ESU criteria: reproductive isolation and whether a population represents an important component in the ‘‘evolutionary legacy’’ of a species. (Rohlf at 644.)

When the Pierce Atwood authors reviewed the broader, less fully explained 1996

joint DPS policy, they found so much discretion that they concluded: ‘‘We are, in

other words, back to the listing of squirrels in the city park.’’

With this amount of discretion, the eyesight of the beholder can be quite poor, and

yet suffice.

3. Neither Congress nor the courts have provided helpful guidance. The Service’s

discretion in designating DPSs is unconstrained by any useful legislative or judicial

direction. Congress has chosen not to define DPS, and the ‘‘legislative history provides some discussion of the concept but provides no specific guidance. It is probably

safe to conclude not only that the meaning of ‘distinct population’ is ambiguous, but

also that Congress has not directly addressed or resolved this precise question.’’

(Gleaves at 37–38.) The preamble to the 1991 NMFS policy concurs that ‘‘NMFS

does not believe that the intent of Congress is clear as to the meaning of ‘distinct

population.’ The ESA allows vertebrate populations that are ‘distinct’ to be considered ‘species,’ but does not explain how distinctness should be measured.’’ 56 Fed.

Reg. 58613. Few courts have addressed, and none has provided a significant decision

on, the meaning and application of the DPS concept.

EXAMPLES OF MISUSE OR ABUSE OF THE DISTINCT POPULATION SEGMENT CONCEPT IN

LISTING DECISIONS

The list of methods by which the Services expand their DPS listing authority by

misuse or abuse of that authority could be lengthy. I will mention only three:
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1. Designation of DPSs by political boundaries. In the early days, the Services listed species populations by international borders (e.g., grizzly), by State borders (e.g., bald eagles), and even by parishes (American alligator). Today, the Services typically eschew State and local boundaries for DPS listing purposes, but still adhere

in their joint 1996 policy to the notion that national boundaries are perfectly permissible means of delineating DPSs. As I have noted, when the national border of

the lower 48 States is used, the Services typically make no attempt to determine

any reproductive isolation of, or other distinctness for, the U.S. portion of the multinational population, nor do they make any effort to learn the status of the portion

of the population across the border (which is often abundant) or the other country’s management regime for that population portion. All too often, this is little more

than species jingoism—a fervor to claim citizenship for as many species as we can.

Moreover, since the Services ignore whether the species with the lower 48 DPSs are

abundant in Alaska, they appear to side with the Seward’s Folly crowd that preferred the State to remain in foreign ownership or, at a minimum, they wish to restore a biological form of territorial status to our 49th State.

Unfortunately, Congress is complicit here. In 1973 and again in 1979, House and

Senate reports expressed their intent to allow the Services to list domestic populations of species whose principal ranges are in another country, asserting (in the

Senate report) that ‘‘the U.S. population of an animal should not necessarily be permitted to become extinct simply because the animal is more abundant elsewhere in

the world.’’ H.R. Rep. No. 412, 93d Cong., 1st Sess. 10 (1973); S. Rep. No. 151, 96th

Cong., 1st Sess. 7 (1979); quoted in Rohlf at 628–629.

Many scientists emphatically disagree. Unless the U.S. population is both reproductively isolated and biologically significant, both the National Research Council

in its 1995 report and NMFS in its 1991 DPS policy found that there were no

‘‘sound scientific reasons’’ to delineate populations by political boundaries. NRC Report at 58; 56 Fed. Reg. 58613.

2. Designation of DPSs that are not reproductively isolated. One would have

thought that an easy call for a criterion (but admittedly not always an easy matter

of scientific proof) to determine a ‘‘distinct population segment’’ would be that the

population must be reproductively isolated. After all, the plain ESA language connotes reproductive isolation. A population is ‘‘distinct’’ if it is separate from other

members of the same biological species. A population develops ‘‘distinct’’ characteristics if it has a separate gene pool. The ESA phrase ‘‘population . . . which interbreeds when mature’’ suggests a population which interbreeds among itself but not

with other populations. The NMFS lawyers and scientist in their law review article

concur that this is the plain meaning of ‘‘distinct population’’:

A common dictionary definition of ‘‘distinct’’ is ‘‘separate’’ or ‘‘apart from.’’ In

addition, as a biological term, ‘‘population’’ includes the idea of reproductive isolation or separation. (Gleaves at 46.)

However, in their continual search for discretion, the Services have all but discarded the necessity to find reproductive isolation. For example, the 1991 NMFS

policy states that the first criterion for delineating a DPS is that the Pacific salmon

stock ‘‘must be substantially reproductively isolated from other conspecific population units’’ and declares that the ‘‘first criterion, reproductive isolation, does not

have to be absolute, but it must be strong enough to permit evolutionarily important

differences to accrue in different population units.’’ 56 Fed. Reg. 58618 (emphasis

added). The Services’ joint 1996 policy weakens the reproductive isolation factor further. The policy does demand that the DPS be ‘‘markedly separated’’ but this can

be as a result of ‘‘physical, physiological, ecological, or behavioral factors.’’ And, once

again, ‘‘the standard adopted does not require absolute separation of a DPS from

other members of its species. . . . The standard adopted is believed to allow entities

recognized under the Act to be identified without requiring an unreasonably rigid

test for distinctness.’’ 61 Fed. Reg. 4725, 4724 (emphasis added).

As one observer put it: ‘‘FWS has likewise waffled on the importance of genetic

make-up in distinguishing between population segments. Predictably, the Agency

cited the presence or absence of genetic distinctiveness in instances in which it

found reproductive isolation to be important, and downplayed genetics in cases

where it had made listing decisions despite a lack of such isolation.’’ (Rohlf at 657.)

3. Designation of DPSs by disregarding the ESA’s definition of ‘‘species’’ and relying instead on the ESA’s definitions of ‘‘threatened species’’ and ‘‘endangered species.’’

In at least one listing of a population, the FWS abandoned any attempt to find any

‘‘distinct’’ quality to the population segment. It could not. It admitted the threeState population of Marbled Murrelets it wished to list was not reproductively isolated or particularly biologically distinct from the Canadian population. Therefore,

it looked away from the statutory definition of species and DPSs, and, instead, dis-
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covered helpful language in the ESA’s definitions of ‘‘endangered species’’ and ‘‘threatened species.’’ 16 U.S.C. § 1532(6) and (20). FWS adopted an entirely different and certainly clever approach to defining DPSs by suggesting that the ‘‘significant portion of its range’’ language in both the ‘‘endangered species’’ and ‘‘threatened species’’ definitions could be made to serve as a means to delineate distinct

populations without the need to demonstrate reproductive isolation or genetic or

other differences. If this approach is followed in future listings, any population segment of any relative size could qualify for listing and the statutory requirement that

the population be ‘‘distinct’’ will be sapped of all meaning.

THE SERVICES HAVE INAPPROPRIATELY ‘‘RE-LISTED’’ SMALLER SPECIES UNITS, OFTEN AS

THE DISTINCT POPULATION SEGMENTS, IN DECISIONMAKING UNDER OTHER SECTIONS

OF THE ESA

I would also like to bring to the committee’s attention our view that the Services

are inappropriately redefining species units after their listing into smaller species

units in decisionmaking under sections of the ESA other than the ESA § 4 listing

section.

The ESA is quite clear that ESA § 7 compliance, ESA § 4(f) recovery plans, and

species delistings decisions are to be made with reference to the same ‘‘species’’ unit

that has been listed. See 16 U.S.C. §§ 1533(f), 1536(a)(2) and (b). Yet, in the case

of the red-cockaded woodpecker (‘‘RCW’’) and in several other instances where the

Services have listed a biological species, they are assessing ESA § 7 compliance not

with reference to jeopardy to the listed biological species as a whole, but jeopardy

to smaller subgroupings, such as an individual population of RCWs. This approach

makes it far more likely that a localized action will be found to jeopardize a localized population and to violate ESA § 7. We believe that this approach is unlawful

under the ESA, is contentious, and should be discontinued.

There has also been unwarranted ‘‘population creep’’ into ESA § 4(f) recovery planning and species’ delisting actions. In several instances, where the FWS or NMFS

has listed a larger ‘‘species’’ unit (e.g., the Mojave population of desert tortoises or

grizzly bears in the lower 48 States), the Agency has subdivided that ‘‘species’’ unit

for delisting purposes into smaller populations. These new multiple populations

were, of course, designated without the formal rulemaking required for the listing

of the original all-encompassing population (grizzly) or DPS (desert tortoise). The affected public was deprived of all the procedural protections of Administrative Procedure Act rulemaking which the ESA promised in its § 4 listing provisions. 16 U.S.C.

§ 1532(a)(1). Moreover, this division of the listed species, subspecies, or populations

into smaller populations, often renamed with such titles as ‘‘recovery units,’’ likely

extends the time for delisting. For example, if five recovery units/mini-populations

are designated in the recovery plan and four out of the five meet recovery plan

standards for recovery, the FWS or NMFS likely could conclude that the entire listed population should be delisted. But, under the Services’ practice, the Agency

would de-list only the four recovery units/mini-populations and leave ESA burdens

in place for the remaining recovery unit/mini-population. And, that listing could last

for a very long time because, in most instances where this practice has been followed, at least one of the recovery units/mini-populations has little chance of ever

recovering.

The desert tortoise rendition of this practice is particularly interesting for another

reason. After listing the Mojave population of the desert tortoise in 1990, the FWS

divided that DPS into 6 smaller DPSs termed ‘‘evolutionarily significant units’’ in

the 1994 recovery plan. FWS, Desert Tortoise (Mojave Population) Recovery Plan,

June 1994, p. 19. NMFS formally adopted use of ESUs in its 1991 DPS policy for

Pacific salmon. But, FWS has never adopted, or invited public comment on application of, such a policy for the terrestrial species within its jurisdiction. Instead, it applied another agency’s standard for certain anadromous fish to the tortoise. This

isn’t ‘‘population creep,’’ its more of a ‘‘population scramble.’’

CONGRESS SHOULD CONSIDER AMENDING THE ESA SO THAT IT PROTECTS ONLY AN IMPERILED BIOLOGICAL SPECIES, OR TO CREATE A PRESUMPTION AGAINST LISTINGS

BELOW THE TRUE SPECIES LEVEL, AND TO LIMIT THE USE OF SPECIES ELSEWHERE

IN THE ESA TO THE FORM OF SPECIES ACTUALLY LISTED

If the local government and land use interests regulated by the ESA had been

fully engaged when the ESA’s broad definition of ‘‘species’’ was adopted in 1973 and

then narrowed somewhat in 1978, they likely would have preferred that the ESA

simply define a ‘‘species’’ as a recognized biological species. That definition would

eliminate the trivialization of the ESA that occurs when the Services list and create

ESA compliance burdens for a subspecies or distinct population which is locally
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1Though the House passed Rep. Duncan’s amendment, he was not named to the Conference

Committee. The conferees reinserted the ‘‘species’’ definition that had been reported by the

House Committee.

rare, even though the biological species as a whole is not imperiled. It also both

would address the concerns raised by the Clinton listing moratorium and Bush

budget’s legislative proposal by conserving the Services’ resources and would conform with the original legislative intent to: (1) protect the ‘‘genetic heritage’’ associated with a species’ unique gene pool, while (2) realizing that ‘‘it is beyond our capability to acquire all the habitat’’ needed by locally rare populations ‘‘without at the

same time dismantling our own civilization.’’ H.R. Rep. No. 93–412, at 4–5 (1973).

Indeed, in 1978, the House of Representatives voted to limit the ESA to a biological species. The full House adopted Representative Duncan’s amendment defining ‘‘species’’ consistent with its biological usage (a group of ‘‘physically similar organisms capable of interbreeding but generally incapable of producing fertile offspring

through breeding with organisms outside this group’’). 124 Cong. Rec. 38154–56

(Oct. 14, 1978). Rep. Duncan stated:

The legislation before us today is entitled, and I think this is important, ‘‘the

Endangered Species Act.’’ It is not entitled, and I think this is important, . . . ‘‘An Endangered Subspecies Act,’’ or the ‘‘Endangered Variation-of-a-Species

Act.’’ The amendment preserves, again, the integrity of the legislation while sufficiently tightening up the definitions so that we do not afford protection of this

legislation, to the detriment of man, to every individual creature on the face of

the Earth that might differ in one degree or another from one of its brothers.

124 Cong. Rec. 38154.1

However, given the history of ESA listings of subspecies and distinct population

segments of vertebrate species, we suspect that removal entirely of the listing authority for either subspecies or DPSs would be a difficult undertaking. We also, as

suggested by the focus of my testimony, find far more troublesome the sub-subspecies listing authority than the subspecies listing authority.

I would therefore suggest, as a possible alternative, that the ESA could be amended to: (1) require the Services to list a species or subspecies if it is biologically

threatened or endangered; but (2) grant the Services the discretion to list or not list

a DPS. Indeed, it may be appropriate for Congress to state a presumption, or default position, that DPSs should not be listed under the ESA, and to require the

Services to provide judicially reviewable reasoning if they decide to list such variations-of-a-species. This committee suggested such a presumption when its report on

the 1979 ESA amendments stated that:

the committee is aware of the great potential for abuse of this authority and

expects FWS to use the ability to list populations sparingly and only when the

biological evidence indicates that such action is warranted.

S. Rep. No. 151, 96th Cong., 1st Sess. (1979) at 6–7.

However, the ESA as written arguably requires the listing of any ‘‘species’’ unit

(be it a biological species, a subspecies, or a distinct population segment of a

vertebrate species) if that species unit is biologically endangered or threatened over

a significant portion of its range. See 16 U.S.C. §§ 1532(6), (16) and (20), 1533(a)

and (b)(1). Congress could remove these nagging questions on the Services’ discretion to not list a DPS by amending the ESA to clearly make listing at the population

level discretionary and to provide in the form of a statutory command its previous

committee report admonition that such listing authority be exercised only ‘‘sparingly.’’ Finally, I would urge the committee to put an end to the inappropriate ‘‘population creep.’’ The Services should be directed to determine ESA § 7 compliance, prepare ESA § 4(f) recovery plans, and conduct ESA § 4 delistings on the basis of the same ‘‘species’’ units that have been listed under ESA § 4.

STATEMENT OF STEVEN N. MOYER, VICE PRESIDENT OF CONSERVATION PROGRAMS, TROUT UNLIMITED

Mr. Chairman, members of the subcommittee, I appreciate the chance to appear

today to give you the views of Trout Unlimited (TU) on the listing and delisting

processes of the Endangered Species Act (ESA).

TU is a national fisheries conservation group dedicated to the protection and restoration of our Nation’s trout and salmon resources, and the watersheds that sustain those resources. TU has over 130,000 members in 500 chapters in 38 States.
90

Our members generally are trout and salmon anglers who voluntarily contribute

substantial amounts of their personal time and resources to aquatic habitat protection and restoration efforts. Because of the declining populations of native trout and

salmon in many areas, our members increasingly rely on provisions of the ESA to

protect trout and salmon and their habitats. TU supports the ESA and considers

the ESA to be one of the Nation’s most important laws for protecting and restoring

trout and salmon populations.

The subcommittee has asked our views on the listing and delisting processes of

the ESA. To summarize, TU believes that the listing and delisting processes, as

written in the law, are fundamentally sound. Implementation of the processes by

the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service

(NMFS) is slowed unacceptably because of huge listing backlogs and insufficient

funding. Implementation of the listing process clearly needs to be improved, but in

our view, the solution to the problem is not to weaken the process legislatively or

administratively, but rather it is for the Bush Administration to propose, and Congress to appropriate, additional funding for listing. In our experience, applying

sound science to listing and delisting decisions is not a substantial problem. If anything, the Services bend over backwards to check the science and give interested

parties a thorough chance to comment on it.

We understand that there is considerable concern about the amount of litigation

over species listing and designation of critical habitat. However, we don’t support

the current Bush Administration proposed solution to, among other things, restrict

citizen lawsuit enforcement of listing deadlines. Simply restricting—or slowing

down—the listing process could jeopardize a number of species that should be listed,

such as the California golden trout, which is faced with extinction. Finally, we must

take the opportunity to urge the subcommittee to get at the root problem of insufficient funding and support conservation initiatives which would actually reduce the

need to list species, for example pass the Conservation and Reinvestment Act and

Fishable Waters Act, and provide more funding for conservation programs under the

Farm bill.

THE ESA LIST IS GETTING LONG, AND ESA IS GETTING MORE CONTROVERSIAL, IN LARGE

PART DUE TO DECLINING FISH AND OTHER AQUATIC POPULATIONS AROUND THE NATION

If the subcommittee is looking for root causes of listing problems, consider these

facts. Fish and other aquatic species are in bad shape in many places in the United

States. A recent American Fisheries Society study found that over one third of all

aquatic species are endangered or imperiled. The Forest Service’s Forest Ecosystem

Management Assessment Team (FEMAT) Report explicitly highlighted the fact that

more than 100 stocks of Pacific salmon have become extinct since European settlement of the West, and emphasized that 314 stocks just within the range of the spotted owl were at risk of extinction.

Populations of species that are vital to sport and commercial fisheries are reaching threatened and endangered status. Thirty-three salmonid species have already

been listed (see attached list), including Atlantic salmon from the rivers of Maine,

the bull trout of the intermountain west, and numerous stocks of Pacific salmon.

Increasingly, the success of the ESA will be linked to the fate of these once-abundant sportfish species, especially the salmonids of the western United States.

THE ESA LISTING AND DELISTING PROCESSES ARE FUNDAMENTALLY SOUND AS WRITTEN

IN LAW AND DO NOT NEED MAJOR REVISION

In the ESA, Congress wisely stated that the decisions to list or to de-list species

are to be based solely on the best available science. In reality, there can be no other

standard. The decision to list is, and should be, a question of biology, not politics

or economics. Once a species is listed, there is flexibility in other parts of the Act,

for example, in Section 10, which allows the taking of endangered species by private

landowners pursuant to habitat conservation plans. Where conflicts between species

and economic activity rise to regional or national significance, there is an exemption

provision.

In our experience, the Services generally have used this authority appropriately.

We have had disagreements with the agencies over their interpretations of science

pertaining to listing, but in the main they have done a respectable job. If anything,

the thoroughness with which the Services have conducted their scientific reviews

has sometimes made the listing process frustratingly slow. For example, it took the

Services 5 years to complete the listing of Atlantic salmon in part because of the

rigorous scrutiny they applied to salmon genetic data and studies. During this time

salmon numbers have plummeted to an estimated 200 to 300 wild fish.
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Similarly, ESA’s mandate to protect distinct population segments is a wise, essential conservation tool, especially for species such as trout and salmon, which consist

of an array of populations, like fibers in a tapestry, that give resilience and strength

to species. These populations provide the genetic fitness that species need to survive

the vagaries of weather, environmental changes, and human-contrived obstacles

that threaten them. The individual trout and salmon populations, which are the evolutionary legacy of species adaptation to site-specific habitat conditions, each contain the ingredients necessary for overall species survival. From a biodiversity and

long-term species persistence standpoint, native salmon, steelhead, and resident

trout at the population and sub-population level are irreplaceable.

Therefore, it is entirely appropriate to review the current endangered species list

and to find 9 chinook Evolutionarily Significant Units (ESUs) and 10 steelhead

ESUs. The ESU is NMFS’ attempt to manage the ESA distinct population segment

mandate in a practical way that is biologically defensible. Conservationists would

generally like to see NMFS segment-out distinct populations within each ESU even

more so than they have done. Conservationists were critical of NMFS’ lumping of

Snake River winter and spring runs into one ESU when that determination was

made in 1992, for example. But while we don’t always agree and we will continue

to debate the biological and legal merits of these issues, we respect that the agencies

have a difficult job in making these decisions and they are trying hard to do them

well.

IMPLEMENTATION OF THE LISTING PROCESS NEEDS IMPROVEMENT, BUT THE ANSWER IS

MORE FUNDING AND MORE AGGRESSIVE TACKLING OF THE BACKLOG, NOT RESTRICT- ING CITIZEN ENFORCEMENT OF DEADLINES

In our view, the most relevant listing issue is not inadequate or flawed scientific

basis for listing decisions, but rather inadequate funding to get species listed that

need the help that only the ESA can provide. In its fiscal year 2002 budget justification proposal, the FWS provides helpful detail about the bind it is in regarding court

ordered steps in the listing process, its failure to address the listing needs of some

species not in the court-ordered pipeline, and the limited funding it has to address

its needs. Unfortunately the solution offered by the Agency and the Bush Administration is a mere $2 million funding increase to a wholly inadequate $8 million base

budget for listing, and a plan that would among other things limit the ability of conservationists to go to court and enforce mandated ESA deadlines to save species.

The answer is not to limit access to courts but rather to fund the listing program.

We recommend at least a doubling of the Agency’s listing budget to not only address

the court ordered backlog, but also to allow the FWS the flexibility it rightfully

seeks to start the listing process for species that need ESA protection now.

REGARDING LISTED TROUT AND SALMON, THE DELISTING PROCESS IS NOT A PROBLEM

Unfortunately, there are no listed trout and salmon that have been restored sufficiently to trigger the ESA delisting process. This is not to say that the ESA has

failed these species. In fact, listing has generally helped greatly, as I have detailed

below. Greenback cutthroats and Apache trout are the closest to achieving their recovery targets, but in no way should their recovery be shortchanged. We want conservation programs in place that will last, not short-term fixes that may yield

ephemeral results and a quick trip back on the list.

LISTING OF TROUT AND SALMON HAS BENEFITED ALL LISTED SPECIES, SOME MUCH

MORE THAN OTHERS, BUT NONETHELESS ALL HAVE RECEIVED ATTENTION AND FUND- ING THAT THEY MIGHT NOT OTHERWISE RECEIVE

The ESA has been effective for protecting and at least partially restoring species

where it has been faithfully implemented and where political decisions have not undercut implementation, such as Apache trout and greenback cutthroat trout. These

two species have been brought back from the brink of extinction to the point where

restrictive, well-managed sport fisheries are occurring, providing valuable income to

local and tribal economies in Colorado and Arizona. These species are not recovered

yet, but they are no longer at critically low levels.

The State of Maine had failed to take steep declines in Atlantic salmon populations seriously enough until a petition started the listing process in 1994. Only

after the Services proposed Atlantic salmon for listing did the State forge a conservation plan that, while it had some merits, did not provide what was needed for

real salmon recovery. Following the listing of salmon in 2000, the State and the

Services are working harder and better than ever before to keep wild salmon from

going extinct, and hopefully some day, returning the fish to its rightful place as a

the most sought after sportfish species in New England.
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Snake River salmon have continued to decline since their listings in 1992, but

their path to oblivion is no longer taken in relative silence. Saving Snake salmon

is now a national imperative, the stuff of Presidential campaigns and an integral

part of Pacific Northwest’s resource debates.

Even for species for which petitions have been filed but are as yet unlisted—e.g.,

golden trout—the threat of listing helped get action. TU’s petition to list the golden

trout has prompted California’s Department of Fish and Game to address the fact

that their fish stocking program was causing hybridization of native golden trout.

It has also encouraged the Forest Service to address the grazing program on allotments that were harming golden trout habitat.

Finally, the 1999 emergency listing of Jarbidge River bull trout distinct population segment was an especially positive example of a listing that TU was directly

involved in. In the Jarbidge case, Federal agencies responded aggressively to a very

specific resource problem facing the southernmost remaining bull trout population

in the continental United States. The emergency listing process, rarely used in the

history of the ESA, was completed for this listing within a year. This shows how

quickly decisions can be made when the FWS aggressively presses the listing process.

THE ESA’S BURGEONING LIST OF SPECIES TELLS US THAT OTHER GOVERNMENT LAWS

AND POLICIES ARE FAILING. DON’T SHOOT THE MESSENGER! FIX THE OTHER PROGRAMS!

ESA listing and protection is necessary to protect and restore many salmonid species because other Federal, State, and local conservation laws and policies have

failed. Our assessment of the causes of the declines that justified the listing of 34

salmonid species showed that other Federal laws had failed to conserve the species,

including the National Forest Management Act, the Northwest Power Planning Act,

implementation of the United States/Canada Salmon Treaty, and the Clean Water

Act. State conservation laws and policies have also contributed to declines, including

stocking of nonindigenous species that has adversely affected greenback cutthroat

as well as golden, Lahontan cutthroat, Gila, and Apache trout. If the impacts of declining fish stocks and ESA are a problem for the Nation—and clearly they are—

then let us fix what needs to be fixed. The ESA is merely the messenger telling us

that other policies are not working. Therefore, efforts to place blame upon the ESA

are misplaced.

GOOD PROPOSALS ARE BEFORE CONGRESS NOW THAT COULD HELP CONSERVE SPECIES

AND KEEP THEM OFF THE LIST

TU does not believe that conservation begins and ends with the ESA. Our members are deeply involved in conservation efforts with communities, States and Federal agencies. There are at least three bills before the Senate that could help to

greatly improve partnerships and funding for conserving species, namely the Conservation and Reinvestment Act (HR 701), the Fishable Waters Act (S. 678), and

the Farm bill conservation programs which are set to be reauthorized by 2002. I

urge the subcommittee to look carefully at these measures and to support them. The

swelling endangered species list tells us that much more needs to be done

proactively to protect and restore species and their habitats. Passing legislation

such as these items helps to get at the heart of the problem.

REMEMBER ALDO LEOPOLD’S ADMONITION TO SAVE ALL THE PIECES

Aldo Leopold, the father of wildlife conservation, spoke eloquently in his landmark

book, A Sand County Almanac, of the importance of species diversity and need to

keep all the parts of an ecosystem to keep it healthy. TU has embraced Leopold’s

philosophy and has made conservation of native trout and salmon a high priority

for our organization. Listing species under the ESA goes to the heart of saving all

the parts and ensuring species diversity. We urge the subcommittee to support

measures that strengthen the listing process, such as increased funding for it, and

oppose measures that would legislatively or administratively weaken it.

Threatened and Endangered Trout and Salmon Species

Atlantic salmon-Endangered-Gulf of Maine

Apache trout-Threatened-entire range

Bull trout-Threatened-lower 48 States

Chinook salmon-Endangered-Sacramento River; winter run

—Threatened-Snake River, mainstem and subbasins; fall run, natural pop.

—Threatened-Snake River, mainstem and subbasins; spring/summer run, natural pop.
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—Threatened-WA, all naturally spawned populations in river and streams

flowing into Puget Sound.

—Threatened-Columbia River and its tributaries to Willamette Falls, OR,

natural pop.

—Threatened-Clackamas River and Willamette River above Willamette Falls,

natural pop.

—Threatened-various tributaries of Columbia River, natural pop.; also some

hatchery populations and their progeny.

—Threatened-Sacramento San Joaquin River, mainstem and tributaries,

spring run, natural pop.

—Threatened-CA, Redwood Creek south to Russian River, mainstem and tributaries, natural pop.

Chum salmon—Threatened-Columbia River, mainstem and tributaries, natural

pop.

—Threatened-Hood Canal and tributaries, Olympic Peninsula rivers between

Hood Canal and Dungeness Bay; summer run, natural pop.

Coho salmon—Threatened-streams between Punta Gorda, CA and San Lorenzo

River, CA, natural pop.

—River basins between Cape Blanco, OR and Punta Gorda CA, natural pop.

Gila trout—Endangered-entire range

Greenback cutthroat trout—Threatened, entire range

Lahontan cutthroat trout—Threatened, entire range

Little Kern golden trout—Threatened, entire range

Paiute cutthroat trout—Threatened, entire range

Sockeye salmon—Endangered-Snake River

—Threatened-Ozette Lake, WA and tributary streams, natural pop.

Steelhead—Endangered-from Santa Maria River, CA to Malibu Creek, CA

—Endangered-Upper Columbia Basin, Yakima River to US/Canada border

—Threatened-Sacramento and San Joaquin Rivers and tributaries

—Threatened-Snake River Basin

—Threatened-Russian River to Aptos Creek, CA, drainages of San Francisco

and San Pablo Bays

—Threatened-streams and tributaries to Columbia River

—Threatened-Pajaro River to Santa Maria River, CA

—Threatened-Willamette River, winter run

—Threatened-above Wind River, WA, and above Hood River, OR to Yakima

River, excluding the Snake River

—Threatened-Redwood Creek to Gualala River, CA

STATEMENT OF RALPH L. MOSS, DIRECTOR, GOVERNMENT AFFAIRS, SEABOARD

CORPORATION, ON BEHALF OF ATLANTIC SALMON OF MAINE

I. INTRODUCTION

Chairman Crapo and members of the committee, my name is Ralph Moss and I

appear today on behalf of Atlantic Salmon of Maine, LLC, a Maine aquaculture company raising salmon and selling salmon food products to U.S. consumers.

We appreciate the opportunity to testify before this committee concerning our

first-hand experience with the recent joint decision of the U.S. Fish and Wildlife

Service and the National Marine Fisheries Service to list Maine Atlantic salmon as

endangered under the ESA. Our bitter experience reveals that this important act

is subject to serious abuse and distortion, and in Maine’s case, is being implemented

in an arbitrary and heavy-handed manner that is both inconsistent with congressional intent and counterproductive for restoration of the species.

We would like to be clear that our company is a strong partner in the State of

Maine Atlantic Salmon Conservation Plan and supports Salmon restoration in

Maine rivers. But like Maine’s Governor King and members of our congressional

delegation, our company opposes the Services’ decision to list these fish as an endangered species.

The listing is fundamentally wrong for scientific, legal and policy reasons. Maine

salmon runs are restoration fish, the product of over more than 120 years of hatchery stocking of non-indigenous salmon into these rivers and do not qualify as a distinct population segment for ESA listing.
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II. FAILURE TO HONOR STATE CONSERVATION PLANS

The Maine listing represents a dangerous backslide by the Services into an inflexible interpretation of the ESA that fails to honor State conservation plans and

creates an unsustainable burden on Federal wildlife programs.

It is widely recognized that the Federal Government alone cannot recover endangered or threatened species. The States, with their traditional authority over wildlife management and land use planning are ideally positioned to fashion conservation plans that are custom tailored to the resource, its habitat, and local conditions.

This is especially true in Maine, where virtually all salmon habitat is in private

land ownership, and only the voluntary cooperation of landowners will enable salmon habitat upgrades.

In Maine’s case, the Services initially recognized the value of the State’s conservation plan. Developed by a State—appointed task force with input from Federal fisheries scientists. The Maine plan provides a 5-year action plan to recover the species,

with specific priority actions for each of the rivers. The plan gives top priority to

projects that directly benefit the resource and provides creative solutions for the agricultural, forestry and Aquaculture areas to minimize stock impacts and disruption

to the businesses.

In December 1997, the Services celebrated this Maine plan as a ‘‘National Model’’

that would open ‘‘A New Chapter in Conservation History.’’ The Services determined

that a threatened ESA listing of the runs was not warranted because the State plan

offered sufficient protections. But less than 2 years later, apparently in response to

pressure from a lawsuit filed by environmental groups, the Services abruptly reversed course, and decided to list Maine atlantic salmon as endangered. The Service

failed to provide a credible rationale for the listing or to demonstrate any truly

changed circumstances in the status of the Maine runs.

The Services’ failure to honor the State conservation plan represents the loss of

the best opportunity to recover Maine salmon runs. The State had appropriated over

$2 million in New money, had shifted existing staff and programs to support this

plan, and had organized significant public-private partnership support. At the

State’s request, our company had contributed more than $200,000 in direct costs

alone for an innovative adult restoration stocking program, raising wild fish from

the river for later release and natural spawning. Although highly successful to date,

the adult stocking program’s future is uncertain after the listing.

By rushing into the listing the Services effectively derailed a State plan that was

well on its way to achieving the goals jointly endorsed by the State and the Services.

Although support for the Maine plan remains strong to date, it is highly unlikely

that the private business community will continue that support if the Federal listing

is not reversed. There is no appetite for dealing with the Services, given their failure to be guided by the best available science, and their poor track record on pragmatic solutions.

III. FAILURE TO FOLLOW LISTING CRITERIA

The Services turned a deaf ear to the ESA mandate that the best scientific evidence be used to make listing determinations and failed to heed congressional cautions to use their power to list ‘‘Distinct Population Segments’’ sparingly. The Maine

case illustrates a continuing problem in ESA Administration: Congress intended

that conclusive evidence, representing the best available scientific data, be used in

listing decisions for distinct population segments. but increasingly, the Services rely

upon the ‘‘Precautionary Principle’’ to justify listing decisions in the absence of complete data. We heard services representatives repeat many times in the Maine listing hearings that although the genetic evidence was incomplete, and that the genetic heritage of the Maine salmon was not clear, the precautionary principle required that the salmon be listed given the low population levels. The Agency’s growing reliance upon the precautionary principle in ESA represents a fundamental conflict with statutory authorization and congressional intent in ESA listing.

Our written testimony offers a detailed explanation of the Services’ multiple failures to follow listing criteria in the Maine salmon case.

IV. FAILURE TO HONOR THE NEEDS OF THE RESOURCE AND ITS HABITAT

The sudden and illogical reversal of the Services’ position on the need for ESA

listing of Maine salmon clearly reveals that this was a political listing that had

nothing to do with the needs of the resource or with the best science available. We

believe that the Services decided to take the path of least resistance, and list the

species rather than defend its decision in the lawsuit. Ironically one of the documents that the Services attempted to suppress from FOIA disclosure argued that
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it was better to sacrifice one State plan so that the concept of State plans could be

preserved for future use. This abandonment of the State plan, after encouraging the

State and its citizens to implement the plan, represents a serious breach of faith

by the Services, and a complete disregard for the real needs of the salmon restoration.

Having insisted on derailing the State plan, the Services have taken no effective

action to address the priority needs of salmon restoration. The Services have actually cut funding for Maine River Restoration Programs, and ignored the agreed upon

priority needs for salmon restoration reflected in the Maine plan. In the last budget

proposal, the Services proposed to spend only $1.2M in Maine on the ESA stocks,

an outright budget cut from pre-listing budgets. In contrast, the Services proposed

to spend $6.2M on the restoration stocks to the south of Maine. The Services’ own

budget proposal is the most devastating possible critique of their disorganized and

ineffective restoration programs.

Instead, the Services have chosen to follow their default course, seeking to bulk

up staff to carry out section 7 consultations. They have lost no time in demanding

new permit conditions for aquaculture that are wholly unsupported by science, and

would cause massive disruption and losses to the Maine aquaculture industry if implemented. Refusing to consult with the Department of Agriculture experts on aquaculture, marking, or genetics issues, the Services have demanded marking technology that does not exist for fish, as well as immediate slaughter of perfectly

healthy broodstock and fish being raised by the companies on the theory that they

are not genetically compatible with Maine runs. The Services have no knowledge

or understanding of our industry, but continue to turn a deaf ear to the expert State

of Maine agencies and Federal Department of Agriculture on aquaculture issues. In

spite of the tremendous potential losses to our company, the Services have arbitrarily repudiated their prior commitments to the State of Maine that non-North

American origin atlantic salmon could continue to be used with effective containment. It is just this type of arbitrary and unaccountable services action that turns

ESA listings into a nightmare for private citizens and creates strong opposition to

ESA listings.

It should be noted that the Services’ demands on aquaculture in this listing create

very significant adverse precedents for agriculture in ESA listings generally, especially where the Services are proceeding upon the precautionary principle to justify

their actions.

It is clear that the Services are attempting to scapegoat aquaculture, which did

not even exist when the Maine salmon runs declined, in order to distract attention

from the Services’ failure to address the critical needs of the resource. Ironically,

the Services have failed to fulfill the one exclusive Federal role that would benefit

salmon restoration—to work through international treaty organizations such as the

North Atlantic salmon Conservation Organization (NASCO) to secure a moratorium

on the on high seas salmon fisheries. The National Fish and Wildlife Foundation

led a similar moratorium effort in 1993–94, resulting in a 1995 population rebound—the only such rebound in recent history. Similarly the Services continue to

shrink from effective independent peer review of their Maine salmon stocking programs, which are contributing to the decline of the species. Maine salmon cannot

recover until these priorities are addressed.

CONCLUSION

After nearly 30 years, the ESA and its administration is in need of updating to

reflect the advances in science and technology and to preserve traditional State roles

in wildlife management. We request that Congress establish clear guidance to the

Services that will protect and support State conservation plans in the listing process. Congress must take action to require strict adherence by the Services to ESA

listing criteria and sparing use of the DPS concept. Finally, Congress must hold the

Services accountable for post-listing decisions, requiring the Services to demonstrate

that there is a quantifiable scientific basis for the permit condition or other Federal

action, and that every effort has been made to minimize unnecessary disruption of

private property rights and businesses.
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1 Economic figures from Our Living Oceans, Report on the Status of U.S. Living Marine Re- sources, 1992. NOAA Tech. Mem., NMFS-F/SPO–2. National Marine Fisheries Service, NOAA,

U.S. Dept. of Commerce, Washington, DC. See also Analysis of the potential economic benefits

from rebuilding U.S. fisheries (1992). National Marine Fisheries Service, NOAA. 2From Fisheries, Wetlands and Jobs: The Value of Wetlands to America’s Fisheries, a report

by William M. Kier Associates (March 1998) for the Campaign to Save California Wetlands,

available on the Internet at: http://www.cwn.org/docs/reports/kier/kiertitle.htm. See also Maharj

and Carpenter (1997), The 1996 Economic Impact of Sport Fishing in the United States, by the

American Sportfishing Institute, Washington, DC.

STATEMENT OF ZEKE GRADER, PACIFIC COAST FEDERATION OF FISHERMEN’S

ASSOCIATION

Good morning, Mr. Chairman and subcommittee members, my name is Zeke

Grader. I am the executive director for the Pacific Coast Federation of Fishermen’s Associations (PCFFA), representing working men and women in the west coast commercial fishing fleet. We are a federation of many different fishermen’s marketing

associations, vessel owners associations and fishermen’s cooperatives with member

organizations as well as individual members in ports from San Diego to Alaska.

The fishing men and women and their organizations that make-up our federation

are the economic mainstay of many coastal communities and cities. PCFFA members represent at least half a billion dollars in economic investments which generate

tens of thousands of family wage jobs—not only in coastal communities, but far inland as well. In other words, hard working men and women who help put fresh,

high-quality seafood on America’s table, create a job base for coastal communities,

and help support a multitude of Federal, State and local community services

through our taxes, all from the bounty of the seas.

The commercial fishing industry represents a significant economic sector in this Nation, accounting for well over $50 billion in economic impacts and more than

700,000 jobs. When combined with another $15 billion per year generated by the

marine recreational fishery, the whole offshore fishing industry now accounts for

about $65 billion per year to the U.S. economy.1 In addition to commercial fishing,

the recreational sportfishing industry also contributes a mighty share to the U.S.

economy. Fishing—whether for sport or commercially—is big business, with a com- bined economic input to the national economy in excess of $152 billion and supporting almost 2 million family wage jobs.2

Most of these jobs are to one degree or another dependant upon strong protection

of the biological resources upon which they are based. In other words, our industry

would not exist—nor would $152 billion dollars in annual income and 2 million jobs

in this economy that we generate—without strong environmental protections. Our

industry is a prime example of a basic economic principle:

The fundamental source of all economic wealth is the natural environment.

In the long-run environmental protection does not destroy jobs—it creates them

and maintains them on a sustainable basis for the future.

In other words, the biological wealth of this country is its ‘‘natural capital.’’ Like

any economic capital, we can invest it wisely and reap its benefits indefinitely, or

we can allow it to dissipate and waste it. Pushing species to the brink of extinction—and beyond—not only wastes future economic opportunities but helps destroy

those industries we already have, such as the Pacific salmon fishing industry. The

ESA is the law of final resort that prevents us as a society from negligently wasting

our irreplaceable ‘‘natural capital’’—and the jobs that this ‘‘natural capital’’ represents, both in the present and in our economy’s future. Ultimately all economic

wealth comes from our natural environment. In the final analysis this is all humanity has, and all it has ever had, from which to obtain its livelihood, and indeed its

very existence.

The Endangered Species Act (ESA) dispute is not really a clash between species vs. jobs, nor even between public trust values vs. private property rights—fundamentally, the ESA dispute is a clash between short-term profiteering vs. long-term and

sustainable economic development. The ESA merely establishes limits beyond which

voracious human consumption should not go. That limit is the limit of ‘‘biological

sustainability.’’ This is also the basis of economic sustainability as well. As a society,

we violate nature’s biological limitations at both our biological and our economic

peril.

Each species pushed into extinction is first and foremost a loss to the very fabric

of our human food chain. However it also represents a lost future economic opportunity effecting our entire economy. The biological diversity of our natural resources

represents the foundation upon which many industries of the present are maintained, but also upon which industries of the future will be built and people of the
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3The $152 billion/year fishing industry is but one example of this principle. Fully 40 percent

of the known medically valuable pharmaceuticals, for instance, are derived from natural sources.

This represents an industrial economy also in the hundreds of billions of dollars worldwide, as

well as many millions of lives saved. Yet only about 1 percent of all the plant species now known

have been adequately surveyed for their pharmaceutical value, and only a small fraction of all

plant species have even been cataloged categorized. Many will likely become extinct before that

can be accomplished. The booming biotechnology industry is also another example. Their stock

in trade is genes. These genes, however, can only come from known natural sources—even the

simplest gene is millions of times too complex to synthesize in the laboratory by any known

technology. Unknown plant species may contain genes for disease resistance worth billions to

a failing crop industry, or worth billions more for any of a number of other unknown and as

yet undiscovered industrial processes. Once extinct, however, the potential uses of the organism

will never be known. Every species driven to extinction gives us fewer economic options. 4The last remaining wild salmon runs in the eastern coast of the United States are in a handful of rivers New England. These have recently been listed for protection under the ESA. There

are in fact more dams in New England than there are individual adult wild salmon returning

to your rivers—about 2,500 wild salmon still return to New England, while there are about

3,000 medium and small dams in the same area, many of them obsolete. However, as we have

recently seen by the example of the removal of Maine’s Edwards Dam, once these dams are removed, the fish runs can be restored. PCFFA has recently spearheaded the removal of several

dams in the California Central Valley with the same result—provide them decent habitat and

the salmon will return.

future will be fed. Wasting our ‘‘natural capital’’ dramatically impoverishes our society by limiting our future industrial and economic growth.3

The commercial fishing industry has seen the Endangered Species Act up close

and in operation for many years. Our industry is a highly regulated industry. We

are, for instance, far more strictly regulated under the Endangered Species Act

(ESA) than the Northwest timber industry, and for many more species. While the

timber industry has recently suffered through curtailments caused by one or two

ESA listings, the fishing industry has long been dealing with the impacts of listings

for chinook salmon in both the Columbia and Sacramento Rivers, sockeye salmon

in the Columbia, sea turtles in the Gulf, marine mammal species protected under

both the ESA and the Marine Mammal Protection Act (MMPA), and various species

of seabird protected under both the ESA and the Migratory Bird Treaty Act

(MBTA). On the west coast, we have also learned to cope with ESA listings for coho

and sockeye salmon and some runs of chinook as well. The cumulative effects of this

multitude of listings is, frankly, far more restrictive than any past restrictions

caused merely by spotted owls or marbled murrelets.

There is, in fact no industry more regulated under the ESA presently, nor more

likely to be regulated in the foreseeable future, than the commercial fishing industry. We can therefore speak with some authority, as a regulated industry, on how

well the ESA works. Yet in spite of short-term dislocations created by listings, we

view the protections offered by the ESA as vitally important in protecting and preserving our industry, our jobs and our way of life for the long term. It is species declines and the forces which cause those declines which are the real enemy, not the

ESA. The ESA is only the messenger.

It is, in fact, axiomatic that a species only qualifies for listing under the Endangered Species Act because it faces extinction. This point seems to have been missed

by many who are calling for the elimination or curtailment of ESA protections. The

best way to prevent listings, then, is to prevent the species’ decline in the first place.

Limiting or repealing the ESA itself only throws out the primary tool to achieve recovery, in other words shoots the messenger, but does nothing to reverse the underlying declines. In other words, the ESA is only the warning bell and not the problem

itself. Disconnecting the warning bell is not a viable response to an emergency in

the making.

72,000 SALMON JOBS AT RISK—SALMON AS A CASE IN POINT FOR HOW THE ESA

PROTECTS JOBS

Salmon, once the economic mainstay of both the commercial and recreational fishing industry in the west have been reduced by decades of short-sighted human actions to a mere shadow of their former glory, largely as a result of a multitude of

cumulative on-shore causes. The great salmon runs of the east coast are all but

gone, more than 98 percent of those runs now extinct.4 Salmon in east coast restaurants are almost always inferior Norwegian salmon raised artificially—which exports to Norway thousands of jobs that should have belonged to American fishermen. The virtual extinction of the east coast’s once abundant salmon runs, which

once extended well down into Georgia in colonial times, and the elimination of an

entire segment of the fishing industry in the process, is one of our greatest American tragedies. The efforts now to bring those enormously valuable biological re-
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5 Both the impacts from upper watershed activities (improper logging, overgrazing, road washouts, etc.) and the impacts from the hydropower turbines are largely avoidable. Many of these

practices are obsolete and unnecessary, and profits in these industries will not greatly suffer

from curtailing or mitigating these problems. The externalized damage caused by these poor

management practices is, in many cases, more of a harm to society (and to the very industry

itself) than any conceivable short-term benefits. As an industry ourselves, we are very sympathetic to the current plight of timber works (many of whom are also fishermen)—however, it

is clear that short-sighted logging, grazing and hydropower practices conducted without any regard to stream protection has been disastrous for our industry and for the economies of many

coastal communities. Most of the Federal hydropower dams were built without downstream

salmon passage, and some (such as the Grand Coulee Dam) without any upstream passage

whatsoever. Salmon are now totally extinct above Grand Coulee Dam, and this extinction was

designed into the system. The fishing industry is federally regulated on the basis of biological

sustainability (Magnuson Act). It is time that these other industries were as well. The current

dislocations in these industries are fundamentally caused by past unrestricted overuse of their

resource which now has to be balanced out and made more sustainable. The historical rate of

timber harvesting over the last few decades has been many times what is biologically sustainable without doing major environmental damage to other industries. The fundamental problem

with the timber supply is that after decades of overcutting old growth timber, the timber industry is simply out of big trees.

sources back from the brink through their listing under the ESA, and the modification of other industrial sectors to make that possible, is well worth the effort.

The destruction of salmon spawning and rearing habitat has also been ongoing

and pervasive in the west for many decades—it is just a few decades behind the

east coast but going along the same path leading to extinction. Every year fewer

and fewer salmon survive the silting up of their spawning grounds by inappropriate

or poorly planned logging, grazing and road building practices. Fewer still survive

the nightmare ride through hydropower turbines and slack-water reservoirs in the

more than 30 major Federal and State Columbia River Basin hydropower dams. In

the eight federally operated Columbia and Snake River mainstem dams alone, each

dam’s turbines and hot water reservoirs combined kill up to 15 percent of the

outmigrant fish making their long journey to the sea.5 3,000 miles of prime salmon

spawning streams in the Sacramento Basin have now been reduced to less than 300,

and much of what remains is biologically damaged or suffers from too little cold

water during critical spawning times.

The relatively few wild salmon which remain alive after all these accumulated impacts are then subject to otherwise natural ocean fluctuations (El Nin ̃ os) which,

combined with all the upstream human-caused assaults, can be the final blow to an

already highly stressed salmon ecosystem. Once the numbers of salmon in a stream

drop below a certain threshold, the remaining fish cannot reliably find each other

to mate. Even though many fish remain, the run has then dropped into what is

called the Aextinction vortex and numbers drop precipitously from that point onward—only major intervention can then save them. This is precisely what seems to

be happening over much of the west coast and has happened long since for salmon

over most of the Atlantic seaboard.

Salmon are the most sensitive to their environment in the egg stage and as juveniles when they are still in freshwater streams just after spawning. Some species

(such as coho salmon) spend a fairly long time in freshwater streams since they

must ‘‘overwinter’’ there for up to 18 months before migrating out to sea. Even once

they leave these freshwater streams, salmon must still spend additional time in

coastal wetland estuaries and marshes in order to gradually adapt to life in salt

water. They are ‘‘anadromous’’ fish, which means they are hatched in freshwater,

then adapt to salt water, then return again to freshwater to spawn. In the ocean

they are relatively large and relatively safe, but in inland streams they are subjected to every environmental problem created by mankind, in addition to natural

predation and other natural impacts. Salmon evolved for drought, for El Nin ̃ os, to

avoid predators—but have not evolved to prevent themselves from being sucked into

irrigation pumps, nor from being destroyed by hydropower turbines, nor stranded

without water in unscreened irrigation ditches. They also have not evolved to survive water pollution, oil spills and the many other unfortunate environmental problems created by modern civilization.

Roughly speaking, we have lost about 80 percent of the productive capacity of

salmon streams in the west coast as a direct result of various causes of watershed

destruction. According to a 1991 comprehensive scientific study by the prestigious

American Fisheries Society (AFS), at least 106 major populations of salmon and

steelhead on the West Coast are already extinct. Other studies place the number at

over 200 separate stock extinctions in the Columbia River Basin alone. The AFS report also identified 214 additional native naturally spawning salmonid runs at risk

of extinction in the Northwest and Northern California: 101 at high risk of extinc-
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6 Nehlsen, et. al., 1991. ‘‘Pacific Salmon at the Crossroads: Stocks at Risk from California, Oregon, Idaho, and California,’’ Fisheries 16:2(4–21). 7From GIS survey maps prepared by scientists on contract to The Wilderness Society, and

published in The Wilderness Society’s report The Living Landscape: Pacific Salmon and Federal

Lands (Volume 2). Published by the Bolle Center for Forest Ecosystem Management (October

1993). The report and data were peer reviewed. 8The one exception was pink salmon, which now only occurs in the extreme upper portion

of the Puget Sound area in limited populations. These are also (incidentally) the areas least affected by development since much of that area is in Olympic National Park—emphasizing the

direct correlation between salmon production and intact watershed ecosystems. 9See the Endnote.

10From a report titled The Costs of Doing Nothing: The Economic Burden of Salmon Declines

in the Columbia River Basin. Institute for Fisheries Resources (October, 1996), based on figures

from peer reviewed reports by the Northwest Power Planning Council. Completion of the last

main-stem Federal hydropower dams was in the late 1970’s, and none were built with adequate

fish passage. That study concluded that salmon losses in the Columbia Basin to date have

amounted to the removal from the regional economy of between 13,000 and 25,000 jobs annually

at a cost to the economy of between $250 to 505 million dollars annually, which translates to

the loss of natural capital assets conservatively estimated as up to $13 billion.

tion, 58 at moderate risk of extinction, and another 54 of special concern.6 In a recent extensive GIS mapping study of present salmon habitat occupied versus historical habitat, based on the AFS data and updates, the data indicated the following

distributions across the landscape:

Status of Salmon Species in the Pacific Northwest and California

Current Distribution as a Percentage of Historic Habitat

Species Extinct [In

Percent]

Endangered

[In Percent]

Threatened [In

Percent]

Special

Concern [In

Percent]

Not Known to

be Declining

[In Percent]

Coho ..................................................................... 55 13 20 5 7

Spring/Summer Chinook ...................................... 63 8 16 7 6

Fall Chinook ......................................................... 19 18 7 36 20

Chum salmon ...................................................... 37 16 14 11 22

Sockeye ................................................................ 59 7 3 16 15

Pink salmon ......................................................... 21 5 <1 <1 73

Sea-run Cutthroat ................................................ 6 4 61 29 0

Winter Steelhead .................................................. 29 22 7 18 24

Summer Steelhead ............................................... 45 5 5 27 18

According to GIS mapping, Pacific Northwest salmon are already extinct in 38

percent of their historic range, between 50–100 percent of these species are at risk

or extinct in 56 percent of their historic range, and in only 6 percent of their historic

habitat range are fewer than 50 percent of these salmon species at risk or extinct.7

The conclusions of this study (the best and most complete science to date) are

chilling—9 out of 10 known species of Pacific salmon will be extinct in the lower

48 States in the near future unless land use patterns pressing those stocks toward

extinction are reversed.8

The productive capacity of the salmon resource has always been enormous. Even

as recently as 1988, and in spite of already serious existing depletions in the Columbia and elsewhere, the Northwest salmon fishing industry (including both commercial and recreational components) still supported an estimated 62,750 family wage

jobs in the Northwest and Northern California, and generated $1.25 billion in economic personal income impacts to the region.9 An additional estimated job loss from

the Columbia River declines alone had already occurred by the 1988 baseline year,

amounting to another $250-$505 million in annual economic losses as well as the

destruction of an additional 13,000 to 25,000 family wage jobs. These jobs had already been taken out of the economy as a direct result of dam-related salmon declines in the Columbia basin prior to 1988.10

Hydropower and irrigation dams are probably the major leading factor in the collapse of the salmon fishery on this coast. Historically almost one-third of all west

coast salmon were produced in the Columbia and Snake river systems, making that

river the richest salmon production system in the world. Now, however, in the Columbia and Snake rivers the hydropower system accounts for about 90 percent of

all human-induced salmon mortality, as opposed to only about 5 percent for all commercial, recreational and tribal fisheries combined. Official figures from the Northwest Power Planning Council indicate that the Columbia River dams kill the equivalent of between 5 million and 11 million adult salmon every year, with several mil-
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11 Northwest Power Planning Council publication Strategy for Salmon, Vol. 2, page 17 and Appendices D and E. 12Facts on wetland losses by State from a report by the U.S. Department of the Interior entitled Wetland Losses in the United States 1780’s to 1980’s by Thomas Dahl. California has lost

a higher percentage of its wetlands than any other State. If only coastal or estuarine wetlands

is included in these figures, each State’s wetlands losses would be much greater.

lion more killed by a variety of dam related habitat loss factors in the upper watersheds of the region.11 Many millions more fish are killed in the Central Valley

Project and in the Klamath Basin by loss of in-stream flows.

Another problem is wetland losses throughout the west coast. California has already lost 91 percent of its original wetlands, Oregon has lost 38 percent and Washington has lost another 31 percent and the remaining percentages of original wetlands have been severely compromised in their biological functions.12 These wetlands are vital in protecting overwintering salmon, helping them survive droughts

and (for saltwater wetlands) helping them adapt to ocean conditions. A main factor

in the destruction of the coastal salmon stocks in the Northwest has been the rampant destruction of the area’s wetlands. Loss figures for the most valuable coastal

and estuarine wetlands are much greater than the overall State loss averages.

There has been a lot of press recently about court ordered irrigation cutbacks in

the Upper Klamath Basin that have been imposed to protect salmon and other fish

from extinction, with the farmers blaming the Endangered Species Act for problems

that are clearly caused by a drought. In fact, the Courts under the ESA have only

been saying that, especially in a drought year, natural public resources should have

enough water to survive. In short, the court said that the irrigators cannot take all

the water for themselves, drying up the rest of the river system at the expense of

everybody else.

In other words, the ESA requires the protection of the very ecosystem which supports all of these economies, and forbids wasting all of our natural resources (which

are owned by the public in general) simply to benefit a few farmers for a few years.

It just makes no sense to keep irrigating croplands as usual in the midst of what

has become the Klamath Irrigation Project’s worst drought in its entire 90 year history, particularly when the result will inevitably be a dried up river, dead lakes,

the final extinction of several commercially valuable species and the total destruction of a whole downriver fishing economy that also supports thousands of coastal

jobs—all this destruction just to keep feeding a bloated Federal irrigation project

that produces federally subsidized surplus crops for which there is now little or no

market.

The relatively large salmon harvest projected this year in Central California is an

instructive exception to these decline trends. The primary cause of those increases

has probably been water reforms in the Central Valley, driven by the listing under

the ESA several years ago of the devastated native runs of Sacramento winter-run

chinook salmon and the delta smelt. Although some of those reforms are now embodied in the Central Valley Project Improvement Act, the ESA listing predates the

CVPIA by several years and forced these reforms to be made. Greater in-stream

smolt survival coupled with fortunate ocean conditions have thus given us a large

harvestable run and put a lot of California fishermen back to work while other

areas along the west coast where habitat loss and water diversions still continue

are still in decline.

In fact, the salmon rebounds in recent years from the California Central Valley

is an ESA success story. ESA driven water reforms in California were long overdue,

are starting to have their effect, and are now resulting in abundant and sustainable

salmon harvests once again off the shores of California. The ESA has thus resulted

in restoring jobs, communities and a tax base once again to schools and public services in many coastal fishing-dependent rural ports. There is a long way to go, but

none of this could have been done had not the ESA forced society into a better balance in the protection of our fundamental Anatural capital, our priceless natural resources.

ESTIMATES OF SALMON JOB LOSSES DUE TO LACK OF PROTECTION OF

SALMON RESOURCES

California’s returning salmon harvests are certainly encouraging, and show us

what better resource protection can accomplish. However, with the one major exception off California, and a few very minor mostly sportfishing exceptions in Washington and Oregon, most of the entire ocean going salmon fleet was closed down or

severely restricted since 1994 because of these declines, particularly of coho salmon

which is now ESA listed. Even with some harvests returning in central California,

we estimate that coastwide we have still lost 90 percent of our industry income from
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13Dr. Chris Frissell, who did much of the GIS mapping for The Wilderness Society report

cited above, took an independent look at whether harvest reductions were a significant factor

in population dynamics for coho salmon. If overfishing were a significant cause of population

declines, then harvest reductions should be effective in rebuilding depleted stocks. He concluded

in his analysis as follows:

Overfishing is often cited as a principle factor causing decline of salmon runs. However,

there are few historical or recent records to indicate that curtailment of fishing has lead

to increased spawning abundance of coho salmon. For example, curtailment of fishing seasons has been thought to have reduced harvest-related mortality rates on Oregon coastal

coho substantially during the past decade. However, there has been no evidence of increased spawner escapement during this period, suggesting that fishing curtailment is at

best merely keeping pace with rapid habitat deterioration and declining productivity of

coho populations.

(Pacific Rivers Council petition for the coastwide listing of coho salmon, dated 10/19/93).

14Figures from Dr. Hans Radtke, Ph.D., fisheries resource economist. 15There is also a cascading effect of these salmon declines which impact Alaska’s economy

as well. Fishing is the leading industry in Alaska, greatly exceeding timber production as a

source of economic support for its communities. Much of that fishing industry is now threatened

because of international disputes with Canada over the collapse of the Pacific Salmon Treaty

(PST). That treaty collapsed a few years ago primarily because of salmon losses in the lower

48 States (particularly the losses from the Columbia). Oregon and Washington salmon tend to

migrate north toward colder water. Under the PST as presently written, Canadian-origin fish

caught in Alaskan waters are supposed to be replaced by U.S.-origin fish swimming north into

Canadian waters from the lower 48. However due to widespread salmon declines in the lower

48 States, those replacement fish are much fewer in number than the fish Canada is losing to

Continued

the commercial fishery as compared to the 1976–1993 averages—which translates

to loss of 90 percent of the jobs created by the commercial salmon industry as a

whole. The recreational salmon fishing industry has also suffered a similar decline

of 70 percent in that same time period, with some areas (such as central Oregon)

also suffering years of nearly complete closures. While there is some mismatch of

figures (due to different averaged years) these two figures combined will give us a

pretty good estimate of total salmon industry job losses since 1988. Doing the calculation we get job losses as follows: 15,250 x 90 percent = 13,725 jobs lost since

1988 in the commercial salmon fishery; 47,500 x 70 percent = 33,250 jobs lost since

1988 in the recreational salmon fishery; 46,975 jobs lost overall since 1988.

In additional, habitat losses and hydropower mortality in the Columbia and

Snake rivers have also resulted in up to 25,000 lost jobs. Adding these lost jobs to

the above figures for losses in the Columbia River which occurred even before 1988

indicates a total west coast job loss within the last two decades of approximately

72,000 family wage jobs.

In other words, roughly 47,000 jobs have been lost in the west coast Pacific salmon fishing industry (including both commercial and recreational) just since 1988,

with a total of 72,000 fishing-generated family wage jobs lost—including losses due

to the current operations of the Columbia and Snake river hydropower system—over the past three decades.

Overfishing is not a likely cause of these declines. Had overfishing been a major

contributing factor in salmon declines (as some have claimed) then past harvest closures should have resulted in substantial rebuilding of populations. However, there

is no evidence that these closures resulted in substantial population increases—indicating that the limiting factors are in the watersheds, not in ocean or in-river harvest levels.13 There are also a number of other indications leading to the same conclusion, including: (a) the most precipitous declines have occurred primarily in the

most inshore habitat sensitive species (coho salmon) as opposed to chinook salmon

which spend much less time in inland watersheds and whose populations are still

relatively robust; (b) precipitous declines have also occurred in species for which

there is no sport or commercial harvest (searun cutthroat) but which originate in

inland watersheds in which there has been substantial human disturbance (primarily clearcut timber harvesting and increased stream siltation from logging road

washouts).

When seasons remain closed, the enormous economic investment already put into

the Pacific fishing fleet goes to waste. Just in the Columbia River gillnet fleet alone

an estimated $110—$129 million in capital assets is invested.14 Yet the in-river

gillnet fleet is only a relative handful of small boats and its capital investment is

certainly only a very small fraction of the overall capital invested in the entire ocean

salmon fishing fleet. This figure does not even include buyer and processor investment. Additional salmon extinctions essentially mean the bankruptcy of whole fishing-dependent coastal communities and the waste of a tremendous capital investment built up over generations.15
128

the Alaskan fleet. Thus the Canadians have demanded cutbacks in the Alaskan catch to balance

out their own losses. The Canadians are quite capable of enforcing these cutbacks through mandatory transit fees (already imposed for a short time last year) or even gunboat boardings on

the high seas (as in the east coast’s ‘‘Turbot War’’ between Canada and the European Union

just a few years ago). To date the only thing that has driven salmon recovery efforts in the lower

48 is the threat or reality of ESA listings. Without a strong ESA-driven recovery of these depleted

lower 48 stocks there is no hope of Alaska long avoiding another ‘‘fish war’’ with Canada with

no end in sight. Were the ESA itself to disappear, this international problem would still force

shutdowns of much of the salmon harvest in Alaska within the next few years. These shutdowns

would be required not by the laws of Congress but by the laws of nature. 16 American Fisheries Society, ‘‘Status of Freshwater Fishes of the United States: Overview

of an Imperiled Fauna.’’ Fisheries, Vol. 19, No. 1 (January 1994).

Again these extinctions represent lost jobs, lost family income and lost local tax

revenues suffered by fishing communities as a result of poor environmental protection of west coast salmon. These losses are being suffered by real people, many of

them third or fourth generation fishermen, who suddenly find they cannot feed their

families, pay their home and boat mortgages or help maintain their communities.

Better protection of salmon and their habitat (through the ESA and other strong

environmental laws) will help restore these 72,000 jobs to the region and rebuild

these local economies.

WHY THE FISHING INDUSTRY NEEDS THE ENDANGERED SPECIES ACT—$152 BILLION/

YEAR AND 2.0 MILLION JOBS AT RISK

Most fish species spend only part of their lives in mid-ocean. During their juvenile

stage, most live and thrive in the nearshore environment of streams, rivers and estuaries. Some, like salmon, reproduce and grow far inland in fresh water streams

hundreds of miles from the ocean. However, salmon are just one example of commercially valuable species that are also dependent on inshore or nearshore habitat

quality.

All around the country, our industry is utterly dependent on species which themselves require healthy watersheds and estuaries for the most critical parts of their

life cycle. Nearshore waters, including rivers, streams and coastal wetlands, are essential nursery areas for fully 75 percent of the entire U.S. commercial fish and

shellfish landings. These sensitive ecosystems are valuable national assets which

contribute about $46 billion per year to the U.S. economy in biological value (including natural flood control and filtration of pollutants), as well as providing its healthiest food sources. Salmon are only one part of this whole economic picture, and only

one of many commercially valuable species which need protection. The bottom line

protection of all these species is the Endangered Species Act.

All the Nation’s $152 billion fisheries have been put at risk as a result of the continuing destruction of fish habitat in the Nation’s rivers, estuaries and coastal ecosystems. This destruction has already led to billions of dollars in lost revenue to the

Nation every year, lost jobs, lost food production, and lost recreational opportunities.

The collapse of the salmon fishery is only a small part of this overall habitat loss

problem.

Nor is coastal habitat loss the only problem. Our entire inland freshwater fish resource is also in serious trouble. According to studies by the prestigious American

Fisheries Society, roughly one-third of 790 known species of freshwater fish in the

United States are in danger of extinction or of special concern. In the case of a

whole family of nonanadromous (i.e., resident) salmonids, more than 50 percent of

all known U.S. species in that family are close to extinction. Within the largest

known family of fish (the Cyprinidae), which include 29.2 percent of all known fish

species in the United States, the number of species classifiable as endangered (7.2

percent), threatened (9.4 percent), of special concern (10.8 percent) or already extinct (3.3 percent) totals 30.7 percent of this entire large family of fish species. Of

the 18 States with greater than 10 imperiled fish species, 10 are located in the

South and 5 in the West. The 11 States with the highest number of imperiled fish

species are (in descending order) Nevada (43), California (42), Tennessee (40), Alabama (30), Oregon (25), Texas (23), Arizona (22), Virginia and North Carolina (21

each), and Georgia and New Mexico (20 each).16

This country is in the midst of an ecological disaster which is causing tremendous

economic losses throughout the Nation in this and many other resource dependent

industries. The large number of the Nation’s fish and wildlife which qualify for listing under the ESA is just the symptom of this overall ecological disaster.

The Congress and the Administration need to make a serious commitment to the

protection of those habitats and ecosystems that determine the future productivity

of fish and shellfish resources in the United States. If this commitment is made,

at least a doubling of anadromous fish and other near shore dependent marine fish
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17Figures from Marine Fishery Habitat Protection—A Report to the U.S. Congress and the Secretary of Commerce (March 1, 1994), copublished by the Institute for Fisheries Resources, East

Coast Fisheries Foundation and PCFFA, with extensive citations. Copy available from PCFFA

upon request. 18 Nowhere in the Nation is the link between inland environmental protection and fish production more obvious than in the Gulf States, where National Marine Fisheries Service scientists

estimate that 98 percent of the Gulf commercial seafood harvest comes from inshore, wetlands

dependent fish and shellfish. Louisiana’s marshes alone produce an annual commercial fish and shellfish harvest of 1.2 billion pounds worth $244 million in 1991. Gulf shrimp clearly head the

list of the region’s wetlands dependent species. Without strong wetlands protection this extremely valuable commercial fishing industry resource would eventually no longer exist in those

States. The shrimp industry is learning to cope with TED’s and other devices to minimize unwanted bycatch problems. A far greater threat to that industry comes from estuary and wetlands habitat loss. The ESA is a tool which (in the last resort) can be used to halt and reverse

these losses and protect that industry. 19Only recently has this begun to change, with the >Essential Fish Habitat’ provisions of the

Magnuson-Stevens Sustainable Fisheries Act, but this authority is still only a weak consultation

process that allows fisheries management councils merely to comment on proposed Federal actions that would destroy fisheries habitat, not to stop them. There is no enforcement authority

in these provisions.

and shellfish populations of the ‘‘lower 48’’ States can be expected. This could produce an additional $27 billion in annual economic output (above and beyond the

current level of $152 billion) and more than 450,000 new family wage jobs.17

Environmental regulations exist because after decades of neglect and pollution,

policymakers finally realized that a healthy environment is the ultimate source of

the Nation’s economic wealth, its food and the well-being of its citizens. When all

other efforts to save these valuable biological resources fail, however, the final safety net is the Endangered Species Act (ESA). In spite of the problems the ESA has

created for individual fishermen, it is also the last hope for the restoration of whole

industries (such as salmon fishing) in many areas. Without a strong ESA, the only

available remedy for species recovery is closing down the fishery, even though the

real problems lie elsewhere and are caused by rampant destruction of habitat.18

This is exactly what has happened to the salmon industry to date—as onshore

habitat declined, as fewer and fewer fish survived to even reach the ocean, it has

been the fishermen who have been cut back over and over again, and who have almost singlehandedly paid the price of inland environmental destruction on a massive scale. This is because under the Magnuson Act fishery managers can only manage fishermen—they have no legal jurisdiction over actions onshore which destroy

the biological foundations of the fishery itself.19 Only the ESA gives them the authority to modify or curtail such actions.

Thus without a strong ESA, there will never be salmon recovery in the Northwest,

and the approximately 72,000 lost salmon jobs—which the salmon resource could

still generate in this region with proper protection of the resource—would be gone

forever. In short, salmon mean business, and it pays to protect them. Without the

ESA to drive recovery, however, you can kiss the entire Northwest salmon industry—and many other components of the entire Nation’s $152 billion/year fishing industry—goodbye!

The fishing industry represents a significant economic contributor to America’s economy which is dependent upon a healthy environment. The ESA is not the

enemy, it is only the messenger. Listing a species is like dialing the 911 number

when you need an ambulance. It should be used rarely, but when it is needed it

is real handy to have an emergency number to call. Often this can mean the difference between life and death.

THE ‘‘ENVIRONMENT VS. JOBS’’ ISSUE IS A FALSE DICHOTOMY—THE ESA DOES NOT

CAUSE SUBSTANTIAL ECONOMIC DISRUPTION

There is absolutely no evidence that the ESA seriously impacts State or regional

economies, and every reason to think that it does not. For instance, a study by the

MIT Project on Environmental Politics and Policy, which looked at the statistical

relationship between the number of species listed in each State as compared to that

State’s economic performance (over the period of 1975–1990) concluded:

‘‘The data clearly shows that the Endangered Species Act has had no measurable economic impact on State economic performance. Controlling for differences

in State area, and extractive industry dependence the study finds that States

with the highest numbers of listed species also enjoyed the highest economic

growth rates and the largest increases in economic growth rates. . . . The one

and a half decades of State data examined in this paper strongly contradict the

assertion that the Endangered Species Act has had harmful effects on State
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20Stephen M. Moyer (March 1995). Endangered Species Listings and State Economic Performance. Massachusetts Institute of Technology, Project on Environmental Politics and Policy. Facts

on actions cited from U.S. General Accounting Office (1992) Endangered Species Act: Types and

Numbers of Implementing Actions (GAO/RECD–92–131BR).

economies. Protections offered to threatened animals and plants do not impose

a measurable economic burden on development activity at the State level. In

fact the evidence points to the converse....’’

The author of that study also noted that actual ESA listings are themselves only

affecting a very small number of development projects undertaken and that, in economic context, these impacts are very small indeed in comparison to other much

more major factors:

‘‘In fact, for every tale about a project, business, or property owner allegedly

harmed by the efforts to protect some plant or animal species there are over

one thousand stories of virtual ‘non-interference.’ In reviewing the record of

18,211 endangered species consultations by the Fish and Wildlife Service/National Marine Fisheries covering the period 1987–1991 the General Accounting

Office found that only 11 percent (2050) resulted in the issuance of formal biological opinions. The other 89 percent were handled informally—that is to say

the projects proceeded on schedule and without interference. Of the 2050 formal

opinions issued a mere 181—less than 10 percent—concluded that the proposed

projects were likely to pose a threat to an endangered plant or animal. And

most of these 181 projects were completed, albeit with some modification in design or construction. In short, more than 99 percent of the projects reviewed

under the Endangered Species Act eventually proceeded unhindered or with

marginal additional time and economic costs. Given the political and economic

screening that occurs in listings cases it is not surprising that no measurable

negative economic effects are detectable....

Furthermore local economic effects must be considered in context. Hundreds

of State and Federal policies have far more injurious impacts on local economies

than wildlife protection. For example, the recent series of military base closings

have had economic effects hundreds of times greater than all the listings during

the 20-year life of the Endangered Species Act. Even greater economic and social harm resulted from the ill-conceived deregulation of the savings and loan

industry during the 1980’s. The number of jobs lost to leveraged buy-outs in the

1980’s exceeds by many times the wildest estimates of jobs lost to endangered

species; and no social good was accomplished in any of these cases.’’20

In the case of the fishing industry, as well as many other environment-dependent

industries, judicious application of the ESA to protect the biological resources we depend upon can add a substantial number of jobs to the regional economy. At least

72,000 additional salmon-generated family wage jobs can be restored to the west

coast by taking steps under the ESA to restore and recover the great salmon runs

which once made this region the envy of the world. Without the ESA to drive recovery, however, this economic revitalization would likely never happen.

PROBLEMS WITH THE ESA AND THEIR SOLUTIONS

I think all sides of the debate will admit that the Endangered Species Act is not

a perfect law. As a regulated industry ourselves, we certainly know firsthand some

of the problems that the current Act has created, and are seeking to make the Act

work better and more efficiently. However, what should not be in question is the

need for the Act itself. The problems with the Act are not that it is too strong, but

that it is too bureaucratic and too poorly funded to accomplish its purposes efficiently and with the least amount of economic pain.

As a regulated industry organization which also strongly believes in the importance of the goals of the Act, we also believe the ESA needs improvement in a number of ways, including the following:

(1) The ESA Should Promote Species Recovery, Not Mere Maintenance on Indefinite Life Support.—The principal flaw of the ESA is that it establishes a goal far

short of actual recovery of species. The stated goal of the ESA is to prevent extinction and to establish plans for the ‘‘conservation and survival’’ of listed species. This

minimal level of conservation does not result, in many cases, in ultimate population

recovery. Under the current conservation standards, more and more species are thus

pushed toward, and indefinitely maintained, just short of the line of extinction. Massive last ditch rescue efforts begun when a species is already hovering over the

abyss of extinction is a much more expensive proposition than to simply keep the

species well-distributed in several self-reproducing and interbreeding populations
131

from which the species will perpetuate itself naturally and at no cost to humans.

Prevention is always cheaper than cure.

(2) There Should Be Recovery Plan Deadlines.—Recovery plans do not exist for

most listed species, even many years later. How can any species be recovered

enough to delist them without a plan? This is a recipe for keeping species on the

ESA list forever, just perpetuating regulatory uncertainty. Regulatory uncertainty

is in many instances the cause of more economic dislocation than the species conservation measures themselves would be once implemented.

At present there are no statutory deadlines for the adoption of recovery plans, thus

perpetuating that uncertainty. For an industry such as ours or the timber industry

or for farmers, this uncertainty makes it very difficult to develop long range business plans or to obtain business financing. The law should therefore require the Secretary to prepare within 18 months of listing a final recovery plan that incorporates

the Recovery Target document and all implementation plans, and which also contains enforceable deadlines for all action items.

The first step toward a recovery plan is the identification of and designation of

‘critical habitat.’ This designation puts landowners on clear notice as to what will

likely be required of them as a contribution toward recovery, and helps identify and

ultimately to resolve ESA disputes. Designation of critical habitat is a vital step in

the ESA recovery process that needs to be retained, as well as fully funded.

The law should also require the Secretary to ensure to the maximum extent practicable that the combined set of recovery implementation plans will, when implemented, achieve recovery of the species within a reasonable timeframe. The recovery

plan should identify and prioritize actions that would have the greatest potential

for achieving recovery of listed species.

Recovery plans should also emphasize implementing conservation measures which

provide the greatest benefit with the least economic impact first, as well as include

nonregulatory incentive-based efforts where appropriate. Again these are all principles that, as a regulated industry, we strongly support so long as the goal of ultimate and timely recovery is kept central to recovery efforts.

(3) Assuring Cost Effectiveness and Minimizing Conflicts with Private Landowners.—Most of the conflicts between private landowners and the government with

respect to species protection are more perceived than real. Nevertheless, there is a

need to minimize those conflicts to the extent possible as well as providing for conservation measures which achieve the recovery goal as cost effectively as possible.

Some of the measures that should be incorporated into the law to achieve these

goals include the following:

The law should direct the Secretary to emphasize the role of Federal actions

and public lands in achieving recovery. The law should be clearer in specifying

that Federal agencies have a responsibility to use their existing programs to foster the implementation of recovery plans to the degree they can.

If critical habitat occurs on privately-held lands, the law should direct the

Secretary to identify land for acquisition in the recovery plan (including any

land interests less than fee title, such as conservation easements) pursuant to

section 5 of the Act, from willing sellers, and should set priorities for acquisition. This process should be well funded and the administrative procedures for

financing these acquisitions should be simplified. Many landowners would be

more than willing to help with recovery efforts if such financial incentives were

more readily available.

The law should also direct the recovery team and the Secretary, in preparing

the list of recovery actions, to consider the cost effectiveness of conservation actions in order to identify ways of reducing costs of recovery without sacrificing

species preservation or recovery goals. Landowners should be encouraged to provide habitat protection through a variety of incentive and financing programs,

including the following:

(a) Establish a revolving loan fund for State and local government entities to

encourage such entities to develop regional, multi-species Habitat Conservation

Plans (HCP’s).

(b) Enable landowners with proposed activities consistent with an approved

regional HCP to obtain expedited approvals of those activities.

(c) Authorize the Secretary to enter into cooperative management agreements

with private landowners, providing financial incentives for conservation measures above and beyond those required by the ESA. Conservation activities to be

funded under this provision would include those called for by an approved recovery plan, but could also be more pro-active in their approach, rather than

reactive as so often the case once a species has been listed.
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The Habitat Conservation Plan (HCP) procedure is a good tool for landowners

to restore some certainty into the process as well as to provide for long-term

protection measures. However, the current HCP process is deeply flawed and includes too little public notice and comment. Furthermore, HCP’s can be inconsistent and even work at cross purposes with approved recovery efforts elsewhere. HCP’s are not even required, under present law, to actually contribute

toward the recovery of the species, thus shifting the burden onto the backs of

other landowners who get their HCP later or not at all. The law should clearly

require HCP’s to be both consistent with and contribute toward species recovery

as embodied in approved recovery plans and goals.

Both HCP’s and recovery plans may have to occasionally be updated and revised

in light of new scientific information or the results of plan monitoring. Current law

is vague on how to go about amending an HCP in light of new data—including data

that indicate that the HCP itself is failing. There should be a periodic review process, either automatically every 5 years or when triggered by new data indicating potential for further declines. During that review process, existing recovery plans

should be kept in full force, but the Secretary should propose modifications to the

plan to conform with any new standards. These proposed modifications should be

widely published for public comment and adopted into the recovery plan only when

they will promote equal or greater protection and faster recovery in a more cost effective manner.

(4) Protection Should Be Aimed at Endangered Ecosystems, Not Just Individual

Species, So That the Need for Future Listings Can Be Greatly Reduced.—A speciesby-species approach does not generally work. Multi-species plans for the protection

of endangered ecosystems need to be developed so that those species which are part

of such ecosystems do not begin the slide toward extinction to begin with. The ESA

needs to become an ‘‘endangered ecosystem’’ act as well. Protection measures should

be wholesale, not retail, in order to be cost effective.

(5) Funding for Scientific Surveys and Recovery Efforts Should Be Greatly Improved.—Generally the listing process is a good one, and it needs to be maintained

as fundamentally a scientific decisionmaking process, not a political or economic

one. Far from being missing from the ESA, economic factors come into play at almost every other decisionmaking process, only the listing/delisting process supposedly being truly free of such considerations. This makes sense: either a species

is, or is not, headed for extinction. How we get to recovery, however, has a clear

economic and social dimension, but the scientific fact of population dynamics is an

issue that can only be decided on a scientific basis.

Nevertheless, the process would be better informed if there were more scientific

data available earlier in the process on the particular species under consideration.

This requires better funding for such things a upfront biological surveys, species status reviews and peer reviews. In other words, if Congress wants a better job done,

it must properly fund the ESA and allow the agencies to do a better job.

Likewise there needs to be ongoing funding not only for the recovery plan implementation process itself, but for better scientific monitoring so that it is possible to

tell whether recovery efforts are in fact succeeding. Adaptive Management (i.e.,

learning from past mistakes) is simply not possible without adequately funded and

ongoing scientific monitoring.

(6) Alternative Dispute Resolution for Property Owners.—In our experience, and in

spite of anecdotal media portrayals otherwise, there are really relatively few cases

in which there are serious conflicts between the needs of ESA species and the rights

of landowners. However, there are rare instances in which property owners were unfairly treated or in which government agencies made inappropriate decisions. This

is inevitable in any large administrative process, and generally to sorts of disputes

that courts are intended to resolve.

However, there should be a speedy and cost-effective way to put these problems

to rights. Some internal dispute resolution mechanism would be very helpful for

landowners to minimize unnecessary conflicts and resolve disputes. Some of these

mechanisms already exist but are rarely used. There is, for instance, an existing Alternative Dispute Resolution process within the U.S. Court of Claims which allows

aggrieved landowners to present their case to a Claims Court judge without needing

a lawyer and without a lot of paperwork. This process does not even require a trip

to Washington, DC—it can be done by fax and phone. At a minimum, the ESA process ought to formally include this type of mechanism as a ‘‘safety value’’ to prevent

problems from escalating out of control.

(7) All Known Information about the Existence and Range of Threatened or Endangered Species Should Be Available to the Public from a Centralized Data

Source.—The process of making a listing decision is (or should be) purely a scientific
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judgment call, based on the best scientific and commercial information available.

Though landowners frequently complain about the science, we believe the trustee

agencies generally do a good job of gathering and using the best science. Generally

we find that when landowners complain about ‘junk science’ what they are really

saying is that the scientists either do not agree with their own biased viewpoints,

or that the landowner does not fully understand the science behind the decision.

Also, for many rare species even the best available scientific data can be very spotty

and full of data gaps, simply because the species has not been well studied. It is

generally only after a listing, and all the extra attention (and potential funding) that

such a listing brings with it, that substantial scientific resources are brought to bear

trying to study many of these species.

However, we do not feel that the trustee agencies generally do as good a job of

making the scientific data base used in the decisionmaking process as fully available to the public as it should be. In the past this was because the tools for wide

dissemination of voluminous scientific reports and species surveys was seriously deficient and expensive. In today’s increasingly digital world, there is no excuse for

this. Today, voluminous scientific documents can readily digitally scanned and converted to CD-ROM format and reproduced from that format for a few dollars a copy.

The data bases can also be made available for easy public consumption on the Internet. All these techniques are being increasingly used by Federal agencies, and this

trend should be encouraged and funded. The more data is freely and cheaply available to members of the public the more transparent the process will become and the

more trust in the process itself the public will have, even if some disagree with the

policy outcomes.

Information depositories should be created (perhaps made available through the

National Biological Service and administered through State agencies) so that prospective purchasers of property would be able to ascertain quickly and inexpensively

whether or not ESA listed species are known to exist on the property they are considering purchasing. Similar State-based information services are already available

in States like California, through the local permit process. In theory, it would be

possible to have all this information in readily searchable form with a quick computer inquiry for a very minimal fee. Some of this is being implemented now, as

for instance the Ceres information system maintained by the State of California, or

the Streamnet system run by the State of Oregon, both of which include extensive

GIS data bases available on the Internet.

Most land use conflicts result when landowners have invested substantial money

and resources in a development project and feel that they have no choice except to

proceed in order to recoup their investment. If a prospective landowner know before

close of escrow whether or not there might be conflicts between development plans

and fish and wildlife protection obligations, he or she could plan accordingly, propose mitigation measures with acceptance a condition of close of escrow, and in general take a number of proactive steps to minimize or eliminate any potential future

conflicts. The more savvy real estate developers are doing that now. Biological impact reviews of development plans by State fish and wildlife or local agencies is also

now routinely done in many States as part of the permit process, and this additional

data base would fit neatly into that process.

(8) Citizen Enforcement Is Crucial.—The Federal Government cannot be, nor

should it be, everywhere all the time. The role and value of citizen enforcement of

such statutes as the ESA and the Clean Water Act are well established. We strongly

object to recent attempts by the Bush Administration to eliminate well established

court avenues for resolving ESA disputes or to make government compliance with

such court orders essentially voluntary. This is a recipe for lawless disregard by our

own government for its own laws. The end result will be far more litigation, and

not less, including against the very agencies who become scofflaws as a result of

such a policy.

(9) From Beginning to End, the Whole ESA Process Has to be Better Funded by

Congress.—The total funding for all ESA research and recovery efforts now amounts

to approximately 50 cents per U.S. citizen per year. Given the level of problems the

ESA needs to address, and given the potential economic return on this investment,

and especially given the economic dislocation that could potentially result for more

of the ‘train wreck’ policies of the past, Congress’s current levels of funding for species identification and recovery borders on the ridiculous. Fifty cents per year is too

little to invest in our biological future.

In summary, I ask you to remember that fishing is America’s oldest industry as

well as one of its most economically important resources. Protecting fish means protecting jobs, protecting food production, protecting commerce and protecting recreational opportunities. Without a fully-funded and operational ESA, it would be

commercial and sport fishermen who will find themselves endangered. Where the
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fish go, so go the billions of dollars they produce and the jobs and communities they

support. Thank you for this opportunity to testify.

ENDNOTE

Figures taken from The Economic Imperative of Protecting Riverine Habitat in the

Pacific Northwest (Report 5, January 1992) published by the Pacific Rivers Council,

based on official Federal statistics from the Pacific Fishery Management Council.

The fishery related job breakdown by State, according to that report, was:

State Commercial Recreational Total

Oregon .................................................................................................................... 4,450 9,500 13,950

Washington ............................................................................................................ 6,800 14,250 21,050

N. California ........................................................................................................... 4,000 19,000 23,000

Idaho ...................................................................................................................... Negligible 4,750 4,750

Pacific Northwest Total .......................................................................................... 15,250 47,500 62,750

Commercial fishery jobs are heavily concentrated in coastal areas. Recreational fishery jobs, while a larger number, are more diverse and are distributed more diffusely throughout inland communities.

[From the Fishermen’s News, January 1995]

The Pacific Coast Federation of Fishermen’s Associations

(By Zeke Grader, Executive Director and Glen Spain, Northwest Regional Director)

WHY FISHERMEN NEED THE ENDANGERED SPECIES ACT

Fish are creatures of their environment. Without strong laws to prevent water

pollution and widescale habitat loss, the fish will be no more—and where the fish

go, so go the fishermen.

Most fish species spend only part of their lives in midocean. During their juvenile

stage, most live and thrive in the nearshore environment of streams, rivers and estuaries for the most critical parts of their life cycle. Nearshore waters, including rivers, streams and coastal wetlands, are essential nursery areas for about 75 percent

of the entire U.S. commercial fish and shellfish landings. These sensitive ecosystems

are valuable national assets which contribute about $46 billion per year to the U.S.

economy as well as its healthiest food source. Yet all this has been put at risk by

the continuing destruction of wetlands, watersheds and estuary habitat that these

species depend upon for their very existence.

Environmental regulations exist because policymakers finally realized that a

healthy environment is the ultimate source of all wealth. However, there is a strong

national movement afoot to roll these protections back because, in the short-term,

these protections are inconvenient barriers to unrestricted development and shortterm profiteering. This movement may now have a majority of votes in Congress

and in many State legislatures. These forces have mobilized to roll back and gut

those very laws which protect our fisheries, including the Clean Water Act, the Safe

Drinking Water Act, and the Endangered Species Act itself. It is time for our industry to stand up and be counted against any effort to demolish the environmental

protections which fish—and fishermen—need to survive.

The crown jewel of all environmental protection is the Endangered Species Act

(ESA). In spite of the problems the ESA may have created for individual fishermen,

it is in many ways the last hope for restoration of whole species such as salmon.

Without a strong ESA, the only available remedy for species’ recovery is closing

down the fishery. This is exactly what has happened to the salmon industry to

date—as the productivity of onshore habitat declined, as fewer and fewer fish survived to reach the ocean, it has been the fishermen who have been cut back over

and over again, and who have almost single-handedly paid the price of inland environmental destruction on a massive scale. This situation exists because under the

Magnuson Act fishery managers can only manage fishermen—they have no legal jurisdiction whatsoever over actions onshore which destroy the biological foundations

of the fishery itself.

Thus whole watersheds can be destroyed, salmon runs battered to extinction and

rivers polluted to the point of catching fire, and yet the National Marine Fisheries

Service (NMFS) can do nothing about it—until their ESA authority has been trig-
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gered by a listing. The ESA is thus the key to watershed restoration and salmon

protection throughout the region. It is also the only hope for putting a stop to onshore practices which destroy fishermen’s livelihoods.

That’s not to say that the ESA is a perfect law. However, its flaws lie in the fact

that it is too weak, not too strong. Under current law there are no deadlines on recovery plans, so species can sit there on the brink of extinction for years without

any real effort to save them. Current law also does not promise full recovery, only

maintenance of reproducing populations. Recovery efforts are bureaucratic and poorly funded. The recovery planning process also needs to be much more open, so we

can avoid a repeat of the southern sea otter situation. These flaws, however, are

fixable and should be remedied as soon as possible.

What should not be debatable is the need for a strong law itself. The ESA has been

the legal basis for every suit filed by fishermen’s groups to protect habitat and to

force water policy reforms in the Columbia River and the Sacramento Delta. The

fishing industry would be devastated if this last barrier to extinction of the species

it depends upon were removed.

The fishing industry represents a major economic force which is directly dependent upon a healthy environment. It is vitally important that our voice be heard as

the ESA and other environmental protection laws we depend upon come on the

chopping block in the new Congress. It is also vitally important that we stand up

as an industry for clean water, healthy watersheds and the stringent protection of

the species upon which we depend for our livelihoods.

The ESA is not the enemy, it is only the messenger. Listing a species is like dialing 911 when you need an ambulance. It should be used rarely, but when it is needed it is invaluable. Often it means the difference between life and death.

[From the Fishermen’s News, December 1995]

The Pacific Coast Federation of Fishermen’s Association

(By Glen Spain and Zeke Grader)

A FISHERMEN’S AGENDA FOR THE ENDANGERED SPECIES ACT

Commercial fishermen have long had an ambivalent relationship to the Federal

Endangered Species Act (ESA). On the one hand, the ESA represents the last hope

for the restoration of hundreds of depressed Northwest and Northern California

salmon runs which our industry depends upon for its long-term survival. On the

other hand, all too often it has been the fishermen (and no one else) who have had

to bear the burden of fish protections when these same fish are being destroyed in

the millions by onshore dams, logging and water pollution.

The last two Republican Administrations were so hostile to the ESA that they deliberately created as much political heat as possible so the ESA would be repealed.

Under the ‘‘train wreck’’ politics of those two Administrations, we saw the ESA used

as a weapon to close down whole chunks of the Southeast Alaska fishery, supposedly to save a handful of Columbia River fish, while doing nothing whatsoever

about the millions of fish killed by the Columbia River dams. In the Gulf States,

the ESA was used to close down shrimpers because of bycatch on turtles, while ignoring other important problems elsewhere which were creating turtle declines.

Yet in neither case did it have to happen that way—any realistic strategy for actually dealing with salmon declines would have put the Columbia River dams and

reversing widespread salmon habitat destruction as first priority for changes, not

last. Any rational strategy for dealing with the turtle bycatch issue would have produced better and more effective TED’s far sooner by seeking the active help of Gulf

fishermen, instead of deliberately creating active resistance. These two fishing industry ‘‘train wrecks’’ were deliberately created by hostile Administrations and

Agencies for their own political gains, not really to solve any of these problems.

The fact is that the loss of fish habitat is far more of a driving force in fish declines (for both sport and commercial fishing) than any other factor. The grim figures show clearly that much of this country’s aquatic resource is in deep trouble and

facing biological collapse. More than 75 percent of this Nation’s entire $158 billion

dollar/year commercial and recreational fishing industry depends on species that

need unpolluted estuaries and healthy river systems for their very survival. In some

places, such as the Gulf of Mexico, the commercial fishing industry is 98 percent

dependent on coastal wetlands and in-river habitat, yet much of that habitat is

being destroyed. As a result, far more shrimp are being lost in the Gulf due to habitat destruction than to any number of TED’s.
136

According to recent estimates, this Nation’s commercial fisheries already suffer losses equivalent to $27 billion/year (amounting to a loss of 450,000 family wage

jobs), as the direct result of widespread habitat destruction in every coastal State.

The inland sport fishing industry is also in deep trouble. North America has a huge

number of native fish species, yet according to a recent survey by the prestigious

American Fisheries Society, more than 30 percent of all this Nation’s fish species

are now at risk of extinction because of inland pollution and habitat loss.

Pacific salmon resources have been particularly hard hit. About 98 percent of the

once abundant wild salmon runs in the Columbia Basin have now been destroyed,

causing a total economic loss to the region of some $500 million/year and 25,000

family wage fishing-generated jobs. All told, about 72,000 family wage jobs have

been lost to the west coast over the last 20 years due to salmon declines. Almost

all of these losses are caused by habitat loss or hydropower dams.

Faced with a nation-wide aquatic crisis, there is little question that ESA protection will be necessary, when all else fails, to at least keep many of these fish species

from extinction while we try to figure out how to save them. The problem is that

the ESA as currently written does little else but keep species on emergency life support—there is no guarantee under the ESA as currently written that any of these

fish species will actually be recovered enough to generate harvestable surplus.

Our own view is that since we are an industry that is going to be heavily regulated under the ESA anyway (far more heavily regulated, in fact, than the timber

industry) that it is our duty to press Congress for an ESA that actually works! Congress is now considering major ESA reform. This creates a golden opportunity for

the fishing industry as a whole to weigh in and get a better ESA—one which actually addresses the most fundamental issue facing our industry, which is habitat loss.

Every Congress there are a number of bills touted as ‘‘ESA Reform.’’ Most were

written by lobbyists as wish-lists for industries that destroy wildlife habitat and watersheds wholesale and thus caused the very declines they now seek to wriggle out

of responsibility for. We think it is high time our own major industry, which depends utterly on the protection of these basic public resources, weighed into this debate for an ESA that really works to protect and recover species.

Here are PCFFA’s major goals for ESA reform for this and future Congresses:

(a) Real Recovery.—As currently written, the ESA only guarantees protection to

the point where the species is no longer at risk of extinction, i.e., self-sustaining

populations. This is a very long step from actual ‘‘recovery,’’ defined as abundant

and widely distributed populations, such as would be needed to generate harvestable surpluses of fish.

None of the bills introduced in the last several years provide a better recovery

goal than under present law. Some, such as those introduced in past years by Senator Gorton, former Senator Kempthorne (now Governor of Idaho) and Representatives Don Young and Richard Pombo are broad retreats even from the most minimal

recovery requirements. Under those bills, the Secretary could choose (for purely political reasons) to do nothing whatsoever to rescue salmon or any other species, and

this would be enough to meet legal requirements. This is clearly unacceptable.

PCFFA supports efforts to make real recovery the priority of ESA legislation.

Only through real recovery can species once listed be kept off the endangered species list in the future.

(b) Maintain Habitat Protection.—Without access to the habitat that a species

needs for food and shelter it is just as dead as if you shot it with a gun. Under

current law and recent U.S. Supreme Court decisions, the ESA requires the protection of habitat on both public and private lands. Without this protection the only

actions prohibited under the Act would be ‘‘direct take’’ actions—like fishing—while

actions that take the water out from under fish, pollute their streams and destroy

their food sources would be allowed and unregulated.

Past bills by Gorton, Kempthorne and Young/Pombo would have prohibited protection of habitat on private lands, period. This is also the case with a bill reintroduced by Congressmen Don Young and Richard Pombo in the 106th Congress (H.R.

3160). Since most species exist only or primarily on private lands, these bills would

amount to a death sentence for most of this Nation’s fish and wildlife. Without

strong habitat protection there is hardly any point in having an ESA at all, since

it would be biologically irrelevant.

The far more moderate efforts of a bill by Congressman George Miller (The ‘‘Endangered Species Recovery Act’’ (H.R. 960 in the 106th Congress)) leave the current

laws alone, but also increase emphasis on payment and incentive programs to assist

private landowners in conserving species on their lands, an approach we strongly

favor.

(c) Protection of Distinct Population Segments and Sub-species.—Under the current definition of ‘‘species’’ in the Act, protection includes both subspecies and ‘‘dis-
137

tinct population segments.’’ This provision has been loudly and agressively attacked

by the timber industry because the Northern spotted owl (for instance) is considered

a subspecies of owl, and the marbled murrelets in the United States are only a distinct U.S. population segment of a much larger range in Canada where populations

are relatively robust.

The trouble is, almost every aquatic fish stock is a distinct population segment.

Unlike owls, fish can’t fly over mountains to interbreed, and their offspring cannot

disperse in all directions. Fish are always isolated geographically from other fish

(even of the same species) in other stream systems. Timber industry lobby efforts

to get rid of the ‘‘subspecies and distinct population segment’’ language in the Act

would make it virtually impossible to protect the habitat of individual U.S. salmon

stocks ever again, at least so long as any healthy salmon populations of the same

species still existed in (say) Siberia or Chile. This revision would simply make ESA

recovery habitat protections impossible—but you can bet your fishery would be

closed down under weak stock management under the Magnuson Act!

This revisionist definition of ‘‘species’’ has appeared in several bills sponsored by ‘‘property rights’’ and timber industry groups. PCFFA believes we must maintain

the current legal definitions so that we do not tradeoff our weak fish stocks against

all others, wherever they may be. We need more fish where we are, not just somewhere else.

(d) Better Scientific Basis for Decisionmaking.—There is broad agreement that the

decisionmaking process called for in the Act could be improved with better science.

All the recent bills have provided for scientific peer review of the scientific data at

various points, in particular the recovery planning process and whenever critical

habitat is designated. However they would have done so in very different ways.

In many of the bills in the past, a proposed new standard for basing the initial

listing decision on ‘‘peer reviewed data’’ (rather than the current law’s ‘‘best available scientific and commercial information’’ standard) was probably much too strict.

Until a species is identified as ‘‘at risk’’ there is often very little scientific information on it at all, much less formally peer reviewed reports. Also, in many of these

mock-reform bills, peer review panels would have specifically included representatives from industries such as timber or hydropower, and so would not have been

truly independent nor unbiased. These peer review panels would also have been

tainted by politically based selection mechanisms in some proposals.

PCFFA supports obtaining better scientific support for ESA actions. However, the

science used must be the best available at the time, truly independent and completely free of potential political or industry bias.

(e) More Public Input in Tile Listing and Recovery Planning Process.—Many of the

past problems with ESA recovery planning were caused by the almost totally closed

nature of the planning process. Plans are developed by interagency teams with little

or no public input or scrutiny. (A good example of this was the disasterous proposal

by U.S. Fish and Wildlife Service a few years ago to translocate west coast southern

sea otters as part of their recovery plan.) This closed shop practice has fueled

charges of governmental arrogance. In some cases (such as with the first TED’s in

the Gulf) this also led to requirements which perhaps sounded good on paper to scientists in Washington, DC, but which were impossible to implement under real conditions.

All the recent bills provided for better public input. Some, however, would have

so overburdened the process with additional bureaucratic hurdles that it is obvious

that the intent of these bills was to disable the ESA, not make it more workable.

The Young/Pombo bill in the 104th Congress, for instance (H.R. 2275), would have

required over 5,000 separate public hearings (one in every county of the continental

United States) before the listing of the bald eagle, had it been law at the time—

at a cost of tens of millions of taxpayer dollars, before even one dollar could be spent

on actual recovery.

PCFFA supports a more open and collaborative public process for developing

plans for species recovery, but not one so overburdened with process that it amounts

to paralysis. The recovery planning process also has to be driven by good science,

not by politics and industry foot-dragging.

(f) Getting Away from Species-by-Species Reactive Approaches and Moving Toward

Proactive Ecosystem Protection.—The ESA should be redesigned to encourage multispecies habitat protection plans as well as earlier measures designed to prevent the

need for listing to begin with. Experience has shown that when an entire ecosystem

is fragmented and destroyed, all the species within it will sooner or later face extinction. By protecting the ecosystem you protect everything else. Also, once a species

has been pressed to the point where it qualifies for listing, options are fewer and

any recovery efforts undertaken will be far more expensive than if protective actions

had been taken much earlier on.
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The Clinton Administration favors multi-species ‘‘Habitat Conservation Plans

(HCP’s)’’ for broad geographical areas, and there has been considerable experimentation with this approach. Unfortunately, there are no standards for what an HCP

must include under current law, nor are current HCPs required even to be consistent with or contribute toward overall species recovery. Thus each HCP can easily

become a ‘‘hole’’ in the overall recovery safety net which is locked in for 50 years

or more.

PCFFA believes that at a minimum HCPs must be both consistent with and contribute toward overall species recovery for any species they cover. To date, only the

bills by Congressman George Miller make this important change?

(g) Recovery Planning Deadlines.—More than half of the species currently listed

under the ESA have no recovery plan. Many have gone without one for over a decade. Unfortunately, there are currently no deadlines for producing these plans, so

the end result of many listings is continuing economic disruption with no end in

sight because there are no recovery efforts.

Just about everyone realizes that this problem must be fixed. All the recent bills

contain deadlines on the development of recovery plans once a species is listed,

though these deadlines vary. PCFFA supports deadlines for developing recovery

plans and for listing critical habitat. It is inexcusable to just keep the ESA patient

on life support forever without any effort toward cure or recovery.

(h) Conservation Incentives for Private Landowners.—At present there are a number of disincentives for private landowners who may wish to set aside wildlife or

fish habitat on their lands, and too few economic incentives. Rather than rely solely

on mandatory regulation, it is better to also bolster species protection incentives and

to develop cooperative efforts with private landowners whenever possible.

However, PCFFA does not support ‘‘takings’’ language giving landowners the legal

right to compensation for protecting what are in essence public resources. These provisions amount to economic extortion and would be terrible public policy. There is

no reason landowners should be paid NOT to pollute or destroy public trust assets

such as water, fish and wildlife which happen to be on their land at the time. Private property rights are not and never have beenabsolute—landowners have an absolute prior obligation to protect public property rights first. However, we do support voluntary financial support programs for landowners who wish to go above and

beyond these minimum legal requirements, or who want to do more—as many of

them do!

(i) Better and More Stable Recovery Plan Funding.—The primary reason ESA listings so often fail to lead to recovery is that the recovery process itself is crippled

by lack of funding. The entire ESA recovery budget amounts to less than $1 per

U.S. citizen per year—a truly pitiful investment in our biological future, given the

magnitude of the problems we are trying to solve.

Better science, greater public input and speedier deadlines all cost money to

achieve. Without far better and more stable funding, it is unlikely that the ESA will

result in full recovery in most instances.

(j) Streamlining of the Whole Process.—At present, the listing process and recovery plan development and implementation processes are far too lengthy and bureaucratic. Various proposals for streamlining the process have been put forward for various reasons, but each will have to be judged on a case-by-case basis to see whether

they are really helpful or merely obstructive. In general, PCFFA supports efforts to

truly streamline the ESA administrative process, make it more efficient and ultimately to get more money applied directly toward species recovery.

ESA reform will be taken up in every Congress until there are final resolutions

to these questions and concerns. The above are what PCFFA has developed as common sense reforms which would be of benefit to the entire $158 billion/year sport

and commercial fishing industry nationwide.

The ESA is not going to go away—nor should it! Commercial fishermen and coastal communities need it to help restore salmon and other marine resources throughout the Nation, particularly those affected by onshore or nearshore habitat loss and

estuary pollution, which is the vast majority. Many other inland fish species of concern to the sportfishing industry and inland economies are also in serious jeopardy

for similar reasons. The ESA is always the last resort after all other efforts have

failed, but it truly helps in an emergency to prevent permanent extinction until we

can restore a balance so that fisheries are truly sustainable biologically as well as

economically.

Most of these losses are not caused by fishermen, they are caused by habitat loss.

The ESA is also the only statute that brings habitat loss on to the table as part

of the recovery process. Unfortunately, fish managers do not have the legal authority to control onshore habitat destruction. Only once the ESA is triggered can they
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then act to reverse the destruction of salmon and other fish habitat which has been

so economically devastating to our industry in recent years.

However, a number of the so-called ‘‘ESA reform’’ bills of the past would have

amounted only to ‘‘Fishermen’s Extinction Acts’’ and not true reform. False reform

bills (usually promoted by habitat destroying industries) give us nothing, they result

in no recovery or habitat protection, and their full burden would land on the backs

of fishermen, not those who caused the extinction problem to begin with. These are

‘‘Trojan Horse’’ bills serve only to exonerate those who have caused the problem.

As always, fishermen need to be involved in creating the legislative alternatives

so that whatever ESA bill eventually comes out of the process provides meaningful

protection for our fisheries, including ultimate recovery of the biologically fragile resources upon which we all depend.

Note: Since this article originally appeared two Congresses have come and gone.

Accordingly, this article, originally written in December 1995, was rewritten and updated November 1999, and will be periodically reviewed and updated as necessary.

See also ‘‘Why Fishermen Need the Endangered Species Act,’’ in these archives.

STATEMENT OF AMERICAN FARM BUREAU FEDERATION

The American Farm Bureau Federation, the Nation’s largest general farm organization representing the interests of over five million member families, submits this

statement for the hearing record.

America’s farmers and ranchers own and use much of the land and waters that

are inhabited by endangered and threatened species. They feel the impacts of listing

species under the Endangered Species Act (ESA) every day.

The overriding purpose of the Endangered Species Act is the recovery of species

on the brink of extinction. This is to be accomplished by placing them on a list of

endangered or threatened species, where they are to be protected from adverse activity until they have achieved ‘‘recovery’’ as determined by a recovery team. The

ultimate goal of the ESA is removal from the lists.

Species that are lawfully hunted or fished in other parts of the continent or country are listed under the ESA, while species that are truly on the brink of extinction

are waiting. Courts, not the agencies, set the agenda for which species get listed.

And once listed, species rarely are removed from the list, even though they have

met stated recovery goals.

We have several concerns with the listing/delisting process, and offer some suggestions as to how the ESA might be amended to return to its original intent.

1. THE ACT SHOULD REQUIRE MINIMUM SCIENTIFIC STANDARDS NECESSARY TO SUPPORT

LISTING AND OTHER DECISIONS AFFECTING LISTED SPECIES

The most serious deficiency with the ESA listing process is that it does not contain any minimum scientific standards to list a species.

The most celebrated case involving an endangered species remains the snail darter. This small fish halted a multibillion dollar water project in Tennessee. A lawsuit

over this human-species conflict went to the Supreme Court, and remains the only

substantive case on the Endangered Species Act to have been decided in that forum.

Following the decision in Tennessee Valley Authority v. Hill, Congress passed a law

exempting the Tellico Dam project from the strictures of the Act.

A few months later, several more areas were found to be inhabited with snail

darters. The species was soon thereafter downlisted from ‘‘endangered’’ to ‘‘threatened.’’ Millions of taxpayer dollars were wasted because of incomplete scientific information.

Recently, five snails located in the Snake River in Idaho were listed as either endangered or threatened, despite the fact that less than 1 percent of their possible

habitat had ever been surveyed. The decision to list was made even though only approximately 300 square feet of the entire Snake River had ever been sampled for

the presence of these species. That is not the use of sound science in the application

of the Endangered Species Act.

Endangered Species Act decisions currently are required to be made on the basis

of ‘‘the best scientific and commercial data available.’’ The ‘‘best’’ scientific data

available might be as little as one monograph on the subject by a single master’s

degree candidate.

With affected species occupying greater habitat areas and affecting more basic,

pre-existing human activities than ever before, there is too much at stake to make

such decisions on inadequate scientific evidence. Before basic human patterns are

disrupted, jobs are lost and communities are stripped of economic vitality, we sub-
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mit that the Endangered Species Act decisions must be based on more sound, scientific certainty than is currently required.

The current ‘‘best scientific data available’’ standard is really no standard at all.

It provides no incentive for agencies involved in listing decisions to obtain accurate

and up-to-date information necessary to make an informed decision. All too often,

decisions are made on outdated, insufficient or misinformed data. Unverified

hypotheses or assumptions made by one researcher often become truth for the next

researcher who does nothing more than glance through the earlier work.

The problem with this non-standard can be illustrated by applying peer review

principles to it. The only function of a peer review team would be to determine

whether the information used was the ‘‘best available,’’ not whether it is sufficient

to support listing the species.

Often, the correct scientific data is easily obtainable through a little effort. For

example, in the case of the listing of the five snails in Idaho, the Idaho Farm Bureau Federation hired an independent biologist to check the Fish and Wildlife Service (FWS) data. With minimum effort, he readily discovered that these snails exist

in far greater numbers and in a far greater number of places than determined by

the Government. Such information, however, was largely ignored in the final decision.

We are troubled that private landowners are being required to prove that government data is incorrect. Private landowners do not have the resources that are available to the Government; and even in the face of contradictory evidence, there is no

guarantee that the Government will accept it. We submit that precious time and

resources will be saved if the listing agency or the agency making the decision is

required to do it right in the first place.

Furthermore, requiring an affected private person to disprove the Government’s

data places the ultimate burden of proof for Endangered Species Act decisions on

the private party. Instead, the burden of proving that a species deserves to be listed

or that certain management prohibitions are appropriate should be on the Government Agency proposing the action. The Act requires the FWS to make decisions

whether or not to list certain species, and those decisions should at the very least

be based on sound science. The Agency has greater resources available to it, is in

a better position to obtain required data, and should be required to justify its actions.

The term ‘‘best scientific and commercial data available’’ must be defined to incorporate minimum scientific standards and procedures necessary to sustain a decision

that a species be listed or that some other action be taken. This amendment is necessary to ensure that decisions affecting entire regions of the country are not being

made on outdated information or on bare assumptions that could easily be disproved. Further, there must be some unbiased, objective review prior to decision to

ensure that the proffered data meets minimum scientific standards.

To accomplish this, we suggest the creation of a truly independent Scientific Advisory Panel to peer review ESA proposals to ensure that there is sufficient scientific

data to support the conclusion. We envision the Scientific Advisory Panel to have

much the same role as the Scientific Advisory Panel within EPA, except that the

panel would have authority to veto any proposal that did not meet minimum scientific standards.

2. THE ENDANGERED SPECIES ACT MUST ELIMINATE APPLICATION TO ‘‘SUB-SPECIES’’ AND

‘‘DISTINCT POPULATIONS’’

One of the reasons leading to the enactment of the Endangered Species Act was

the increasing number of species that were cited as becoming extinct each year. The

Act was passed to try to reverse that trend. The stated tradeoff for restricting land

uses, stifling the economy, causing the loss of jobs, and adding millions of dollars

of regulatory costs as the cost of doing business is to keep species from becoming

extinct.

Were the ESA limited to that goal, it would be much easier to accept by those

who are directly affected by its harsh restrictions. By extending the law to ‘‘subspecies’’ and ‘‘distinct populations’’, however, the Act goes far beyond what the public is being told is the goal of the law. We submit that the definition of ‘‘species’’

should be amended to delete protection to sub-species and distinct populations.

Taxonomic definition to the ‘‘species’’ level is sufficient to separate different

plants, animals and fish that should be protected under the Act. Further classification into sub-species often adds nothing to the taxonomic definition of a species. Socalled sub-species are often indistinguishable from others of the species, and there

is no practical reason for such sub-classifications to be protected separately. Classi-
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fication at the species level is what gives the organism its identity—further subclassifications add little or nothing.

If protection down to the sub-species level bears little relationship to whether a

species becomes extinct, protection based on ‘‘distinct populations’’ has absolutely no

relationship to the survival of the species. As with sub-classifications of species, a

particular plant, animal or fish might be thriving as a whole, but the Act would

allow that species to be listed as ‘‘endangered’’ or ‘‘threatened’’ if it is not thriving

in one particular area of its historical range. To permit a listing on that basis where

the species is thriving elsewhere flies in the face of everything that the Act is supposed to represent. Furthermore, this situation siphons scarce resources from species that really are in danger of extinction to protect distinct populations of more

glamorous species. This sort of a listing will ultimately turn back the clock and remove people from the land and return it to the flora and fauna that might have

lived there many years ago.

The clearest and most visible example of this ‘‘preservationist’’ strategy is the status of the so-called ‘‘gray wolf’’ under the Act. From a biological standpoint, all experts agree that the species of ‘‘gray wolf’’ is in no danger of becoming extinct or

endangered. There are approximately 60,000 of these animals in Canada with an

additional 8,000 in Alaska and 2,000 more in Minnesota, Wisconsin and Michigan.

Based on the supposed goal of the Act, there is no conceivable way that this animal

would or should be listed under the Act.

Using the ‘‘distinct population’’ idea, however, the gray wolf is listed as ‘‘threatened’’ in Minnesota and ‘‘endangered’’ in the other 47 lower-tier States. An introduction of wolves into Yellowstone Park and environmentalists touched off one of the

more bitter controversies surrounding the Act. The Federal Government has conservatively estimated that it has spent nearly $6.5 million on the introduction

project, which represents about one-half the total estimated cost.

Government officials state that introduction is necessary to ‘‘recover’’ the species.

Yet the species is fully ‘‘recovered’’ in large numbers in Canada and Alaska, and a

healthy population lives in northern Minnesota.

Aside from having no rational basis for inclusion in the Act, the ‘‘distinct population’’ criterion is being used in a manner that was not intended by the Act. ‘‘Distinct populations’’ are not being used to decide whether a proposed project should

be begun in an area. As with the wolf introduction example, or in the example of

specifying different runs of salmon as separated protectable species, these activities

affect the basic fabric of people’s lives. Instead of proposed, future activities, these

actions affect the way people live and make their livelihoods. It is this very basic

difference between intention and present reality that demands that the structure,

functions and priorities of the Act be re-thought.

So much agency time, attention and money is devoted to listing and ‘‘recovering’’

‘‘distinct populations’’ that species truly in need of Federal assistance are left wanting. We submit that both the agricultural community and the truly endangered species would benefit from a return to the central purpose of protecting those species

which are in danger of becoming extinct. We submit that the only way this can be

accomplished is if the Act focuses on plants and animals at the species level. Protection for sub-species and ‘‘distinct populations’’ should be removed from the Act.

There are a number of ways in which the ‘‘distinct population’’ concept is being

abused by the Agency.

a. Species that are so plentiful that they are even hunted or fished in Canada or

Mexico are listed in the United States. There are an ample number of gray wolves

in Canada and Alaska that they are in no danger of becoming extinct. They are lawfully hunted. Likewise, there are a sufficient number of grizzly bears in Canada that

they are not in danger of extinction. Canada lynx are plentiful in Canada, yet on

the threatened list in the United States.

b. Atlantic salmon and many Pacific salmon are raised in captivity where they

are fished and eaten, yet they are on the endangered species list. Atlantic salmon

raised in fish hatcheries are the same fish as the salmon occurring in the wild. They

have interbred for nearly 150 years and have been used to re-stock rivers and

streams. They return to the river of origin to spawn, just like their brothers. Yet

the hatchery-raised fish are not counted as part of the salmon population for ESA

listing purposes. The same is true for Pacific salmon, where hatchery fish, whose

only distinguishing characteristic is a hatchery clipped fin, are actually clubbed to

death to prevent excess spawning. Both Atlantic and Pacific salmon are served in

restaurants.

All of these listings have caused severe disruption to people residing in the affected areas. These species should never have been listed in the first place.
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3. THE ACT MUST DIFFERENTIATE AND DISTINGUISH BETWEEN SPECIES LISTED AS

ENDANGERED AND SPECIES LISTED AS THREATENED

When Congress first enacted the ESA, it created two classifications of listed species—those that were ‘‘endangered’’ and those that were ‘‘threatened.’’ While the Act

continues these distinctions, the Act is also being applied in such a way that there

is no practical difference between an ‘‘endangered’’ species and a ‘‘threatened’’ species. Congress intended for FWS to adopt flexible management options for threatened species that are not as strict as the management mandates for endangered

species.

FWS, however, has failed to carry out this intent of Congress. Instead, the prohibitions of section 9, applicable in the Act only to endangered species, are being applied in toto to threatened species as well.

The Act needs to be amended to carry out the original intent of Congress to realize the difference between an ‘‘endangered’’ listing and a ‘‘threatened’’ listing. We

suggest that sections 7 and 9 be amended to provide a separate list of criteria for

‘‘threatened’’ species. An alternative to the amendment to section 9 would be to require the Secretary to implement conditions of ‘‘take’’ for each threatened species

at the time of listing as part of the listing proposal. The Act must then provide that

these will be the only conditions for ‘‘take’’ for that species.

4. LISTINGS SHOULD BE BASED ON THE THREAT OF EXTINCTION, NOT ON THE LOSS OF

HISTORICAL HABITAT

The ESA sets forth five criteria to assist in the consideration in determining

whether a species is endangered or threatened. They are factors to be considered,

not ends in themselves. The ultimate determination is whether the species meets

the ESA definition of ‘‘endangered’’ or ‘‘threatened.’’

One of those criteria is whether the species has been eliminated from all or a significant portion of its historic range. While the loss of habitat is a legitimate factor

to consider in determining whether a species should be listed, a species should not

be listed solely because it is not found everywhere it once was. Application of that

principle alone leads to often absurd results, such as the move to list the blacktailed prairie dog as a threatened species, despite the fact that they are plentiful,

spread out across a wide range, and repopulate quickly.

We believe the ESA should be amended to clarify that the five listed factors are

only aids for consideration, and that the ultimate determination is whether the species is threatened with extinction or endangered.

5. THE ACT NEEDS TO BE AMENDED TO REQUIRE DELISTING UPON ATTAINING

RECOVERY GOALS

The goal of the ESA is to delist species that have been on the endangered and

threatened species list. That means they have met recovery goals and are considered

‘‘recovered.’’

The ESA requires the development of a recovery plan that is developed by a recovery team, a team of scientists and interested parties appointed to set the goals

which determine when a species has recovered. Species meeting the goals are ‘‘recovered,’’ and no longer warrant being on the list.

This has not worked in practice, however. Species that have attained recovery

goals remain under the protection of the ESA when they should be delisted. Grizzly

bear populations in both Glacier and Yellowstone National Parks have exceeded recovery goals since 1990, and there has been no move to de-list. Instead of delisting,

the Agency changed the recovery goals. Still, these populations exceeded the new

recovery goals. Wolves in the Great Lakes region have also exceeded recovery goals,

there being almost twice as many wolves in Minnesota than required for recovery

under the recovery plan. Yet, in a proposed reclassification of the gray wolf population in the United States published last year, the Great Lakes wolves were not

proposed for delisting.

Clearly, a new process is needed.

We propose that the ESA be amended to require that upon attainment of recovery

goals, a species should be automatically delisted, and that notice of the delisting be

published in the Federal Register. A mandatory process like this is the only method

that will allow reluctant agencies to do what they are required by the ESA to do.

We believe that these suggestions will improve the Act from the standpoint of

both species listing and reducing conflicts between a species and affected landowners. We also believe that these suggestions will restore credibility to the Act and

help re-focus the Act to the objectives that were originally intended.

We look forward to working with the committee on bringing about these changes.
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