ENDANGERED SPECIFS ACT AMENDMENTS 

HEARING 

BEFORE THE 

COMMITTEE ON RESOURCES 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTH CONGRESS 

FIRST SESSION 

ON 

H.R. 2275 

A BILL TO REAUTHORIZE AND AMEND THE 

ENDANGERED SPECIES ACT OF 1973 

SEPTEMBER 20, 1995-WASHINGTON, DC 

Serial No. 104-37 

Printed for the use of the Committee on Resources 

U.S. GOVERNMENT PRINTING OFFICE 

20-707CC WASHINGTON : 1995 

For sale by the U.S. Government Printing Office 

Superintendent of Documents, Congressional Sales Office, Washington, DC 20402 

ISBN 0-16-052021-5 
COMMITTEE ON RESOURCES 

DON YOUNG, Alaska, Chairman 

W.J. (BILLY) TAUZIN, Louisiana 

JAMES V. HANSEN, Utah 

JIM SAXTON, New Jersey 

ELTONGALLEGLY,Califurrua 

JOHN J. DUNCAN, JR., Tennessee 

JOEL HEFLEY, Colorado 

JOHN T. DOOLITTLE, California 

WAYNE ALLARD, Colorado 

WAYNE T. GILCHREST, Maryland 

KEN CALVERT, California 

RICHARD W. POMBO, Califorrua 

PETER G. TORKILDSEN, Massachusetts 

J.D. HAYWORTH, Arizona 

FRANK A. CREMEANS, Ohio 

BARBARA CUBIN, Wyoming 

WES COOLEY, Oregon 

HELEN CHENOWETH, Idaho 

LINDA SMITH, Washington 

GEORGE P. RADANOVICH, Califorrua 

WALTER B. JONES, JR., North Carolina 

WILLIAM M. (MAC) THORNBERRY, Texas 

RICHARD (DOC) HASTINGS, Washington 

JACK METCALF, Washington 

JAMES B. LONGLEY, JR., Maine 

JOHN B. SHADEGG, Arizona 

JOHN E. ENSIGN, Nevada 

GEORGE MILLER, Califorrua 

NICK J. RAHALL II, West Virgirua 

BRUCE F. VENTO, Minnesota 

DALE E. KILDEE, Michigan 

PAT WILLIAMS, Montana 

SAM GEJDENSON, Connecticut 

BILL RICHARDSON, New Mexico 

PETER A. DEFAZIO, Oregon 

ENI F.H. FALEOMAVAEGA, American 

Samoa 

TIM JOHNSON, South Dakota 

NEIL ABERCROMBIE, Hawaii 

GERRY E. STUDDS, Massachusetts 

SOLOMON P. ORTIZ, Texas 

OWEN B. PICKETT, Virgirua 

FRANK PALLONE, JR., New Jersey 

CALVIN M. DOOLEY, Califorrull 

CARLOS A. ROMERO-BARCELO, Puerto 

Rico 

MAURICE D. HINCHEY, New York 

ROBERT A. UNDERWOOD, Guam 

SAM FARR, Califorrua 

DANIEL VAL KlSH, Chief of Staff 

DAVID DYE, Chief Counsel 

CHRISTINE KENNEDY, Chief Clerk/Administrator JOHN LAWRENCE, Democratic Staff Director 

(II) 
CONTENTS 

Hearing held Month Day, 1995 ............................................................................. . 

Text of H.R. 2275 .................................................................................................... . 

Statement of Members: Fazio, Hon. Vic, a U.S. Representative from California ............................... . Miller, Hon. George, a U.S. Representative from California ...................... .. Pombo, Hon. Richard W., a U.S. Representative from California ............... . Saxton, Hon. Jim, a U.S. Representative from New Jersey ....................... .. Studds, Hon. Gerry E., a U.S. Representative from Massachusetts ...... .... .. Tauzin, Hon. Billy, a U.S. Representative from Louisiana .......................... . Thomas, Hon. William M., a U.S. Representative from California ............ .. Vento, Hon. Bruce F., a U.S. Representative from Minnesota ................... .. 

Statement of Witnesses: Bean, Michael J., Chairman, Wildlife Program, Environmental Defense 

Fund .............................................................................................................. . Prepared statement .................................................................................. . Benedetto, Kathleen, Women's Mining Coalition ........................................ .. Commission du Gibier Tropical, Couseil International de la Chasse (prepared statement) .......................................................................................... . Cone, Benjamin, Jr., Greensboro, NC ............................................................ . Prepared statement .................................................................................. . Congressional Sportsmen's Foundation (prepared statement) .................... . Dallas Safari Club (prepared statement) ..................................................... .. Foundation for North American Wild Sheep (prepared statement) ........... .. 

FrP:k~nDe~:t"!~ni"~f ~~ tnst!~~~~~ .. ~~~~?:: .. ~~~.~ .. ~~~- .. ~~~~~~~ .. ~~~ Prepared statement .................................................................................. . Gordon, Robert, Grassroots ESA Coalition ................................................... . Prepared statement .................................................................................. . Hadden, Mayo A., III, Vice President, Military Affairs, Columbus (GA) 

Chamber of Commerce (prepared statement) ........................................... .. Hemley, Ginette, Director of International Wildlife Policy, World Wildlife 

Fund (prepared statement) ......................................................................... . Houston Safari Club (prepared statement) .................................................. .. Ireland, Andy, Senior V1ce President for Corporate Animal Policy and 

Development, Ringling Bros. and Barnum & Bailey Combined Shows, Inc. (prepared statement) ............................................................................ . Irvin, Bob, Endangered Species Coalition .................................................... .. Prepared statement ................................................................................... . . Kasere, Steven, Deputy Chief Executive, Campfire, Harare, Zimbabwe .... . Lindeque, Dr. Malan, Ministry of Environment and Tourism, Windhoek, 

Namibia ........................................................................................................ . Loop, Carl, Vice President, American Farm Bureau Federation ................ .. Prepared statement .................................................................................. . Means, Lawrence C., Game Conservation International (prepared statement) ............................................................................................................. . Moore, W. Henson, Chairman, Endangered Species Coordinating 

Council ....................................................................................................... .. Prepared statement ................................................................................. .. Nelson, Chris, National Fisheries Institute .................................................. . Prepared statement .................................................................................. . O'Gara, Bart, Ph.D., Wildlife Professor Emeritus, University of Montana 

(prepared statement) ................................................................................... . Paarlberg, Reverend John D., Reformed Church in America ..................... .. 

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Statement of Witnesses-Continued 

Paarlberg, Reverend John D., Reformed Church in America-Continued 

Prepared statement .................................................................................. . Pearce, Drue, a State Representative in Alaska .......................................... .. 

~n~=~n::~~~t.~fE~~i~g;;·~~d .. E~~i~ti~~·s·i~~~gy:·uci~ versity of Tennessee, Knoxville ................................................................... . Prepared statement .................................................................................. . Rammutia, Levy (Rams), Director of Marketing and Communications, 

National Parks Board of South Mrica (prepared statement) ................... . Rob and Bessie Welder Wildlife Foundation (prepared statement) ............ . Romig, Keith, United Paperworkers International Union ........................... . Pre_pared statement .................................................................................. . Safari Club International (prepared statement) .......................................... . . Sierra Club, by John Leary and Laurie MacDonald (prepared statement) . Society of American Foresters (prepared statement) ................................... . Southern Mrican Entities (prepared statement) .......................................... . Spain, Glen, Pacific Coast Federation of Fishermen's Associations ............ . Prepared statement .................................................................................. . Stallman, Bob, National Endangered Species Act Reform Council ............. . Prepared statement .................................................................................. . Symington, Gov. J. Fife, III, of Arizona (prepared statement) .................... . Tanadgusix Corporation (prepared statement) ............................................. . 

Additional material supplied: 

Excerpts of witness testimony from the Endangered Species Task Force oversi~ht hearings ........................................................................................ . Implications of the U.S. Fish and Wildlife Service Endangered Species 

Act of 1973 on Conservation Activities in Mrica, Especially Tanzania ... Protecting America's Living Heritage: A Fair, Cooperative and Scientif- ically Sound Approach To Improving The Endangered Species Act ........ . 

s~:t~~~:n:e~~daSp~~~:srcr:.: ~~~~.:.~ ~~ .. ~~~: .. '.'~~~~.~~~~~~~ .. ~~ The ESA and Mrican Rhino Conservation-A South Mrican Perspective .. 

Communications submitted: 

Fr&.J!f~:C~s'3·: .. ~~: .. ~.~~~!.~ .. ~~~ .. ~~ .. ?.~.~~.~ .. ~: .. ~~~~ : .. ~ .. ~~~~~ Hulbert, Jim (A VEDA): Letter of September 7, 1995, to Heather Weiner .. 

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ENDANGERED SPECIES ACT AMENDMENTS 

WEDNESDAY, SEPTEMBER 20, 1995 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON RESOURCES 

Washington, DC. 

The committee met, pursuant to call, at 11:10 a.m., in room 

1324, Longworth House Office Building, Hon. Richard W. Pombo, 

presiding. 

STATEMENT OF HON. RICHARD W. POMBO, A U.S. 

REPRESENTATIVE FROM CALIFORNIA 

Mr. POMBO. This hearing will come to order. We are going to go 

ahead and get started. I would like to welcome everybody here 

today. I have a brief opening statement and then someone from the 

minority side will also have an opening statement, then we will 

move as expeditiously as possible into the panels. 

This hearing is scheduled today on the Endangered Species Conservation and Management Act, H.R. 2275. I sincerely appreciate 

the willingness of the Chairman to address this extremely important issue and the leadership he has shown in making this bill one 

of the top legislative priorities of the 104th Congress. 

I am happy to have co-authored this legislation, which has the 

bipartisan support of 117 of our colleagues. I would also like to 

thank the Chairman for allowing me to serve as Chairman of the 

Endangered Species Act Task Force. I appreciate having had the 

opportunity to provide the committee an extensive review and analysis of the problems associated with the current Endangered Species Act. 

Finally, I would like to thank all of those who participated in the 

task force hearings for taking the time out of their busy schedules 

to see firsthand how the ESA is being implemented in the different 

regions of the country. 

The Endangered Species Act Task Force held seven field hearings from coast to coast, and three more in Washington, D.C., during March, April and May of 1995. In fact, the task force held more 

field hearings on the ESA in three months than in all of the previous 22 years since the Act was signed into law in 1973. In addition, the task force has received letters and comments from thousands of concerned citizens nationwide. H.R. 2275 was created from 

the ideas and suggestions provided by the 161 witnesses and the 

thousands of letters received during these hearings. 

The current Endangered Species Act celebrates its 23rd birthday 

this year, and has been due for a rewrite since 1992. Like many 

other conservation laws, it has become outdated and outmoded by 

(1) 
2 

advances in science and technology. Numerous scientific experts 

have recognized that there are some species that should not have 

been listed and some species that simply cannot be saved. 

At the same time the Act has been inflicting a disproportionate 

amount of sacrifice-human, economic and social-at an enormous 

cost. Make no mistake, I believe in the goals of the Endangered 

Species Act. I also believe, however, that it must be comprehensively rewritten to restore this law to its original intent. H.R. 2275 

is the correct path to that reform. 

The current ESA imposes stifling command and control bureaucratic regulations to accomplish the goal of species conservation. This is no longer necessary in an era of new environmental awareness on the part of the American people. People want to save species and want incentives to do them, not conflict and controversy. 

H.R. 2275 bases conservation efforts on the best possible science 

to restore the faith of the public in decisions made by the government. The bill bases listing decisions on current factual information 

and requires an adequate peer review of all of the data. It also 

makes all of the data used in the listing process open to the public. 

It also encourages voluntary measures to protect species including 

cooperative management agreements, habitat reserve grants, land 

exchanges, and habitat conversation planning. This represents a 

dramatic positive shift from the current law. 

The current Act imposes burdens on individual private landowners when biologically valuable resources are discovered on their 

property. Since it does not recognize constitutionally protected private property rights, the ESA gives landowners no incentive to harbor endangered species. Instead, it places the costs and the burden 

of species conservation not on society as a whole, but on the backs 

of private property owners. 

H.R. 2275 protects private property rights. It recognizes that the 

goal of species conservation is a societal benefit, therefore society 

should bear the costs. By punishing private property owners for 

having endangered species on their property, we have caused people to fear the Endangered Species Act, not embrace it. 

Specifically, H.R. 2275 compensates property owners when the 

restrictions imposed by this law diminish the value of their land 

by 20 percent or more. Of course, it honors all local zoning and nuisance laws of the states in the process. By recognizing property 

rights, landowners will no longer fear having endangered species 

on their land. The result will be an unleashing of the conservation 

ethic within our nation's landowners and the dramatic enhancement of our rich biological heritage. 

The current ESA focuses on the preservation of undeveloped 

land, while discouraging good management efforts to increase species populations. The success of the peregrine falcon, for example, 

would not have been realized if it weren't for the captive breeding 

program for that species. The ESA must be improved to allow for 

greater use of similar efforts. 

H.R. 2275 recognizes that our efforts to save species should incorporate the innovative ideas emerging from the American people. 

It utilizes scientific advances in captive breeding and species propagation programs to restore threatened or endangered species to 

greater numbers and return them to the wild. Advances in sci-
3 

entific technology are welcome and encouraged in this law, not hindered with rigorous paperwork and senseless bureaucracy. 

The current Endangered Species Act has been driven not by biology, but instead by the courts and the manipulation of the public 

participation provisions in the law. For example, the public process 

to petition a listing of a species requires little scientific data yet requires the Fish and Wildlife Service to undergo extensive analysis 

to determine whether or not a species should be considered for listing. 

In addition, as the spotted owl fiasco makes clear, frivolous lawsuits have contributed not to the conservation of endangered species, but instead to the economic and social upheaval of our rural 

communities. 

The bill encourages public participation but in a more positive 

constructive manner than the current law. It makes all scientific 

data available to the public. It requires that people who petition to 

list a species provide more thorough and concise scientific information in order for that species to be considered for listing. 

It also limits citizen suits to actions against Federal agencies and 

eliminates other abuses. Finally, this bill encourages states to be 

more actively involved in endangered species conservation by giving them incentives to implement this program. 

The bill also establishes a National Biodiversity Reserve System 

consisting of over 290 million acres of land for the purpose of protecting biodiversity and our natural resource heritage. A proactive 

program, the biodiversity reserve system will utilize conservation 

lands to foster biodiversity and conserve endangered species. Lands 

can be added to the system by exchanging properties with nonFederal landowners. This is a positive shift from the current conservation practice in those areas. 

I realize that this bill is not perfect. It does, however, represent 

a dramatic and fundamental reform of the existing law by recognizing that the key to reforming the threatened or endangered species 

is through incentives and rewards, not threats and fines. Rewarding people for species conservation and good land stewardship is 

the key to strengthening the ESA. It is just that simple. 

Thanklou again to the Chairman for scheduling this hearing today an with unanimous consent, I would like to include statements from the field hearings, the task force field hearings, in the 

record. And I would like at this time to recognize the ranking minority member on the task force, Mr. Studds. 

[Excerpts from previous testimony may be found at end of hearing.] 

STATEMENT OF HON. GERRY E. STUDDS, A U.S. 

REPRESENTATIVE FROM MASSACHUSETTS 

Mr. STUDDS. Thank you, Mr. Chairman. My statement will be 

much briefer than yours and you may also notice some other differences. I would very much have liked to come here today to say 

that the bill before us represented a genuine effort to reform the 

Endangered Species Act. I cannot say that. 

I wish I could say this committee had undertaken something resembling an honest review of the statute but I do not believe that 

it has. I had hoped that proceedings might value science over anec-
4 

dote, that we could all concede that matters as important and complex as this Act have shades of gray, or at the very least, we could 

show common respect to witnesses who actually might have differing views. Sadly, we did not. 

I think members know that I am not given to shrill accusation. 

And given my decades-long friendship with the gentleman from 

Alaska, and our remarkable history of working cooperatively to reconcile our sometimes very considerable differences, I searched this 

bill for redeeming qualities and I could not find them. 

As we convene this hearing, let us at least be clear about our intentions. This legislation constitutes, in substance, an outright repeal of the Endangered Species Act. If the subtext of the debate 

pits science against politics, then we now know who wins. 

The bill barely gives lip service to the overwhelming weight of 

testimony from respected scientists. Rather, it validates uncritically 

the pseudoscience purchased and packaged for us by special interests, which are aching to resume timbering on salmon streams and, 

believe it or not, to require the United States government to seek 

permission from the likes of Muammar Khadhafi to protect threatened gazelles. 

We set out to heal an admittedly ailing Endangered Species Act. 

Instead, this bill amputates its key provisions and then decapitates 

it. I am saddened to have to conclude that the results of our work 

over the past many months are as discouraging as the way in 

which we conducted that work. And I emphasize the word saddened. 

We have a long tradition in this institution of bipartisan fashion 

of approaching this matter. This bill, as I recall, was signed into 

law by President Nixon with huge bipartisan majorities in both 

houses. That kind of comity, that kind of reflection of a broad bipartisan understanding in this country and an appreciation of the 

basic premises which underlie this statute has now fled the scene, 

and I hope we do not have to wait too long for its return. Thank 

you, Mr. Chairman. 

Mr. SAXTON. May I proceed with an opening statement? 

Mr. POMBO. Without objection. 

STATEMENT OF HON. JIM SAXTON, A U.S. REPRESENTATIVE 

FROM NEW JERSEY 

Mr. SAXTON. Thank you. I will try and do this quickly. If I may 

ask unanimous consent also that my entire statement be placed in 

the record, then I won't have to take quite as long. Mr. Chairman, 

first of all, let me thank you for giving us the opportunity to express ourselves this morning, and let me commend you for the 

great effort that you have put into this issue over the past several 

months. 

I know that you have traveled and listened and hopefully learned 

and to the extent that you have done that, I think you deserve a 

great deal of credit. As you know, Mr. Chairman, I have a strong 

interest in the conservation of endangered species. As such, I have, 

as you know, informed both you and Mr. Young I will be offering 

a measure to improve the implementation of the Endangered Species Act in the next few days. 
5 

I have some concerns about the bill that you have drafted. For 

example, its definition of take which defines it as a direct action 

which harms or kills an endangered species I believe is wrong directed. I believe that habitat protection is important for many, in 

fact for most, species. I realize that other factors such as predation 

can also lead to decline of species but habitat modification also 

plays a major role in species decline and we as a committee cannot 

ignore that. 

A major criticism of the current Endangered Species Act as it exists in law is that the Federal Government has too strong a role 

in its implementation and shuts the states out of the recovery planning process. Many states have strong endangered species conservation programs in their own right. To shut this expertise out 

of the recovery planning process is seen as many as quite unwise. 

I intend to introduce the Endangered Species Habitat Conservation Act of 1995 to address this problem. My bill would, at the Governor's request, require the Secretary to delegate the authority to 

develop and implement recovery plans to the states. While the Secretary would retain authority over the overall conservation of a 

species, the bill puts in place checks and balances that give the 

states power to negotiate if the Secretary rejects the state-delegated recovery plan. 

For example, if the state of New Jersey, which is my home state, 

develops a plan to conserve and manage the Pinelands tree frog, 

which the Secretary rejects because he or she does not believe it 

will adequately protect the species, an ad hoc panel of scientific experts would be convened. This group, called the Joint Federal-State 

Panel, would be comprised of two state-appointed scientists with 

expertise in the species, two federally-appointed scientists with expertise in the species, and a scientist recommended by the President of the National Academy of Sciences with similar expertise. 

This panel would be charged with working out the differences between the Secretary's vision of conservation and the state's. The resultant recovery plan would be a scientifically and not politically 

based plan. My bill does not ignore economic considerations either. 

It requires the Secretary to minimize and fairly distribute adverse 

social and economic consequences that may result from implementation of recovery plans. 

It also sets up specific content requirements for petitions to list, 

so that only those that are scientifically based will be considered 

by the Fish and Wildlife Service. Further, it requires peer review 

prior to final approval of a listing, if the Secretary is requested to 

do so by a person with legitimate scientific concern. Finally, it lets 

stand the Supreme Court definition of harm to include habitat 

modification. 

I am concerned about the takings section of the bill as I had 

mentioned earlier and I look forward to working with you and with 

Chairman Young to address this issue. Mr. Chairman, once again 

thank you for the opportunity to discuss this issue this morning. Thank you very much. 

[Statement of Hon. Jim Saxton follows:] 
6 

STATEMENT OF HON. JIM SAXTON, A U.S. REPRESENTATIVE FROM NEW JERSEY 

Mr. Chairman, thank you for holding this hearing on the reauthorization of the 

Endangered Species Act, and most particularly on your bill, H.R. 2275. As many of 

you know, I have a strong interest in the conservation of endangered species. As 

such, I have informed Chairmen Young and Pombo of my intention to introduce two 

separate measures to improve the implementation of the Endangered Species Act. 

One of the criticisms we hear of the Act is the lack of incentives for private land- owners to conserve a species or its habitat. When landowners believe that the pres- ence of endangered species habitat will interfere with land use, it creates a disincentive for them to preserve that habitat. I will be introducing a bill that uses the tax 

code to encourage landowners to enhance sensitive habitat to attract the very species they would normally want to discourage. 

The first component of the bill is estate tax reform whereby landowners can re- ceive tax relief for land set-asides. It allows landowners to defer estate taxes for as 

long as they set aside land to conserve threatened or endangered species. The sec- ond component in the incentive bill is a tax credit to support activities to conserve species. This is broken out as follows: 

(1) An individual landowner will receive a specific tax credit for entering into a 

voluntary agreement with the Department of Interior specifying what activities 

must be undertaken to conserve a species; or (2) The Fish and Wildlife Service would compile a list of geographically limited 

activities that landowners in that area can undertake to help conserve a species. For 

example, in a geographic area where an endangered species is known to exist, if 

landowners plant trees that encourage nesting of that endangered species, they 

would receive a tax credit. 

I intend to introduce this bill as soon as I receive a cost estimate from the Joint 

Committee on Taxes. Another criticism of the Endangered Species Act is that the Federal Government 

has too strong a role in its implementation, which shuts the States out of the recov- ery planning process. Many States have strong endangered species conservation programs in their own right. To shut this expertise out of the recovery planning process 

is seen by many as arrogant. 

The second measure I intend to introduce, the Endangered Species Habitat Conservation Act of 1995, would address this problem. My bill would, at a Governor's 

request, require the Secretary to delegate the authority to develop and implement 

recovery plans to a State. While the Secretary would retain authority over the over- all conservation of a species, the bill puts in place checks and balances that ~ve 

a State power to negotiate if the Secretary rejects a State-delegated recovery plan. 

For example, if the State of New Jersey develops a plan to conserve and manage 

the Pinelands tree frog, which the Secretary rejects because he or she does not believe it will adequately protect the species, an ad hoc panel of scientific experts 

would be convened. This group, called the Joint Federal-State Panel, would be com- prised of two State-appointed scientists with expertise in the species, two Federallyappointed scientists with expertise in the species, and a scientist appointed by the 

President of the National Academy of Sciences with similar expertise. This panel 

would be charged with working out the differences between the Secretary's vision 

of conservation and the State's. The resultant recovery plan would be scientifically 

and not politically based. 

My bill does not ignore economic considerations. It requires the Secretary to minimize and fairly distribute adverse social and economic consequence that may result 

from implementation of recovery plans. It also sets up specific content requirements 

for petitions to list, so that only those that are scientifically based will be considered 

by the Fish and Wildlife Service. Further, it requires peer review prior to fmal approval of a listing, if the Secretary is requested to do so by a person with legitimate 

scientific concern. Finally, it lets stand the Supreme Court definition of "harm" to 

include habitat modification. I have concerns with the Young/Pombo bill and its definition of "take" which defines it as a direct action which harms or kills an endangered species. My constituents believe-and I agree-that habitat protection is important for many-though 

not all-species. I realize that other factors, such as predation, can lead to the decline of a species. But habitat modification also plays a role in species decline, and we as a Committee cannot ignore that. 

I am also concerned about the takings section of the bill and intend to discuss 

this section with Chairmen Young and Pombo after I have had the opportunity to 

hear today's witnesses. 
7 

Mr. Chairman, thanks again for the opportunity to discuss the Endangered Species Act. I look forward to working with you on making this reauthorization of the 

Act as painless for all involved as possible-including the critics. 

Mr. POMBO. Thank you. The committee will temporarily recess. 

We have a vote going on right now. We have about seven minutes 

left in the vote and we will return promptly after that and resume 

the hearing. 

[Recess.] 

Mr. POMBO. The hearing will come back to order. I would like to 

apologize to everybody but we are going to try to avoid as many 

of the interruptions as possible with the floor but they are calling 

votes on stuff that really doesn't matter so we have to go over and 

vote once in a while. 

We are pleased today-before we proceed, I would like to say we 

are pleased today to have several honored guests in our audience 

who I would like to take one moment to welcome. They are here 

today because the action that we will take on the Endangered Species Act has enormous consequences for the people and the wildlife 

of their countries. 

His Excellency Ambassador Midsi of Zimbabwe; His Excellency 

Ambassador Colomo of Namibia; representing His Excellency Ambassador Chakoni, who could not attend, is the First Secretary, Mr. 

Kumatira; and Mr. Mustogmarod, the charge d'affaires of Botswana. And if they wouldn't mind standing for a moment, welcome 

to our hearing. We thank you very much for your attendance and 

your interest in this issue. 

Mr. RADANOVICH. Mr. Chairman, is Namibia near Tracey? 

Mr. POMBO. Kind of. It is about as close to Tracey as it is Fresno. 

Yes, Mr. Tauzin. 

Mr. TAUZIN. Mr. Chairman, I ask unanimous consent to make a 

brief opening statement. 

Mr. POMBO. Without objection. 

STATEMENT OF HON. BILLY TAUZIN, A U.S. REPRESENTATIVE 

FROM LOUISIANA 

Mr. TAUZIN. Mr. Chairman, I simply want before we begin the 

hearings to point out a very interesting distinction in the way in 

which people approach this extraordinarily complex and controversial issue of reforming the Endangered Species Act. In the last sev- eral Congresses, Jack Fields and I introduced endangered species 

reform. It immediately was characterized by opponents as the blueprint for extinction, I think is the term they used for the bill. 

And as a result an alternative bill was filed by the then chairman of Merchant Marine Fisheries Committee, Mr. Studds, also reforming the endangered species bill. In his bill, five of the six general principles outlined in the Tauzin/Fields bill were incorporated 

in some form. The only one where there was a huge difference of 

opinion was in the sixth which was a property rights section. 

And yet for all those years we never had a markup of either one 

of those two bills. We had hearings; we had sessions like this; we 

had field hearings on some occasions, but we never had a markup. 

The process never evolved into action by the Congress. And so 

today in a new Congress we are taking it up again. And not sur-
8 

prisingly there is a huge difference not only in people's appreciation 

of the issue but in the way they approach this debate. 

Already we have seen debate by characterization. I want to paraphrase my friend from Massachusetts' statement. He called the bill 

not genuine, not honest, driven by anecdote, no redeeming qualities, amounts to repeal, represents the victory of politics over 

science, puts Khadhafi in charge of protecting giraffes, I think he 

said. It amputates, decapitates all debate by characterization. 

I want to contrast with the statement made by Mr. Saxton who 

has very substantial differences with the bill that we have prepared and filed and which we are hearing today. Mr. Saxton talked 

about his difference of opinion on the definition of take, his difference of approach on the question of state control of the programs 

and conservation habitats, all legitimate differences of opinion that 

we ought to debate and settle and eventually work out. 

I draw this distinction to the attention of the committee in the 

hearing for this simple reason. I would like to make a request upon 

all of this here in this hearing, in the Congress, and eventually as 

we debate this with the White House itself, and that is that we end 

this debate by characterization. I do not disrespect nor am I intol- erant of the views of those who feel like the status quo in endangered species is OK. I think they are wrong but I respect their 

opinion. 

I deeply respect those who will disagree with the reforms this 

bills proposes. I think we are right but we ought to have a good, 

honest debate about whether the language we have crafted in these 

reforms does the job or whether it fails to, and if you can prove to 

us that it doesn't do the job in building a better Endangered Species Act or that in some way will fail us in terms of balancing the 

needs of people and the ecology, then we ought to be willing to 

work with you to change it. 

But that ought to be the structure of this debate. We ought to 

end this debate by characterization. I don't care what you call this 

bill. If you want to call it the blueprint for extinction and publish 

that in mailings and pamphlets, that is not going to get us anywhere. I don't really care how you characterize it. What I care 

about is whether we collectively join together in reforming an act 

that desperately needs reform and desperately needs to be made 

more user-friendly so that people who are affected by it support it 

more, so that it can do a better job of protecting species and at the 

same time respecting property rights and people in the equation. 

If we can just agree to do that, this debate will be much more 

pleasant, more productive, more fruitful, and in the end I think the 

American public will appreciate it more than just name-calling and 

again debate by characterization. I would like to see it end, and I 

am calling upon all my colleagues to try to end it. 

This is a great debate we start today on this bill. I hope the hearing enlightens us. I hope it tells us where we are right and where 

we need to change, and in the end I hope we produce a bill that 

more and more people in America can come to support so that we 

have a decent program in America that works, is common sense, 

and takes people and the ecology into account in a way that gives 

us both a chance to survive in this ever-changing planet. Thank 

you, Mr. Chairman. 
9 

Mr. MILLER. Mr. Chairman, I ask unanimous consent for opening 

statement. Mr. POMBO. Without objection. 

STATEMENT OF HON. GEORGE MILLER, A U.S. 

REPRESENTATIVE FROM CALIFORNIA 

Mr. MILLER. Mr. Chairman, I do so simply not to defend my colleague from Massachusetts who is among the most thoughtful and 

articulate members of this body and has been for the entire time 

I have been in this body, but we must and we will arrive at conclusions as we read the various proposals of what will be before us, 

and in so doing in arriving at those conclusions, we will characterize and we will properly characterize our conclusions as they pertain to the bill and to amendments that will be offered and to the 

final work product. 

And I think it is a very fair characterization when you look at 

how the bill that will be before this committee treats habitat, how 

it treats compensation, how it treats the definitions of species, and 

how it places limitations on various species, foreign, marine, what 

have you, that you can arrive at a very fair characterization that 

this is the repeal of the Endangered Species Act as people have 

come to know it and have expected the benefits of that Act and 

have received the benefits of that Act. That is a very fair characterization. 

To say that this amputates major provisions and protections and 

goals and purposes of the Endangered Species Act is a very fair 

characterization. I assume many in this room will not agree with 

that and won't ever agree with that, and I don't know that one side 

will be able to prove to the other to the extent of changing their 

mind but that is a characterization that can be properly arrived at. 

And you can't in the course of discourse eliminate characterizations. We have had many people who are proponents of this legislation time and again sit at the witness table or testify in this committee that they are against repeal. That is sort of the chump 

change that you throw out on the table so that nobody can attack 

you and then engage in the process of repealing the Endangered 

Species Act as it is currently known to the American people and 

as they have watched it work and they continue to overwhelmingly 

support that Act. That is not the proposal before us. 

And we will continue down this road, and there will be changes, 

I assume, in this legislation. There will be alternatives offered, and 

at some point you will decide that that may be the status quo or 

that may be radical extreme environmentalism. You will make 

your decisions and your conclusions but we simply will not-we 

have no ability to deny people to articulate their conclusions after 

reading the proposed legislation and as amendments are offered. 

And I think it is very fair to say that this is the repeal of the 

Endangered Species Act. This is a much different approach. Whether or not it will protect the species, we will start to hear from today 

and this committee will have to decide, and again people will have t~I do not believe that it will. 

I think there are such huge inconsistencies in this legislation between the protection of species and how you would achieve it that 

it is impossible to believe that this legislation leads you to the con-
10 

elusion that this legislation could wear the mantle of the Endangered Species Act as it is commonly known in the United States 

of America and as it has been embraced by the American public. 

Thank you very much, Mr. Chairman. 

Mr. POMBO. Yes, Mr. Vento. 

Mr. VENTO. Mr. Chairman, I have an opening statement. I ask 

unanimous consent to give an opening statement. 

Mr. POMBO. Without objection. 

STATEMENT OF HON. BRUCE F. VENTO, A U.S. 

REPRESENTATIVE FROM MINNESOTA 

Mr. VENTO. Well, Mr. Chairman, I am obviously very concerned 

about the direction that has been put forth in the measure, H.R. 

2275, and that is going to be testified on today by the administration and other witnesses. Earlier this year I enlisted 130 sponsors 

on a bipartisan basis in signing a letter to Chairman Young and 

ranking member Miller concerning the Endangered Species Act. 

The Endangered Species Act has been a success and it has been 

a great success. It is one of the strongest environmental and public 

policy laws concerning conservation. It relates not only within our 

nation but on an international basis in terms of trying to provide 

the type of leadership that will in fact preserve biodiversity, which 

I think all of us should recognize as being enormously important 

to our future on earth. 

The fact is though that this letter put forth in general terms 

some specific concerns. I am not portraying and would not portray 

that most of the legislation and laws that we have are perfect. We 

haven't quite worked ourselves out of a job yet. The fact is that I 

think the essence of good legislation is to preserve success and 

what works, and then to modify it so that it can accommodate and 

deal with some of the problems that have occurred. 

We have failed in that and the reauthorization of that has not 

gone forward because of the polarized views concerning some of the 

issues. But as I look at the majority mark that has been put forth 

by yourself, Mr. Chairman, and Chairman Young, I see many problems with it. I feel that it retreats, it steps back, it denies to engage the issues and problems that we have. 

For instance, this would cause the Secretary to choose between 

extinction or prohibiting killing and not preparing a conservation 

plan. I just think that lends itself to campaigns for the most visible 

of species while many of the others would be left behind because 

they cannot attain that type of visibility. I think it invites and enlists politics over the science of what should go on. It eliminates 

mandatory protection and provides discretion for various individuals when we have state and local government agreements that are 

required for landowners, so it steps back from that. 

Do we have a problem with private property, do we have a problem with state and local governments? Yes. Mr. Chairman, you 

highlighted as an example the biodiversity reserves. Perhaps you 

think that that or feel that that is a major element that is going 

to help. Well, that provides protection for parks, wildlife refuges, 

wilderness areas, and portions of wild and scenic rivers. 

Well, I would suggest that those are probably exactly the areas 

where there really isn't as much of a problem. I think we can at-
11 

tain success rather easily there but then you lessen protection on 

other public lands and, of course, provide no protection on private 

lands as, of course, the current interpretation of law does provide 

under Supreme Court decisions. 

So again it backs up and takes an easy path here but it really 

isn't coming again. You say we have to pay significant amounts of 

money. In other words, the taxpayer will have to fork over with the 

prospect of inappropriate action if money is not forthcoming from 

taxpayers in terms of protection. I think that the better judgment 

here in terms of balance is to recognize some responsibility that we 

all have with regards to property and with regards to our responsibility as citizens. · On the international basis again we step back. I think the United States and many other nations have been leaders in terms of 

biodiversity, in the importation of various products, perforce the 

marketplace. We can have a tremendous effect in terms of what 

has happened and what is happening on other continents and other 

places where we have, I think, a real concern and interest on an 

international basis. 

Yet this steps back from that and gives veto power, in essence, 

it is my understanding, to the Nation or the locale that is in essence doing this. Furthermore, of course, it eliminates Endangered 

Species Act protection for sea turtles, many types of marine mammals, many types of mammals that would be incidental simply to 

catching in terms of fish, and this I interpret as being the dolphin 

and the tuna type of thing. 

It provides special interest exemptions for shrimpers and oil companies and others in the economic zones, a 200-mile area, and I 

just think that that is the wrong way to go. We went through a 

lot of debate and a lot of decisions have been made, and I think 

it is a recognition on the part of the public generally of the importance of this. 

Mr. Chairman, I think that this particular product that is being 

put forth as a solution is very flawed. I think that there is a strong 

support in the general public. As a matter of fact, I have been very 

pleased to find very strong support and interest in this and public 

perception of endangered species all the way from elementary kids 

through many parts of our society. There is a big interest in this 

particular issue, and while I think this is a flawed approach, I hope 

that when we get done we could have more reasoned approaches 

prevail. 

I have been disappointed with the hearings and the tenor of the 

hearings and the fact is I wouldn't hold it up as a scientific model. 

If this is science, I guess we could say that the idea of the Inquisition was good religion, and I think probably that is not the case. 

So I hope that we can see a change in tenor and work together on 

the problems that address this. 

[Statement of Mr. Fazio follows:] 

STATEMENT OF HON. VIC FAZIO, A U.S. REPRESENTATIVE FROM CALIFORNIA 

Mr. Chairman, Members of the Subcommittee, I am pleased to provide testimony for the Committee's hearing on H.R. 2275, the Endangered Species Conservation 

and Management Act of 1995. I am pleased that ;rou are taking the first important 

steps to review the Endangered Species Act. This _process needs to go forward so that meaningful reform of the law can be enacted. These changes need to be based 
12 

on real world experiences, because what seems to work on paper doesn't always 

work when you seek to enforce it. 

I commend you for your efforts and, at this time, I would like to suggest a few 

minor modifications to the proposed legislation that I believe would be of great as- sistance to water users in my district and others who are being asked by the Federal Government to invest substantial sums of money to modify their operations to 

protect endangered and threatened species. 

Specifically, I strongly believe that the Congress should take action to provide 

greater certainty to water districts, like the Glenn-Colusa Irrigation District (GCID) 

in my Congressional district, that are impacted by the ESA and that must make 

major capital investments to comply with the ESA. I believe this will improve the 

Act, encourage private parties and local governments to be more aggressive in their 

efforts to protect species and limit the economic hardships that have resulted in 

parts of the Sacramento Valley because of ESA-driven restrictions that have been 

1mposed on diversions from the Sacramento River. 

In case of GCID, ESA enforcement actions at the District's Hamilton City Pumping Plant have imposed pumping restrictions that have cut the District's ability to use their entitlement to divert water from the Sacramento River by 35 percent. Reductions in deliveries to GCID growers also impact the amount of water that is 

available to downstream farmers that rely on GCID drain water to irrigate their 

crops. And, a number of other diverters are seeing their operations curtailed as well 

in response to various enforcement actions emanatin~ out of the ESA. 

It is reasonable, under certain circumstances, to 1mpose restrictions on pumping 

to protect endangered and threatened species, and it is reasonable to require districts to invest in fishscreens and other fish deterrent technologies to protect these same species. But it is not reasonable to require these districts to make investments 

in very large capital projects and, at the same time, leave them vulnerable, at any 

time, to further demands of capital outlays to protect species. What I am looking 

for is a change in the Act that specifically requires the Secretary to grant these investments some shelf-life, some insulation from the imposition of new, more costly 

restrictions and improvements to their systems. 

We need to provide these districts that kind of certainty in order to be able to 

finance their share of these investments at a reasonable rate. Certainty of the kind 

I am talking about is essential to being able to show the private lenders how you are going to pay for these investments. 

We need to provide these districts, which are public agencies, with ~ater cer- tainty because the fact of the matter is that the resource agencies are rmcro-managing these large capital projects. The resource agencies are the ones that determine, 

for example, what kind of fish screen is going to be built and where it will be placed. 

As a result, the resource agencies should take responsibility for their decisions. They 

should be required to sign on the dotted line, to make a commitment to the selected 

alternative, and be forced to stick by the results of their decision. 

Specifically, my proposed amendment would resolve these concerns by assuring 

that, as long as a Section 7 permittee is complying with the terms and conditions 

of a Biological Opinion or a conservation plan, the permittee would not be subject 

to new or additional requirements under the ESA. This is the same concept em- ployed in. the "no surprises" policy for habitat conservation planning adopted by the 

Clinton Administration and incorporated into H.R. 2275. No surprises 1s designed 

to provide landowners certainty that they will not be required to spend more or pro- vide more land for species protection than is reflected in the HCP. This benefits 

landowners by allowing them to factor these requirements into their long term planning. This amendment provides the same type of certainty for entities facing Section 

7 restrictions that is available to landowners who develop HCPs obtain under Section 10. 

These are important changes that entities regulated under the Endangered Species Act need in order to justify making substantial investments and sacrifices for 

benefit of species of fish and wildlife. I respectfully request that this amendment, 

which is attached, be included in Committee amendments to H.R. 2275. 

Thank you for your attention to my concerns and those of my constituents. 

Mr. POMBO. I would like to call up the first panel of witnesses. 

Mr. George Frampton, Assistant Secretary, Fish, Wildlife and 

Parks, Department of the Interior; Dr. Malan Lindeque, Ministry 

of Environment & Tourism; Senator Drue Pearce, President, Alaska State Senate. Thank you for joining us and we are using the 

lights in front of you. 
13 

Your opening statement will be limited. Your oral statement will 

be limited to five minutes. Your entire statement will be included 

in the record. When you see the yellow light, you have 30 seconds 

remaining; the red light it is time to quit, and we are going to try 

to keep it to that if possible. So, Mr. Frampton, you may begin. 

STATEMENT OF GEORGE T. FRAMPTON, JR., ASSISTANT SECRETARY, FISH AND WILDLIFE AND PARKS, DEPARTMENT OF 

THE INTERIOR, WASHINGTON, D.C. 

Mr. FRAMPTON. Mr. Chairman, the Endangered Species Act is 

completely broken and needs a major overall. That is obviously 

your view and the view of at least some of the co-sponsors of the 

bill you and Chairman Young have introduced. If it takes a !56- page printed bill to reauthorize this Act, the Administration fun- damentally disagrees. We think, and many other people in this 

country I think, including the scientific community, believe that the 

Endangered Species Act is a core component of the country's environmental protection program, that it has worked pretty well and 

had some major successes. There are some things it doesn't do as 

well as it might for species. 

There are definitely some problems in the impact of the Act, potential and actual impact on the regulated public, especially private 

landowners. These problems can be fixed. We are fixing some of 

them by trying to administer this Act in the last two and a half 

years in a very different way, new policies, new regulations. There 

are other things that need to be done through statutory changes. 

We have identified most of those things. We can fix the problems 

with the Act. 

My point, Mr. Chairman, is that while there is some disagreement about little bits of fixes and more fixes, I think it is fair to 

say that those who genuinely want to see this Act survive and 

want to see it work better-better for the regulated public, better 

for species-more or less agree there is broad agreement on the 

areas that need to be addressed and I think it is easy to say what 

those are. Insure the use of good science, that is the first postulate of the 

Republican policy statement on the Endangered Species Act, make 

sure the listing process works right. We have peer review and a 

good decisionmaking process. Relief for homeowners and small private landowners. In most cases for most species we don't need their 

property for recovery of species. With respect to large landowners 

try to focus on voluntary multi-species agreements because it is 

that approach that gives them more flexibility and more certainty 

and is better for the species recovery. 

Include states and local governments more than we are doing. 

Provide for safe harbor and incentive provisions. Better recovery 

planning which includes better consideration of socioeconomic impacts and more involvement on the part of states and other stakeholders. Those are the things we need to do. 

But this bill, Mr. Chairman, does not do those things. In our 

view, it does not chart a constructive path to reauthorization. Now 

there have been statements made in the last week that this bill, 

your bill, Chairman Young's bill, effectively repeals the Endan-
14 

gered syecies Act. I don't agree with that at all. The problem with 

your bil is that it ineffectively repeals the Endangered Species Act. 

It creates tremendous opportunities for wheel-spinning. You said 

you wanted to cut down on paperwork and bureaucracy. This quadruples it. This is a litigating lawyer's dream. As a former litigating 

lawyer, I can tell you that. You know, it will take decades to resolve some of the inconsistencies in this Act and it doesn't even 

allow us to try to take steps that we are taking under current law 

and policy to keep species off the list. It forbids that. 

Congressman Tauzin challenged us to be specific. Let me take a 

minute to be specific. This bill doesn't honor sound science. It repudiates it. The latest National Academy of Sciences report makes it 

clear that protecting species is about protecting habitat but this bill 

eliminates private habitat, all private habitat. It shrinks by 70 or 

80 or 90 percent the amount of Federal land habitat that can be 

managed to protect species, and it creates brand new disincentives, 

perverse incentives, to destroy habitat in the period between the 

time when a species is listed and a final plan is adopted. 

There is no impetus here to do multi-species planning so certainty is reduced. The bill has virtually nothing from the Western 

Governors Association proposals for partnerships between the 

states and the Federal Government. It removes the obligation of 

Federal agencies to try to run their programs to avoid extinction 

which has been the most successful and efficient part of the Endangered Species Act. 

The compensation provisions alone make it very difficult to administer the Act. On the international front, it would allow virtually any poacher or illegal wildlife taker to import into this country but probably prevent U.S. businesses that currently can get 

permits to export CITES listed products like alligator skins to 

other countries. And, finally, by disqualifying, taking off the list 

population-based species, a vote for this bill is a vote to take off the 

Endangered Species Act the bald eagle, the grizzly bear, the wolf, 

the California sea otter, the Florida panther, the peregrine falcon, 

and sea turtles among others. 

Now just let me conclude by saying that there have been processes in the last eight months that have been very constructive. 

The Administration introduced a ten-point plan. You and I, Mr. Chairman, talked to the timber industry executives several months 

ago. I heard you say that our plan has a lot of good stuff in it with 

the exception of the small landowner exemption, you didn't like 

that. I can understand why you wouldn't want to take the Administration's /lan but there have been other processes that have also 

develope good building blocks for constructive reauthorization. 

The Western Governors Association has been working for eight 

months with the international and the state fish and game agencies. We have worked with them. There is a lot of common ground 

there. We try to find common ground. Governor Rosco, Mark Rosco, 

from Montana, Mike Levitt from Utah, Republican western governors, they are not environmental extremists. You know, they 

have told you what the states want but very little of that is in here. 

The Keystone Initiative, the National Academy of Sciences, the 

building blocks for a constructive reform of the Endangered Species 

Act are out there but we don't think your bill incorporates any of 
15 

those constructive building blocks and the plea I would make to 

you I guess on behalf of the Administration is we need a path to 

get this done in this Congress. There isn't a constituency in the 

Congress or the country for repeal. I don't think a bill like this can 

pass both houses of Congress and get signed by the President. 

If all we have is this kind of bill on the one side B.i'"ld the people 

say let us tighten down the screws, then we have got gridlock. We 

are not going to move forward. There is no path. We are going to 

end up two years from now with the existing Endangered Species 

Act, less money, more problems, and no progress and no reform. 

That is not where we are coming from. 

The Administration wants to support practical centrist reform, 

fix the problems, improve the Act for species and the regulated 

public. We have got to find a vehicle to move forward on that. We 

will support such a vehicle. Thank you, Mr. Chairman. 

[Statement of Mr. Frampton may be found at end of hearing.] 

Mr. POMBO. I will avoid making a comment at this time and wait 

until the question and answer period. Dr. Lindeque, you may proceed. 

STATEMENT OF DR. MALAN LINDEQUE, MINISTRY OF ENVIRONMENT & TOURISM, WINDHOEK, NAMIBIA; ACCOMPANIED 

BY STEVEN KASERE, DEPUTY CHIEF EXECUTIVE, CAMPFIRE, 

HARARE, ZIMBABWE 

Dr. LINDEQUE. Mr. Chairman, thank you for the opportunity to 

give evidence at this hearing. I represent the Ministry of Environment & Tourism in Namibia and appear on behalf of a group of 

southern African nations. Next to me is my colleague, Steven 

Kasere of Campfire in Zimbabwe, who testified earlier before a 

Senate committee on the same issues. 

We have submitted our detailed views in a written statement 

that I request to be made part of the record. Also, I would like to 

present supporting statements from 16 other organizations. I will 

summarize our views very briefly. 

Most of the provisions in H.R. 2275 concern regulatory actions affecting species and persons within the United States. We see it as 

inappropriate for foreign nations to express an opinion about U.S. 

domestic matters and I will confine my comments to the issue of 

foreign species. 

The southern African governments are very grateful that the bill 

contains a number of.extremely important and beneficial provisions 

about the treatment of foreign species under the Endangered Species Act. These provisions about foreign species will help African 

nations and others to expand wildlife populations and to retain and 

expand their habitat. 

Under the current Act, determinations made by the U.S. Government authority about our species have caused great concern to governments in southern Africa. These concerns have been expressed 

repeatedly as official protest from us. For example, on the lOth of 

March the directors of conservation agencies in Botswana, Malawi, 

Namibia and Zimbabwe wrote to the Chairman of this committee. 

They expressed their belief that the Act is fundamentally flawed as 

far as foreign species are concerned and undermines our conservation efforts. 
16 

This was followed by a Diplomatic Note from the ambassadors of 

these countrien reiterating this concern. The current Act is not beneficial to conservation in southern Africa as it is based upon a fundamental misunderstanding of the essential conservation problem 

on our continent. In our region people and wildlife are dependent 

on the same land. A great diversity of wildlife still occurs outside 

national parks and it is this wildlife that we are most concerned 

about. 

The most serious conservation problem in Africa is how to maintain this wildlife heritage in the face of increasing demands on land 

by an essentially poor rural population. We are trying to develop 

the best possible incentives for people to retain wildlife, and we 

have to oppose any regulatory method that bestows a competitive 

disadvantage to wildlife. 

Such disadvantages amongst which we have to count barriers to 

trade and controlled use will lead to their replacement by livestock 

and crop lands. Our conservation programs also aim to restore the 

traditional relationship between people and wildlife by transform- ing wildlife from a liability to an asset. The Act assumes that conservation is best accomplished by strict prohibitions on trade and 

use of wildlife and this assumption undermines our approach. Our region has pursued policies which retain the highest possible 

values on wild species and natural landscapes. Without these val- ues and a competitive contribution from these resources for the de- velopment and well-being of our nations, we will not be able to stop 

the progressive loss of wildlife habitat to other forms of land use. 

We are grateful to see important improvements in the proposed 

bill that would address our concerns. Of 8pecial interest in the pro- posed legislation are provisions directing U.S. authorities to cooper- ate with and support the conservation strategies of foreign nations. 

We are fully aware that some U.S. organizations consider that 

these provisions remove the protection given to foreign species by 

the United States. The proposed bill actually provides a mechanism for the imple- menting authority to assess various options concerning foreign species, to consult with the relevant governments and to establish the 

type of partnership in conservation that we would all like to see. It is of great importance to us that the Endangered Species Act 

does not have a counterproductive effect on our domestic conservation programs. We cannot afford to subject our long-term conservation programs to the threat of unilateral action by a foreign agency 

ostensibly in the interest of protecting our own species. 

The proposed bill also contains provisions that aligns the Act 

with CITES which we applaud. CITES, or the Convention on International Trade in Endangered Species, provides the appropriate 

framework for international cooperation in controlling the use of 

and trade in wild species. Of particular importance to us is that 

CITES has established the necessary expertise and the effective 

mechanisms for collective decisionmaking. 

Perhaps the most serious problem in the past has been the failure of the implementing agency to consult effectively and meaningfully with foreign governments over conservation measures for 

foreigng species. Governmental Wildlife Agencies of Southern Africa, staffed by well-qualified professionals, have their own special 
17 

competence in developing wildlife management strategies that are 

suitable for local conditions, yet under the current Act U.S. officials 

are put in a position to second guess and overrule strategies which 

have been proven successful in practice. The new provisions in the proposed legislation, if enacted, will go 

a long way toward eliminating the problems that we have had with 

the way that the existing Act has been applied to foreign species. 

We urge you to accept the provisions relating to foreign species in 

the present bill as it stands now and we sincerely hope that these 

provisions will become part of an amended Endangered Species 

Act. On behalf of the southern African countries involved and par- ticularly Namibia, my own, I wish to thank this committee for their 

attention to these problems and their willingness to hear our views. 

Thank you, sir. 

[Statement of Dr. Lindeque may be found at end of hearing.] 

Mr. POMBO. Thank you very much, Doctor, and we do appreciate 

your coming and testifying today. 

I know the Chairman of the full committee would love to be here 

personally to welcome you, Senator, but it is my pleasure to introduce the President of the Alaska State Senate from Anchorage, 

Alaska, Senator Drue Pearce. 

STATEMENT OF BON. DRUE PEARCE, A STATE 

REPRESENTATIVE IN ALASKA 

Ms. PEARCE. Thank you very much, Mr. Chairman, and members 

of the committee. I thank you very much for this opportunity to 

testify. My testimony today is presented on behalf of both the Alaska State Senate and also the Alaska State House and the people 

of Alaska. 

First, Mr. Chairman, I want to express our sincere appreciation 

for the dedication and hard work of the Endangered Species Act 

Task Force which has been chaired by Congressman Pombo. Speaker Phillips and I both had the opportunity to present testimony to 

the task force. We hope that the Committee on Resources will utilize the records as they proceed with deliberations on H.R. 2275. 

We did make specific recommendations during that testimony 

which I will not be repeating today. 

I want to make it clear that the Alaska legislature does not advocate the dismantling of the Endangered Species Act. The Act, however, has been effectively used by Federal agencies and extreme environmental organizations as a weapon and not as a tool of conservation. Rigid and revisionary interpretations of the law by the 

Federal courts have effectively tied the hands of Federal, but most 

importantly, state agencies. 

We do have a few constructive comments we would like to make 

about some of the new concepts included in the bill before you and 

the central items that were excluded. First, the definition of species. The Alaska legislature strongly supports your efforts to redefine species under the Act. From our perspective, definition of species and the misinterpretation and implementation of this portion 

of the law by the Federal agencies is the single biggest problem 

with the Act. 

Although we support the concept of requiring Congressional approval for listing of a population segment, we would strongly rec-
18 

ommend that distinct population segments be dropped from the 

Act. Second, the consultation process. We agree with the approach 

to allow nonFederal persons to use the consultation procedures in 

Section 10. We also strongly recommend that an amendment be 

considered that would allow states to participate in the Section 7 

consultation process. 

It is frequently not advantageous for a cooperative agency with 

concurrent jurisdiction to utilize the process outlined in Section 10. 

Third, the Federal biological diversity reserves. Mr. Chairman, we 

have to respectfully oppose the creation of a new system of Federal 

biological diversity reserves. We urge Congress not to mix 

biodiversity management with the listing and recovery of endangered species. 

Although we do agree that proper implementation of biodiversity 

concepts and good conservation practices should avoid species listings integrating biodiversity management with the ESA results in 

a frightening expansion of agency authorities under the ESA. 

Biodiversity management principles should be debated separately 

on their own merits and not mixed into this reauthorization. 

We are very strongly opposed to yet the creation of yet another 

overlapping classification for national conservation systems in 

Alaska. Our state is already blessed with 68 percent of all national 

park service lands, 85 percent of all Fish and Wildlife Service 

refuse lands, and 60 percent of all wilderness acreage. When these 

areas, and the Chairman has told you many times, I will repeat it, totaling almost 130 million acres were created in 1980, Congress 

established major use exceptions to accommodate traditional Alaskan uses and to provide for compatible development of some natural resources. 

Alaskans witness every day the loss of many of these privileges 

due to the overly restrictive policies of the Federal agencies who 

seem to totally disregard the needs of Alaskans and the guarantees 

that were provided to us by Congress. We are concerned that 

overlaying national park status with wilderness designation coupled with biological diversity reserve status would virtually guarantee the most restrictive management possible at the expense of 

many Alaskans. 

Conservation goals. We strongly applaud the provisions which 

authorize the selection of an appropriate conservation objective for 

each listed species. One of the greatest difficulties arising from existing law is the judicially established mandate that each listed 

species is to be fully recovered regardless of cost or consequences. 

Greater role of the states. We concur, I don't think it is surprising, with the importance this committee has placed on elevating 

the role of the states in the implementation of the Endangered Species Act. We do, however, believe that states should be exempt from 

the provisions of the Federal Advisory Committee Act pertaining to 

the ESA and should have a more meaningful role in the listing, delisting, and recovery process. In conclusion, Mr. Chairman, we would be negligent if we did not 

formally recognize that there have been some positive changes initiated by Secretary Babbitt toward his agency's implementation of 

the Endangered Species Act. The problem is, quite frankly, that the 

Secretary and the Federal agencies have offered many of these rev-
19 

olutionary changes only after Congress and this task force and the 

public have threatened a major overall of the Act. 

Some of the policies adopted by the Secretary should be considered for inclusion in this rewrite of the ESA. We are, however, adamant that Congress should precisely spell out its intent in the revision of the Act. Secretarial actions cannot overcome faulty court interpretations of the Act which have hampered effective implementation of the law. 

It is also safe to say that after 20 years of intolerance and indifference toward the public and cooperating state agencies the public, 

the states, and certainly Alaskans do not trust the Federal agencies to maintain a cooperative attitude in the implementation of the 

Endangered Species Act. 

A true partnership between Federal, state and private landowners is essential. A true Endangered Species Act partnership 

will never occur unless Congress clearly mandates the conditions 

and the role of each of the participants in the partnership. Mr. 

Chairman, I want to thank you again for this opportunity to testify 

on behalf of the Alaska legislature and all of the Alaskans who we 

represent. 

I have offered to you an honest critique of H.R. 2275 from Alaska's perspective. We hope our suggestions and comments here will 

prove helpful in your deliberations. We stand ready to assist you 

in any way we can in this momentous effort. Thank you, sir. 

[Statement of Ms. Pearce may be found at end of hearing.] 

Mr. POMBO. Thank you very much. It was indeed an honest critique and we appreciate it. The Chair will recognize the ranking 

minority member in the subcommittee, the gentleman from Massachusetts, Mr. Studds, for questions. 

Mr. STUDDS. Thank you, Mr. Chairman. I really don't have questions. What I would like to do, whatever time I have, if I may, if 

Mr. Frampton, if you would like additional time to elaborate obviously we are coming from roughly the same place in our assessment of the bill before us and in our understanding or our appreciation of where we think we ought to be going. I know that you 

were rushed. I know that you had far lengthier testimony. 

If there are any other specifics with regard to either ways in 

which you acknowledge that the Act needs some fixing and that 

you would ask us to direct our attention to or any other observations, friendly or otherwise, that you would like to make, I would 

be happy to give you some of my time. 

Mr. FRAMPTON. Thank you, Congressman Studds. I would just 

reiterate that the Administration has tried to work closely in a 

number of these processes which I think have produced pieces of 

what could hopefully be a practical, centrist reauthorization in this 

Congress. 

We worked very hard with the state fish and wildlife agencies 

and the Western Governors Association to look at how we involved 

state and local governments, how we would use legislative changes 

to try to make-to streamline-the Act and make it easier to do the 

kinds of things that we are doing in southern California and in the 

southeast and in the northwest with timber companies and with 

local governments to do multi-species planning, how we would reshape the Act to make that easier. 
20 

We participated in the Keystone Institute process to look at incentives and safe harbor provisions. And we think that there is out 

there and hope that there will be incorporated in other legislation 

that is introduced in the near future in both houses provisions that 

the governors like, the Administration likes, the scientific community likes, the local elected officials like. 

There is surprisingly, given the level of heat in the debate about 

the Endangered Species Act, surprisingly there is a lot of common 

ground about what needs to be done to fix, to make more effective, 

this statute, a lot more than I would have predicted and many others, I think, would have predicted two years ago and we found a 

lot of that common ground. It is out there. It is out there in the 

WGA bill and the Keystone report and our ten-point plan which I 

think represents significant prorosals for change. 

You know, the shape of a bil that can win a very broad consensus support to take this Act forward is out there, and we will support it. We just need to seize the opportunity to do that. The bill 

we have before us today is far from common ground and we hope 

that since there is a common interest in trying to move this forward instead of have gridlock that somehow we can-you know, we 

can come to common ground here in both houses in the next month 

or so and move something forward that not everybody is going to 

like and nobody may like entirely but which can win pretty broad 

support. 

It will have some significant changes in the Act. It will have 

some compromises. It will make it work better for species and a lot 

better for the regulated public. The shape of that bill is out there 

if we can find the right vehicle and the right process to move it forward. And there are things in this bill, in the Pombo-Young bill, 

you know, that are good. I mean the emphasis on trying to structure voluntary agreements with landowners is very important. 

The problem is that there are other parts of the bill that disable 

that. I was looking at the bill from the point of view of whether 

under this bill we could do what we did this spring with Plum 

Creek Timber Company, the largest private landowner in Montana. 

The state, the Forest Service, Fish and Wildlife Service and the 

county entered into an agreement to manage Plum Creek and state 

and Forest Service lands for grizzly bears. I mean everybody wins 

under that agreement. 

We could not do that under this bill because a landowner with 

five acres could threaten a compensation suit and brinf that to a 

halt for five years. So there are good things in this bil but there 

are other things that would disable the good things. And we need 

to be careful as we move forward to make ilXes that we don't do 

things that disable other important things. 

Mr. STUDDS. I appreciate that. Let me just conclude by observing 

that around every, and all of us who have been in this business for 

a while know this, around every issue of substance and consequence there are many voices. There are always very shrill voices 

and they are easy to hear. What is much more difficult to hear 

sometimes is the very quiet broad consensus out there of just plain 

people who genuinely understand and support something. 

In this case I fear it is the shrill voices that have been heard and 

not the voice of the land which I think is very understanding and 
21 

I just want to end by commending you and Secretary Babbitt, 

whom I think, contrary to something which the distinguished senator from Alaska said a moment ago, I hate the word but, 

proactive. Secretary Babbitt was in my office three years ago even 

before he was confirmed saying what can we do to get the good 

science and make this thing work. That is a refreshing and altogether appropriate attitude on the part of the chief steward of this 

nation's resources and I commend you and him. Thank you, Mr. 

Chairman. 

Mr. TAUZIN. I think the gentleman's time has expired. The Chair 

now recognizes the gentleman from California. 

Mr. POMBO. Thank you. Mr. Frampton, in your opening statement you said-before I get to that I got to say I knew no matter 

what we came up with you were going to oppose it. I knew from 

the very beginning that we were going to be accused of gutting the 

Endangered Species Act and regardless of what we did, if we 

changed one word in it, that the rhetoric was going to be the same. 

I made the attempt from the very beginning to work with you 

and other people in fish and wildlife and in this Administration to 

come up with ideas and ways to do that. About 90 percent of the 

stuff that you guys brought to me is in the bill and it was ideas 

that you talk about so eloquently in trying to get private property 

owners to work to protect habitat and to encourage them to do that 

instead of always coming down the heavy hand of the Federal Government on them. 

Those were the things that we tried to do, the ways that we tried 

to go about coming up with a balanced approach to protect an endangered species. It was said in one of the opening statements of 

one of the minority members that this is a new approach and it is 

a new approach. Everybody likes to go into this debate looking at 

this issue from inside the box of the current Endangered Species 

Act. 

Everybody is afraid to stick their toe outside of the Endangered 

Species Act, outside of that box, because they are afraid that they 

may anger some constituency or anger someone that is out there. 

Well, no, I think it is time we got outside of the box and looked 

at a new approach and that is a cooperative management approach, 

a cooperative agreement between those that are being regulated 

and the regulators and getting outside of the box that currently exists. 

And until you take this from that new approach, we won't see 

eye to eye on this. You really do have to look at it from outside the 

box because the current Endangered Species Act, contrary to what 

has been said here already this morning, is not working. And if 

anybody took the time to go out and actually talk to the people that 

are being regulated by this, they would understand why it is not 

working. 

People are destroying habitat so they don't become habitat for an 

endangered species. People are destroying the ability of wildlife to 

live on their ranches and on their farms because they are terrified 

that an endangered species is going to be found on their property 

and they are going to lose the right to farm or ranch their property. 

That is the reality of what we are doing. 
22 

Now inside the beltway, inside all of these fancy offices back 

here, we may not realize that but that is what is happening in the 

real world and until we look at this from a realistic approach we 

are never going to agree. And we have to get outside the box and 

look at a new way of approaching that. 

In your opening statement you said 70, 80, 90 percent of the Federal land would be left unprotected. Currently 35 to 40 percent of 

the federally-owned land is held with the conservation easement. 

It is held within the national parks, it is held within the wilderness 

areas, it is held within the wild and scenic rivers. Those are the 

areas that we are looking at to establish biodiversity reserves. 

When the conservation biologists came to me I asked them what 

is the one thing thatlou really want out of this, what do you want 

to achieve? They sai they wanted to protect biodiversity because 

they didn't know where it was going to go. They didn't know what 

all the answers were. The best conservation biologists in the country told me they don't know what the answer is, they don't know 

what is going to happen. 

The one thing we had to do was try to establish a series of 

biodiversity reserves across the country that could protect that 

biodiversity. Everybody realizes that it is a futile effort to try to 

save each and every single subspecies and unique population segment and everything across the country, they know that we will 

spend money and not be able to do that. 

But the reality of it is we have to look at the scarce conservation 

dollars that we have and try to develop a system of protecting 

biodiversity of saving wildlife and protecting endangered species. 

That is what we need to do. That is what this Act is. If you want 

to come to me with your criticisms of the Act and say if we change 

this it would work better, if we change this scientific model it 

would work better, I would be more than happy to work with you 

and I know that the members on this committee would be happy 

to work with you to achieve that goal because we want an Act that 

works. That is what we are trying to do. 

And in regard to foreign species, I found this quite ironic that 

through this entire debate over the past eight months that we have 

been going through on foreign species, I had a group of wildlife 

managers from a number of different countries that have come to 

see me over the past eight months and it was very interesting to 

hear them talk about the way they felt the United States treated 

their country, that they didn't care about wildlife, that they didn't 

care about what was happening with their wildlife in their countries. 

And it sounded exactly like one of our hearings out west. It 

sounded exactly the way that the people in the western United 

States feel about Washington, D.C. They were saying the same 

things, that they were being dictated to from inside the beltway 

from people who really didn't understand what was going on in 

their country, who really didn't understand that they valued the 

wildlife in their countries and they were trying to do what they 

could to protect that wildlife and to put a value on it so that they 

could achieve their conservation goals. 

Those are the kinds of things we want to foster, not just with the 

western United States but with the rest of the world. If that 
23 

doesn't work perfectly, we can work on that language but I am not 

going to dictate to every country in the world what somebody inside 

the beltway of Washington thinks it's a good conservation goal. 

Thank you. 

Mr. TAUZIN. Excellent set of questions. Mr. FRAMPTON. Do I get five minutes or one minute to respond? 

Mr. TAUZIN. We actually have to move along. You will get a 

chance, another question. We have been called to the floor but we 

are going to go ahead with one more round of questions and I recognize the ranking minority member of the committee, Mr. Miller. 

Mr. MILLER. Go ahead and respond on my time and then I will 

ask you a short question. 

Mr. FRAMPTON. Thank you, Congressman. Mr. Pombo, I do honestly think that we have been, we in the Administration have been 

outside the box for the last two years. We have to administer this 

Act and it has problems. We have tried to really work a quiet revolution on how we have administered this Act. We have identified 

things that need to be done through legislative change to take that 

further. And, as I said, I think there is broad agreement among 

other people like Western Governors about significant changes that 

need to be made. 

We are not saying this Act doesn't have to be changed. We are 

not standing on the status quo and we haven't but I don't think 

that you have an effective reform program by stepping out of the 

box and then throwing away most of the tools that are in the box. 

The principal tools of this Act are, first, the obligation on other government agencies to run their programs to try to avoid extinction 

of species. Very efficient, saves a lot of money. It has been very successful. That is eliminated in your bill. Those agencies don't have 

to do anything they don't want to do. 

The second tool is habitat protection on public lands. We use the 

public land base in an appropriate way first, more than half, 

whether it is 60, 70 or 80 percent of that base is removed in your bill. Third, we look to some contribution from private landowners 

for habitat protection. That is out of your bill. Fourth, we try to 

structure incentives or remove perverse incentives so that we can 

have some kind of pressures other than regulation on people to preserve habitats. 

There are some real problems with the existing law. This bill in 

our view exacerbates those perverse incentives. Those are the principal tools that I would argue to you are thrown away and you are 

left with a very, very small toolbox in this bill. Now briefly on the 

international front I think it is important that you talk to United 

States wildlife managers in this country and ask them whether 

they honestly think that this bill would cripple our involvement in 

CITES and in international efforts to protect endangered species 

and I would you that 90 percent of them will tell you that it does. 

And I think it is ironic that, you know, six weeks ago Speaker 

Gingrich went to the Floor of the House to protect our miserable 

small program for rhinos and tigers, you know, our budget for next 

year for this Fish and Wildlife Service budget, and this bill guts 

that program. It lets other countries dictate to us, so ask U.S. wildlife managers what they think of that. That is relevant too, it 

seems. 
24 

Mr. MILLER. Secretary Frampton, let me, if I might, just ask you 

a question that is I think of concern and certainly the community 

I represent which is a high growth mainly suburban district, and 

that is I think if I-while a lot of homebuilders and developers and 

others are deeply concerned about the Endangered Species Act and 

its impact on their businesses and the price of their product and 

all the anecdotal material that we hear, I think if I read them the 

bill that is before us, they wouldn't agree with the results because 

there are stronger beliefs about the purpose and the goals of the 

Endangered Species Act. One of the things that constantly is brought home is the question 

of getting some certainty into the Act and getting a resolution of 

disputes but also getting some resolution of something here in the 

Congress and I think you are quite right and I think Mr. Studds 

said it quite correctly that there is a very broad area of common 

ground out there about the intent and purposes of this Act and try- ing to make it work better. 

One of my concerns is that we will just add to the number of 

years here in which Congress will not resolve these things that 

need to be resolved if this bill which apparently you and the Ad- ministration have very, very strong objections to, we end up the 

year with no work product because of a veto or because it was just 

unacceptable, as I believe it will be eventually, to the Congress and 

then we are kind of back in the other box of not having this certainty brought to this program. Mr. FRAMPTON. Well, you know, I just want to say that we are 

for moving this, we are for reform, we are for moving forward. 

There are real positive changes that can be made. The Administration is not embarked on some strategy of delay or deception or hop- ing that nothing happens this year or next year. We would like to 

see this Act changed, improved, reformed. We would like to get on 

with it and we need to find a dynamic that allows us to have a vehicle that incorporates a lot of that common ground, otherwise, we 

are going to end up, as I said, a year and a half or two years from 

now with the existing Act and we are going to be in a worse situation than we are today. Mr. POMBO. The committee will stand in recess and we ask our 

guests to-we have two votes in a row so we will be in recess until 

after that second vote. I ask members to return as quickly as possible and ask our guests if you can make yourselves comfortable till 

we get back. Thank you very much. 

[Recess.] 

Mr. POMBO. We are going to call the hearing back to order and 

at this time I would like to recognize Mr. Saxton. 

Mr. SAXTON. I thank the Chairman for recognizing me. You 

might be interested to know that on the way back from this last 

vote Mr. Tauzin and Mr. Pombo and I were walking along together. Mr. Tauzin who is a great mediator recognized that Mr. Pombo and 

I have some differences and he said why don't you guys get together and settle your differences at which point Richie remarked 

as long as Saxton agrees with me, there will be no problem. We are 

closing in. 

Let me ask you a question along the same line, Mr. Frampton. 

During the testimony of the senator from Alaska, my aide brought 
25 

this spreadsheet down to you and I am interested in finding some 

common ground with the Administration and we got to solve this 

problem. And we put this together primarily to be able at a relatively easy fashion to compare and contrast the different versions. 

We have current law, we have Mr. Young's and Mr. Pombo's bill, 

we have Mr. Gilchrest's bill. He was here just a few minutes ago and has worked exceedingly hard putting together a bill that may 

be quite similar to mine. And then of course we have my bill. And 

I might say my bill-I don't take any real pride of authorship but 

most of my bill-is fashioned after the Western Governors Association version and which I looked at and thought it was quite good 

and we made some changes. Anyway, my question is this, how can we find some common 

ground? I guess this question goes more to process than content at 

this point because obviously we need to do something. This is a 

process that we need to all be involved in. I don't think that I have 

particular pride of authorship. I know that the Administration has 

ten points and what do you suggest that we do in order to provide 

some kind of a forum, some kind of a process, where we can get 

together and end up with an Endangered Species Act that works 

that we can all live with? 

Mr. FRAMPTON. Well, Congressman Saxton, you know, this is 

your process and I guess all I can say is that we are willing to 

come to the table anywhere in any way that the committee leadership or committee members, you know, whatever role you want us 

to play. We would like to be there. I think that, as I understand 

it, one of your, for example, major components of your bill would, 

as you described it earlier, would set up a system where we try to 

make recovery planning more effective by incorporating the socalled critical habitat or similar judgments, put that back into the 

recovery planning, make it more of a cooperative process where the 

state wants to take the lead in developing the recovery plan, both 

in the WGA proposal and in our ten-point plan. 

We propose that the Secretary delegate the lead to the state. Ultimately the Secretary would have to approve. There would be a 

more explicit requirement I guess than current law that socioeconomic impacts be minimized. I mean there is a big area of common ground between the Administration, WGA, and your descrip- tion of your bill. 

I think there are a lot of other areas but we are ready to do 

whatever you feel would be constructive to try to see if we can't develop a vehicle that the Administration could support or largely 

support that would be bipartisan and then could actually move to 

the House Floor and commend a large majority. 

Mr. SAXTON. Well, I for one and I know other members from this 

side are looking for that common ground. I want, and I think I can 

say that we want, an Endangered Species Act that works. We recognize that there is a very strong role here for the Administration 

to play during the process of reauthorization as well as after and 

therefore, you know, I invite you, perhaps maybe we can do it on 

a staff level. 

Maybe a good place to start would be to add whatever your version looks like to this spreadsheet and then we have got five alternative potential plans to look at and we can begin to sort through 
26 

the differences and find that commonality that is so important to 

form a consensus so that we can move forward together. And I 

would be delighted, Mr. Chairman, to play a role with you in that 

process. Thank you very much. 

Mr. POMBO. Thank you. Mr. Vento. 

Mr. VENTO. Mr. Frampton, I was just looking at some of the testimony ahead here and it said-of Mr. Bean. I think it is very insightful that the issue here would be that in order to continue on 

the successful path toward recovery of the bald eagle, the Secretary 

under this proposed bill must determine it is in the national interest to do so, seek Congressional concurrence with the determination, and invite 48 governors and nearly 1,500 county governments 

to nominate representatives to serve on assessment teams. 

Appoint an assessment team with potentially in excess of 1,000 

members, review the team's assessment, determine a conservation 

objective for the eagle, and replace the existing successful recovery 

plans for the eagle with a new conservation plan, all of which must 

be done in 18 months while simultaneously carrying out similar requirements for several hundred other species. 

Did you participate in this with my colleagues in terms of drafting this particular provision? 

Mr. FRAMPTON. No, I saw it yesterday for the first time, Congressman Vento. It actually made it more vivid to me what would 

be required to try to put the eagle, the grizzly bear, the peregrine 

falcon, the Florida panther and other species that are populations 

on the list. They are listed as populations but they may be biologically scientifically very important. It would be difficult to put 

them back on the list. 

Mr. VENTO. Well, yeah, that is right in order to keep them on 

the list. Some would argue that the bald eagle doesn't belong on 

the list. I don't know but I just think it is sort of vivid, I think, 

because it does illustrate what you would have to go through or be 

subject to a challenge, I guess. 

There are all kinds of problems. It is my understanding that in 

the exclusive economic zones, the so-called EECs, that today certain activities take place that have incidental taking occurring 

there. For instance, with marine mammals that might be on the 

endangered or threatened list, oil activities, and other types of activities in terms of fishing, netting, and so forth, require certain activities that must take place to avoid incidental taking. 

Now it is my understanding that the bill before us simply excuses those activities. In other words, it does not involve-if that 

occurs then there is no regulation or action that is permitted, is 

that correct? 

Mr. FRAMPTON. Well, I would stand corrected by Chairman 

Pombo as to his interpretation of the bill. The way I read it is that, 

I believe it is non-fish marine mammals in that off-shore zone like 

manatees and whales. 

Mr. VENTO. Sea turtles and manatees. 

Mr. FRAMPTON. Sea turtles, right. The take provisions are fundamentally removed from the Act so that if you are a manatee or 

a whale, you know, you better learn to stay more than 200 miles 

from the shore or you are in trouble. That is the way I read it. 

Mr. VENTO. Well, that is the way I read it too but what-
27 

Mr. PoMBO. Would you yield just on that? 

Mr. VENTO. Yeah, I would just for a moment, yeah. Mr. POMBO. Are not those animals protected by the Marine 

Mammal Protection Act that you just named off? 

Mr. FRAMPrON. I don't know that they are protected from sea 

turtles, not at all, but I do know that they are protected from the 

kinds of effects that we currently try to prevent from oil drilling 

or motor boats killing manatees, those kinds of things. We wouldn't 

be able to reach at all under this bill. 

Mr. POMBO. In consultation you cannot do that now? 

Mr. FRAMPrON. I don't know that the Marine Mammal Protection 

Act would give us-I just don't know. 

Mr. POMBO. I think there are some people who would be very interested if that is your opinion. 

Mr. FRAMPrON. If it would give us any authority to deal with 

boats or oil rigs? 

Mr. POMBO. If that is the Administration's opinion I am sure 

there are some people who would be very interested in that new 

interpretation. 

Mr. FRAMPrON. Well, I am saying I don't-! can't respond to the 

question of the Marine Mammal Protection Act, what will substitute. 

Mr. VENTO. Well, obviously marine mammals don't apply to sea 

turtles and other types of species that are non-mammals so I mean 

I don't think that-so that is an important issue. But this is also 

the interpretation, I might say, of others who are going to be testifying so there will be plenty of opportunity to discuss this. 

One of the provisions I noticed that there is, in other words, any 

animal that is in captive breeding, in other words, restrictions 

would not be put in place in terms of those captive bred animals 

abroad. For instance, my understanding is that this legislation 

would not prevent anyone from importing, for instance, captive 

bred types of Siberian tigers and so forth that would be brought 

here for various types of events which would be destructive like a 

hunting activity. Is that your understanding of this, Mr. Frampton? 

Mr. FRAMPI'ON. That is my understanding. I think the bill relies 

very heavily on captive breeding, captive propagation in a number 

of different ways. 

Mr. VENTO. I understand that there is maintenance in a zoo 

rather than in a natural habitat in a provision I read in an interpretation of this bill. That is another thing I think that has to be 

defended, that there is a lesser reliance on a natural environment. 

Most of the time when these captive breeding programs had gone 

on, I mentioned the peregrine falcon. The condors obviously are another example, the California condor, they are really done in association with maintaining the habitat as well for final release. The 

objective is to have them occur naturally in the environment or in 

that ecosystem or that habitat, is that correct? 

Mr. FRAMPI'ON. Well, that is correct. They are a component of a 

program but you still need the habitat and the National Academy 

looked at this issue and others have found that it is also a very expensive component but ultimately in the case of turtles, for example, sea turtles, you know, you can grow as many as you want in 

a pail but at some point you put them in the water and if they are 
28 

caught, you are not going to recover the species, so captive propagation alone is ultimately unlikely to be a viable recovery program. 

Mr. VENTO. Well, I think one of the other issues, of course, is this 

international provision where we are supposed to get the permission from any nation whether they are in CITES or whether they 

are not in CITES in terms of any type of sanctions or any type of 

actions we take. This would require the President himself to, in 

fact, make that determination if, in fact, the country did not voluntarily agree. They basically have veto power, taking it out of the 

hands of the professionals and putting it really in the hands of, for 

better or for worse, someone that-either a statesman or a politician, take your choice, you know. My time is expired. 

Mr. POMBO. Mr. Gilchrest. 

Mr. GILCHREST. Thank you very much, Mr. Chairman. Ladies 

and gentlemen, I appreciate you coming here and giving your testimony to evaluate this most important issue before the House and 

basically before the American people. I would like to ask the gentleman, I am not sure how to pronounce your name, this gentleman 

right here. How do you pronounce your name, sir? 

Dr. LINDEQUE. Lindeque, Malan Lindeque. 

Mr. GILCHREST. Milan. 

Mr. LINDEQUE. Lindeque. 

Mr. GILCHREST. OK, I am not going to attempt to say it. I can't 

see it because I need long-range glasses. There has been some mention of the CITES treaty. Could you give us your perspective if the 

Act is passed the way it is your understanding or your perspective 

on its impact, what are the ramifications for your country if this 

bill passes the way it is with some of the language in it dealing 

with this International Treaty on Endangered Species. Is it a positive effect for the CITES treaty which is positive basically for your 

country, I would assume, or would this bill have a negative impact 

on your country as far as species are concerned? 

Dr. LINDEQUE. Mr. Chairman, yes. My understanding of the proposed legislation is that it absolutely reinforces the role of CITES 

as the international forum and mechanism for coordinating and 

controlling wildlife use and international trade. For our particular 

country it will certainly make things a lot easier because CITES 

has a feature which is very attractive to us, namely, it is an open 

consultative organization where we have a chance to give our 

views, make our contributions while somehow we do not have that 

same privilege when it comes to dealing with the Endangered Species Act. 

So we would far prefer to handle our international trade issues 

through CITES rather than the Endangered Species Act. I think 

certainly from the United States' perspective the proposed legislation also has some beneficial aspects concerning the implementation of CITES. It makes CITES a much stronger force in this country than it is now. Here you presently have a dual system. 

Mr. GILCHREST. So I guess what you are trying to say the proposal for dealing with how the U.S. role is with CITES is favorable 

to you. The proposal before us, H.R. 2275, is something that you 

would endorse? 

Dr. LINDEQUE. Absolutely yes, sir. 
29 

Mr. GILCHREST. Mr. Frampton, could you give us your perspective on how this bill would impact the U.S. role with this international agreement, CITES? 

Mr. FRAMPTON. Well, what the folks who have participated in the 

program in the Fish and Wildlife Service and elsewhere for many 

years say is that they feel this would virtually shut down our effective participation in the CITES program. Just a few examples of 

specifics, specifics that may be fixable but which I think are in the 

bill. The bill as I understand it requires that permits be issued for 

importation of species or animals or parts that were taken as part 

of a country's conservation strategy regardless of whether that 

strategy exploits the species or is consistent with other CITES provisions. We have no choice. 

A subset of that provision I think is cited also in Mr. Bean's written testimony where he points out that the way the bill is written 

if you have a permit, if you have ten permits to shoot blackbirds 

in the last few years, you have free rein, you are entitled to alermit to import pandas into this country and lead them aroun on 

a chain. 

Mr. GILCHREST. Can I ask to interrupt because I have a couple 

more questions. The yellow light is on. I will ask unanimous consent to proceed for an additional hour. Anyway, I think there are 

some distinct differences that we need to take a closer look at. Senator Pearce, you made a comment one of the things you disagreed 

with in the present bill before us is how they deal with distinct 

populations. 

And I am assuming you are talking about bald eagles, grizzly 

bears, and things of that nature and is your understanding that if 

we dealt with distinct populations as it is contained in the bill that 

then probably Alaska, if you didn't have to deal with bald eagles 

in Maryland or Massachusetts anymore and since they are not 

threatened or endangered in Alaska, Alaska would be the last 

ground that would bear the full burden of trying to protect these 

species and no one else would have to or no one else-they would 

not have to. 

Ms. PEARCE. Actually, sir, that is not the direct intent of my discussion. I think on animals that you mentioned including brown 

bears also, eagles, we are not so concerned that Alaska is going to 

bear the entire burden. However, we are very concerned should distinct population segments of some of our fish stocks and take the 

chinook, for example, should there be distinct population segments 

of the chinook, we are concerned that every run, some nature and 

very, very healthy runs, might be affected so we are concerned that 

the bill could reach out that far into distinct population segments 

of the entire chinook fishery. That is our primary concern in the 

fisheries. 

Mr. GILCHREST. An excellent recommendation. Thank you very 

much. I guess my time has expired. That was a fast five minutes. 

Mr. PoMBO. Your time has expired. Mr. Cooley. 

Mr. CooLEY. Thank you, Mr. Chairman. Mr. Frampton, I want 

to say to you that this is a good piece of legislation. It puts some 

common sense back into this law which has definitely been screwed 

through the 20 some years it has been in effect. It adds a little 

human element to it and I think it is very well. Nobody in this 

20-707 95-2 
30 

committee is going to tell you or that were on the task force to help 

write this bill that it is absolutely perfect and that is why we are 

having hearings in order to correct them. 

You know, you talked about in your testimony that you are trying to change now some of these things. For 23 years this bill has 

been in effect. The environmental community has been driving it. 

You control Congress and you haven't done anything but now all 

of a sudden you are going to do something. I think that we are taking the initiative and we are going to do something and I think the 

changes are really well needed. 

I want to ask you a direct question and I would like to have an 

answer. Do you believe in private property? 

Mr. FRAMPTON. Yes. 

Mr. COOLEY. You believe in private property rights then? 

Mr. FRAMPTON. Yes. 

Mr. COOLEY. OK. From your testimony I don't think you really 

believe in private property rights and that has been one of the big 

bug-a-boos, I think, with most of us from the western part of the 

United States and your past history which we are all well aware 

of, those of us in the west, does not set forth that answer you just 

had. 

You know, we talk about the Act and how it has worked and 

what it has done and we have a lot of proponents sitting in this 

room today that think this is the greatest thing that ever came 

down the pike. But, you know, there are so many things in this 

that really have no scientific background that completely ignore the 

human factor involved in this process that does not use good 

science, the best science available, what does that mean, and you 

know yourself that like in California the prairie shrimp was listed 

as endangered with merely a 19-cent postcard from some high 

school student that had done a study about five years prior to that 

time and that is what it was all based upon. 

We looked at that literature over and over. There has been no 

recovery process and there are no really good science and you talk 

about the science community. Well, we have people on the other 

side of the science community that talk about the science community that the environmental people have hired and promoted and 

there is a big debate on that issue. And you now talk about the Administration's ten-point program. Where is this plan and when was 

it derived and what is the dating of it and are we all going to have 

an opportunity to look at that plan and scrutinize that as well as 

you have scrutinized our bill H.R. 2275? 

Mr. FRAMPTON. Yes, Mr. Cooley. It was released in March of this 

year and I have previously testified here concerning it and we 

would be happy to send you all of the details behind that later this 

afternoon. 

[The material submitted may be found at end of hearing.] 

Mr. CoOLEY. OK. Because I would like to look at it myself. I have 

never had an opportunity to survey that particular bill. I think that 

we can sit on both sides of the aisle and talk about all the good 

things that we both want to do. The Endangered Species Act on 

public property has literally shut down the west and now it is 

starting to affect private property outside of the west and that is 
31 

why we are getting some kind of consideration for how bad this law 

really is. 

Up until the last couple of years we had no support from the 

eastern/art of our country here because nobody really understood 

how ba the Endangered Species Act was being administered by 

your agencies and other agencies of the public. Now we find that 

little places like Texas which has 300,000 acres of in fact impacted 

law on endangered species of things that you can't even see, snails 

the size of a head of a pencil, vertebrates that nobody even knew 

existed before. 

We are starting to get some legislators there looking at this and 

saying to us when we had our hearings, how could you people live 

with this type of legislation for 20 years? We are finding the same 

thing in the eastern coast as well. So your protection of private 

property rights is helping us a great deal. I would like to see every 

species tomorrow listed as endangered so we could get this on the 

table and really discuss the merits of this bill and the merits of the 

previous bills. I think that it is a time well done and will pass without this Congress in place we would have never addressed this legislation. If we 

had the other group in power, we would still be living under the 

1972 law which was enacted in '73 and I am certainly happy and 

I know the western part of the United States and you will find 

other parts of the east are going to be happy to this piece of legislation. 

I want to close because I only have a few minutes is that we do 

not have a perfect bill and nobody is going to try to tell you that 

it is. That is why we are having hearings to try to tweak out those 

things that are most contentious in order to bring about some common sense to this process such as the good senator's consideration 

on the dangers on the sockeye. My state has a tremendous problem 

with the sockeye on the Columbia River. 

We spent $2 billion and we haven't recovered one single animal, 

$2 billion. You are talking about good science. And we paid for 

every bit of it. I think everybody in this room and the whole United 

States should help offset the cost of trying to recover the sockeye 

salmon of the Columbia River but, no, no, no, the way the law is 

set up we carry the burden of that and the scientists are driving this and it is obvious that they don't know what they are doing because we have been at it for seven years. So this bill that is presently in place is wrong. This bill as pre- sented, H.R. 2275, will give some consideration of changing some 

of these that you talked about issues that should have been 

brought up before. And I think in true bipartisanship here not only from the other side of the aisle but also from the Administration, 

you should participate in this process and get down to what is really contentious and what we can do to bring back a good Endangered Species Act to protect the species but also consider the 

human species, consider the economic factors involved in it. Let us 

put some good science in this and let us all work together. 

We never started out a task force with the premise that we were 

going to destroy the Endangered Species Act. We are trying to 

make this workable. We are trying to preserve private property 

rights. We are trying to preserve the species. And what is happen-
32 

ing is that now we are getting ridiculed for what we are trying to 

do to change a bad law which you already alluded to because you 

said there are some things wrong with it to make it a better law. 

So we need not criticism, we need participation. We need that. Mr. POMBO. The gentleman's time has expired. 

Mr. COOLEY. Thank you very much, Mr. Chairman. Mr. POMBO. Mr. Farr. 

Mr. FARR. Let me share a little different perspective than that 

of Mr. Cooley. He may be a little bit older than I am but I think 

I have a lot in experience in the western states as a fifth generation Californian. What I see happening in the time that I have 

been involved in the public elective office, now 21 years, is an 

awareness that it is not an issue of ignoring the human factor, it 

is discovering the fact that the salvation for the human factor depends on the whole health of the planet. And as we discover what the planet is comprised of, we are discovering a lot of solutions to problems that we didn't have answers 

to before. I happen to represent a coastal community and the Stanford University has a research center at Hopkins Marine Center, 

the oldest in the west founded in the last century. It certainly is 

written up a lot about Steinbeck and that center is now spending 

more time working with Stanford Hospital to look at the solutions, 

medical solutions, to problems coming from the floor of the ocean, 

the marine life. 

And essentially they are turning to nature to find those answers. 

I think that what we are doing is overcorrecting a difficult problem 

and that is how do we balance, how do we preserve species that 

may be discovered by future generations to offer solutions to problems as small as they may be and I think that in the process we 

overcorrect. My district happened to ignore science, happened to 

even not pay attention to it. They went out and fished sardines, the 

largest sardine fort in the world, Monterey Bay, and in a year they 

were gone. People disrupted, canneries closed, all because of a lack 

of attention to kind of sound resource management. 

So I take a different approach than that of Mr. Cooley. I do believe that we learn from these experiences and we need mid-course 

correction but I don't think it is so broken that it needs the kind 

of fixing that the bill proposes to do because I don't think the bill 

bases its content on good science. Mr. Cooley, the interesting thing 

about good science is that sometimes that good science doesn't look 

or respect property boundaries. It can't. 

We happen to preserve in California the mountain lion. We don't 

just preserve it on public property. We preserve the habitat of that 

mountain lion wherever it may be. Does that cause some problems? 

Yes. Are people thinking that maybe we have too many mountain 

lions? Yes. But the fact is the voters in California did that, not the 

politicians. 

And I think that there is a desire out there by our citizens of this 

country that we as stewards of this country, we are not here just 

to represent people, we are also here to represent all other living 

things on this planet and to make policy that makes it work well 

as we grow into a very complex, very large society on this planet, 

and it is going to tax the resources but the resources are what we 

live on. We depend on the resources for water; we depend on the 
33 

resources for air; we depend on the resources for food; we depend 

on the resources for micro-climates, and those micro-climates provide the districts that we all represent. 

And those micro-climates provide a plant life and a tree life 

which is all dependent on the animal life, and I think that we need 

to, as stewards of all this, go very cautiously and make sound decisions based on good science, not just on private property ownership. Mr. COOLEY. Would the gentleman yield? When we went through 

the process of writing up this bill and the hearings, we certainly 

did not anticipate this debate on the bill's structure itself. Mr. FARR. I did participate in one of the hearings. 

Mr. POMBO. Yield back? 

Mr. F ARR. Yeah, I yield back. 

Mr. POMBO. Mrs. Chenoweth. 

Mrs. CHENOWETH. Thank you, Mr. Chairman. Ladies and gentlemen, thank you for being here. Mr. Frampton, I do want to say I 

would not want to ruin your day but there are several things in 

your testimony I agree with. 

Mr. FRAMPTON. Good. That makes my day actually. 

Mrs. CHENOWETH. Let me ask you. I saw about a month ago, 

maybe five weeks ago, on the Tom Brokaw show a piece the news 

program introduced with and that was a species becomes extinct 

every 20 seconds. Do you believe that is correct? 

Mr. FRAMPTON. I don't know, but certainly species do go extinct 

and are going extinct all the time as a result of natural causes, 

particularly in rain forests. 

Mrs. CHENOWETH. Very sincerely do you think that we can come 

together and establish what the public's interest might be in establishing which species we should save? I just don't see an avenue 

for that. It is still murky out there to me. I know that when the 

bill was debated originally, we wanted to save the great blue whale 

and the bald eagle, but-and, you know, there was some direction 

there that was in the national and public's interest but now it is 

wide open. 

And so it is my hope that we will as a Congress be able to work 

with you and your agencies to focus in more on what the public interest might be so that we are not trying to save species that go 

extinct every 20 seconds. Mr. FRAMPTON. I guess I would respond, Congresswoman, that I 

think we should continue to have an Endangered Species Act which 

sets a goal of striving to protect from going extinct all species in 

the United States, at least strive to protect them from extinction 

at the hands of human causes. That doesn't mean that we ultimately can hope to achieve that goal. Whether we can achieve that 

goal depends on, among other things, the status of some of those 

species, the amount of money that is appropriated for the program, 

the extent to which we are creative in structuring partnerships, 

you know, between government and private landowners and some 

of the tradeoffs that we make between species protection and socioeconomic factors. 

There are those who say the Endangered Species Act is too absolutist. It does not allow those tradeoffs to be made. I think that is 

absolutely untrue. There are a lot of elements here in the process 

that allow those tradeoffs to be made. We may not be able to reach 
34 

the goal of striving to protect from extinction all U.S. species from 

human intervention, but I think we should continue to have an act 

that sets that goal. 

Mrs. CHENOWETH. Mr. Frampton, you indicated that this bill 

shrinks a habitat on private land extensively and shrinks the habitat by 70 to 80 percent on public land. And I have been with this 

subcommittee chairman or this task force chairman on all 12 of his 

hearings, and I know how hard he and his staff have worked, and 

I think that he truly has gone overboard to reach the-to accommodate the agencies, even to my surprise. 

I do want to ask you, do you have the bill in front of you, sir? 

Mr. FRAMPTON. I do not. 

Mrs. CHENOWETH. You don't. It does indicate that in this bill on 

page 8 that agencies should promptly pay their owner the agreed 

upon amount. However, that is subject to the appropriations process. And as I go through the bill, I find that there are many unique 

and creative ways in which habitat can be preserved, so I guess because I worked with this task force chairman, I am just a little 

taken aback by the fact that you aren't seeing that. I think he has 

just gone really overboard in trying to work with you. 

I do want to say I don't share your affection for the grizzly bear 

or the gray wolf. I will continue to work with Mr. Pombo and with 

your agency on trying to make sure that grizzly bears are not introduced into multiple use areas. I think that makes about as much 

sense as bringing sharks to the beach or rattlesnakes to Washington, D.C., I mean, the kind that don't have two legs. 

But I do want to thank you and your staff for working as you 

did with Mr. Pombo, and I hope, it is my goal that we can focus 

on very clearly of what we want to see in the future because I still 

don't see it. Thank you. 

Mr. FRAMPTON. Thank you. Could I just respond to the compensation--

Mr. POMBO. Yeah. 

Mr. FRAMPTON [continuing]. question that you asked about? We 

have different page numbers but one of the things that I think we 

all need to focus in on is what happens if you put most of the burden of protecting species-if we are going to have an act that really 

has a genuine goal of protecting species-and then you put most 

of the burden of doing that on land acquisition because certainly 

in the Federal budget the money isn't going to be there in the foreseeable future. 

Mr. POMBO. It doesn't do that, and to correct you, it does not put 

most of the burden on land acquisition. It actually puts most of the 

burden-when you deal with private property, it puts most of the 

burden on cooperative agreements and voluntary agreements that 

are entered into where both sides, the private property owner as 

well as the Federal Government, has the ability to enter into a negotiated agreement as to how or what is the best way to manage 

the habitat that exists on their property. 

The compensation provision or the purchase of habitat, number 

one, is used as the last resort if an agreement cannot be reached 

into, and it also puts in a provision that says that we can trade 

Federal land that is not biologically unique or biologically important or contains a large amount of biodiversity that we can trade 
35 

that for private lands which may be biologically unique or biologically important so that we can connect up some of the 

biodiversity areas to make that work. 

So it does not-and, sorry, but I had to jump in, it does not put 

the burden on the purchase of property. That is the path of last resort when we cannot enter into an agreement that will protect the 

private property rights of the individual and protect the wildlife 

that exists on thatfroperty. . Mr. FRAMPTON. guess my point, Mr. Chairman, is that if you 

reduce the amount of Federal land that can be devoted in any way 

to species protection and you take private land out all together and 

you remove the obligation on government agencies to needlessly do 

things that impact habitat and their programs, it is inevitable that 

the burden is going to be shifted to purchasing private land and 

the money is not there for it. That is the point. 

Mr. POMBO. All Federal land still remains in protection. It still 

requires consultation. Even if my bill was adopted exactly as it is 

written right now, all Federal lands still require consultation, all 

Federal lands still stay within a protected status for preserving 

species. It depends a lot more on the agency, on you, and the Administration on what actions you take in terms of protection on 

Federal lands, so it is a misstatement to say that Federal lands are 

not going to be used for protection or private lands, for that matter. 

I'm sorry, Mr. Metcalf, it is your time. 

Mr. METCALF. Thank you, Mr. Chairman. My intent here today 

and over the last many weeks is to preserve endangered species 

and to preserve a working and effective Endangered Species Act. 

But whatever we do, we must modify the existing Act to achieve 

several things, and I am going to list three of them, so that it is 

to the benefit of the landowner to find an endangered species on 

the property. Only then will we have the cooperation necessary to 

preserve and help in the preservation of that species. 

The second thing that I am going to mention, there are others, 

we must have effective incentives to delist recovered species. There 

is a stellar accomplishment of ESA, stellar accomplishment in 

western Washington. The bald eagles which were in trouble years 

ago are now very plentiful in western Washington. They should be 

delisted, and we should declare victory because it is an achievement of that. 

And yet they won't delist because as long as they are listed, they 

maintain the power of the bureaucracy over people in that area 

and that is deeply resented. The third thing, we must modify so 

that sound science is the basis for decisions made in the listing 

process and in the rehabilitation process for particular species. 

Sound science and peer review are not part of the process today. 

Example, and then I will get to my question for Mr. Frampton. 

In Washington State a model called the Flush Model is being used 

by public agencies as a basis for salmon rehabilitation efforts on 

the Columbia River as required by ESA. It has had absolutely no 

peer review. Despite months of repeated requests, I have not been 

able to get the details and a copy of this model. 

With the Chairman's assistance, this committee is considering a 

formal request and perhaps later subpoena if we don't get it. We 

have to have it for peer review. The whole Columbia River, hun-
36 

dreds of millions of dollars are going to be spent on a model that 

nobody has seen. I am asking for assistance, and this is my question, Mr. Frampton. Will you use your position to help this committee gain access to this Flush Model on which public policy is based? 

Mr. FRAMPTON. I will certainly do so, Congressman Metcalf. You 

know, I am not familiar with the model. I have heard of it. National Marine Fisheries, of course, and the Commerce Department, 

not Interior, has the lead responsibility under the Endangered Species Act for--

Mr. METCALF. I have asked--

Mr. FRAMPTON. And I will certainly do my best to inquire why 

that model has not been available for peer review and get back to 

you on it. 

[The letter received on the above matter may be found at end of 

hearing.] 

Mr. METCALF. Thank you very much. I asked Rolly Schmitten 

when he was head of the fishery service and he said yes, we will 

get it, and was unable for whatever reasons not to get it. And I 

need the weight and prestige of your office again to get that. We 

can probably get it through a subpoena, but that is sort of an embarrassment to perhaps a lot of people. 

Mr. FRAMPTON. Well, I don't know how much weight and prestige 

it has over Commerce but I will try. 

Mr. METCALF. OK, thank you very much. 

Mr. TAUZIN. I am sorry, the gentleman was recognized. 

Mr. ENSIGN. Thank you, Mr. Chairman. Just to give you a little 

perspective, I don't-I come at this-I am not a cosponsor of the 

bill and I am here to learn as much as I possibly can. My background, I am a veterinarian by profession and grew up in northern 

Nevada at Lake Tahoe in a beautifully serene area and have grown 

up to really appreciate the environment and animals all of my life. 

I do see problems as I am sure that you would agree that there 

are problems with the current Endangered Species Act, and I think 

that that is widely recognized. And I think that we do have to take 

a balanced approach when we look at trying to fix those problems, 

and I too agree that we need to be good stewards of our planet. Our 

planet is here for us today to enjoy but it is also here for generations that come after us, and it is important for us to preserve a 

healthy planet for those generations to come. 

In doing so, though, I think we have to ask some fundamental 

questions when we go about something like an Endangered Species 

Act, and first of all we have to say should economics play a part? 

Mr. Frampton, I would start with that question to you. 

Mr. FRAMPTON. Absolutely. And I think you have to separate out 

the listing decision which has always been a scientific judgment 

under the Act from the second question which is if a species or subspecies or population is listed, then what actions do we take to try 

to address that problem and recover that species which is the point 

at which in a number of ways economic, socio and economic tradeoffs are taken into account, and we have said-if necessary that 

should be made more explicit in the Act. 

Mr. ENSIGN. More explicit. The reason I bring that up is in 

southern Nevada we have the desert tortoise and the desert tortoise in southern Nevada is a magnificent creature. As a veterinar-
37 

ian I help many people adopt out these tortoises that have acquired 

this particular respiratory disease, one of the major reasons for 

them being listed. 

I am not too sure that is great policy considering we don't really 

know how it is transmitted and all that and whether we are propagating that disease, I am not too sure. But in the Las Vegas valley 

we have a fee now that every developer, if you are building a 

house, it goes per acre on how much money you have to pay for 

a desert tortoise fee, and that doesn't matter. 

As a matter of fact, I was involved with a project that was-I 

was working for my dad for a couple of years, and we built a hotel 

on a parking lot and we had to pay the desert tortoise study fee 

and have the desert tortoise study done on the parking lot. And, 

you know, as a veterinarian I did have quite a bit of expertise, and 

I probably could have told them that there weren't any desert tortoises living out there on the parking lot but it didn't matter. It 

was law, you had to do it, and that is just the way it was. 

In the southern Nevada area we have now a desert tortoise hotel 

situation set up to where each one of these species that is relocated, it costs $8,000 per tortoise to relocate. The reason I asked 

the whole question about economics is that if you look at-you 

drive across Nevada, you drive from Las Vegas to southern California, it is a big desert. I mean a very, very, very big desert that is 

very good habitat for the desert tortoises. 

As a matter of fact, there are better places for the desert tortoise 

that don't have current desert tortoises living in that has the vegetation that is necessary that could be much more cheaply-you 

know, these tortoises relocated. And I don't think economic factors 

sometimes are taken into account enough because we don't do 

enough in our country, I don't believe-the number one cause of 

early death in our country for people, you know, we talk about trying to save some of these things for scientific reasons for humans 

because we want to extend their life and have better quality of life, 

well, the number one cause of low quality life but also shortness 

of life in America is poverty. 

There is no question about it. Statistically it by far leads all 

other causes of early death in America is poverty. I mean, it outranks cigarette smoking, it outranks accidents and outranks anything. So when we are looking at those types of things, I mean, if 

we truly care about people as well, I think we more and more have 

to take into account what we are doing with the millions of dollars 

sometimes we do spend. 

And I was glad to see the listing. I would agree that from a scientific perspective list an animal. From an economic perspective, 

let's take into account some of the other factors and how much 

money are we going to end up spending because I agree with the 

statement that you made earlier about species are going extinct all 

the time. 

But from the time of creation forward basically species have gone 

extinct, a much more rapid fashion at this point and a lot of that 

due to the factors that man has introduced. So we need to look at 

the bigger picture, I believe, and take a really balanced approach, 

take ecosystems into play. And, you know, I am going to be inter-
38 

ested in learning much more about this whole revision of the Endangered Species Act. 

I would appreciate if you could get to my office also the proposal 

that you had last May, was it, and in as simple language as somebody who is not a lawyer can understand that I could read and see 

where you have problems, maybe even an analysis of where you 

have problems with this bill. I would appreciate it. I am trying to 

get as much, once again, balanced information as I can from both 

sides on this because the old saying is there are three sides to 

every story, one side, the other side, and the truth somewhere in 

between, so I would appreciate that. Thank you. 

Mr. FRAMPrON. I will get a copy. I wouldn't disagree with you 

that there has certainly been conflicts about whether and how 

much to take economic impacts into account in recovery planning 

but I do think that the Clark County, Las Vegas area is an example of how that was done and has been done well with a partnership between county government and the Federal agency for that 

conservation. 

Mr. ENSIGN. The people of southern Nevada would not agree that 

it has been done well. The majority of the people there would not, 

including local and county governments. 

Mr. FRAMPTON. County government, we reached a partnership 

with county government. Whether members of the county government feel good or don't feel good about that, the net result of the 

plan is that a lot of potential tortoise habitat, I believe, is open up 

to development, other habitat is protected. And I don't know 

whether the $8,000 figure for translocation is correct, but my understanding is that that is a relatively short-term. 

The long-term is here is what you can develop, here is what you 

can't, let's do that up front, and then the Federal Government basically gets out of your way for 25 years or more. That has been the 

result of the adoption of the habitat conservation plan for Clark 

County. 

Mr. POMBO. Mr. Shadegg. Mr. SHADEGG. Thank you, Mr. Chairman. I apologize, I have 

been out of the room, but I have been in the back of the room and 

I heard, I believe, Mr. Frampton, it was your testimony. If not, I 

am going to throw this question open to everybody. And it was basically speculation that running an Endangered Species Act which 

requires for its main thrust the acquisition of land is not going to 

work. That at least is what I thought I read out of the testimony 

and statement and I heard Mr. Pombo say that is not what is being 

discussed. 

I want to ask each of you candidly to put aside kind of the armor 

that you came here with and tell me whether or not you think the 

current atmosphere created by the Act as it is now written has created a climate between landowners, and I want to talk about private property here, between landowners, regulators and concerned 

citizens. And within concerned citizens I am including people who 

are deeply concerned about the environment. Do you think the current Act has created a climate which serves the purpose of protecting species very well, and, if so, why; and, if not, what do you think 

we can do about it? 
39 

Mr. FRAMPTON. Well, I will take that first if I might. I think that 

it is true that in some places in some parts of the country that the 

Act at least as it has been administered in the past has provoked 

conflict which does not in the long run serve the larger goal of pro- tecting species because you have to have some public support for 

carrying out these programs . .A.."'ld I think that it has been a major priority of this Administration, this Department, to see how we could redesign policies and 

regulations and approaches to the Act so that we could still effectively protect habitat and yet do it in a way that would build public 

support and be more effective. 

Mr. SHADEGG. I appreciate your candor. Are there others that 

want to comment? 

Mr. FRAMPTON. Some places we have been successful, some 

places we haven't. 

Mr. SHADEGG. Are there others that would like to comment on 

that question? 

Ms. PEARCE. I would like to on behalf of the state of Alaska. 

First of all, unfortunately only 1 percent of the land in the state 

of Alaska is in private hands so any answer that I give is also 

going to have to affect public lands. I would say that in Alaska we 

have found the ongoing discussions of the Endangered Species Act 

to be very divisive. We also have found that inside-the-beltway decisions do not translate very well to our rather unique and also 

very large state. 

But most importantly we have found that there has been a use 

of the present Endangered Species Act to affirm and get to other 

decisions, whether it is the closure of logging in the Tongass, which 

is something that we have just been fighting through in the past 

year, or other designations that have been made previously in 

order to get to some other closure to Alaskans of some activity. I 

have found that the atmosphere of the entire Act has been divisive 

and certainly negative to Alaskans. 

Mr. SHADEGG. Other-yes, sir. 

Dr. LINDEQUE. Mr. Chairman, I think it must be quite clear that 

this Act on the international scene has certainly led to great divisions, unfortunate divisions. And we felt that such great progress has been made in another forum where similar divisions existed 

such as CITES, but somehow here it has not happened. 

We are intrigued by the very interesting parallels between what 

is happening here in the U.S. and in our situation. Ultimately it 

is all about land, and in our experience there is a limit to what you 

can achieve through regulatory mechanisms. How people view land 

and resources is the key; at some stage you must get their cooperation. It must come from within, and that is achieved only through 

consultation and listening very, very carefully to their needs and 

their requirements as well. 

And that to some extent has been absent in the way that the foreign species have been dealt with in the Endangered Species Act, 

and if I may comment, maybe also in the domestic situation here 

in the U.S. 

Mr. KA.sERE. Yes, thank you, Mr. Chairman. In fact, we are quite 

concerned because in southern Africa we have taken serious initiatives to try and balance development and conservation. And such 
40 

steps have proved to be quite successful on our part because we are 

quite realistic with our situation where we are seriously underdeveloped, and even the people that we deal with do not have that 

kind of understanding of what we mean by endangered species. 

But being the leaders of ourselves we understand sincerely and 

understand that there is need for us to conserve those diversities 

but then we have been pragmatic and embark on programs which 

are quite conducive to conservation and development. Like my colleague has already said, the issue of land is quite critical, and I am 

quite amazed that here the Endangered Species Act is not doing 

adequately to address the issues yet. But what about countries 

which are far away in Mrica which have to deal every day with 

wildlife which destroy their crops? 

I think the issue of economics must be seriously taken care of 

and not just economics in the sense of developed countries but economics in the sense of those countries who are just struggling to 

make ends meet because what you define as economics here is 

probably something much more comfortable than what we describe 

as economics in our developing countries. 

So we have taken serious initiatives, and we feel that the Endangered Species Act should take serious cognizance of those kinds of 

activities that we are doing rather than taking us as passengers in 

the system where you will expect us in the end to look after those 

species. We will find ourselves in a quagmire or in a difficult situation where we will join other countries in Mrica which have destroyed their species, and they are now comfortable. They are not 

even here in Washington because they do not have elephants, they 

do not have tigers to destroy their crops. 

And what will happen is in the future we may simply be comfortable and destroy our resources which we dearly love simply because we have ignored our economic interests. We want to conserve 

those species rights. Still you must strike a balance between development and conservation. Thank you, Mr. Chairman. 

Mr. SHADEGG. Mr. Chairman, I know my time has expired. Let 

me make a quick statement. First of all, I have found that at least 

in Arizona the current Endangered Species Act has not created the 

right climate, particularly with regard to private property, and 

when you talk about Alaska, Arizona probably I think second to 

Alaska has the most public lands. I am just going to throw this last 

point out there. 

I wonder if in fact we shouldn't be looking at writing two different laws or laws with starkly different rules for private property 

and for public property. I think a case can be made quite differently for what we can and should do on those lands which are 

owned by the people and those lands which are owned by private 

interest. I just in my own experience find where we have created 

a dramatically adversarial relationship between the owners of private property where the vast majority, I think, of these species are 

and the regulators, we are not achieving the goal. Thank you, Mr. 

Chairman. 

Mr. POMBO. Thank you. Mr. Tauzin. 

Mr. TAUZIN. Thank you, Mr. Chairman. Mr. Frampton, I have 

just reexamined the bill very carefully, and I need your help here. 

The bill says that except when the government seeks to regulate 
41 

property in a way that diminishes its value more than 20 percent 

and refuses to compensate the landowner, that except for that case 

it has the full opportunities to take agency actions under this Act 

on Federal and private land. 

Where in the bill do you base your claim that the bill exempts 

90 percent of Federal lands and all of private property from protection? Can you cite me in the bill where that is? 

Mr. FRAMPTON. Yeah, as I understand it, the bill creates a system in which endangered species protection is primarily, if not virtually exclusively, relegated to existing areas like parks, national 

parks, and wilderness areasMr. TAUZIN. That is not true. Well, show me in the bill where 

it says that. 

Mr. FRAMPTON [continuing]. in which--

Mr. TAUZIN. Mr. Frampton, I have a limited amount of time, sir. 

Where in the bill does it say that endangered species protection is 

now limited to certain parks and wilderness areas? If you are going 

to cite to me the biological diversity reserves that's a special section 

on biological diversity enhancement. It does not in any way limit 

the Federal Government's responsibilities or obligations under the 

Act to protect species on other Federal lands or private properties. 

Mr. FRAMPTON. I had the provision a moment ago, Congressman, 

but I believe there is a provision that specifically prohibits the Secretary from taking any action to protect biological diversity on 

areas outside of the reserves unless he certifies through a process 

by publication in the Federal Register--

Mr. TAUZIN. Let me try again. There are two sections-! am limited in time. There are two sections of the law here. The added section is this biological reserve section. It does not limit the capacity 

of the Secretary to enforce the main body of the bill which is the 

protection of endangered species and species conservation recovery 

plans and everything else under the main body of the bill. Biological reserve protection is a special section. 

I have to pass on that quickly. I just want to point out to you 

that if that is the basis upon which you say that 90 percent of Federal lands are exempted or that all private property is exempted, 

you are dead wrong and you need to go back and read the bill. If 

there is a misinterpretation of language, we can straighten that out 

for you real quickly, I think. 

Secondly, you criticize very heavily the compensation provisions 

of the bill and yet you answered earlier that you support private 

property in America. I have a letter from the President saying he 

believes in private property too, but he doesn't like our compensation provision. Do you believe the Federal Government has a right 

under endangered species or wetlands or other such environmental 

protection measures, to take people's property without paying them 

for it in order to make it a habitat-protected area? 

Mr. FRAMPTON. No. 

Mr. TAUZIN. Do you believe that the government has to take 

away 80, 90 percent of their rights on property before they have 

a right to be compensated? 

Mr. FRAMPTON. I believe the Supreme Court has defined what a 

taking means. 

Mr. TAUZIN. Well, what do you believe? 
42 

Mr. FRAMPTON. I agree with what the President said to you. 

Mr. TAUZIN. I am asking you, Mr. Frampton, what do you believe? Do you believe that the government has a right to take 60, 

70, 80 percent of a person's property rights away without paying 

them? 

Mr. FRAMPTON. The Constitution and the courts have defined 

what is a taking that is required to be compensated. Mr. TAUZIN. Oh, it is still going on. The courts have never yetthe Court of Appeals have talked about partial takings, the Supreme Court has not ruled on it yet. I am asking for your opinion, 

sir. Forget the courts for a second, what is Mr. Frampton's opinion 

about whether or not a person should be able to loose 60, 70 percent of their property to the government by regulation and not be 

compensated, is that OK in your frame of legal reference? 

Mr. FRAMPrON. In my personal frame and in the frame of a capacity in which I am here as a witness for the Administration, I 

think that the provisions in the Constitution as interpreted by the 

courts are provisions which are ample and we will comply with in 

terms of compensation for taking. Mr. TAUZIN. So we should have no provisions--

Mr. FRAMPrON. That doesn't mean that we should have no provisionsMr. TAUZIN. What provision would you like to see in this bill on 

compensation? 

Mr. FRAMPTON. The question I thought you were going to ask me 

is what provisions to help protect private landowners and we proposed a number--

Mr. TAUZIN. I am asking you what provision in this bill would 

you like to see that defines compensation rights so we have that 

settled for everybody so they don't all have to go to the Supreme 

Court. Mr. FRAMPTON. None that go substantially beyond existing law. 

Mr. TAUZIN. Where is the law that provides for compensation? 

Mr. FRAMPrON. In the Fifth Amendment of the United States 

Constitution. 

Mr. TAUZIN. Right. So you want everybody to go to court? 

Mr. FRAMPTON. We would like to see the law complied in theMr. TAUZIN. So if we provide for any compensation provisions in 

here other than telling everybody you got to go to court and find 

out what your rights are, you will oppose the bill? 

Mr. FRAMPrON. Not necessarily. I don't think thatMr. TAUZIN. One final question, my time has run out. 

Mr. FRAMPrON [continuing]. we have seen a compensation provision that we think doesn't cripple the law. 

Mr. TAUZIN. OK, one final question. You criticize the harm provision. Is it your belief, the Administration's position, that the government can tell a landowner you cannot modify your habitat even 

if those modifications have zero effect upon the protection of an endangered species on the habitat? 

Mr. FRAMPrON. Would you repeat the question? 

Mr. TAUZIN. Is it the Administration's position that the endangered species law should give the government the power to tell the 

landowner that you cannot make any modifications on your land 
43 

even where those modifications do not affect the survivability of an 

endangered species on his property? 

Mr. FRAMPTON. Well, when you say affect the survivability of the 

species, as a whole? 

Mr. TAUZIN. That species on his property. 

Mr. FRAMPTON. I don't think the current ActMr. TAUZIN. Let me be specific. 

Mr. FRAMPTON. As I understand the questton, I don't think the 

current Act gives the Federal Government the right to do that. 

Mr. TAUZIN. So you think it is OK for us to--

Mr. FRAMPTON. To regulate habitat conduct that has no impact 

on a listed species? 

Mr. TAUZIN. That has no impact upon the species on that property, it will not harm that species specifically. 

Mr. FRAMPTON. You know, I am not sure-! don't think the way 

you ask the question that the government has any authority to do 

that under the current Act nor should it under a reauthorized act. 

Mr. TAUZIN. Thank you very much. 

Mr. PoMBo. I thank the panel for their testimony and for answering the questions. The ability to work with this Administration, the state governments, I know Alaska has probably as much 

to gain or lose out of this as anybody and I appreciate you coming 

out, Senator, and being here. I recently took a trip to your state 

and I had the opportunity to spend some time with you there and 

was truly amazed at what you have in Alaska. It is a beautiful 

place. 

Mr. Frampton, I appreciate the opportunity for you to come testify. I appreciate your answers but I do hope that as we go through 

this debate that we can have a more factual discussion on the bill 

and a more factual discussion about what our differences are and 

try to tame the rhetoric somewhat from both sides but I do hope 

that in the future that we can have a more factual discussion of 

the bill and what it actually says. Thank you. 

To our foreign visitors thank you very much for agreeing to testify and sharing your insights with us. Thank you very much. The 

panel is excused. I would like to call up the next panel. Mr. Michael Bean, Mr. Henson Moore, Mr. Bob Irvin, Mr. Bob Stallman, 

Mr. Rob Gordon, and Mr. Ben Cone. Mr. Bean, if you are ready, 

you may proceed. 

STATEMENT OF MICHAEL BEAN, CHAIRMAN, WILDLIFE PROGRAM, ENVIRONMENTAL DEFENSE FUND, WASHINGTON D.C. 

Mr. BEAN. Thank you, Mr. Chairman. Let me begin by complimenting you and thankinglou for the other bills you introduced 

the same day you introduce this bill. Those other bills include 

most particularly a bill to create tax incentives for encouraging 

conservation on private lands and I think there were some very 

constructive ideas in those other bills. 

As you know, if you have read my testimony, I am a little less 

charitable toward this bill but I want to honor Mr. Tauzin's admonition to not try to characterize this bill but rather just to describe 

for you the actual practical consequences of this bill. Let me list a 

few of those. 
44 

First, smugglers of rhino hom, tiger bone and other wildlife contraband will find it much easier to thwart U.S. endangered species 

laws and the reason for that is because of a provision in this bill 

which requires the Fish and Wildlife Service to return to those 

smugglers any products that are not identified as to species within 

30 days. 

Many of these products, take for example rhino hom, do not 

come in attached to the head of a rhinoceros. They come in in the 

form of powder in vials. They must be subjected to rigorous analysis to determine the presence of enzymes and other chemicals. 

Those tests often take weeks to complete and when a shipment 

consists of several hundred separate items, as commercial shipments often do, the Fish and Wildlife Service will simply be unable 

to accomplish within 30 days what your bill requires and will be 

required to return to smugglers those contraband items. 

Secondly, Mr. Vento pointed out the practical consequences for 

the bald eagle. Mr. Metcalf earlier described the success of the bald 

eagle in his state as a stellar success. It has been a substantial success almost everywhere in this country. The recovery plans for the 

bald eagle are working extremely well. Despite that, however, to 

continue on that successful path, here is what your bill would require. 

It would require the Secretary to make a national interest determination to continue to protect the eagle. It would require Congressional concurrence with that. It would require 48 governors to 

nominate members to an assessment team and 1,500 county governments to nominate members to that same assessment team. It 

would require the Secretary to review the assessment from that 

huge team and to prepare a conservation objective and a new conservation plan all within 18 months. 

Frankly, sir, I see no reason why our resources need to be squandered in that way. The bald eagle is doing fine and there is absolutely no purpose in those sorts of byzantine requirements. 

Third, I am sorry that Mr. Young is not here because Mr. Young 

played a very important role in 1982 in overturning a court decision which had required reliable population estimates of species 

protected by CITES before those could be exported. The problem 

was that that court decision was met with resistance by professional wildlife managers who pointed out that reliable population 

estimates are not necessary to make the sorts of determinations 

that are necessary to assure that export will not be harmful. 

And, in fact, the International Association of Fish and Wildlife 

Agencies, the director of the Louisiana Fish and Game Department, and other state fish and game agencies all were consistent 

in their view that to require such population data was wasteful, 

unnecessary, and in most cases impossible, yet your bill in three 

different locations requires exactly that sort of information for the 

species that this Act tries to protect. 

I submit to you just as in 1982 when Mr. Young and Mr. Tauzin 

and others concluded that the court decision requiring that sort of 

data was irrational, so too this bill requiring that sort of data will 

have extremely mischievous and wasteful effects upon protecting 

endangered species. I know that a lot has been said about sound 

science here and I know that the Republican policy statement on 
45 

the Endangered Species Act begins with a statement of adherence 

to the importance of sound science. 

Yet I have to say that this bill reflects in my judgment a very 

poor understanding of science. For example, among other things 

this bill requires that petitioners for the listing of species submit 

the names of the peer reviewers of the scientific articles upon 

which they rely. Well, sir, unfortunately for the drafters of this bill, 

that is impossible to do because a key element of peer review is 

confidentiality. No one knows who peer reviews articles that appear in scientific journals. The editors and the authors will not divulge that information, so you require of petitioners information 

that is impossible to provide. 

Lastly, I want to point out that this bill requires some things 

that are simply nonsensical. For example, this bill authorizes the 

Secretary to issue captive breeding permits for endangered species 

like pandas, chimpanzees, and what have you, on the basis that 

someone has previously received a permit to kill blackbirds. You 

didn't miss understand what I said, sir. That is what this bill actually does, because it says anybody who has received ten or more 

permits under a long list of laws, including the Migratory Bird 

Treaty Act, is by virtue of that fact qualified to receive a captive 

breeding permit for endangered species. 

Well, one of the permits most frequently issued under the Migratory Bird Treaty Act is for killing blackbirds to protect crops, so 

one consequence of this bill is to allow permits to be issued under 

those circumstances. My point is not to suggest that anybody really 

intended that result. I don't think they did. 

Rather, my point is simply to suggest that this bill strikes me as 

having been prepared very hastily and rather carelessly and I 

would strongly urge you to take the time to go back over this more 

carefully and to recognize that there are many parts of this bill 

that impose unnecessary requirements, lead to totally illogical results, and can properly and should properly be changed. Thank 

you, sir. 

[Statement of Mr. Bean may be found at end of hearing.] 

Mr. POMBO. Mr. Moore. 

STATEMENT OF BON. HENSON MOORE, CHAIRMAN, ENDAN· 

GERED SPECIES COORDINATING COUNCIL, WASIDNGTON, 

D.C. 

Mr. MooRE. Congressmen, thank you, Mr. Chairman, for the 

chance to testify this morning. I am here on behalf of the American 

Forest and Paper Association and its 256 direct member companies 

and some 80 affiliate organizations, and also the Endangered Species Coalition which is a coalition of companies, unions, landowners, who are involved in ranching, farming, forestry, mining 

and fishing. 

We applaud the work you have done in this area. We support the 

bill that you have come forward with. Basically it is our opinion 

you can't protect a species by endangering the livelihood of people. 

In this particular point we have pitted the species against the landowner. That is not going to work. Your legislation is moving to try 

to correct that and find a way to give the landowner, a stakeholder 

in this, to where they will become willing participants, rather than 
46 

begrudging citizens in terms of working with trying to protect endangered species. 

There are a number of things in the Endangered Species Act over 

the 22 years it has been in existence that those people have had 

to live under it and deal with it and administer it. It found they 

are not working like they should. Most people will indicate, including this administration, that there are things wrong with it that 

need to be flxed. 

I think your legislation goes a long way to fixing those things. 

It is a good starting point. It is a good point from which to work 

and try to see if something can't be perfected. It makes the existing 

law work better than it does. There are a number of mechanical 

problems as I indicated. You have addressed most of those we can 

think of or we have been able to flnd. 

But there is also a very basic problem that I started out speaking 

to and that is the pitting of a landowner against a species. You 

have heard the examples before where the farmer is now planting 

fence row to fence row, of where people are prematurely cutting 

timber, where people can't build on a residential lot or an acre and 

a half of land they bought to build a house on because of the fear 

or the reality that the Endangered Species Act will not allow them 

to use their property. 

This isn't helping protect endangered species or any species or 

wildlife, and the issue really isn't, and we can thank the passers 

the people who have supported the Act in the beginning. This law 

has gone a long way to make the American people understand that 

there are endangered species in addition to wildlife in general that 

ought to be protected. 

I don't know many people today who seriously would take the opposite position and say that we shouldn't have a national law on 

protecting endangered species or we shouldn't be interested in that. I think that is a highly sociably unsupportable position and certainly people that we represent don't believe that. The question is 

how can we make it work, how can we work together to where people don't have a fear of this law but quite the contrary have a willingness to try to work with the government and try to work with 

people who care about endangered species to see that they are protected. 

The basic problem of pitting a landowner against the government 

is never going to work. It is going to create a lot of hostility because some people who may when this law was crafted 22 years 

later not knowing quite how it was going to turn out are overlooking the fact that an awful lot of people came to the United States 

over the last 300 years for the right to own property. That is what 

separates us from most countries in the world, that anybody can 

in this country. 

And the fact that a landowner has no rights virtually under the 

way the legislation works today just isn't going to be considered as 

fair and balanced by the American people. They believe very 

strongly there needs to be a balance in fairness and existing law 

doesn't have that. And I think most people believe and most people 

have said you have got to flnd some way to create an incentive for 

the landowner to want to work with this. 
47 

And that leads to the point that that incentive and that kind of 

a system to cause landowners to want to work with the government 

is going to cost something. Protecting the environment costs money. Somebody has to invest money to do that. Protecting endangered 

species costs money. Somebody is losing some economic right that 

they have. That costs something and I think the first thing this 

legislation does is faces up to that and says that somebody is going 

to bear the cost besides the landowner. It is going to be society as 

a whole and that is a very fair way to go about it. 

We are being very honest with the American people in saying it 

costs something to protect an endangered species and therefore we 

are going to help come forward with paying for that cost. Once you 

do that, I think you are going to find landowners show a great deal 

more interest in trying to work with you. 

Therefore, Mr. Chairman, we conclude by saying that you have 

fixed most of the abuses we have been able to identify and to call 

to the attention of this committee. While the legislation may not 

be perfect in certain people's opinion, the law is far less perfect and 

I think we err greatly by not moving forward, and by moving forward to amend this law than we would by sitting still and letting 

the abuses continue on the existing law. Thank you. 

[Statement of Mr. Moore may be found at end of hearing.] 

Mr. POMBO. Thank you. Mr. Irvin. 

STATEMENT OF BOB IRVIN, ENDANGERED SPECIES 

COALITION, WASHINGTON, D.C. 

Mr. IRVIN. Thank you, Mr. Chairman. I am Robert Irvin, Deputy 

Vice President for the Center for Marine Conservation. In addition 

to my own organization, I am pleased to be testifying today on behalf of the Endangered Species Coalition. I am testifying on behalf 

of the coalition. He is testifying on behalf of a different group. Our 

coalition represents more than 200 environmental civic, religious, 

health, business and labor organizations across the nation. 

I think that the National Research Council in its recent report, Science and the Endangered Species Act, really summed it up quite appropriately when they wrote, "the Endangered Species Act has 

successfully prevented some species from becoming extinct. Retention of the Endangered Species Act would help to prevent species extinction." 

Your bill, Mr. Chairman, purports to retain the Endangered Species Act but it reminds me a little bit of the old Greyhound bus station in downtown Washington. The developers took that station 

and developed it into a fancy office building. If you look at it outside there is still a sign that says Greyhound, there is still a dog 

on the front, but you can't catch a bus there, and that is the effect 

of this bill. There will still be a law that says Endangered Species 

Act but it won't protect endangered species. 

This bill undermines or eliminates every important protection for 

threatened and endangered species under the ESA It is not based 

on sound science. It will be enormously costly, both ecologically and 

economically to the American taxpayer. 

In the time allotted to me, I don't have time to go through all 

of the things that are wrong with this bill. It abandons the goal of 

recovery of the Act, it undermines habitat protection, it eliminates 
48 

Federal agencies' duties to conserve endangered species, it imposes 

wasteful bureaucracy and needless cost on taxpayers. · What I would like to do is spend a few minutes focusing on what 

this bill does to one single group of endangered species, endangered 

marine wildlife. Some of this country's most beloved and visible 

species-humpbacked whales, California sea otters, Hawaiian 

monk seals, Pacific salmon, stellar sea lions, Kemp's Ridley sea turtles, marbled 146 murrelets, and other seabirds, and Floridamanatees because this bill will harm those species dramatically. 

Section 201 of this bill contains an across-the-board exemption 

for incidental take of endangered marine wildlife other than fish 

out to the 200-mile limit of U.S. waters. What this means is that 

off of California the oil industry won't have to lift a finger to protect California sea otters anymore, but they can go about their 

drilling activities, their barging activities, all of those things, without worrying about the Endangered Species Act. 

I think one of the most striking things too about this bill is the 

degree of overkill it engages in because, as if that across-the-board 

exemption wasn't enough, it has specific exemptions. For example, Section 208 specifically requires the Secretary of the Interior to exempt shrimp fishermen from the requirement to use turtle excluder 

devices if they undertake some other measures to protect sea tur- tles somewhere in the world. Section 104 has a similar provision 

exempting people from the take prohibition of the Act if they participate in some unspecified way in captive breeding, predator con- trol, artificial feeding or habitat management programs. And Section 205 requires the Secretary to give priority to re- search and alternative technologies to protect endangered species 

even if the technologies that are being used now are perfectly fine. So, in other words, again, even though turtle excluder devices 

work to protect turtles, the Secretary would have to look into some 

other device for doing this. And I think this is particularly ironic. It comes at a time when, not only are TED requirements in place 

and sea turtles are being protected, but when you have the National Fisherman magazine in its October issue right at the top of 

the cover saying "Gulf shrimper yards are booming." So you are offering this extra benefit to an industry that is doing fine under the 

existing requirement. 

Mr. Chairman, this bill does a number of other things to harm 

endangered marine species. It eliminates the Secretary of Commerce from his responsibility to protect endangered species, doing 

away with 25 years of experience that the National Marine Fisheries Service has in protecting endangered marine wildlife. Now alluding to some of the sloppy drafting that Mr. Bean referred to, 

while the bill does away with the Secretary of Commerce's responsibilities, it continues to authorize increased appropriations for the 

Department of Commerce in the latter part of the bill. 

Mr. Chairman, the bill will also harm marine species internationally. Before the United States can take any steps to protect 

our own stocks of salmon which may be in trouble, we have to consult with countries like Japan and Russia and other nations that 

fish for salmon on the high seas. 

In conclusion, Mr. Chairman, let me just say this. The Endangered Species Act is our nation's promise to ourselves and to future 
49 

generations that we are going to leave them a world as rich in biological diversity as the one we enjoy. If this bill is enacted, that 

promise will be broken. In my written testimony, I have a number 

of suggestions for responsible reform to the Endangered Species 

Act. If this committee is interested, I will be happy to describe 

those in greater detail during the question period. Thank you. 

[Statement of Mr. Irvin may be found at end of hearing.] 

Mr. POMBO. Mr. Stallman. 

STATEMENT OF BOB STALLMAN, NATIONAL ENDANGERED 

SPECIES ACT REFORM COUNCIL, WASHINGTON, D.C. 

Mr. STALLMAN. Thank you, Mr. Chairman. My name is Bob 

Stallman. I am president of the Texas Farm Bureau but I am here 

today representing the National Endangered Species Act Reform 

Coalition and we are a member of that coalition. I do appreciate 

the opportunity to appear before you today to testify regarding 

H.R. 2275, the Endangered Species Conservation and Management 

Act of 1995. 

As Mr. English testified before this committee several months 

ago, the coalition is made up of a broad cross section of America 

that is most affected by the Endangered Species Act. Our members 

range from small individual landowners and farmers, small companies, rural electric cooperatives and public power entities to agricultural interests, water districts, mining interests, and other companies. 

We commend the committee for the work of the task force 

chaired by you, Mr. Chairman, and we commend you for listening 

to the voices out in rural America. I particularly appreciate you 

bringing the task force to Boerne, Texas. I think you learned a lot 

of the problems with the current Endangered Species Act at that 

hearing. We urge the members of this committee to move swiftly and favorably to report H.R. 2275. This legislation offers the only clear 

hope for reform of the Endangered Species Act in the U.S. House 

of Representatives. We recognize that the bill is long and complex. We urge you as a committee and as Members of the U.S. House 

of Representatives to recognize that complex and difficult endangered species management issues which have been years in the 

making cannot be papered over with vague changes in the law. 

We believe this legislation represents responsible reform. To 

make the Endangered Species Act work, any reform must accomplish at least the following specific changes in the law. 

We must place the ESA on equal footing with other laws andresponsibilities. Conserving species is an important goal for our country and our Federal Government must play a role in that process. 

However, that role cannot be undertaken at the expense of all 

other government functions. 

The ESA listing process should remain based on science but 

should be opened up for scientific peer review on key biological decisions. This is absolutely critical to ensure that species listed for 

protection under the Endangered Species Act truly are threatened 

or endangered and Title III of this bill does that. We need to provide a more open and balanced recovery planning 

process. Title V establishes a conservation planning process which 
50 

allows much greater public input and provides for public hearings 

in affected communities. It also provides a significant change in the 

Endangered Species Act allowing the government to determine the 

most appropriate level of species conservation. We have urged the 

Congress to clearly authorize conservation standards other than 

full recovery and this bill does so. 

We must significantly increase incentives for species conservation. There are several significant increases in incentives for species contained in the bill and which we support. In addition, we 

commend the leaders of this committee for introducing separate 

legislation dealing with the most important issues of tax incentives 

and a greater agricultural habitat conservation reserve program. 

These other bills are significant and necessary if we are to establish a truly incentive-based system for species conservation. 

Probably most important, we must provide compensation for lost 

use of property. We recognize that compensation can be a difficult 

subject for local governments as well as for the Federal Government. As a coalition, we strongly believe that proper endangered 

species management should seldom, if ever, require that an individual landowner lose his or her property in a manner that requires compensation to be paid. 

If land and water are required for species conservation purposes, 

they should only be acquired on a willing seller basis. However, if 

a regulatory approach to ESA management is maintained in the 

upcoming reauthorization, a sense of fundamental fairness requires 

that property owners be compensated for lost use of property which 

has become dedicated to a public good such as conservation of endangered or threatened species. 

We must establish clear standards in several areas for making 

the most difficult ESA decisions. Conservation of population segments of species should require special consideration or separate 

acts of Congress as was done in the acts that Congress passed to 

protect the bald eagle. 

We need to establish clear standards for when habitat modification will be viewed as a violation of the law. That uncertainty must 

be removed for property owners. We need to establish clear requirements for the designation of critical habitat and the bill certainly 

moves toward providing these clear standards. 

We need to significantly increase the involvement of state and 

local government. They have a great deal of expertise in land management and wildlife conservation and we must make use of that. 

We support the delegation of endangered species management to 

the states as is called for in the bill, as well as the significantly 

increased role of state and local governments found throughout the 

bill. 

And, finally, we support the provisions of the bill which provide 

for cooperative management agreements that do provide for regulatory certainty. 

In conclusion, the National Endangered Species Act Reform Coalition has worked on ideas for ESA reform for close to four years. 

We believe that this Congress has an opportunity to reauthorize 

and improve the ESA and bring this law which has direct impacts 

on so many communities much closer to the people. 
51 

If the politics of the past are allowed to continue to stalemate 

progress on this important matter, the law is doomed and with it 

many of our smaller communities as well as the species which 

could be saved if the law received needed improvements. Thank 

you. [Statement of Mr. Stallman may be found at end of hearing.] 

Mr. POMBO. Thank you. Mr. Gordon. 

STATEMENT OF ROBERT GORDON, GRASSROOTS ESA COALITION, WASHINGTON, D.C.; ACCOMPANIED BY KATHLEEN 

BENEDETTO 

Mr. GoRDON. Mr. Chairman, Committee members, I appreciate 

the opportunity to appear before you today on behalf of the Grassroots ESA Coalition, and in the company of my friend, colleague, 

and coalition member, Kathy Benedetto of the Women's Mining Coalition. Our coalition is a grassroots organization comprised of 

nearly 300 groups representing more than 4 million members. 

We commend the Chairman and the task force Chairman for addressing several issues in their bill which we consider critical, including addressing the use of incentives, the definition of harm, 

and measures to protect private property which we anticipate will 

be heatedly opposed by those opposed to changing the way Washington does business. 

There are different views on how to conserve endangered species 

but I think they can be generally divided into three groups. First, 

there are those who wish to retain the current program without 

significant changes. These interests argue that the current law is 

basically sound but that perhaps a few minor modifications are 

needed. This is clearly an attempt to stymie real reform, arguing 

for parestroika in lieu of meaningful change. 

Secondly, there are those who recognize that the Act has been a 

failure for people and wildlife and who wish to alleviate the tremendous and adverse economic and social cost and to lessen a reg- ulatory program's adverse conservation consequences by amending 

the law with such elements as tax incentives and measures to protect property. 

Third, and finally, there is a group which believes in an all together different approach from current law which is where our coalition falls. This group sees the current Act as inherently counterproductive because it is a regulatory scheme rather than an incentive-based one. We recognize that those regulations which cause 

the social and economic conflict also cause the Act to fail for wildlife. 

A regulatory approach makes endangered species or suitable 

habitat a liability, creates an adversarial relationship between 

landowners and conservation officials, and locks out many creative 

and proven management strategies useful for conservation. Today 

we have been invited to specifically address the measure pending 

before the committee so the rest of my remarks will focus on the 

two elements which the coalition members consider the most important. 

First is compensation for regulatory taki~~s. Our members firmly believe that no reform will be of any significant value and in fact 

will be counterproductive unless property rights are protected. This 
52 

step is essential to reduce the extreme adverse conservation consequences of regulatory takings. 

Secondly is the reversal of the counterproductive and expansive 

interpretation of what constitutes harm. While there is increasing 

acknowledgement of the adverse conservation consequences caused 

by this punitive regulation, there is almost general recognition 

about the need to incorporate incentives into conservation. But to 

most effectively use incentives it is essential to reduce and remove 

regulations as landowners will not respond to an incentive put 

forth in one hand if they know that in the hand behind the back 

there is a club. 

Without these two elements private property rights protection 

and responsible clarification of the term harm, the coalition does 

not feel a reform proposal would address any of the program's underlying faults. The coalition unequivocally believes in full com- pensation for losses of private land use from regulatory takings and 

that the greater the protection of property rights, the greater the 

benefit to wildlife and the greater the potential to enlist landowners as allies in endangered species conservation. 

While the status quo environmental establishment opposes prop- erty rights protection and improving the definition of harm, they 

are clearly out of step with the public. A poll by the Tarrance 

Group for Project Common Sense and a poll conducted for the Com- petitive Enterprise Institute both reveal the public is prepared and 

would be overwhelmingly supportive of a program which includes 

these measures and even more that would be adamantly opposed 

by the status quo environmental community. 

The public believes our endangered species program should be 

one in which states are on par with the Federal Government, if not 

vested with primary responsibility, that it should be based on incentives as well as provide for the protection of private property. 

These are all principles of the coalition. 

This type of thinking is not comprehensible to an environmental 

establishment wedded to wage and price control era policies but we 

have learned a lot about big government shortcomings since then. 

The current Act is a prime example of a failed outdated law that 

needs to be replaced with one that works. Not a single endangered 

species has ever recovered from enforcement of the Act's land use 

regulations. 

This punitive regulatory scheme pits people against animals and 

both lose. Its fruits are not wildlife conservation but bureaucracy, 

litigation and strife. We need to replace this outdated policy with 

a more dynamic and creative one. Frankly, what our members 

would prefer is to trade in the old law for a new model rather than 

to attempt to make repairs. 

We do clearly recognize that the two provisions I have addressed 

as well as other specific provisions represent meaningful and sig- nificant reform to existing law. Indeed, without these key provisions, no amendment proposal could be considered a real change or 

garner our members' enthusiasm. 

Our coalition recognizes these provisions' value and will work 

hard to educate the public on the importance of protecting private 

property so that private property may be used to protect nature 
53 

and to tirelessly advocate our principles, ideas we are confident will 

serve as the basis of a new era in conservation. 

We commend you for the many provisions of your bill that correct 

serious flaws in the current law and thank you for the conviction 

to undertake these reforms and the opportunity to represent our 

views to you today. 

[Statement of Mr. Gordon may be found at end of hearing.] 

Mr. POMBO. Thank you. Mr. Cone. 

STATEMENT OF BENJAMIN CONE, JR., GREENSBORO, NORTH 

CAROLINA 

Mr. CoNE. Thank you for having me here. I am Benjamin Cone, 

Jr. I live in Greensboro, North Carolina. I am a private landowner. 

I represent myself and no organization. I have 8,000 acres of 

timberland in eastern North Carolina. It was bought by my father 

in the '30's as a place where he could hunt, fish and get away from 

his busy industrial life. 

He bought it. Consequently, when you look at his objective of 

buying the land, management of this land has primarily been for 

wildlife. Practices include planning for what we plant, chufa for 

turkey, we plant Balwin Island olive for turkey, we plant bicolor 

for quail, we plant com for bear and deer and never harvest it. We 

burn regularly. Over the years we have had very little timber harvesting. What timber harvesting has been done has been mostly 

thinning, and we put a lot of fire in the woods. 

Talk to most environmentalists and the· management of this 

property is ideal in the advice of environmentalists. The thanks I 

got, of course, is management which creates ideal wildlife created 

the habitat for an endangered species as well. The thanks I got 

from the U.S. Government for these very expensive management 

practices for wildlife is 1,121 acres of timber I cannot cut unlessor I can cut it but if there is a threat of a felony arrest with a maximum penalty of one year in jail plus $100,000 per incident, since 

I have 29 birds you could translate that I am liable for 29 years 

in jail, $2,900,000 in fines. I think I could shoot my wife for less. 

The economic loss of the timber I can't cut is $1,425,000. I have 

consequently decided to change the management practices of my 

land on the property other than the 1,125 acres that is impacted. 

I have gone into a massive clear-cutting policy since fmding the 

economic impact of woodpeckers. I have now clear-cut about 700 

acres. I have 300 more acres scheduled for January or February of 

next year. I am going to go to 40-year rotation instead of the 80- to 90-year 

rotation. I am going to eliminate burning. This hurts my soul, it 

hurts 60 years of progressive management, and it is created 

through the financial impacts of the Endangered Species Act. Now 

I want to read some comments. First of all, I understand the 

Young-Pombo bill and I would like to say it is a giant step in the 

right direction but I don't think it is the best solution because in 

my opinion what it does, it puts an-it keeps the regulatory burden 

but then creates an overlay of what I call financial-not financial 

reward but a break-even. 

So you have solved the fmancial problem but haven't stopped the 

serious problem. And I would like to read my suggestions, and it 
54 

is in my written testimony and only this I will read, by the way. My recommendations to Congress. Cut out the negative incentives, 

create some positive incentives if possible. And I am going to expand on that. 

At the minimum the Endangered Species Act should clearly regulate only direct harm to endangered species. Legal activities such 

as development, timber harvesting, and other habitat modifications 

that indirectly affect endangered species should be exempt from 

regulation. Negative financial or regulatory effects on private property owners should be removed from the law. 

All efforts to protect, save and manage endangered species 

should be voluntary. Once these provisions are in effect, the next 

step is further encouragement. Congress could then provide financial incentives that would hasten the recovery and heighten the 

protection of endangered species. Examples of appealing incentives 

would include assistance with burning, government leasing of the 

property, tax relief, assistance in planning species-proper habitat, 

etc., etc., as far as the imagination can go. I appreciate the courtesy 

of being here. Thank you very much. 

[Statement of Mr. Cone may be found at end of hearing.] 

Mr. POMBO. Thank you. We are going to recess. We have a vote 

going on right now. We are going to recess the committee temporarily and we are going to run and vote. We will be back as soon 

as possible, and I apologize for the inconvenience. 

[Recess.] 

Mr. POMBO. We are going to call the hearing back to order and 

the other members will be back as soon as they get done with their 

vote. I appreciate all of your testimonies. Mr. Cone, you are correct 

when you say that we did leave a lot of the regulatory stuff in 

there. And we did attempt to overlay the incentive-based system on 

what remains of the regulatory approach. 

But I hope you understand from listening to the other testimony 

that has been this morning so far and what you will hear later on 

that we have to prove that the incentive-based system will work. 

Even though we agree that that is a much better approach and 

from a fundamental approach, a policy approach, I would much 

rather have an incentive-based system than regulatory system. 

I think that we have to put the pieces in place in order to make 

that work. 

Mr. CONE. But even funnier and sadder to me is there are government policies that have worked directly against endangered species, and I will give you a wonderful example, inheritance tax. And 

I know this is a different subject but I got to get my two cents in 

while I am here. 

I guarantee you when my wife and I die my children will have 

to cut every merchantable tree on the 8,000 acres to help pay the 

inheritance tax. No doubt about it because there is not enough liquid assets elsewhere. Another--

Mr. POMBO. I am on a time limit. I'm sorry, Mr. Cone. I know 

this is your chance but they give me a time limit too and I can only 

ignore it for so long. But the inheritance tax is one of the issues 

that we have discussed in terms of an incentive-based approach 

and using that as one of the incentives on the Endangered Species 

Act and as we begin to work our way through this, that will prob-
55 

ably be one of the approaches that we do take in an incentive-based 

approach is doing something with inheritance tax as a means of 

putting incentives in the right place. 

In the bill that we introduced, the companion bill that we introduced, H.R. 2286, we try to begin to do that so that we can make 

an incentive-based approach work and I think that that is important. 

Mr. Bean, in your testimony I know that you brought up a lot 

of good ideas and I appreciate that, and I appreciate the time that 

we have spoken over the past several months in trying to find common ground and ways that we can work together to make this 

work. 

I know that in order to prove your point you need anecdotal 

statements, you need anecdotal stories, you need to tum up the 

heat on the rhetoric a little bit in order to get your point across 

but a lot of times what comes out of it is not exactly accurate and 

if you talk about what happens with the smugglers and what could 

possibly happen. Now in the way that we crafted the bill, we may need to tighten 

up the provisions that deal with people trying to smuggle endangered species or parts thereof in, and I appreciate that part of it 

and that you brought that out. 

But our bill in no way legalizes people smuggling in parts of endangered species, and that is not an accurate statement. Mr. BEAN. And it is not a statement I made. What I said was 

that the effect of your bill will be to force the Fish and Wildlife 

Service to tum back to smugglers the contraband they bring in. I 

base my statement, sir, on discussions I had with Fish and Wildlife 

Service wildlife law enforcement forensic laboratory personnel who 

described to me the nature of the tests necessary and the duration 

that those tests consume, the time they consume to be carried out, and that was the basis for my statement that the effect of your bill, 

the practical effect, will be to force the Fish and Wildlife Service 

to return to smugglers--

Mr. POMBO. But, you know, and again I am on a time limit, but 

you know very well that that was not the intention of the bill nor 

the reason that those provisions were put in there, and if you have 

other language which would take care of that possible problem that 

may exist, I would be more than happy to continue our discussions 

and work with you. · Mr. Moore, the organization that you represent represents large 

property owners, small property owners, a combination of all of 

those? 

Mr. MOORE. A combination. 

Mr. POMBO. In your experience with the Endangered Species Act, 

have the largerlroperty owners, you heard mentioned here today 

Plum Creek an a few other examples of people that have been 

able to work the current Endangered Species Act and come out of 

it, in your experience have you been familiar with small and medium-sized property owners that have had the ability to come to 

some of those agreements and to work their way out of those problems? 

Mr. MOORE. That is where the rubber really hits. You are quite 

right that a big company, while they don't like the way the law 
56 

works and while they think they ought to be compensated, they 

certainly have more wherewithal to be able to set aside property 

for wildlife habitat and go into a conservation program. 

It is when you get to the smaller landowner where they simply 

don't have that ability. If you own 200 acres of trees and you are 

told that really 100 acres of that is needed to protect a certain endangered species, they don't have the financial ability to be able to 

do that. 

Mr. PoMBO. So in your experience you think that the provisions 

that protect private property rights in this bill would have a larger 

impact on the small and medium-sized property owners who may 

not have the resources to fight the Federal Government that the 

very large property owners do? 

Mr. MooRE. I think the impact is the same on whatever size the 

landowner, namely, they are paid for any land which they lose or 

lose the right of, the use of, to protect endangered species. Where 

the impact you are getting at may come in is you may find more 

landowners willing to work with the government who are now 

scared and don't have the ability to be able to deal with an endangered species. 

Mr. POMBO. Thank you. My time has expired. Mr. Saxton. 

Mr. SAXTON. Thank you, Mr. Chairman. This hearing today that 

has gone on now for quite some time reminds of something that 

happened to me when I went to Israel not long ago. I was with 

some Israeli officials and we were discussing issues that had to do 

with Israeli security and I noticed that around the room there were 

a number of different ideas as to what the situation was and what 

ought to be done. 

And I said to the folks in Israel, how do you all make a decision? 

It seems like you have got as many opinions as there could possibly 

be and they said, well, there is an old Israeli saying, you put 100 

Israelis in a room and you get 200 opinions. And this bill reminds 

me of that occurrence. 

What I think our real task is, Mr. Chairman, and I would like 

to share this with the panel and ask for their input, our real task 

here in my view is to find common ground. Our real task here is 

to find an approach that works. Maybe it is the Chairman's approach, maybe it is not. Maybe it is the Chairman's approach with 

some modifications. I don't know at this point. 

Let me tell you what I did in my search for common ground. I 

tried to find some areas of convergence with regard to a lot of these 

proposals. And I will tell you frankly what I did. I just passed out 

this spreadsheet which has my name and Mr. Pombo's and Mr. 

Gilchrest's across the top along with a column called current law 

which is the current ESA bill. 

And my staff did some research and found out that the Western 

Governor's Association had an approach which appealed to me. It 

appealed to me because it made a lot of common sense. It appealed 

to me because it adopted some things that were in current law and 

it appealed to ~e because there were some new things in it which 

I thought the folks out in hinter lands who had been elected by 

their constituents as governors had come together to say were good, 

new ideas. 
57 

And my bill with two or three very small changes contains many 

of the elements in the Western Governors Association's proposal. 

And in looking at it and comparing it with others, I find that there 

is also a great deal of commonality with Gilchrest and there is 

some with Pombo and there is quite a bit with current law. 

I guess my question is if each of you were to be able to make 

one or two comments relative to the Western Governors Association 

approach which you will have to take my word for it, it is under 

my name, what would you say about it and if you would like to say 

that there is something in one of the other columns that you think 

ought to be slid over there or something in my approach ought to 

be slid over to Pombo's, just give us some ideas about how we can 

begin to come together on some of these ideas to create an approach that we can form a consensus around. Mr. Bean, would you 

like to start? 

Mr. BEAN. Yes, sir, I would be happy to. I think there are many 

good ideas in the Western Governors Association proposed bill. I 

note that that bill does not make the major changes in the responsibilities of Federal agencies and private landowners that the bill 

currently before this committee does and I think that is the preferred approach. 

I would also say that the Western Governors' approach does not 

burden the various processes that must be carried out in implementing this Act with the sorts of requirements that I described for 

the bald eagle, processes and requirements that in my judgment 

will really paralyze this program so I would encourage you in examining these various alternatives to look for those alternatives 

that can accomplish the objectives that you are pursuing efficiently 

and with only those requirements that are really necessary to 

make this program work efficiently and effectively. My concern is that in the enthusiasm for making sure that the 

Fish and Wildlife Service never makes a mistake in anything it 

does, it is being asked to do the impossible too many times by the 

bill that this committee has introduced. 

Mr. SAXTON. Thank you. Mr. Moore. 

Mr. MOORE. I have not had the time to really study your provision. We certainly find some things in the Western Governors legislation we like as well but the thing that stands out right now, and 

we are looking at it trying to figure out where else it interrelates, 

is the lack of compensation. That to us is a major failure in what 

we see that you have shown us. 

Mr. SAXTON. In other words, in the Pombo bill where property is 

diminished by a certain percentage, 20 percent or whatever the 

right number is, you would favor that type of an approach to compensation? 

Mr. MOORE. Yes. Mr. SAXTON. Thank you. 

Mr. IRVIN. Well, Congressman, I think there are a number of 

areas of common ground in these various proposals that you have 

made, that Mr. Gilchrest is working on, the Western Governors Association is working on. The whole notion of preventing 

endangerment is something that we strongly support. The best way 

to head off these endangered species train wrecks is to prevent 

them from happening in the first place and so looking at ways to 
58 

protect species before they get to the point where they have to be 

listed is something that is highly warranted. 

In addition, we support improving the recovery planning process, 

putting some deadlines on the process, putting some objective scientifically-based criteria for recovering a species and for delisting 

a species. In addition, involving all of the stakeholders in the process-the Federal Government, the state and local governments, industries that are affected, the environmental community, private landowners, all of those folks. 

Mr. SAXTON. Thank you. AB a matter of fact, one of the changes that I made to the Western Governors proposal is that we did put deadlines in the recovery plan proposal and you can read those 

there for yourself, but thank you very much. Yes, sir. 

Mr. STALLMAN. Without having had time to review this, it is a 

little difficult, but three things jump out, I think, or at least two, 

and that is the definition of take. The Young-Pombo bill certainly 

is preferable in that respect. Landowner voluntary agreements is 

a component of all three bills and that is something that we have 

absolutely been promoting and that we believe ultimately will provide a lot more species recovery and maintenance than the current 

system. And then compensation as has already been mentioned. We 

absolutely have to have some compensation for property takings. 

Mr. GoRDON. A comment that other folks have already made but 

I would have to say is most important is that there is no-the only 

bill here that has a property rights protection provision is YoungPombo, and, additionally, the definition of take. If those two elements are not addressed, the perverse incentives under the current 

law remain which is why this law has not functioned well. 

Just in the brief time that I have had to review this, I would say there is one other item on delisting, it says you have specific-well, 

I am sorry, that is the Gilchrest proposal. But current law and the 

Gilchrest proposal assumes that all species can be recovered. That 

is probably just not a reality. There are things like the Iowa Pleistocene snail that are, you know, relics of another geological era and 

it just isn't going to happen in their existing natural habitat. 

Mr. SAXTON. Thank you. Mr. Cone, do you care to comment? 

Mr. CoNE. I don't know anything really about the Western Governors bill but I got to reiterate any bill that approaches the private landowner that he is an enemy of the environment is so out 

of whack it is scary. Iflou look at the CET program and the forestry incentive, stewar incentive programs, I can't give you the 

exact number but I bet you nine out of ten either have wildlife 

first, second or third. 

So obviously private landowners love their land, they love to 

hunt, they love to fish, they love to look at it, they love to enjoy 

it. They don't want to harm it. Any approach that starts with they 

are the bad guys won't work. 

Mr. SAXTON. Thank you very much, Mr. Cone. Mr. Chairman, I 

know I am well beyond my time so I will turn back to theMr. POMBO. Well, I appreciate the question, Mr. Saxton. I think 

you can appreciate the difficulty which we went through in drafting 

our bill just from the answers that we got from this panel. You 

have one person on the panel who states that we ought to bring 

everybody in to the process-states, local government, all of the 
59 

stakeholders. And the other person criticizes that provision as having to call in too many people into the system. So it is difficult to try to bring everyone in and not have a crowded room. I mean, that is the facts that we are faced with and that 

was the difficulty, one of the difficulties, in putting this together. 

Mr. Gilchrest, unless you want to pass. Mr. GILCHREST. I will run for a 30-yard dash to the goal line. 

Mr. POMBO. You will be tackled on the five. 

Mr. GILCHREST. No, I won't pass. I am going to go for it. Let's 

see what happens. I do wish we had more-this is an excellent 

panel here. You represent a wide view of interest in the United 

States. That is what we need here to create a bill that is much 

more flexible and aspires to the goal of protecting, I think, what 

all of us have become much more aware of and that is biological 

diversity in the country. 

Since I am limited in my time, what I would like to do is I am 

going to start off with Mr. Stallman. The question I ask Mr. 

Stallman is the premise upon which my next questions will be 

asked and I would like each person on the panel when I ask that 

question after Mr. Stallman just to respond with one sentence. 

And I know it is difficult to respond in the complexity of this particular issue but rather than focus in on one or two items, I would 

like to do it from that perspective. We are talking about biological 

diversity and I think everybody understands the need for biological 

diversity, certainly agriculture as far as genetic diversity in a 

whole range of whether it is com or soybeans or milo or pigs or cattle or whatever it is. There is a certain importance of genetic diversity. 

If we look in the medical field and we see a whole range of recent 

chemical agents as far as discoveries are concerned from certain 

frogs that provide painkiller that is 200 times stronger than morphine and yet it is not addicting. Digitalis, we have heart medicine 

from a full range of species, cancer treatment from the yew tree, 

and the list goes on and on and on. 

So I think everybody recognizes the importance of protecting biological diversity or at least we are getting pretty close to that point. 

And how do we do that in a bill that is trying to fmd the sense 

of cooperation among landowners, among all of Americans to participate in that protection and a variety of people have mentioned 

incentives and the Keystone report. I think it is right on and the 

Chairman has made some bills extracted from the Keystone report 

to provide those incentives. 

And we need to stop the polarizing of we don't want an act, it 

is bad for the west, it is not good for the east or it is good for the 

east. We are one country so we got to stick together and we are 

trying to work this through this bill. 

Mr. Stallman, just a sentence, I apologize. How important is genetic diversity in agriculture? 

Mr. STALLMAN. Genetic diversity is important in agriculture. 

Mr. GILCHREST. Thank you. OK All right. We are on a roll here. 

We are on the one-yard line, Mr. Chairman. Now what I would like 

to do starting over with Mr. Bean, and just a sentence, as far as 

the bill now is, if we change the definition of harm, what will this 

do to habitat protection? 
60 

Mr. BEAN. Can I use a semicolon in this sentence? The definition 

of harm will have a profound effect upon the protection that species 

receive on private lands, an effect that will in my judgment largely 

render irrelevant the compensation provision about which Mr. Tauzin and others here have talked at length because as a result of 

that redefinition, there will not be circumstances in which private 

landowners will be in a position to claim compensation because 

they will never have suffered any sort of regulatory imposition 

upon the use of their land. 

Mr. GILCHREST. Thank you. Mr. Moore. 

Mr. MooRE. The definition in the Chairman's bill will resolve a 

controversy over what that term means and we do not think in the 

beginning it was designed or intended to conserve habitat and 

habitat needs to be provided for in another way other than through 

the current law's definition. 

Mr. GILCHREST. Thank you. Mr. Irvin. 

Mr. IRVIN. The bill's redefinition of harm means that, regardless 

of the ultimate impact on a species's survival and recovery, unless 

you can show a corpse, you will not have a take under the Endangered Species Act. 

Mr. GILCHREST. Mr. Stallman, if you want, you can tell everybody what milo is as opposed-no, I'm just kidding. 

Mr. STALLMAN. Prevent direct harm to a member of the species 

while limiting the formally arbitrary and overly expansive regulatory rulings by the Fish and Wildlife Service and in doing so reduce the perverse incentives to provide habitat on private property. 

Mr. GILCHREST. Thank you. The gentleman from North Carolina, 

and I hope we can pass an estate tax really fast so your kids can 

hold on to those trees. 

Mr. CONE. Well, I hope you got 30 years, sir. I am really not 

smart enough to comment on the value of biodiversity. It is too 

large for a small private landowner that was a math and German 

major and not a biology major. 

Mr. GILCHREST. Well, sir, I think you gave an excellent testimony 

this morning that was very eloquent and I am sincere in working 

here in this Congress, not in the next Congress but in this Congress to create those incentives so that your children do not have 

to sell one square inch of that land. 

Mr. CoNE. Thank you. 

Mr. GILCHREST. Thank you, Mr. Chairman. 

Mr. POMBO. Mrs. Chenoweth. 

Mrs. CHENOWETH. Mr. Chairman. Mr. Cone, I enjoyed reading 

about you today in the Washington Times. I am sorry that you had 

to go through what you have had to go through. And I share the 

sentiments of my colleague in hoping that this is resolved right 

away. It is interesting that we have military people down in Fort 

Benning, Georgia, using military time to lay out the grid for the 

breeding habitat of the red-cockaded woodpecker, and we are 

allMr. PoMBO. Mrs. Chenoweth, I don't want to interrupt you but 

if you will delay your questions until we return from the vote, I 

think that you will be able to ask them all in a row because if you 

start now, we are going to end up having to leave before you finish 
61 

so if you wouldn't mind we could recess and do your vote and then 

you could ask all your questions at once. 

Mrs. CHENOWETH. Certainly, Mr. Chairman. 

Mr. POMBO. Again, we have a vote on the floor. We will recess 

temporarily and return as fast as we can. [Recess.] 

Mr. POMBO. We are going to call the hearing back to order and 

I will warn you ahead of time, we are under a five-minute open 

rule on the floor so we don't know when votes are going to come 

but we will try to move as quickly as we can. When we recessed, 

Mrs. Chenoweth was just beginning her questions and at this time 

I will yield to her. Mrs. Chenoweth. 

Mrs. CHENOWETH. Thank you, Mr. Chairman. Mr. Cone, I was 

just remarking that down there in around Fort Benning, Georgia, 

they are laying out grids for the breeding habitat of the red- cockaded woodpecker and that is what we are having our military 

people do now instead of laying out grids on Saddam Hussein and 

what his activities are. 

So, you know, I was surprised and very sorry about this story 

that I read in your testimony and that I also read about in the 

Washington Times but thank goodness it provoked media attention 

that it aid. Kathleen, I wanted to ask you, have you reviewed the 

Young-Pombo bill? 

Ms. BENEDETTO. Pardon me? 

Mrs. CHENOWETH. Have you reviewed the Young-Pombo bill? 

Ms. BENEDETTO. I haven't reviewed thoroughly the most recent 

version of it but I have read it, yes. 

Mrs. CHENOWETH. OK. As you know, this has very systematically and in an organized manner set out 20 separate sections and in the 

past we have seen the Federal Government agencies take great license in interpreting various provisions of the United States Code 

and the regulatory process. 

Can you tell me if my ranchers in the Runo Valley or the timber 

mills in Orofino will be able to conduct their business and protect their property rights in light of the regulatory atmosphere that has 

prevailed and may continue? 

Ms. BENEDETTO. I think it has been very difficult for the people who operate on Federal lands or have private property adjacent to 

Federal lands in the west to operate in an appropriate manner 

under the current regulatory scheme of the Endangered Species 

Act. 

Personally when I reviewed-looking at the 1973 Act, I don't believe the regulators are really regulating to the full extent that 

they could under that law. I think Chairman Pombo has made an 

effort to try and put some restrictions on how far the regulators 

can go and to try and bring balance into how this law is administered. One of my primary concerns is that the law, the 1973 law, did 

not take into consideration that extinctions are part of the natural 

process, and if you look at the geologic record you can see throughout time that extinctions have occurred. We are all familiar that 

the dinosaurs were here for several millions of years and they are 

not here any longer and they disappeared long before man ever 

emerged as a species. 

20-707 95-3 
62 

I think that Congressman Pombo has put that into the fmdings 

of his bill and I think that will lead us in a direction where we can 

make better choices about how this law is administered and regulated. I am still concerned that regulators will push that envelope 

as far as they can to really put constraints on what people can do 

and I think often it is based on just misinformation and misguided 

objectives. 

We are part of the natural process and I think many people that 

work in the outdoors have a much greater conservation ethic than 

many people who live in urban areas. They live there, they have 

been there all their lives. There are generations of families that 

have established a good stewardship, environmental stewardship. 

And I think that we need to be very careful with the regulations that are promulgated with any new law. 

Mrs. CHENOWETH. Thanks, Kathleen. You know, I would like to 

ask Mr. Moore, Henson Moore, as we have seen with the spotted 

owl and many other instances, and of course the spotted owl decision with regard to Sweet Home was devastating to us all because 

we certainly-some of us thought, I am sure, including you thought 

that private property would be protected based on an assumption 

of a whole body of law before the Sweet Home decision. 

But the Endangered Species Act has created some real undesired 

train wrecks, especially in the forest paper industry. With the multitude of government regulations and their effect on local economies 

many times these problems would not have occurred if there would 

have been a process in place in which a stringent review would 

have been done on the Secretary of Interior's recommendations 

with regards to what effect it would have on the econom}' and that 

has not been done primarily because they bypass the NEPA process in preference for the biological opinion which is distorting the purpose of the law. After reading this new bill, I notice that the Secretary still maintains his position of having the final say or veto power on virtually 

every Federal decision. Unless this is changed, how are we going 

to avoid future train wrecks and do you agree with my conclusion? 

Mr. MooRE. I think I know where you are going, Congresswoman, but I am not sure we can come to the same conclusion you do, that there are parameters on any agency and that ultimately 

that this has to be dealt with in court so I am not sure we can 

agree with your conclusion. Mrs. CHENOWETH. I think ultimately probably some of the biggest train wrecks have occurred in court such as Sweet Home and 

one of our biggest yroblems is that people cannot afford to go to 

court anymore but would like for you to be sure and take a look 

at page 82 beginning at line 16 and get back to me with regards 

to my question. 

Mr. MooRE. We certainly will. 

Mrs. CHENOWETH. Thank you, Mr. Chairman. 

Mr. PoMBo. I just had a couple of follow-up questions for the 

panel before we excuse you, before someone else comes in. Mr. 

Cone, I was told that you recently filed a claim, a takings claim, 

under the Endangered Species Act, is that correct? 

Mr. CONE. That is correct. It was filed the end of-I think it was 

about the end of July. Yeah, at the end of July it was filed for 
63 

$1,425,000 taking under the Endangered Species Act. It is my and 

my lawyer's understanding that this is the first takings case only 

under the Endangered Species Act without 404 permits tied in or 

some other thing. 

It is stalled, delaying for another meeting with Fish and Wildlife 

Service to see if we can compromise or work something out. I am 

not sure what will happen but the next action, I guess, is not in 

the court but a private meeting October 12 between my gang and 

their gang, I guess. 

Mr. POMBO. So it is up to the attorneys? 

Mr. CoNE. Not totally. If I can work something out with the Fish 

and Wildlife Service, I would be glad to but it has got to be reasonable and sensible. But attorneys will be there, biologists will be 

there, foresters will be there. It will be a big group but not the 

legal, it will be a private meeting to see if we can compromise to 

see if we can work this out. 

Mr. POMBO. In your experience as to what you have been 

through and you have testified to what happened in your case, to 

the extent that you have gone in taking this and filing a takings 

claim and where you are right now in the process, is this something that the average property owner could undertake? 

Mr. CoNE. I don't think so. I have got about $70,000 invested so 

far in professional and legal help, in expenses. I am estimating 

legal fees if it continues on will be another $100,000 to $150,000. I don't think the average small landowners will undertake it. Their 

solution is different. All of my neighbors at this point have clearcut all of their timber. They have just solved their problem. 

Mr. POMBO. So their response to the current Endangered Species Act was to destroy the habitat? 

Mr. CoNE. Absolutely. I can't impugn someone's motives that I 

don't-without testimony from them or asking but if you look at 

the ground there is a lot of timber missing that was there four 

years ago. Mr. POMBO. And your response to the implementation of the current Act was not only to destroy the habitat but also to go to court 

over it? 

Mr. CONE. Not exactly because if I destroy the habitat, I go to 

jail. I'm just making sure they don't expand by destroying the habitat they could move into. I mean, birds do it, bees do it. I am just 

saying you got 1,100 acres, you are not going to get any more. I 

am clear-cutting extra habitat outside of the--

Mr. POMBO. The part that is not covered by the--

Mr. CoNE. The 1,100 acres. 

Mr. POMBO. The 1,100 acres. I understand that. 

Mr. CoNE. Please don't say I am cutting in the restricted area. 

Mr. PoMBo. I am not saying you cut any of those 1,100 acres. Mr. 

Shadegg, I will yield to you if you have your questions prepared. Mr. SHADEGG. Thank you, Mr. Chairman, I do. Mr. Saxton kind 

of started where I wanted to start and that was by pointing out 

that one of our goals here ought to be to identify where we have 

common ground. We can find lots of places where we may be miles 

apart and that is probably not a very productive exercise. I think 

it would be more productive to focus on areas where we are in 

agreement. 
64 

I have been of the view and have expressed it in Arizona in my 

district that those most concerned with the protection of species 

ought to, at least in my logic and rerhaps I am mistaken, embrace 

the notion of compensation that i what we do with compensation 

is create habitat or facilitate the creation of habitat or facilitate the 

protection of species that we are advancing a goal that those who 

are concerned about losing species ought to agree with. 

I guess I would like to know how you view the issue of compensation if you see it the way I see it or see it radically differently. Mr. BEAN. In this bill, as I said earlier, I think you were not in 

the room at the time, I view the issue of compensation as a red 

herring because I believe that the changes that this bill makes in 

the requirements applicable to private landowners negate any possibility of a situation arising when compensation would be owing. I do believe, however, that it is extremely important to offer incentives to private landowners to get them to do the sorts of things 

on their land that would be beneficial to endangered species. I commended Mr. Pombo for having introduced a tax bill and another 

bill that both have as their purpose creating those incentives. 

I would echo the sentiments that members of this committee 

have stated today that the Keystone Center recent report on incen- tives contains a great many good ideas along those lines. I think 

that parenthetically I would add that Mr. Pombo's bill on reforming 

estate tax law would, according to my calculations, based on Mr. Cone's filings in the Court of Claims, result in a net estate tax reduction for him of between $4 and $6 million, in other words, two 

or three times the amount that he claims to have lost as a result 

of the restrictions today. So those sorts of incentives seem to me 

to be the best and most appropriate way to deal with the private landowner issue. 

Mr. SHADEGG. My time is limited. You got to my second point before I got there which was to see how you feel about incentives. I 

am glad we are on agreement on the issue of incentive but let's go 

back to compensation. You believe that for reasons dealing with 

other things in this bill that you are not willing to take the compensation portion of the bill as genuine or bona fide but I didn't 

get an answer to my question. My question is as a general concept in legislation designed to 

protect species and to advance the goal we all agree with, would 

you not agree or do you-do you or do you not agree that compensation is an important-should be an important part of the 

process? 

Mr. BEAN. My feelings about compensation are as follows. I believe strongly that landowners should be compensated for any taking of their property in violation of the Fifth Amendment of the 

Constitution. I believe equally strongly, however, that it is a mistake and a slippery slope for Congress to begin going down to com- pensate people when they have not suffered a taking and they are 

not entitled to compensation under the Fifth Amendment. 

I certainly see no basis for extending compensation to people 

when they are not entitled to it under the Constitution when the 

issue is endangered species and not when it is some other issue. I think once you start down that road on this issue, there is no logical place to stop on any number of other issues. 
65 

Mr. SHADEGG. Let's go back. I think we ought to find places 

where we agree. You embrace the concept of compensation in those 

circumstances where you say the Supreme Court has said it should 

occur. I quite frankly believe as a lawyer and as a lawyer who practiced eight years in the Arizona Attorney General's office relying 

upon case law precedent as the only way that we deal with how 

to resolve these issues is a mistaken one. 

We would never have passed any number of laws had we nothad we just said, well, the courts dealt with that, that is good 

enough. Instead, the Congress' job, I think, is to fill in the gaps. 

Judges write a decision for one specific instance. They do not look 

at what we are supposed to look at which is creating a different 

situation. 

My time is really limited. I want to ask Mr. Gordon, somebody 

just handed me the classic note which is the Civil Rights Act. I 

didn't use it because it always gets used. We would not have enacted the Civil Rights Act had we just wanted to rely on the Supreme Court's decisions at those times. 

Mr. Gordon, I want to ask you to talk about the issue of incentives and about the climate that the current law creates and, quite 

frankly, even though this is Mr. Pombo's hearing about the climate 

that a certain other bill introduced yesterday which would create 

a different climate for the protection of endangered species. 

Mr. GoRDON. Clearly, my opinion and I think the majority of the 

members of the coalition believe that the current law causes a climate of conflict between property owners, property managers, and 

land use regulators. The best thing in our opinion you can do to 

alleviate that is to go to an entirely non-regulatory system. There 

is just no better way to go about it. 

There is obviously perverse incentives created under this law as 

you have heard today from the personal experience of Mr. Cone 

and it is not just Mr. Cone. It is people all over the place. If you 

go to Texas, you will find that the cost of cedar post has dropped 

dramatically since the Black Capped Vireo and Golden Cheek Warbler have become-have had a dramatic effect on land values. 

If you have cedar growing on your property, you may get a bird 

letter and you can't build a single family home or something without getting this permit. AB a result, people don't want cedar. People 

that had no reason to be an enemy of a cedar tree on their private 

property have turned against it and the price of cedar posts has 

plummeted. 

The current system basically functions like a Soviet five-year 

plan. We just demand that something is going to happen and totally ignore the reality of human behavior that we could get to 

where we would want to be a lot easier if we worked on an incentive on a cooperative basis rather than this absolute conflict between regulators and regulated folks. Everybody wants to conserve 

endangered species and it is ridiculous to tum stewards of private land against them. 

Mr. SHADEGG. Mr. Chairman, I know my time has expired but 

let me just make a couple of quick comments. One, I want to reiterate again, given the proportion of endangered species which do 

appear on private land, I think it is absolutely essential that we 
66 

figure out a structure which encourages private property owners to 

cooperate. 

And I will tell you the best analogy that I have been able to come 

up with, and I have struggled with it, is I can with my 13-yearold daughter and my nine-year-old son issue them an edict, you 

will go to bed at 9:00 and that works. We are not dealing with children when we are talking about private property owners in America. 

And I just happen to believe that command or this is the rule 

and you must follow it will work in the instance where we see it 

but the implications for all other private property landowners to 

just say, oh, they are going to force my neighbor to do this, well, 

I am going to make sure they can't force me to do that, creates a 

climate in which we are not advancing the goal of the Endangered Species Act but retarding it. 

Mr. POMBO. Thank you. I just have one final question for Michael 

Bean and then we can dismiss this panel. Mr. Bean, in the definition of take a lot of times when we think of endangered species we 

think of the pristine wilderness and cutting down trees and all this 

stuff. And we fail to think about what is really happening with the 

Act and I know you are familiar with the fairy shrimp in California 

and some of the other species and their habitat. 

With your experience and with what you know, do you think that 

there is any room in your mind to redefine the definition of take 

and what it is to harm a species or do we have to have the strict 

interpretation that the Supreme Court recently decided on that one 

case? 

Mr. BEAN. I believe there is plenty of room to redefine it but I 

think it would be a mistake to redefine it in such a way as to violate the fundamental scientific principle that the survival of species 

will depend upon the survival of their habitat. And to somehow 

separate and compartmentalize habitat on the one hand and things that directly affect species on the other is to make a very fundamental mistake. 

That is not to say the existing definition of harm has to be exactly as it is: every word, every punctuation mark. I think there 

is some room to change it in ways that might make it more effective and more acceptable to landowners but if you go so far, as I 

think your bill does, to eliminate any ability to protect habitat 

through that mechanism you will have undercut the protection endangered species receive by a very large amount. 

Mr. POMBO. What kind of changes would you make to it to make 

it so that property owners can live with the definition? 

Mr. BEAN. Well, I think the key need that the definition has is 

clarity as to what landowner obligations are. In my view the problem with the existing definition is that most landowners when 

reading it don't have a clear notion of what they can do and what 

they cannot do, so it seems to me one solution frankly is to try to 

have more species-specific definitions of harm so that individual 

landowners will have a much greater level of certainty about what 

they can and can't do than they currently have with the existing 

definition. 

Mr. POMBO. In the bill, H.R. 2275, the bill that is before us right 

now we attempt to do that by requiring that they define in the con-
67 

servation plan what the definition of take would be with each individual species because there is a difference between aquatic spe- cies, between species in the forest, between species in farmland and 

what the definition of take is and I think it was Mrs. Chenoweth 

that said earlier-no, excuse me, it was you-who said earlier that 

the law is not being taken to its extreme right now in some cases. 

In some isolated cases, yes, it is, but in other cases they could 

go much further. If they took the law to the extreme that they have 

with the spotted owl and did that with the fairy shrimp, we would 

literally shut down the valley in central California, and so there 

are differences. 

Mr. BEAN. Well, with respect to the authorization in your bill in 

a conservation plan to have that plan define in some way what the 

scope of the take prohibition should be, I understand that to mean 

that discretion exists within the limits otherwise set forth in the 

Act as to what take and harm mean. I do not understand that pro- vision to mean that through a conservation plan the Secretary can 

embrace a harm prohibition that encompasses habitat protection. Mr. POMBO. I think we are debating on a different level. I think 

we agree on it but I think for the sake of argument we are debating. Mr. Shadegg, you had an additional question. 

Mr. SHADEGG. If we have time for a second round, I would be 

happy to do it. 

Mr. POMBO. You can do it today. 

Mr. SHADEGG. Great. I will do it. Let me just ask Mr. Bean this 

question and then if others want to comment on it, they can. One 

of the things that I have encountered in learning about ESA and 

its implications in Arizona, and in conversations with people kind 

of on the ground on forest issues and on marine issues is an internal conflict in the current law which is the command that you manage for the endangered species when, in fact, it is only a matter 

of time until in any given arena there are multiple endangered species. 

And so what I have been told is that in the years that we have 

been under the Act the Fish and Wildlife Service started out saying this is the law, you will do this, by gosh, and everybody beneath 

them took that as the edict. It was all driven by a command to protect and identify endangered species. 

Guess what? Time has gone by, they now discover in the same 

habitat there is another endangered species, and now to protect the 

habitat for this species, we do things to damage the habitat necessary to protect the other species. I think that the structural problem which we need to deal with I would be interested in if you 

agree it is a problem and how you think it should be dealt with. Mr. BEAN. Well, that in fact is one of the issues that the National 

Academy of Sciences report on Science and the Endangered Species 

Act explicitly addressed and what they found is that while there 

is the potential for that to occur it has not occurred heretofore, and 

they concluded that it is not likely to be a serious problem in the 

future. 

Let me add my own view that if the strategies we employ to protect the species that are currently listed focus on protecting their 

habitat, then it is not likely that we are going to have many other 

species dependent upon those same habitats being added to the 
68 

list. If, on the other hand, we try to protect species now on the list 

by relying upon captive breeding and other artificial measures 

while doing nothing to maintain the habitat, then we will assuredly 

have more species being added to the list that depend upon that 

habitat that we are not protecting. 

Mr. SHADEGG. Well, I don't know of anybody that is arguing we 

ought to do nothing to protect habitat. To me that is a red herring 

argument. Does anyone else want to comment on that particular 

point? Yes, sir. 

Mr. IRVIN. Well, Congressman, the Endangered Species Act, 

since it was enacted in 1973 has clearly provided that one of its 

purposes is to conserve the ecosystems upon which threatened and 

endangered species depend. And there is much more that can be 

done in that regard to make the Act more effective for conserving 

ecosystems, but the bill that is before this committee will undermine the ability to do that in a number of ways. 

Let me just give you one example. This bill provides for the establishment of cooperative management agreements to take over 

the management of a particular area for endangered species. Once 

one of those agreements is in place, all of the usual provisions of 

the Act are suspended, including the ability to list species in the 

future in that area. So once you make a decision under these cooperative management agreements, you will never be able to do anything to adjust that in the future. 

Mr. SHADEGG. I am not familiar with that particular provision. 

I have some doubts about its characterization butMr. IRVIN. It is Section 102. 

Mr. SHADEGG. Let me ask you a second point. Well, let me tell 

you-you say the Act does that, I will tell you on the ground in Arizona the forest managers that I talk to tell me that Fish and Wildlife was giving them certain edicts to begin with and then now that 

they have recognized that there are competing species that need to 

be dealt with or at least to be concerned about, the Fish and Wildlife Service had had a change of attitude and now rather than issuing edicts across the street Albuquerque is saying you will do X. 

They are actually walking across the street and saying we got a 

problem here, what do you think we should do? And they are actually managing for multiple species. 

Let me ask a second question. One of my concerns is the issue 

of the protection of all habitat everywhere it is found. One of the 

issues that has arisen in the southern part of my state is whether 

or not a particular area is in fact habitat for a particular species 

when we know that there are literally millions of acres of other 

habitat for that same species. . It seems to me there is a danger of overreaching and it seems 

to me that current law creates pure incentives for that overreaching. Indeed, I think the one thing that is wrong with the current 

law is that it drives Fish and Wildlife Service personnel to the 

most extreme position. If the issue is do we list or do we not list, the only way they can be criticized is if they don't list. If the issue is do we create a habitat of 80 acres or 800 acres, the only way that they can avoid being criticized is to create a 

habitat of 800 acres and everything in that dynamic takes them to 

the absolute extreme and, oh, by the way, concerned citizens stand-
69 

ing in the middle, otherwise called environmentalists, drive them 

further and further out at every turn. 

Now what effect does that produce over here on the other side 

where you have private property owners? The effect it produces is 

not, gee, I am a concerned American, I want my children to have 

a biodiverse environment to inherit and my grandchildren and 

their grandchildren, so I want to cooperate; it creates the exact opposite. 

And I guess I would like to hear from anybody who thinks that 

we ought to look at some way to examine whether or not we preserve all habitat for every species and every subspecies wherever 

it is found and if you don't see a problem with that. Mr. Gordon. 

Mr. GoRDON. Clearly, I think you are on to something important. Under the current definition of take, it requires in cases for people 

to manage or not undertake specific activities to affect habitat that 

may not even be occupied by a species. It may just have the type 

of tree they prefer. 

For example, there is a woman in Texas who for years was struggling to get a permit to build her house and it was either one or 

two reasons. One was because she lived near some habitat that had 

cedar in it, and the only other possible reason would have been 

that she had one cedar tree on her property. 

She eventually did get this but only after coming here to testify. 

The protection has been extended in cases to or theoretically you would be guilty of a take for driving through tire ruts where fairy 

shrimp have bred when water is collected from rainfall. There is 

a case in New Mexico, I believe, where the sole existing habitat of 

something called the Socorro isopod is a 20-meter piece of drainpipe and a watering trough that one fellow has on his ranch. It is 

rather extreme in that regard, absolutely. 

Mr. BEAN. Mr. Shadegg, can I offer an observation about your remark to the effect that the Fish and Wildlife Service invariably 

asks for the maximum in protection. There is, in fact, only one peer reviewed study of recovery plans, a study that appeared in Science 

magazine about a year ago, and the J:>Urpose of this study was to 

assess the recovery objectives in the Fish and Wildlife Service recovery plans. 

And the conclusion of this peer reviewed Science magazine article was that the Fish and Wildlife Service systematically sets objec- tives for recovery that are biologically indefensible because they are 

too low. Rather than doing as you suggest, setting objectives too 

high and unattainable and unrealistic, it was the conclusion of this 

peer reviewed article that they in fact were too low and consistently too low. 

Mr. SHADEGG. Well, if that is true, then we better be moving toward compensation. Because they are already effectively taking 

landowners' land and while to some degree this may be dealt with 

by the difference between private and public lands and maybe they 

could get more extreme in their plans for recovery on public lands 

if the~ go much further in their recovery plans on private lands, 

I don t see how we are going to be able to achieve that without 

compensating people. 

I was not going to ask you this quote but the quote from today's 

Washington Times is in fact attributed to you, Mr. Bean, and it 
70 

says despite nearly a quarter century of protection as an endangered species the red-cockaded woodpecker is closer to extinction 

than it was a quarter of a century ago when protection began. 

There may be a technical explanation for that but unfortunately 

I think the truth is for way too many species the current law has 

led us to where we are in the same situation for many species. So 

I am just not convinced and I am pretty well convinced you are not 

convinced that the current law is working. 

Mr. BEAN. Well, let me just say about that statement which is 

an accurate quote and one I would repeat today, however, the context in which that statement was made was in describing a new 

approach to red-cockaded woodpecker conservation in the Sand 

Hills area of North Carolina, an approach with which I was very 

much involved as a result of working with landowners there over 

a period of years. 

It is an approach that- is called now a safe harbor approach. The 

purpose of that approach was to remove the threat of added Endangered Species Act restrictions on private land use as a result of 

landowners undertaking actions that would enhance or create habitat for red-cockaded woodpeckers. And, in fact, since that program 

has been initiated earlier this year, it has been enthusiastically 

embraced by landowners there. 

It is being done under the existing Endangered Species Act. 

There was no need to amend the law to accomplish that. And, in 

fact, I believe that as a result of that program there, if it is replicated elsewhere, the statement that I made more than a year ago 

about the red-cockaded woodpecker continuing to decline will in 

fact no longer be true in the future. 

Mr. SHADEGG. As the result of cooperation of the private landowners. I think that is wonderful. 

Mr. BEAN. Under the existing Endangered Species Act, that is 

correct. 

Mr. SHADEGG. I suppose one last open-ended question. For us 

lawyers open-ended questions are always dangerous. In Arizona we 

have situations where people use certain provisions of the Endangered Species Act openly acknowledging that that is not their goal. 

They really don't care about the species they are using to achieve 

an objective, it is for a different objective. 

I will tell you I think that is occurring in many places across 

America. I think it is undermining the credibility of the legitimate 

environmental movement because to pervert the law to achieve a 

different end is not something I think convinces people that people 

doing that are genuine and as either you or Mr. Irvin as defenders 

of the current law, are you at all concerned about those kinds of 

perverse uses where someone takes the law, uses the identification 

of a species to achieve some totally other-some other end which 

they acknowledge and which the law, quite frankly, doesn't allow 

them to get in some other fashion does damage? 

Mr. IRVIN. I would be concerned if they were using the law to 

achieve a purpose that was not designed to protect the ecosystems 

upon which threatened and endangered species depend. But the 

Act very clearly provides that that is one of its purposes. Just incidentally it is not-
71 

Mr. SHADEGG. So you can get a species listed to achieve something else as long as it helps the ecosystem? 

Mr. IRVIN. If a species warrants listing because of its biological 

status, it should be listed. And if the ecosystem is being destroyed 

on which that species depends, it should be protected. It is not just 

the environmental community that uses these tactics. Let me point 

out that about a year ago there was a proposal to build a mall in 

suburban Maryland. Another mall developer actually raised legal 

issues about that based on environmental laws, not because the developer was concerned about the environment, but they were concerned about competition. 

Mr. SHADEGG. If I were you, I would have been as critical of him 

as I could be because that is not how we ought to be using the 

laws. If we in Congress write a law to achieve a protection of an 

endangered species and it deserves to be listed and there is a proper strategy to protect that species, fine. But to pervert that to 

achieve some other end that the law does not allow or is not intended, I think you open the door for criticism, and I think it is 

a legitimate criticism. Mr. Stallman. 

Mr. STALLMAN. I think the classic case of what you are talking 

about is in Texas with the Edwards aquifer issue. That is an oldfashioned water fight. The Endangered Species Act law was being 

used to promote more downstream water for those users down 

there and take it away from the pumpers on the Edwards aquifer, 

so, yes, I think your concern is very valid. 

Mr. SHADEGG. Thank you. Mr. Chairman, I have finished my questions. 

Mr. POMBO. Thank you. The time has expired. I apologize to the 

panel. I have got a markup going in Ag Committee right now as 

well and that is why I had to run out. Thank you all very much 

for taking the time, considerable amount of time, to be here, and 

this panel is excused. 

I would like to call up panel number three. Mr. Chris Nelson, 

Glen Spain, Keith Romig, Carl Loop, Dr. Stuart Pimm, and the 

Reverend John Paarlberg. Thank you very much for being here and 

thank you very much for your patience with us today with our 

votes that have been going on. 

I know there are a couple of you that are not going to be able 

to stay through the entire questioning period. I would like to call 

on them first. Mr. Nelson, if you are ready, you may begin. 

STATEMENT OF CHRIS NELSON, NATIONAL FISHERIES 

INSTITUTE, ARLINGTON, VIRGINIA 

Mr. NELSON. Thank you, Mr. Chairman. Actually I got my plans changed but I will go ahead. 

Mr. POMBO. OK, go ahead. 

Mr. NELSON. OK, thank you. I am Chris Nelson with Bon Secour 

Fisheries, Inc. in Alabama as well as representing National Fisheries Institute. I am a vice president at Bon Secour Fisheries. It 

is a family business. I am in the business with my two older brothers and my father. I represent the fourth generation in that business. 

We have a shrimp and oyster packing plant. We also unload Gulf 

shrimp trawlers. I am also the regional vice president for the Na-
72 

tiona! Fisheries Institute and in that regard I have been working 

with regional members in the Gulf to discuss the Endangered Spe- cies Act reformation and trying to reach some consensus on recommendations for change. 

I feel privileged to be here. I appreciate the opportunity and I 

would commend the Chairman and the other members of the committee on holding field hearings around the country. I know particularly the shrimp industry in the Gulf appreciated the oppor- tunity to come to those hearings and express some of their concerns. These are some of the real people with the real problems in 

our region. 

Mr. Chairman, our industry, perhaps more than any other, depends on a healthy environment. Commercial fishermen have traditionally been strong supporters of environmentalism and government involvement in resource conservation, especially reasonable 

measure designed to conserve habitat. Mr. Saxton mentioned this 

earlier and I agree with what he said. 

Commercial fisheries in the Gulf of Mexico depend on clean 

water and wetland nurseries. Water pollution and coastal development, general habitat degradation, threaten practically every commercial important species of fish and seafood in the Gulf. The 

shrimp industry supports recovery and conservation of sea turtle 

stocks. We believe that especially from a habitat standpoint what 

is good for the turtle is good for the shrimp is good for the fish is 

good for the oyster. The goals of the Act in this regard are widely supported by fishermen in general. What we in the Gulf cannot support is the misuse of the Act and the precious resources which are being wasted 

as a result of this misuse. The ham-handed regulations and the resultant endless litigation which we were forced into are examples 

of such wasted resources and I think I would find some agreement 

on the environmentalists' side with that. The reforms proposed in H.R. 2275 are long overdue and will 

help thousands of families and small businesses struggling to make 

a living under the increasingly onerous restrictions as a result of 

this Act. One reform of particular importance to us is the obvious 

need for more open and interactive planning and regulatory process. 

I feel that after spending some time talking with people in the 

industry, we want to be in the position of being committed to the 

goals of the Act rather than having to be forced into compliance 

with the Act, and I think that you will find that effective programs 

in general start more with commitment rather than compliance. 

But this is not happening because the industry feels shut out of 

many of the planning and regulatory formation processes. We 

would like to see reform in that area, have it be more open to the 

public and that science be better peer reviewed. This will give the 

affected parties more confidence in the process and reduce the cynicism that is at hand. 

The new regulatory and planning process proposed in H.R. 2275 

is a positive change in this regard. The compensation and incentives part of the bill regarding TEDs. TEDs lose shrimp and some 

of the fishery closures that are proposed by the agency cost us 

money as well. The regulatory measures devalue our property and 
73 

capital investment in the industry and we feel that fishermen 

should be afforded the same compensation and incentives as property owners on land are. 

We support the measures in H.R. 2275 which address this. We 

also have some other recommended changes which could strengthen the bill. We feel that the National Marine Fisheries Service authority which currently exists should not be transferred to the Fish 

and Wildlife Service. We feel that, I am going to have to bite my 

tongue in saying this, because we have had our problems with the 

National Marine Fisheries Service, but we feel that that agency has worked more closely with the fisherman and has the necessary 

expertise. 

We also would encourage the use of incentives such as those currently proposed by the shrimp fishery to reduce fishing intensity in 

areas where turtles concentrate. Currently the bill focuses on landbased incentives and should be broadened to cover fishing. And, finally, more needs to be done to encourage international conservation. Sea turtle species found in U.S. waters migrate and use the 

water and beaches of many nations. 

Multi-lateral standards rather than current unilateral regulations are needed to create a level playing field for all fishermen and 

foster international cooperation in turtle population recovery. Just 

this week several western hemisphere nations including the United 

States are seeking such an agreement and if this effort is successful, we ask that the committee consider including the provisions in 

H.R. 2275 which would facilitate implementation of the agreement 

and foster future negotiations. 

Again, I appreciate this opportunity, Mr. Chairman. I congratulate you on your efforts to date and I look forward to working with 

you and the other members of the committee toward improving a 

law which is of critical importance to my industry. Thank you. 

[Statement of Mr. Nelson may be found at end of hearing.] 

Mr. POMBO. Thank you. Mr. Spain. 

STATEMENT OF GLEN SPAIN, PACIFIC COAST FEDERATION OF 

FISHERMEN'S ASSOCIATIONS, EUGENE, OREGON 

Mr. SPAIN. Thank you, Mr. Chairman, members of the committee. It is a pleasure to be here to testify again before you. I want 

to acknowledge first off the hard work and difficult task the staff 

and you lersonally as Chair have taken on. Perhaps you should 

have rea the fine print before you took the job but clearly I think 

you are equipped to try to resolve what may be one of the most difficult cultural problems we have today. 

I say that before broadsiding the bill. There are some things in 

the bill that I certainly would support, some streamlining procedures, expedited streamlined access to the consultation process by 

nonFederal agencies, non-agencies, certainly time lines on recovery 

programs and so forth. 

As you know, PCFF A is the largest organization of commercial 

fishermen on the west coast. We represent thousands of small family commercial fisherman, many of whom make their living on the 

salmon. We have suffered enormous economic damage because of 

lack of habitat protection, and because of hydro power systems that 

did not take fish passage into account and were designed to extin-
74 

guish whole runs. We have lost afproximately 72,000 family wage jobs over the past 20 years and have cited some of the sources 

of that. These are independent economic studies. 

These were jobs lost not because of the ESA but because of lack 

of protection that the ESA in the final analysis will afford to our 

industry to restore those jobs and restore that base. It has been 

said, well, why do we need salmon in the northwest, why do we 

need them anywhere? Every time you extinguish a salmon run in 

Idaho or Montana or Oregon or Washington, you are extinguishing 

a job and a source of jobs for the future. 

It is vitally important to maintain our job base and I don't think 

we can afford as a nation to export not only our natural resources 

but the 1.5 million family wage jobs that this nation provides 

through the commercial and recreational fishery, which amounts to 

$111 billion in this economy. Those are the voices that need to be 

heard. 

As to the bill itself-1 always use nautical terms hanging around 

fishermen-it is like a boat where the rigging has been replaced, 

it has got a new wheelhouse, pilot house, it's got perhaps even a 

new rudder but there are holes kicked in the bottom of the boat, 

and you are sinking fast. The holes I would like to outline briefly. 

Number one, the definition of species must include the protection 

of distinct population segments. Without that it is like a medic. (I 

am a medic, by the way, myself and I am a small timberland owner 

and a farmer. I come from cattle ranch country in Arizona.) It is 

like a medic who is told to go rescue a crowd and he is told also 

he cannot rescue any individual, single population segment of that 

crowd, i.e., an individual person. You look around and you cannot 

find anything in that crowd but people. Species through their range are composed of distinct population 

segments. You forbid the protection of distinct population segments. Particularly in aquatic species you will lose the species as 

a whole, stream by stream, watershed by watershed, county and 

state by state, until you are down to the last few specimens at 

which point the ESA as it is written in this bill would kick in when 

it is far too late to do anything but the most expensive, most difficult measures of triage. The other problem is the overturning of the Sweet Home decision. I frankly think we ought to be blunt about the ESA and say 

that it does protect habitat, it should protect habitat, and deal with 

the consequences to minimize the economic impacts on private 

landowners. A species cannot exist without habitat any more than 

you, Mr. Chairman, can exist for very long without food and water 

and shelter. That is what we are talking about. 

You remove the food and water and shelter from any member of 

Congress and they will be dead in a short period of time. Removing 

and destroying the habitat of a species is just as effective a death 

sentence as taking it out and shooting it in the back 40. 

The central goal of the ESA has been abandoned in the bill, that 

is, recovery in the wild. For aquatic species they have been replaced with essentially zoo fish, hatchery fish of inferior genetic 

quality, at the expense of wild stocks. 

Hatchery fish are counted as equivalent to wild for population 

counts. Water allocations are specifically exempted from the ESA 
75 

so you can't provide water for the fish and you will have primary 

reliance on captive breeding and brood stock programs as the conservation measure of choice. This is a death sentence for this nation's fishing industry. We have problems with TEDs, we have problems with restrictions on all the coastlines, but we are learning to live within the 

limits of biological sustainability as an ind1,1stry. We are, I might 

add, the only industry that is required by law to live within the 

limits of biological sustainability. Far more of a difficulty for our 

industry and far more pervasive of job loss, already losing perhaps 

a million jobs, is habitat degradation over the last 50 to 60 years 

nationwide. 

And in terms of some of the other impacts here, I hear a lot of 

talking about takings, private property rights. I am a private property right owner. My people own private property. They own boats 

that have nowhere to fish. They own gear, tens of thousands of dollars of gear that has nothing to catch. They are trying to pay their 

mortgages and their families on the basis of public property rights. 

Where do fishermen go to sue for compensation for the loss of 

their watershed, their ecosystems, their rivers, their streams? I ask 

you, if there are private property rights, then there are also public 

property rights and there are private rights to the use of public 

property that have to be balanced. Takings has to be balanced in 

that respect. 

I will provide more extensive comments line by line. I didn't have 

sufficient time to do that, and I am happy to work with staff. You 

have very good, hard working staff and you have taken on a very 

difficult task. I would certainly be happy to provide some more 

comments and work with you on a one to one basis at any time. 

[Statement of Mr. Spain may be found at end of hearing.] 

Mr. POMBO. I look forward to that. Thank you for your testimony. 

Dr. Pimm, we are going to have to break in a few minutes but I 

want to give you the opportunity to give your testimony before we 

have to take our break. 

STATEMENT OF DR. STUART PIMM, DEPARTMENT OF ECOL· 

OGY AND EVOLUTIONARY BIOLOGY, UNIVERSITY OF TEN· 

NESSEE,KNOXVILLE,TENNESSEE 

Dr. PIMM. Thank you very much. Mr. Chairman, thank you for 

giving me the opportunity to come here this afternoon and talk to 

you. I speak as a scientist who studies global patterns of biological diversity and extinction. My remarks today are not the official position of any scientific body. Nonetheless, I am confident that the 

majority of my colleagues will conclude that H.R. 2275 is not scientifically sound, nor I am afraid can we consider it a credible attempt to address the scientific problems in managing biological diversity and preventing extinction. 

I think it is unfortunate that none of the current scientific consensus on endangered species management has found its way into 

this bill. In May this year, the National Research Council of the 

National Academy of Sciences issued a report on the Endangered 

Species Act. The Ecological Society of America published its deliberations about the same time. And more recently a distinguished 

team of scientists including Tom Eisner of Cornell and Professor 
76 

Ed Wilson of Harvard and Jane Lubchenco, who is president-elect 

of the American Association for the Advancement of Science, pub- lished their thoughtful reviews on the matter in the prestigious 

journal Science. Not one of their recommendations seems to have been included 

in this bill and perhaps under those circumstances I can't present 

a complete list of the bill's scientific problems within five minutes. 

Among my major concerns are these. First, the bill's reliance on 

captive propagation is misplaced. I serve on an international commission that deals with captive propagation and their reintroduc- tion of species into the wild. 

Indeed, I believe I am the person who released a bird, the Guam 

rail, back into the wild following its extinction in the wild. That 

was the first time that a bird species has been reintroduced into 

the United States and its territories following its complete extinction. Captive propagation is no substitute for restoring a species to 

the wild. It is the medical equivalent of relying on heart bypass 

surgery to address our nation's high incidence of heart disease. I know from my considerable practical experience that restoration is an extremely expensive last-ditch effort. It fails roughly 90 

percent of the time, and it rarely addresses the underlying problems. Our zoos and botanic gardens have the capacity to propagate 

only a tiny fraction of the endangered plants and animals. Even 

Noah could protect only the plants and animals of the planet for 

a few weeks, and he had divine help. 

The bill's denigration of computer modeling is quite extraordinary. Computer models provide insights regarding the fate of 

populations that would take decades to obtain empirically. Such 

models of the future are an integral part of our society. It is hard 

to imagine how we could manage without models of the nation's 

economy, the spread of HIV, and, of course, weather forecasts. The bill's system of biological diversity reserves does not target 

areas of maximum diversity, nor does it provide for new reserves. 

Indeed, only a small portion of existing Federal lands appear to be 

eligible. Many wilderness areas that are eligible were established 

for reasons having nothing to do with biological diversity. One example I know well is Hawaii Volcanoes National Park. Its boundaries were drawn to exclude almost completely those areas in Hawaii where most of the rare species are concentrated. Moreover, Federal lands are disproportionately located in western states. We 

in the east would be disenfranchised. 

On the subject of peer review, I have a minor editorial role for 

the journal Science of which you have heard so much. I can assure 

you that that journal would not be prestigious if we had to name 

the reviewers of our articles. On the subject of peer review, we are 

told that only peer review data are admissible. Scientists by our 

very training are capable of sorting the wheat from chaff. And, indeed, without credible, long-term, but not peer reviewed data, the 

National Research Council could not have made its recommendations about the management of the critically endangered bird, the 

Hawaiian alala. Implementing those recommendations has led to 

one of the most dramatic stories of how the 1973 Act has saved 

species from the brink of extinction. 
77 

Finally, and most importantly, the major cause of extinction is, 

and will remain, the destruction of habitat. The 1973 Act affirms 

this. So did the Supreme Court in its decision on the case of Babbitt versus Sweet Home, a decision obviously applauded by those 

of us who wrote the Brief of Amici Curiae Scientists. The bill's redefinition of harm thus removes the single most significant cause 

of extinction from the scope of the Act's prohibitions. Thank you 

very much. 

[Statement of Dr. Pimm may be found at end of hearing.] 

Mr. POMBO. Thank you. I know that you-am I correct that you 

are going to have to leave? 

Dr. PIMM. I think it is going to be touch and go. 

Mr. POMBO. Because we have a vote going on the floor and I did 

want to make a statement or to point out something that is in the 

bill and get your response before you did have to leave. 

Dr. PIMM. I will try, sir, to reschedule my flight. 

Mr. POMBO. Because we are going to have to run. I just want to 

point out that there are four places in the bill where we talk about 

propagation of species and in every instance it talks about for release into the habitat to be used as a tool at the option of the Secretary, the biologists, potential captive breeding programs, a description in the recovery area, a description of any captive breeding 

program recommended for the alternative. In general, in carrying out this Act the Secretary shall recognize 

to the maximum extent practical and may utilize captive propagation as a means of protecting or conserving an endangered species 

or threatened species. In every instance where it is mentioned in 

the bill, it is talked about as a tool or a possible tool that can be 

used in a conservation program or a recovery program. 

In no place in the bill does it say that that is what we are depending upon to recover endangered species. And I know that a lot 

of the propaganda sheets that have been passed out have said that 

that is what the bill does but that is not what it does. 

Dr. PIMM. Do you want me to respond to that? 

Mr. POMBO. Please do. 

Dr. PIMM. I am a scientist. I am not a lawyer and not a drafter 

of legislation. 

Mr. POMBO. Have you read the bill? 

Dr. PIMM. I read the bill! 

Mr. POMBO. OK. 

Dr. PIMM. And perhaps it is my inexperience but I got this sense 

that captive propagation received rather greater billing than I 

would feel comfortable with. 

Mr. POMBO. One other point on peer review before we have to go. 

On peer review you say that you would not release the names of 

the people who peer review your work. Do those people who are 

doing the peer review in your magazine, in the Science magazine, 

do they know who has presented the work? 

Dr. PIMM. Oh, yes indeed, although that is not--

Mr. POMBO. In the last 20 years esteemed scientists that you listed off, have you ever known the peer reviewers to say that their 

work was wrong? 

Dr. PIMM. Could you run that by me again? 

Mr. POMBO. You listed a list of esteemed scientists. 
78 

Dr. PIMM. That is right. 

Mr. POMBO. In the past 20 years, in the past 10 years, in the 

past five years, you pick your time period, have the people who 

peer reviewed their work ever said they were wrong? 

Dr. PIMM. You are asking me to disclose confidential information 

so let me address that. Can I say something very general? 

Mr. POMBO. Yes. 

Dr. PIMM. Frequently very distinguished scientists, very eminent 

scientists, receive very harsh and very critical reviews of their 

work. 

Mr. POMBO. Contrary to what you are telling me over the past 

several months I have met with a lot of scientists and a lot of people in the scientific community and they tell me that one of the 

problems is that when you have someone who has a reputation, the 

chances of other scientists saying they are wrong are slim and a 

lot of times that is the problem. 

Now we may have to do something on the language that deals 

with peer review and the names of those people and how we go 

about that and I would be happy to work with you on a better way 

to do that if you think there is a better way to do it but there are 

problems with the way it is currently being done. And we have to 

take a break and run a vote. If you can stay, please do, we have 

more questions but if you can't, I understand that this hearing has 

gone on a long time so thank you very much, and the committee 

will temporarily recess. 

[Recess.] 

Mr. POMBO. We are going to call the hearing back to order. 

Again, I apologize to all the witnesses for the crazy schedule we 

have had here today. Keith Romig, if you are ready which I am 

sure you were about five hours ago, you can begin. 

STATEMENT OF KEITH ROMIG, UNITED PAPERWORKERS 

INTERNATIONAL UNION, WASHINGTON, D.C. 

Mr. ROMIG. Thank you, Mr. Chairman. I work for the United Paperworkers International Union. I am an information officer and 

among my duties is to respond to environmental issues, statutes, 

regulations, and issues that impact our membership. As you well 

know, the Endangered Species Act does so. In addition to speaking 

on behalf of our 250,000 members, I have been authorized to say 

that the United Brotherhood of Carpenters and the International 

Association of Machinists, even though I am not speaking for them 

today, agree with the gist of what I am about to say. 

Our union strongly supports the goals of the ESA but we are extremely concerned about the job losses and economic impacts resulting from the Act. In our view, the ESA has failed to consider 

these issues adequately and for that reason the law needs to be adjusted. I would like to point out that many of our members have 

spent their lives working in and around America's forests. Their 

livelihoods depend absolutely on a strong strategy for preserving 

the environment. 

We do not believe that economic and environmental goals are in 

conflict, but we do have to resolve conflicts that have developed in 

the implementation of this Act. In all of the current political posturing and media coverage over reauthorization of this law little at-
79 

tention has been paid to the working men and women who will be 

so dramatically affected one way or the other by any reauthorizing 

legislation. Protecting species and protecting jobs should not and must not 

be partisan issues. For that reason, I am very heartened by the 

sense I get from the discussion today that there is some possibility 

we can move toward agreement. I want to emphasize that when we 

talk about environmental train wrecks due to some of these prob- lems that it is not an abstraction to our members. When there are 

environmental train wrecks as in the Pacific Northwest our members are the casualties. 

I am here today because pulp and paperworkers throughout the 

Nation have felt the heavy blow of an unbalanced Endangered Species Act. The problem is most dramatically and obviously illustrated in the ongoing debate in the Pacific Northwest where communities are still reeling from the impact of efforts to protect the 

Northern spotted owl. The ESA restrictions prohibiting timber harvest activities on state and private lands combined with unfavorable judicial decisions have resulted in closed mills and laid off 

workers. 

To be specific, since 1989 some 212 pulp mills, sawmills, plywood 

mills and panel mills have closed in Oregon, Washington and 

northern California. Almost 20,000 men and women who worked in 

these mills lost their jobs. Communities in the region have seen 

their tax bases erode as unemployment rises and social services are 

overburdened. We know, for example, that communities suffering 

from a mill closure experience a loss in normal commercial business activity. If there is no money you can't buy things. This is due to the increased unemployment or the lower income for displaced workers. 

We also know there is a loss in the assessed value of any closed 

mill as a tax base for basic local government services. And in many communities within the Option Nine area, the regions operating under the Administration's Federal Forest Management Plan, loss 

of timber revenue ranges from one-quarter to one-half of timber receipts. 

In some cases this timber revenue has made up from 35 to 40 

percent of the funds required for local government services in an 

individual county. I have heard from our members that cases of alcoholism and depression have increased in communities suffering from mill closures. In one case, in Roseberg, Oregon, the town was 

forced by budget cuts brought on by decreased revenues to lay off 

social service workers even as the need for their services increased. 

This is absurd. In Alaska where the timber and pulp and paper industries are 

operating at the lowest level in years, efforts have been made to 

further reduce the timber base under the Endangered Species Act 

to protect two species which have not yet been listed as threatened 

or endangered, the Alexander Archipelago Wolf and the Queen 

Charlotte Goshawk. Already, more than 220 men and women, the 

overwhelming majority of them members of the UPIU, lost their 

jobs in Wrangell when the sawmill there closed its doors last year. 

Additionally, two sawmills, one in Ketchikan and the other on 

Annette Island, shut down because of a lack of fiber and chip sup-
80 

ply. Unless Congress makes necessary changes to the ESA to 

achieve a balanced approach toward species protection, we will see 

further job loss in the small communities in southeast Alaska as 

well as in other parts of the northwest. 

Indeed, I want to point out that most of the communities hit 

hardest by the effects of this law, the current ESA, are small rural 

towns. A loss of several hundred jobs or even a few dozen in a 

small community can be an absolute disaster. When a mill closes, 

the whole town suffers. Too often and for far too long, we have seen 

the livelihoods of these men and women, our members and others, 

run into inflexible legislation or unbalanced Federal resource pol- icy. 

We need to make changes to the ESA that avoid these mistakes 

and take the human element into consideration. The UPIU supports the principles contained in H.R. 2275 as a reasonable approach or certainly the beginning of a reasonable approach to making the necessary adjustments to the Endangered Species Act. In 

our view, these principles provide sound environmental protection 

while allowing for the consideration of the economic and social effects of species protection early in the listing process. 

We look forward to working with the committee and with other 

interested groups to refine the legislation that finally comes out of 

the Congress so that the President will be able to sign it and so 

that we can have the Endangered Species Act reformed this year. 

Our members cannot afford more train wrecks. 

[Statement of Mr. Romig may be found at end of hearing.] 

Mr. POMBO. Thank you. Mr. Loop. 

STATEMENT OF CARL LOOP, VICE PRESIDENT, AMERICAN 

FARM BUREAU FEDERATION, WASHINGTON, D.C. 

Mr. LooP. Mr. Chairman and members of the committee, my 

name is Carl Loop. I am President of the Florida Farm Bureau 

Federation and Vice President of the American Farm Bureau Federation, the largest organization of agriculture in the nation. I appreciate the opportunity to present the views of the Farm Bureau 

on the reauthorization of the Endangered Species Act. 

And I wish to thank you, Mr. Chairman, and Representative 

Young for your authorization of the legislation that is before us 

today. Reform of the Endangered Species Act has been a priority 

for the Farm Bureau for several years. The current Act is not 

working, not working for species or for farmers nor ranchers. 

That is why several thousand Farm Bureau members from across 

the country attended the hearings held by ESA task force early 

this year. Clearly, the time has come for constructive changes. The 

Farm Bureau supports H.R. 2275, the Endangered Species Conservation and Management Act. It is a positive step in the right direction toward establishing a common sense policy on how we protect species in this country and protect the rights of American citizens. 

Our written statements outlines the reasons for our support 

along with several concerns we have with the legislative proposal. 

But I must emphasize that the primary reason the Farm Bureau 

supports this legislation is that it recognizes the rights of citizens 

to property. It is only fair that the protection of endangered spe-
81 

cies, a program of public interest should be borne by the public as 

a whole, and not those landowners unfortunate enough to find species on their property. This concept will do much to help establish a better relationship between landowners and agencies who are charged with protecting wildlife and plants. We support the approach taken in Section 101 

of the bill. However, we are concerned that landowners must pay 

20 percent tax on the value of that property before compensation is triggered. We realize that this may be a political decision. However, from any environment a 20 percent reduction in equity is difficult to live with. 

Secondly, we are concerned that payment under the bill are limited by annual agency appropriations and may result in landowners who are entitled to compensation under the law unable to 

actually receive their compensation in a timely manner. Mr. Chairman, the Farm Bureau also supports amending the ESA so that a 

landowner may modify his land without becoming subject to the 

harm provisions of the Act. 

Adoption of this concept contained in the original ESA will go a 

long way toward removing most of the problems and concerns that 

private landowners have with the way the Act is implemented. The 

current prohibition against habitat modification narrowly drawn 

but broadly applied represents ultimate control over private land 

use by the Federal Government. . Current applications of the harm definition has created a series 

of disincentives for species protection by landowners. While the creation of a critical habitat reserve program is not contained in H.R. 

2275, I would like to comment on the CHRP program. This concept 

was developed by the Farm Bureau some years ago. We believe it 

is a landowner's incentive that is practical and necessary. We like 

the mechanics of the proposed program in terms of participation incentive and duration. 

However, we ask that Congress establish the program under the 

Department of Interior and not USDA. Interior has jurisdiction 

over endangered species and overlapping jurisdiction only creates 

problems and confusion. Secondly, the program would be limited as 

to who or what type of habitat will qualify. We have suggested that 

the program be limited to critical habitat in order to cover only the 

habitat that is necessary for the species. 

This bill makes no such limitations and would even apply to candidate species habitat. Since the program will not have unlimited 

funding, it is very important that to be effective in protecting the. species, this is the most important part of protecting the habitat. 

Lastly, the program must address the question of what happens at 

the end of a contract period. The bill should specifically allow the 

landowner to terminate a contract at the end of the period and to 

use his property for other purposes without fear of civil or criminal 

penalties. 

In conclusion, Mr. Chairman, H.R. 2275 contains many of the 

principles that the Farm Bureau believes should be a part of ESA 

reauthorization. We ask that you continue to seek additional incentives for property owners under the ESA. Farmers and ranchers 

can and should be part of the effort to protect species. We have 

seen that an Act that wields a regulatory stick will fail but I assure 
82 

you that an Act with positive incentives and good common sense 

will rightly earn the cooperation of farmers and ranchers in protec- tion of endangered species in our nation. Thank you. [Statement of Mr. Loop may be found at end of hearing.] 

Mr. POMBO. Thank you. Reverend Paarlberg. 

STATEMENT OF REV. JOHN D. PAARLBERG, REFORMED 

CHURCH IN AMERICA, NEW YORK, NEW YORK 

Rev. PAARLBERG. Thank you, Mr. Chairman. This has been a 

long day but for me a very worthwhile and educational experience 

and I hope that in the few minutes remaining I can also contribute 

something worthwhile to this process. I am very grateful that the 

committee has seen fit to make room in these hearings for a voice 

from the religious community, an indication, I think, that you recognize that the issue before you is not simply a matter of politics 

or economics but that it touches on the very deepest of human values. 

Indeed, this issue has to do with the very nature of what it 

means to be human. In Biblical terms what it means for us to be 

creatures among other creatures and yet creatures created in the 

very image and likeness of God. I am an ordained minister in the 

Reformed Church in America, one of the oldest Protestant denominations in this country, a denomination that participates in both 

the National Council of Churches of Christ Eco-Justice Working 

Group and also in the Evangelical Environmental Network. 

Each of those groups is also a part of a broad interfaith coalition 

known as the National Religious Partnership for the Environment. 

All of our faith traditions recognize and celebrate creation as the 

gift of a wise and loving creator. "0 Lord, how manifold are your works!"sings the psalmist, "In wisdom you have made them all; the 

earth is full of your creatures." For the psalmist and for every person of faith, I think, the astonishing variety of life on this earth 

is a cause for wonder, praise, thanksgiving and reverence. 

Every creature is in some sense seen as an indication of the 

power, wisdom, love and continuing care of a creator. As one Lutheran theologian put it, "I have never been able to entertain a 

God-idea which was not related to the fact of chipmunks, squirrels, hippopotamuses, galaxies, and light-years." Moreover, the Biblical 

tradition affirms that humankind occupies a very special and 

unique rlace in creation. 

Of al the creatures only humankind is created in the image of 

God, made a little lower than the angels, and given dominion over 

the other creatures. And that concept for our debate, I think, of dominion is very important. Old Testament scholar, Walter 

Brueggemann, has said that the dominion here mandated is with 

reference to the animals. The dominance is that of a shepherd who 

cares for, tends, and feeds the animals. The task of dominion has 

to do with securing the well-being of every other creature and 

bringing the promise of each to full fruition. 

The human person, he says, is ordained over the remainder of 

creation, but for its profit, well-being and enhancement. The role 

of a human person is to see that creation becomes fully the creation 

willed by God. If I could just mention one other Biblical example 

in the second creation account from the Book of Genesis. Man is 
83 

placed in the garden to till it and to keep it. Those words in Hebrew to till and to keep are elsewhere translated in the Old Testament as to serve and to protect. So the human person is charged to keep the garden, to serve and 

protect creation the way the Lord keeps us. The Endangered Species Act of 1973, although far from perfect, has been one important 

way we as a people have sought to exercise our God-given responsibility to serve as the guardians and protectors of God's creation. 

The proposed bill, it seems to me, seems to abdicate that responsibility in some significant ways. 

Briefly, the protection and preservation of species' habitat is seriously jeopardized. We have talked about that already today. That 

seems to make no sense to me either theologically or scientifically. 

The psalmist celebrates God's habitats, the variety of habitats as 

much as he does the variety of creatures that occupy those habitats, and scientists will tell us that the critical need in preserving 

endangered species is to protect their habitats. 

Secondly, the bill appears to abandon the long-standing recovery 

goal for listed species. By choosing a conservation objective for each 

species, the Secretary would no longer be required to attempt to recover those species, and it is inappropriate, I think, unwise to assume that any single individual or agency has the authority to decide whether or not one of God's unique, unrepeatable creations 

will now become extinct. 

And, thirdly, the issue of compensation for private property owners, something that I think needs to be done and is very helpful 

in many cases but I would raise a note of caution. Care for God's 

creation is such a fundamental human responsibility that I don't 

think we want to get in the position of saying that in every case 

a property owner must be compensated for doing what he or she 

should be doing in the first place. 

I support the right to own private property but I also recognize 

that it is always tempered by our responsibility for the common 

good and by our responsibility before God who alone is the absolute 

owner of all things. Creation does not belong to us, it belongs to 

God, and we are not the lords of creation, we are but under-lords. 

Speaking out of my own Christian conviction, there is only one 

Lord of creation and that Lord is Jesus Christ, in whom, through 

whom, and for whom all things in heaven and on earth were created. 

If the Endangered Species Act needs to be riXed, then by all 

means, rlX it, but please don't undo it. The proposed bill, if enacted 

as written, I fear would cause serious and perhaps irreparable 

damage to God's creation. It abdicates our responsibility of careful 

and loving dominion over God's creation and I fear it assumes a 

power and an authority for humanity that rightfully belongs to God 

alone. 

I hope and I pray that as you consider this legislation, you will 

consider ways that it might help us as a nation become not the 

usurpers of God's power, but rather the instruments of God's tender love and care for all that God has made. Thank you, Mr. Chairman. 

[Statement of Rev. Paarlberg may be found at end of hearing.] 
84 

Mr. POMBO. Thank you. I know Mr. Nelson is just about ready 

to run out the door but before you run out the door, we heard testimony earlier today that the shrimpers on the Gulf Coast were having a record year. Could you comment on that? 

Mr. NELSON. Yes. The shrimp catch has been good. It is a cyclical 

harvest and it has been about five years since we had a good harvest above average so it is not unexpected. It is not as good as it 

could be without TEDs though, I will add. 

Mr. POMBO. In reference to the TEDs, have the shrimp industry, 

the shrimpers, made recommendations to National Marine Fisheries on alternatives to the TEDs that would preserve sea turtles 

that would not have the same impact as the TEDs do? 

Mr. NELSON. Yes. There have been a number-from a number of 

different angles you can look at that. There have been a number 

of TED designs that have been proposed that it is arguable exactly 

what the results of the testing were. We would maintain that the 

testing of these designs showed that they were effective and the 

agency has disagreed with us. One of the more recent offerings 

from the industry, however, has been an alternative management 

program that would give the fishermen incentives to not fish so intensively in areas where the turtles are more highly congregated 

and this is areas primarily west of the Mississippi River, off Grand 

Isle, Louisiana, for instance, and in areas of Texas. 

And it is now out for public comment, I believe, but it was a long 

bumpy road to get it recognized by the agency and out for comment 

and given due consideration but I think it certainly is a good proposal and in principle it is supported by the Gulf industry. 

Mr. POMBO. You heard testimony as well that stated that the 

TEDs worked just fine. Would you agree with that statement? 

Mr. NELSON. No. 

Mr. POMBO. Do they work to save the turtles? 

Mr. NELSON. The TEDs work just fine if you use them in areas 

where the bottom is hard and there is very little debris. There are 

areas of Florida, for _instance, and on the east coast of the United 

States where they work pretty doggone well, and I think that the 

willingness of the fishermen in, let's say, Georgia and South Carolina, they have been more willing to implement these devices because they work better in those areas. 

In the Gulf we feel that we lose between 10 and 25 percent of 

the catch depending on what your conditions are, time of year, 

weather conditions, and the debris that you would encounter. 

Mr. POMBO. Mrs. Chenoweth, did you have any questions of Mr. 

Nelson before he had to go and before we took a break? Go ahead 

because he is going to have to go. 

Mrs. CHENOWETH. I just had one comment for Mr. Nelson and I 

think that he mentioned opening the process up for public comment 

and I think that is extremely important. I was so glad that you 

mentioned that because the only way we can do that is through the 

NEPA process and to keep the NEPA process alive. And I think it 

is so important that the public who will be impacted by a decision 

have input into that decisionmaking process as NEPA was 

purposed to do. 
85 

And that may sound strange coming from a Republican but I 

want to see the NEPA process open up and I appreciate your catching that point. Thank you. 

Mr. NELSON. Thank you. Mr. PoMBO. Mr. Gilchrest. Did you have a question? 

Mr. GILCHREST. Just a quick comment. Your testimony seemed 

to lead to the fact that turtles and other species are important to 

preserve by catch. All these technical advances that we can create 

in a cooperative manner to preserve the turtles, to limit the 

bycatch I think is something that we are all working for. 

Mr. NELSON. Thank you, Mr. Chairman. I would agree to answer 

any questions that could be submitted in writing. 

Mr. PoMBO. Thank you, and I am sure there will be further questions. The committee will again temporarily adjourn. 

[Recess.] 

Mr. POMBO. I call the hearing back to order. And Mr. Nelson left. 

Mr. Spain, in your experience in the fishing industry in the Pacific 

coast, do you believe that we can develop a bill which handles the 

problems that are associated with land-based species and aquatic 

species so that it is not an either/or proposition? 

Mr. SPAIN. In a nutshell, yes, and I would like to explain why, 

if I might have about 30 seconds, and also some of the problems 

that clearly you are going to have in drafting. Every species is different. They have different habitat needs, they have different behavioral patterns. Aquatic species even among themselves are different so you have some basic problems. I think the best approach 

is looking at habitat and trying to protect habitat and creating 

some agency flexibility in recovery planning so that they are not 

locked into something that is inapplicable. 

Much of the language here, much of the smoke and hysteria 

frankly has been around spotted owl issues. They are vastly different in their behavior and vastly different in their needs from 

aquatic species. Fish can't jump over ridge tops. They are not widely migratory. They are tied to the streams that they live in so you have to protect those streams. You can't have protection in this 

stream that really is protection for another stream and expect the 

fish in the first stream to exist. That is one of the problems. But I think, yes, we can draft a bill that takes into account the 

variability of species, the variability of their needs, but we have got 

to do it in a way that does three things. Number one, create some 

flexibility for the agencies to manage this problem; number two, 

create a much greater public input from the bottom up so that people in the local community, number one, come up with solutions, 

and, number two, buy into the solution; and, number three, we've 

got to have much better research so that we have got the best 

available science. 

One of the problems that I see is that we don't have enough 

funding by far to do the job that we need to do without creating 

dislocation, and that is part of what we got here. 

Mr. POMBO. We attempted to address exactly what you brought 

up and I know that in previous testimony and in discussions that 

we have had on this issue those are the issues that we tried to address. And we may not agree on exactly how you get there but I 

think we can agree on what the issues are. But you have also 
86 

heard testimony earlier today criticizing our process for bringing 

more people in as being cumbersome, as delaying the inevitable, 

and that we shouldn't bring people in to the system. 

You have heard testimony here today that by making the 

changes that we make to try to bring in better science that we 

somehow jeopardize the peer review process and the peer review 

process that is going on now is virtually non-existent and what you 

are well aware of and the problems that we have had in the Pacific 

Northwest. 

But the difficulty that we have in trying to put those together 

is that we may agree that those are important issues but we will 

be criticized for putting those issues in and for trying to address 

those. 

Mr. SPAIN. That is correct. That is also the fine print in the contract that you signed when you raised your hand and were sworn 

in. That is one of the problems, you ought to be more specific in 

the future. 

Mr. POMBO. Well, and I don't mind that but this is a very important issue and I think that we do have to come to a solution. I don't 

think we have time to wait. Mr. Romig stated that his people can't 

go another year like this and he is absolutely right. I mean, my 

farmers at home, you know, the timber guys, the people that work 

in the mills, they can't go another year. This is something we have 

to do and there are tough decisions that have to be made. 

I appreciate the effort that you have put in to this process realizing that we are not going to agree on everything but I do appreciate greatly the effort you have put in. Reverend, another part of 

your job, I would assume, is to counsel and console your parishioners as well. And I think that if the people that belong to your church that you saw every day were the union members from Mr. 

Romig's organization who had lost their jobs and all the problems 

that the Pacific Northwest faces today, that the Southeast faces 

today, that the Central Valley in California faces today, and had 

heard the stories that I have heard and the problems that are 

going on there, you may still feel exactly the way you do about 

God's creation and God's earth but I think you would look at it and 

say we have to do something here because this is just not working for another of God's creation and that being the human being. 

And we have to be able to put a balance so that we do recognize 

that humans are part of God's creation and that humans are part 

of the environment. And so often we try to pretend that human 

beings don't exist and that if we shut down our forests or shut 

down our farmlands or tell our shrimpers or our fishermen that 

they can't fish anymore, that that's going to be great for species, 

that is going to be great for wildlife but we are ignoring the fact 

that they suffer real problems. 

And I am sure that the other gentlemen that are sitting at this 

table, whether they agree or disagree with my bill and our attempt 

to solve the Endangered Species Act, will tell you that the stories 

of pain that the people in their industries are suffering are very 

real and are not anecdotal stories that were made up to prove a 

point. 

And Mr. Spain has spent a great deal of time explaining the difficulties that the fishermen in the Pacific Northwest have gone 
87 

through in the past year. That is very real pain. That is very real 

to each and every one of those people. It may not matter in New 

York, it may not matter in the east coast where they don't have 

that problem but to his people it matters a great deal. 

Rev. PAARLBERG. I am not denying that it matters and I am not 

denying that there are difficult choices that need to be made on occasion. I think what is not said often enough and fortunately we 

have heard some of it today is that there are times when the Endangered Species Act has helped to protect jobs and I think that 

also needs to be said. I know that there are times when it also has worked to the detriment of workers and I am not saying that the Act as it is written 

is perfect by no means. It does need to be changed. I am just raising a word of caution that economic value is not the only value and 

we need to do the hard work of working out those balances. 

Mr. POMBO. Well, I have spent the past ten months doing a lot 

of hard work in drafting this proposal and in no means has anyone shirked their duty in doing the hard work that is necessary. 

Rev. PAARLBERG. As someone once said, as a preacher my job is 

to proclaim "Let justice roll down like waters" and you work out 

the details of the irrigation. You have the more difficult task. 

Mr. POMBO. That is fine and I understand from where you come 

on this issue and it is really hard to disagree with what you are 

saying but I just want you to understand that a lot of the parish 

priests and ministers and reverends from my district have talked 

to me about the need of doing something about the Endangered 

Species Act because what they see every day in carrying out their 

duties as ministers in their area and they see very, very real pain 

and suffering that is happening, and they want us to do something. 

They really want something to happen and from that perspective, 

I just would like to bring that to your attention. 

Mr. Loop, you have told us that the Endangered Species Act is 

a very important issue in the state that you come from and the 

conflicts that you have seen arisen. Can you tell me whether the 

cooperative agreements that we have outlined in the bill, in the series of bills that we have introduced, what effect those would have 

on the ability of the farmers and ranchers from your state to cooperate in a better way with the Endangered Species Act? 

Mr. LooP. Mr. Chairman, I think it would have a great impact and let me give you an example of the Florida panther, our state 

animal. About two years ago, Fish and Wildlife got together with 

the other agencies and drafted a plan to save the Florida panther 

without any public input, without any outside, and when we first 

heard about it we thought we had a responsibility to involve the 

private landowners, so we set up a town meeting. This was one of those town meetings after;ou did it, you prob- ably wished you hadn't because we almost ha a row because what 

they were trying to do or what they wanted to do was to make this 

plan that they had drafted work to put another 1.2 million acres 

of private land into this plan along with 3 million acres that the 

government owned. 

And this didn't work and as a result of that, the Florida Farm 

Bureau put together a program, we called it the Perfect Partnership. The purpose of this was twofold. First of all, to educate the 
88 

public of the value of rural lands to wildlife habitat, also to get farmers to look at what they might do on their property to provide 

wildlife habitat and what kind of incentives that would take to do 

that. 

Since that time, we have done a lot as far as public service announcement and publicize this, had workshops, town meetings and 

everything. And we have seen the private landowners, the agencies, the ~ublic and the environmental groups come together. And 

we haven t finished this yet but we feel like this is going to have 

a big impact and as people work these problems out, we find there 

is a lot more in common than they are apart. 

So I think the cooperative management agreements in your bill 

would be right along what we are doing and I think it would offer 

a lot to bring this old issue together. 

Mr. POMBO. At a previous hearing we had a Dr. Simberlock from 

Florida. I believe it is Florida State. Yeah, Florida State University, who testified, and one of the issues he covered was the 

biodiversity in Florida, and Florida is rather unique in its 

biodiversity because of its makeup. But he testified that he could 

protect-he felt you could protect about 98 percent of the species 

on the endangered species list in Florida with less than 100,000 

acres, that the biological area in Florida. 

And he said that there were a few that he couldn't do because 

of their range, one of those being the Florida panther. Something 

I wanted to show you. I will pass this down to you. But this, if you 

set up these biodiversity reserves that would include the state and 

the Federal lands that currently have conservation easements on 

them, this is what the map would look like. 

And obviously because there is more land in the west that is federally owned, it would be heavily weighted toward the west, but 

you can also see throughout the country there would be areas that 

would be protected. And in your state of Florida there are several 

areas that are either federally or state-owned. They are protected. 

And this does not include privately-owned lands that are held in 

a conservation easement or a conservation status. 

And I believe that if you had the cooperative management agreements on private property the state and federally-owned lands as 

held in a conservation status that you would do a much better job 

in protecting wildlife than what we are currently doing. How would 

you respond to that? 

Mr. LOOP. I certainly agree with that and I think not only on the 

Federal lands or government lands but we have got a lot of people 

that would like to cooperate but, you know, regulatory agencies 

coming out with an arrogant dictatorial attitude has turned a lot 

of people off. 

We did a survey and I asked landowners what would be the incentives that they would like to see that would make them, entice 

them, to put land into wildlife habitat. Much to our surprise it 

wasn't the financial part. The number one thing they wanted was 

relief from regulatory agency and be able to have some certainty 

that they could continue to operate that farm that they could afford 

to make the investments and do the things that they need do in 

a daily operation of their business and that seemed to be-and this 

cloud that is over them, it affects their ability to borrow, it affects 
89 

their ability to expand their operations and the uncertainty is just 

difficult to live with. 

Mr. PoMBO. Thank you. Thank you very much. Final question, 

Mr. Romig. A lot of the testimony that we have heard today, a lot 

of the debate has centered around private property and habitat and 

yet you represent, I guess, a different point of view in terms of the 

people that are affected by the Act. You stated, I believe, in your 

testimony that there were 212 mills that closed? 

Mr. ROMIG. That is correct. 

Mr. POMBO. And over 20,000 jobs? 

Mr. RoMIG. Approximately, yes. 

Mr. POMBO. And is that just in the Pacific Northwest? 

Mr. RoMIG. That to the best of my knowledge is specifically in 

the Pacific Northwest. 

Mr. POMBO. Do you have figures on the rest of your industry for 

the rest of the country as well or did you just concentrate on that 

particular problem out there? 

Mr. RoMIG. I don't believe the number has been researched in 

the same way in the rest of the country as it has been in the Pacific Northwest because of the intensity and longstanding nature of 

the problems up there. 

Mr. POMBO. I know because of other testimony that we have received at this hearing as well as previous hearings with the redcockaded woodpecker and other endangered species throughout the 

northeast and the south that they have had similar problems. 

Mr. ROMIG. Based on what I do know, there have not been any 

pulp and paper mill closures in the southeast related to this. I am 

not up enough on sawmills in that region. 

Mr. POMBO. What about Arizona and New Mexico? 

Mr. RoMIG. We represent very few people there and the mills we 

do represent are still or.erating. Mr. POMBO. OK, wel , thank you very much. Mrs. Chenoweth. 

Mrs. CHENOWETH. Thank you, Mr. Chairman. Reverend 

Paarlberg, I was very interested in your comments. You opened 

your comments with a very interesting scriptural quote which I 

think was from Psalms 8. 

Rev. PAARLBERG. Psalm 104. 

Mrs. CHENOWETH. It was very similar to the one in Psalms 8 

which says, "Oh, Lord, how excellent is thy name in all the earth." 

And I think I share with you the sense of humility that that same 

psalmist who wrote up above and "when I consider the heavens 

and everything that he has created, the stars and the moon" and 

man, you know, there is such a great sense of humility. 

But then it goes on to say that he made man to have dominion 

and to care for all the works of the earth, including all the sheep 

and the ox and the beasts and the fowl and the fish and everything. And I take that as a very direct command to be very, very 

good stewards that we were given to steward, much like what you 

said about the shepherd. 

But I think Psalms 8 and Psalms 104 are very close there but 

I think that we are supposed to be the stewards and I found it very 

interesting that in the Sweet Home decision that Supreme Court 

decision actually took that command away after years and years of 

functioning in a balance of understanding. 
90 

Rev. PAARLBERG. I am not sure. I don't know the details of that 

decision but as I understand it that was a decision that served to 

protect habitat for the very creatures that God has asked us to care 

for. I would see that as a means of exercising careful dominion and 

stewardship. We can't care for God's creatures unless we also pro- vide habitat for them. 

Mrs. CHENOWETH. I think it involved a plaintiff who was an SOyear-old lady who wanted to be able to harvest some trees so she 

could acquire money to be able to live reasonably comfortably and 

they found a pair of spotted owls within that 4,000 acre grid and 

so she was not able to utilize her property. 

But I did want to ask Mr. Spain, you spoke about hatchery species not having the same gene pool as natural fish species or having an inferior gene pool. 

Mr. SPAIN. If I can answer that question. Hatchery fish are no 

more like wild fish than a tame turkey is like a wild turkey. They have over the years made serious mistakes in genetic intermingling 

and to some degree the hatchery programs that we have now in the 

northwest have contributed to the loss of wild runs. 

That is being reformed now. We know a lot more about genetics 

than we ever did before. Our organization has worked with hatchery programs. We have managed and funded hatcheries. We have 

also criticized some hatchery programs so we are neither pro nor 

con hatchery but it is a tool. It is well known though that hatchery 

fish have nowhere near the survival rate of wild fish and you simply cannot, simply cannot, replace the wild stocks with hatchery fish. 

For one thing, the genes that support those hatcheries have to 

be continually replenished. Those can only come from wild stock. 

Mrs. CHENOWETH. The genes have to be continually replenished? 

Mr. SPAIN. Yes, they do. And that is because there is genetic drift 

in the hatchery stock. They become much more dependent on 

hatcheries than on wild environmental factors and they become basically less and less able to adapt to life in the wild unless their 

gene pool is continually replenished. That is true of almost every 

agricultural crop, by the way. And the source of those genes must 

be wild stocks that have adapted through millions of years to survive. 

Mrs. CHENOWETH. Well, I would love to talk to you about the 

hole in the ozone, Mr. Spain. 

Mr. SPAIN. Well, that is a different issue. By the way, one commentMrs. CHENOWETH. Wait a minute, I have to control the time, 

please. I do want to say that the hatchery fish have the same genetic pool as do wild fish and there is nothing in the Code of Federal Regulations that distinguishes a fish that is reared in a hatchery as far as its gene pool. 

Mr. SPAIN. I would refer you to--

Mrs. CHENOWETH. Gene pooling is the criteria in which species 

and subspecies have been listed under. 

Mr. SPAIN. I would be happy to continue the dialog on that and 

supply you with some information. By the w_ay_, it may perhaps 

ruin your day to know that we agree on the NEPA issue and that 

you and I are both struggling to open the process and make it less 
91 

bureaucratic in the ESA. I think that goes a long way toward resolving some of these problems. I wanted to comment on that. 

Mrs. CHENOWETH. Thank you, I appreciate it. 

Mr. SPAIN. It is nice to find common ground. 

Mrs. CHENOWETH. I appreciate that comment. When you fish, do 

you ever catch salmon? 

Mr. SPAIN. Well, right now, as you know, most of the fleet in the 

northwest is closed down largely because although there are abundant chinook runs, we can't catch those because of the danger of 

catch of depressed runs, coho. Salmon used to be the work horse 

for the entire west coast fishing industry. The declines over the last 

years have been directly resulting in some 72,000 jobs lost over the 

last 20 years but it is not the ESA that is the problem. 

There are no coastwide listings of any of those fish. There are a 

few listings relatively recently in the Columbia and in the Sacramento. The problem is the declines. That is the issue we must 

address. The ESA is a very poor tool for addressing those declines 

but it is a last resort, the only tool that we have left. 

Mrs. CHENOWETH. Wouldn't you agree that last year though in 

the commercial fishery industry that they enjoyed a record catch of 

salmon? 

Mr. SPAIN. Not in the northwest. In central California and those 

restored runs, frankly, are attributed primarily to ESA driven 

water reforms in the Central Valley. 

Mrs. CHENOWETH. ESA driven water reforms in theMr. SPAIN. Yes. 

Mrs. CHENOWETH. What about the fish that migrated up around 

the Alaskan coast. There were record catches of salmon up there. 

Mr. SPAIN. Well, that is in Alaska. Those mostly come from Canada where they have taken much better care of their habitat. 

Mrs. CHENOWETH. I think that it is very interesting that the Endangered Species Act has never addressed gill netting. 

Mr. SPAIN. Certainly it does. For instance, the Columbia River 

gill net fleet is probably one of the most studied, most permit laden 

catch in the country. There are at least 17 different agencies that 

have input into the permits for those. Every effort is made to reduce and minimize or eliminate bycatch. 

Now gill nets are very much part of the process as well. Those 

fleets, those boats don't sail without a take permit under Section 

10. 

Mrs. CHENOWETH. What impact do you think that the El Nino 

has had on the record return of salmon that we are now beginning 

to experience in our west coast rivers and streams? 

Mr. SPAIN. El Ninos are cyclical. When ocean conditions are hostile, it does cause decline so when they are more favorable it causes 

better survival rates. The problem is if you superimpose a declining 

habitat year after year over natural fluctuations you have periodic 

crashes. 

Salmon evolved for millions of years to survive El Ninos. They 

did not evolve to survive more or less total destruction of their inland habitat. We do have to address that issue. El Ninos will never 

go away but if we depress the stocks so close to the edge under normal conditions, then when we get a downturn in ocean conditions, 
92 

they crash and they get into a situation which we are beginning 

to see where there are too few fish to replenish themselves. 

Even though the fish are there they can't find each other if it 

takes a mile or two miles or three miles of streams to do so. El 

Ninos have an impact, no question about it, but we need to control 

those factors that we do have control over. And in terms of stewardship we have the obligation, I believe, morally and legally to 

undo what damage we have done. 

Mrs. CHENOWETH. You didn't answer my question when I asked 

you if you ever catch salmon. Mr. SPAIN. I don't fish. I do mostly this. I wish I were fishing. 

Mrs. CHENOWETH. Oh, I see. Well, do members of your organization catch salmon? 

Mr. SPAIN. Certainly. Our members are from every port from San 

Diego to Alaska. Many of them have in the past participated in the 

salmon fishery. Many of them now have to regear if they can and 

try to get into other fisheries. Mrs. CHENOWETH. Isn't that a violation of the Endangered Species Act? 

Mr. SPAIN. No, it is done pursuant to an incidental take permit in those areas where it is required. 

Mrs. CHENOWETH. That has nothing to do with Section lOA. You 

maynot--

Mr. SPAIN. I am talking about Section 9. 

Mrs. CHENOWETH [continuing]. harm, harass, injure or kill an 

endangered species. The fall, the summer and the spring chinook 

have been listed as well as the sockeye. Now don't tell me they are 

not being commercially fished. They are. I know it and you know 

it. 

Mr. SPAIN. If you look at the section, you will find that the exemption is if there is an incidental take permit, those stocks are 

caught, if at all, as bycatch pursuant to an incidental take permit where every effort, every effort, is made to protect them. 

Mrs. CHENOWETH. So every fisherman that is catching salmon 

has an incidental take permit with an entire process, the biological opinion and everything that is attached to the giving of an incidental take permit for every fisherman that is catching a salmon. 

Mr. SPAIN. Those are programmatic and they are issued through 

the agencies. 

Mrs. CHENOWETH. I think there is one agency that issues an incidental take permit and I don't believe, sir, that every fisherman acquires an incidental take permit. 

Mr. SPAIN. Not individually, no. It is programmatic. 

Mrs. CHENOWETH. Do you know-you talked about the record or 

if we cause harm to the existing fish runs in Idaho we are harming 

the entire stock. Let me tell you something about the listing of the 

sockeye salmon. The sockeye salmon is an anomaly by birth of a 

genetic pooling of two kokanee, landlocked kokanee, and our state 

fish and game for years diminished the population of the kokanee 

in the lakes in preference for trout so our fish policy in Idaho absolutely ran against what came later in the Endangered Species Act. 

And so what we need to do is everyone needs to get together with 

the same long range goal and not punish people because we diminished the parent stock in the lakes, the high mountain lakes, in 
93 

preference for fly fishing. And then Idaho people have had to suffer. 

Mr. SPAIN. I couldn't agree with you more. That is one reason all 

the agencies have to be required to be at least on the same page in terms of protections. Mrs. CHENOWETH. You know, as far as genetic work with genes, 

it is very interesting that when we passed the Clean Water Act we 

needed to clean up the Great Lakes and get rid of a certain type 

of algae which the Pacific salmon would adapt to very easily but 

how could we adapt the Pacific salmon, an anadromous fish in the 

west, to the Great Lakes. We did it. We did it by the chemical imprinting process. 

We can do it all over this nation when we see people with great 

minds, people who have studied fish, people like yourself, and various other scientists come together to make it happen right. And, 

you know, my concern is that there is a consensus that while we 

let the salmon live and the best salmon you can catch nowadays 

is in the Great Lakes and it was artificially originally stocked and 

that salmon gene tradition was fooled by chemical imprinting. 

I think we can let the salmon live very well as well as our workers of the forest and everyone else and I think there is a great future if we will just work together. 

Mr. SPAIN. Well, we must work together. That is absolutely required and, frankly, one of the reasons we are here is we want an 

ESA that requires everybody to work together and preferably one 

that isn't regulatory in nature insofar as it takes a proactive approach. One of the problems with a reintroduction program is for 

salmon in the west coast; each salmon genetic strain fits into its 

watershed like a lock and a key fit together. 

It is very difficult to transplant from one to the other. It usually 

fails. And it is very expensive. Mother Nature can make a fish better, faster and cheaper than the Corps of Engineers any day and 

I think we owe it to ourselves as an economy and as a region to 

try to prevent harm, you know, the Hippocratic Oath, do no harm 

first. I think we need to do no harm before we rely on trying to 

undo damage that is irretrievable. So let's work together on that. 

Mrs. CHENOWETH. Thank you, Mr. Spain. Thank you, Mr. Chairman. 

Mr. POMBO. Thank you. I would like to thank the panel for your 

perseverance and your patience with us today. There is a lot going 

on back here right now and we are trying to keep ahead of it all 

but I appreciate a great deal you being here and sticking around 

for our questions, and would like to remind you that if there are 

questions that members of the committee have that they will 

present to you in writing and if you could provide a response to the 

committee in writing, it. would be greatly appreciated, and thank 

you very much for being here. 

[Whereupon, at 6:28 p.m., the committee was adjourned; and the 

following was submitted for the record:] 

20-707 95-4 
94 

I 

104THCONGRESS H R 2275 1ST SESSION • • 

To reauthorize and amend the Endangered Species Act of 1973. 

IN THE HOUSE OF REPRESENTATIVES 

SEPTEMBER 7, 1995 

Mr. YOUNG of Alaska (for himself, 1\lr. POMBO, Mr. TAUZIN, Mr. BREWSTER, 

Mr. DooLITTLE, Mr. HANSEl\, Mr. DooLEY, Mr. CALVERT, Mr. COI'\"DIT, 

Mr. Sn1>.'110Lll, lllr. STUMP, lllr. SIIITH of Texas, Mr. GALLEGLY, Mr. 

FIELDS of Te.v.s, Mr. KOLBE, Ms. DAI'\"1'\"ER, Mr. HlJ'l'CIID\SOl\, Mr. 

HAYWORTH, Mr. IIAsTn\GS of Washington, Mr. Bol'\'ILLA, Mr. MCHUGH, 

Mr. DoRl\Al\, l\lr. BERGER, Mr. EVERETT, Mr. TAYLOR of North Carolina, Mr. PACKARD, Mr. Cul'\"1'\"INGILUI, Mr. THORI'\'BERRY, Mr. HAYES, 

Mr. RoYCE, Mr. ColmEST, Mr. CooLEY, Mr. SALIIOl\, Mr. BoNO, Mr. 

BAKER of California, Mr. HUI'\'TER, Mr. LEWIS of California, Mrs. 

CuBIN, Mr. MCKEOl\, lllr. R.u>Al\0\'ICH, Mr. RIGGS, Mr. RoHRABACHER, 

1\Irs. SEASTRAI'\"1>, Mr. THOMAS, llir. ALLARD, Mr. ScHAEFER, Mr. ltliCA, 

Mr. CILUmLISS, Mr. CoLLINS of Georgia, Mr. Lll'\"DER, Mr. BAKER of 

Louisiana, Mr. CRAPo, Mr. Ewnm, Mr. BURTOl\ of Indiana, Mr. 

HOSTETTLER, Mr. MCII'\"TOSH, Mr. RoBERTS, Mr. LEwis of Kentucky, 

Mr. BARTLETT of Maryland, Mr. Kl\OLLEI'\'BERO, Mr. EMERSOl\, Mr. 

HANCOCK, Mr. SKEEl\, Mr. P.A."'{ON', Mr. SoLOIIOl\, Mr. BALLENGER, Mr. 

JOI'\"ES, Mr. OXLEY, Mr. COBURl\, Mr. LAROEI'\"T, Mr. LUCAS, Mr. 

WATTS of Oklahoma, Mr. BARTOl\ of Texas, Mr. DELAY, Mr. SAM 

JOHNSOl\ of Texas, Mr. STOCIOIAN, lllr. 8HADEGG, Mr. CALLAHAl\, Mr. 

LAUGHLIN, Mrs. VUCAl\0\'ICH, Mr. TEJEDA, Mr. BACHUS, Mr. Cox of 

California, Mr. Ful\"DERBURK, Mr. BoEHI'\"ER, Mr. CRAI'\"E, Mr. DREIER, 

Mr. EDWARDS, Mr. NETHERCUTT, Mr. PETE GEREN of Texas, Mr. 

ORTIZ, Mr. HALL of Te.us, Mr. DUNCAN, Mr. McCREKY, and· Mr. LivINGSTOl\) introduced the following bill; which was referred to the Committee on Resources, and in addition to the Committee on Agriculture, 

for a period to be subsequently detennined by the Speaker, in each case 

for consideration of such provisions as fall within the jurisdiction of the 

committee concerned 
95 

2 

A BILL 

To reauthorize and amend the Endangered Species Act of 

1973. 

1 Be it enacted by the Senate and House of .Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.-This Act may be cited as the 

5 "Endangered Species Conservation and Management Act 

6 of1995". 

7 (b) TABLE OF CONTENTS.-The table of contents for 

8 this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. References to Endangered Species Act ot 1973. 

Sec. 3. Findings, purposes, and policy of Endangered Species Act of 1973. 

TITLE I-PRIVATE PROPERTY RIGHTS AND VOLUNTARY 

INCENTIVES FOR PRIVATE PROPERTY OWNERS 

Sec. 101. Compensation for use or taking of private property. 

Sec. 102. Voluntary cooperative management agreements. 

Sec. 103. Grants for improving and conserving habitat for species. 

Sec. 104. Technical assistance programs. 

Sec. 105. Water rights. 

TITLE ll-IIIIPROVING ABILITY TO. COMPLY WITH THE 

ENDANGERED SPECIES ACT OF 1973 

Sec. 201. Enforcement procedures. 

Sec. 202. Remo,ing punitive disincentives. 

Sec. 203. Allo\\ing non-Federal persons to use the consultation procedures. 

Sec. 204. Permitting requirements for incidental takes. 

Sec. 205. General, research, and educational permits. 

Sec. 206. Maintenance of aquatic habitats for listed species. 

Sec. 207. Compliance \\ith international requirements and treaties. 

Sec. 208. Incentives for protection of marine species. 

TITLE ill-IMPROVING SCIENTIFIC INTEGRITY OF LISTING 

DECISIONS AND PROCEDURES 

Sec. 301. Improling the validity and credibility of decisions. 

Sec. 302. Peer reliew. 

Sec. 303. Making data public. 

Sec. 304. Improling the petition and designation processes. 

•HRD76 m 
96 

3 

Sec. 305. Greater State involvement. 

Sec. 306. Monitoring the status of species. 

Sec. 307. Petitions to delist species. 

TITLE IV-RECOGNIZING OTHER FEDERAL ACTION, LAWS, AND 

~fiSSIONS 

Sec. 401. Balance ESA with other laws and missions. 

Sec. 402. Exemptions from consultation and confereneing. 

Sec. 403. Eliminating the exemption committee (GOD committee). 

TITLE V-BETTER MANAGEMENT AND CONSERVATION OF 

LISTED SPECIES 

Sec. 501. Setting conservation objectives. 

Sec. 502. Preparing a conservation plan. 

Sec. 503. Interim measures. 

Sec. 504. Critical habitat for species. 

Sec. 505. Recognition of captive propagation as means of recovery. 

Sec. 506. Introduction of species. 

Sec. 507. Conserving threatened species. 

TITLE VI-HABITAT PROTECTIONS 

Sec. 601. Federal biological diversity reserve. 

Sec. 602. Land acquisition. 

Sec. 603. Property exchanges. 

TITLE VII-8TATE AUTHORITY TO PROTECT ENDANGERED AND 

THREATENED SPECIES 

Sec. 701. State authority. 

Sec. 702. State programs affected by the Convention. 

TITLE VIII-FUJ>.'DING OF CONSERVATION MEASURES 

Sec. 801. Authorizing increased appropriations. 

Sec. 802. Funding of Federal mandates. 

Sec. 803. Endangered Species and Threatened Species Conservation Trust 

Fund. 

TITLE IX-MISCELLANEOUS PROVISIONS 

Sec. 901. Amendments to definitions. 

Sec. 902. Review of species of national interest. 

Sec. 903. Preparation of conservation plans for species listed before enactment 

of this Act. 

Sec. 904. Confonning amendment to table of contents. 

1 SEC. 2. REFERENCES TO ENDANGERED SPECIES ACf OF 

2 1973. 

3 Except as otherwise expressly provided, whenever in 

4 this Act an amendment or repeal is expressed in terms 

•HRD7& m 
97 

4 

1 of an amendment to, or repeal of, a section or other provi2 sion, the reference shall be considered to be made to such 

3 section or other provision of the Endangered Species Act 

4 of 1973 (16 U.S.C. 1531 et seq.). 

5 SEC. 3. FINDINGS, PURPOSES, AND POLICY OF ENDAN6 GERED SPECIES ACT OF 1973. 

7 (a) FINDINGS.-Section 2(a) (16 U.S.C. 1531(a)) is 

8 amended9 (1) by amending paragraph (1) to read as folIO lows: 

11 "(1) various species of fish, wildlife, and plants 

12 in the United States have been rendered extinct be13 cause of inadequate conservation practices and natu14 ral processes;"; and 

15 (2) by striking "and" after the semicolon at the 

16 end of paragraph (4)(G), by striking the period at 

17 the end of paragraph (5) and inserting"; and", and 

18 by adding at the end the following new paragraph: 

19 "(6) the Nation's economic well-being is essen20 tial to the ability to maintain a sustainable resource 

21 base, therefore economic impacts and private prop22 erty owners' rights must be considered while encour23 aging practices that protect species.". 

24 (b) PuRPOSES AND POLICY.-Section 2 (b) and (c) 

25 (16 U.S.C. 1531 (b), (c)) are amended to read as follows: 

•BR 1111 m 
98 

5 

1 "(b) PuRPOSES.-The purposes of this Act are the 

2 following: 

3 "(1) To provide a feasible and practical means 

4 to conserve endangered species and threatened spe5 cies consistent with protection of the rights of pri6 vate property owners and ensuring economic stabil7 ity. 

8 "(2) To provide a program for the conservation 

9 and management of such endangered species and 

10 threatened species taking into account the economic 

11 and social consequences of such program. 

12 "(3) To take such steps as may be practicable 

13 to achieve the purposes of the treaties and conven14 tions set forth in subsection (a) of this section. 

15 "(c) POLICY.-

16 "(1) FEDERAL AUTHORITY.-It is further de17 clared to be the policy of Congress that all Federal 

18 departments and agencies shall seek to conserve and 

19 manage endangered species and threatened species 

20 and shall, consistent with their primary missions, 

21 utilize their authorities in furtherance of the pur22 poses of this Act. 

23 "(2) COOPERATION WITH STATES.-It is fur24 ther declared to be the policy of Congress that Fed25 eral agencies shall cooperate with State and local 

oRR 1175 m 
99 

6 

1 agencies to resolve water resource issues in concert 

2 with conservation of endangered species and consist3 ent with State and local water laws. 

4 "(3) PROTECTION OF PRIVATE PROPERTY 

5 RIGHTS.-It is the policy of the Federal Government 

6 that agency action taken pursuant to this Act shall 

7 not use or limit the use of privately owned property 

8 when such action diminishes the value of such prop9 erty without payment of fair market value to the 

10 owner of private property. Each Federal agency, of11 ficer, and employee shall exercise authority under 

12 this Act to ensure that agency action \\!ill not violate 

13 the policy established in this paragraph.". 

14 TITLE 1-PRIV ATE PROPERTY 

15 RIGHTS AND VOLUNTARY IN16 CENTIVES FOR PRIVATE 

11 PROPERTY OWNERS 

18 SEC. 101. COMPENSATION FOR USE OR TAKING OF PRIVATE 

19 PROPERTY. 

20 The Endangered Species Act of 1973 (16 U.S.C. 

21 1531 et seq.) is amended by adding at the end the follow22 ing new section: 

23 '"SEC. 19. RIGHT TO COMPENSATION. 

24 "(a) PROHIBITION.-The Federal Government shall 

25 not take an agency action affecting privately owned prop-

•BR 11'71 m 
100 

7 

1 erty or nonfederally owned property under this Act whieh 

2 results in diminishment of value of any portion of that 

3 property by 20 percent or more unless compensation is 

4 offered in accordance with this section. 

5 "(b) COMPENSATION FOR USE OR LIMITATION ON 

6 UsE.-The agency or agencies that take an agency action 

7 that exceeds the amount provided in subsection (a) shall 

8 compensate the private property owner for the otherwise 

9 lawful use or limitation on the otherwise lawful use in the 

10 amount of the diminution in value of the portion of that 

11 property resulting from the use or limitation on use. If 

12 the diminution in value of a portion of that property is 

13 greater than 50 percent, at the option of the owner, the 

14 agency or agencies shall buy that portion of the property 

15 and sh&:ll pay fair market value based on the value of the 

16 property before the use or limitation on use was imposed. 

17 Compensation paid shall reflect the duration of the use 

18 or limitation on use necessary to achieve the purposes of 

19 this Act. 

20 "(c) REQUEST OF OWNER.-An owner seeking com21 pensation under this section shall make a written request 

22 for compensation to the agency implementing the agency 

23 action. The request shall, at a minimum, identify the af24 footed portion of the property, the nature of the use or 

25 limitation, and the amount of compensation claimed. No 

•BR 11'7& m 
101 

8 

1 such request may be made later than one year after the 

2 owner receives actual notice that the use of property has 

3 been limited by an agency action. 

4 "(d) NEGOTIATIONS.-The agency may negotiate 

5 with that owner to reach agreement on the amount of the 

6 compensation and the terms of any agreement for pay7 ment. If such an agreement is reached, the agency shall 

8 promptly pay the owner the amount' agreed upon. An 

9 agreement under this section may include a transfer of 

10 the title or an agreement to use the property for a limited 

11 period of time. 

12 "(e) CHOICE OF REMEDIES.-If, not later than 180 

13 days after the written ·request is made, the parties have 

14 not reached an agreement on compensation, the owner 

15 may elect binding arbitration or seek compensation due 

16 under this section in a civil action. 

17 "(f) AlmiTRATION.-The procedures that govern the 

18 arbitration shall, as nearly as practicable, be those estab19 lished under title 9, United States Code, for arbitration 

20 proceedings to which that title applies. An award made 

21 in such arbitration shall include a reasonable attorney's 

22 fee and other arbitration costs, including appraisal fees. 

23 The agency shall promptly pay any award made to the 

24 owner. 
102 

9 

1 "(g) CIVIL AcTION.-An owner who prevails in a civil 

2 action against the agency pursuant to this section shall 

3 be entitled to, and the agency shall be liable for, the 

4 amount of compensation awarded plus reasonable attor5 ney's fees and other litigation costs, including appraisal 

6 fees. The court shall award interest on the amount of any 

7 compensation from the time of the limitation. 

8 "(h) SoURCE OF PATIIENTS.-Any payment made 

9 under this section to an owner, and any judgment obtained 

10 by an owner in a civil action under this section shall, not11 withstanding any other provision of law, be made from the 

12 annual appropriation of the agency that took the agency 

13 action. If the agency action resulted from a requirement 

14 imposed by another agency, then the agency making the 

15 payment or satisfying the judgment may seek partial or 

16 complete reimbursement from the appropriated funds of 

17 the other agency. For this purpose the head of the agency 

18 concerned may transfer or reprogram any appropriated 

19 funds available to the agency. If insufficient funds exist 

20 for the payment or to satisfy the judgment, it shall be 

21 the duty of the head of the agency to seek the appropria22 tion of such funds for the next fiscal year. 

23 "(i) AVAILABILITY OF .APPROPRIATIONS.-Notwith24 standing any other provision of law, any obligation of the 

•BRD71 m 
103 

10 

1 United States to make any payment under this section 

2 shall be subject to the availability of appropriations. 

3 "(j) DuTY OF NOTICE TO 0wNERS.-Whenever an 

4 agency takes an agency action limiting the use of private 

5 property the agency shall give appropriate notice to the 

6 owners of that property directly affected explaining their 

7 rights under this section and the procedures for obtaining 

8 any compensation that may be due to them under this sec9 tion. 

10 "(k) RULES OF CONSTRUCTION.-The following rules 

11 of construction shall apply to this Act: 

12 "(1) OTHER RIGHTS PRESERVED.-Nothing in 

13 this Act shall be construed to limit any right to com14 pensation that exists under the Constitution or 

15 under other laws. 

16 "(2) EXTENT OF FEDERAL AUTHORITY.-Pay17 ment of compensation u~der this section (other than 

18 when the property is bought by the Federal Govern19 ment at the option of the owner) shall not confer 

20 any rights on the Federal Government other than 

21 the use or limitation on use resulting from the agen22 cy action for the duration so that the agency action 

23 may achieve the species conservation purposes of 

24 this Act. 

25 "(I) DEFINITIONS.-For the purposes of this section: 

•HRII711 m 
104 

11 

1 "(1) AGENCY.-The tenn 'agency' has the 

2 meaning given that tenn in section 551 of title 5, 

3 United States Code. 

4 "(2) AGENCY ACTION.-The term 'agency ac5 tion'-

6 "(A) subject to subparagraph (B), has the 

7 meaning given that tenn in section 551 of title 

8 5, United States Code, and 

9 "(B) includes10 "(i) the loss of use of property to 

11 avoid prosecution under section 11; 

12 "(ii) a designation pursuant to section 

13 9(i) of privately owned property as critical 

14 habitat; 

15 "(iii) the denial of a pennit under sec16 tion 10 that restricts the use of private 

17 property; _ 

18 "(iv) a:n agency action pursuant to a 

19 biological opinion under section 7 that 

20 would cause an agency to restrict the use 

21 of private property; 

22 "(v) an agreement under section 6 to 

23 set aside property for habitat under the 

24 terms of an easement or other contract; 

•BR 11711 m 
105 

12 

1 "(vi) a restriction imposed on private 

2 property as part of a conservation plan 

3 adopted by the Secretary under section 5; 

4 "(vii) any other agency action that reS stricts a legal right to use that property, 

6 including, the right to alter habitat; and 

7 "(viii) the making of a grant of land 

8 or money, to a public authority or a pri9 vate entity as a predicate to an agency ac10 tion by the recipient that would constitute 

11 a limitation if done directly by the agency. 

12 "(3) FAIR MARKET VALUE.-The term 'fair 

13 market value' means the most probable price at 

14 which property would change hands, in a competitive 

15 and open market under all conditions requisite to 

16 fair sale, between a willing buyer and willing seller, 

17 neither being under any compulsion to buy or sell 

18 and both having reasonable knowledge of relevant 

19 facts, prior to occurrence of the agency action. 

20 "(4) LAW OF THE STATE.-The term 'law of 

21 the State' includes the law of a political subdivision 

22 of a State. 

23 "(5) LIMITATION ON USE.-The term 'limita24 tion on use' means only a limitation on a use which 

•BR 11'711B 
106 

13 

1 is otherwise pennissable under applicable State 

2 property or nuisance laws. 

3 "(6) PRivATE PROPERTY, PRIVATELY OWNED 

4 PROPERTY, NON-FEDERAL PROPERTY.-The tenn 

5 'private property', 'privately owned property', or 

6 'non-Federal property' means property which is 

7 owned by a person other than any Federal entity of 

8 government. 

9 "(7) PROPERTY.-The tenn 'property' means 

10 land, an interest in land, the right to use or receive 

11 water, and any personal property that is subject to 

12 use by the Federal Government or to a restriction on 

13 use.". 

14 SEC. 102. VOLUNTARY COOPERATIVE MANAGEMENT 

15 AGREEMENTS. 

16 (a) COOPERATIVE MANAGEMENT AGREEMENT DE17 FINED.-Section 3 (16 U.S.C. 1532) is amendedIS (1) by redesignating paragraphs (2) through 

19 (21) in order as paragraphs (3), (4), (5), (7), (9), 

20 (10), (11), (12), (13), (18), (19), (20), (22), (23), 

21 (24), (25), (26), (27), and (28); and 

22 (2) by adding after paragraph (5) (as redesig23 nated by paragraph (1) of this section) the following 

24 new paragraph: 

•BR 12111 m 
107 

14 

1 "(6) The tenn 'cooperative management agreement' 

2 means a voluntary agreement entered into under section 

3 6(b).". 

4 (b) VOLUNTARY COOPERATIVE MANAGEMENT 

5 AGREEMENTS.-Section 6 (16 U.S.C. 1535) is amended 

6 by striking so much as precedes subsection (c) and insert7 ing the following: 

8 "SEC. 8. COOPERATION WITH NON-FEDERAL PERSONS. 

9 "(a) GENERALLY.-In carrying out the program au10 thorized by this Act, the Secretary shall cooperate to the 

11 maximum extent practicable with the States and other 

12 non-Federal persons. Such cooperation shall include con13 sultation with the States and non-Federal persons con14 cerned before acquiring any land or water, or interest 

15 therein, for the purpose of conserving any endangered spe16 cies or threatened species. 

17 . "(b) COOPERATIVE MANAGEMENT AGREEMENTS.-

18 "(1) IN GENERAL.-The Secretary may enter 

19 into a cooperative management agreement with any 

20 State or group of States, political subdivision of a 

21 State, local government, or non-Federal person22 "(A) for the management of a species or 

23 group of species listed as endangered species or 

24 threatened species under section 4, a species or 

25 group of species proposed to be listed under 

•HR 117& m 
108 

15 

1 section 4, or species or group of species which 

2 are candidates for listing; or 

3 "(B) for the management or acquisition of 

4 an area which provides habitat for a species. 

5 "(2) SCOPE OF COOPERATIVE MANAGEMENT 

6 AGREEMENTS.-(A) A cooperative management 

7 agreement entered into under this subsectionS "(i) may provide for the management of a 

9 species or group of species on both public and 

10 private lands which are under the authority, 

11 control or ownership· of a State or group of 

12 States, political subdivision of a State, local 

13 government, or non-Federal person and which 

14 are affected by a listing determination, pro15 posed determination, or proposed candidacy for 

16 determination; and 

17 "(ii) may include the acquisition or des18 ignation of land as habitat for species. 

19 "(B) A cooperative management agreement 

20 may not restrict private or non-Federal property un21 less written consent to such restrictions by the non22 Federal owner is given either to the Secretary or the 

23 State, political subdivision, local government, or non24 Federal person who is a party to the agreement. 

•BR 11111 m 
109 

16 

1 "(C) The Secretary may grant to a party to an 

2 agreement the authority to undertake programs to 

3 enhance the population or habitat of a species on 

4 federally owned lands, except that such authority 

S shall not otherwise conflict with other uses of such 

6 land which are approved by the Secretary or author7 ized by the Congress. 

8 "(D) The Secretary is authorized, in conjunc9 tion with entering into and as a part of any agree1 0 ment under this section, to provide funds to carry 

11 out the agreement to a non-Federal person, as pro12 vided in paragraph ( 11 ). 

13 "(3) NOTIFICATION.-Not later than 30 days 

14 after submission of a request to enter into a cooper15 ative management agreement, the party submitting 

16 the request shall provide notice of the request to any 

17 non-Federal person or Federal power marketing ad18 ministration that would be subject to the proposed 

19 cooperative management agreement. 

20 "( 4) DEVELOPMENT OF PROPOSED AGREE21 MENT.-(A) The requesting party shall develop and 

22 submit to the Secretary a proposed cooperative man23 agement agreement. 

24 "(B) The Secretary shall publish in the Federal 

25 Register a notice of availability and a request for 

•BRU711 m 
110 

17 

1 public comment on any proposed cooperative man2 agement agreement between the Secretary and any 

3 governmental entity and shall hold a public hearing 

4 on such a proposed cooperative management agreeS ment in each county or parish in which the proposed 

6 agreement would be in effect. 

7 "(C) Before entering into a cooperative manS agement agreement with another governmental en9 tity or a non-Federal person for the management of 

10 federally owned land, the Secretary shall consider 

11 and weigh carefully all information received in re12 sponse to the request for comment published under 

13 subparagraph (B) and testimony presented in each 

14 hearing held under subparagraph (B). 

15 "(5) .APPROVAL OF AGREEMENT.-(A) Not 

16 later than 120 days after the submission of a pro17 posed cooperative management agreement under 

18 paragraph (4), the Secretary shall determine wheth19 er the proposed agreement is in accordance with this 

20 subsection and will promote the conservation of the 

21 species to which the proposed agreement applies. 

22 "(B) The Secretary shall approve and enter 

23 into a proposed cooperative management agreement, 

24 if the Secretary finds that-

•BR 11'71 m 
111 

18 

1 "(i) the requesting party has sufficient au2 thority under law to implement and carry out 

3 the terms of the agreement; 

4 "(ii) the agreement defines an area that 

5 serves as habitat for the species or group of 

6 species to which the agreement applies; 

7 "(iii) the agreement adequately provides 

8 for the administration and management of the 

9 identified management area; 

10 "(iv) the agreement promotes the conserva11 tion of the species to which the agreement ap12 plies by committing Federal or non-Federal ef13 forts to the conservation; 

14 "(v) the term of the agreement is of suffi15 cient duration to accomplish the provisions of 

16 the agreement; and 

17 "(vi) the agreement is adequately funded 

18 to carry out the agreement. 

19 "(C) No later than 30 days after entering into 

20 a cooperative management agreement with a govern21 mental entity, the Secretary shall publish . in the 

22 Federal Register a notice of availability of the terms 

23 of such agreement and the response of the Secretary 

24 to all information received or presented with respect 

25 to the agreement pursuant to paragraph ( 4)(B). 

•DB 1111 m 
112 

19 

1 "(6) ENVIRONMENTAL ASSESSMENTS.-Prepa2 ration, approval, and entering into a cooperative 

3 management agreement under this subsection shall 

4 not be subject to section 102(2) of the National En5 vironmental Policy Act of 1969 (42 U.S.C. 4332(2)). 

6 "(7) No SURPRISES.-For any species or area 

7 that is the subject of a cooperative management 

8 agreement under this subsection, a party to the 

9 agreement shall not be requiredtO "(A) to make any additional payment for 

11 any purpose, or to accept any additional restric12 tion on any parcel of land available for develop13 ment or land management under the agree14 ment, without consent of the party; or 

15 "(B) to undertake any other measure to 

16 minimize or mitigate impacts on the species in 

17 addition to measures required by the agreement 

18 as established. 

19 "(8) EFFECT OF LISTING OF SPECIES.-A co20 operative management agreement entered into under 

21 this subsection shall remain in effect and shall not 

22 be required to be amended if a species to which the 

23 agreement does not apply is determined to be an en24 dangered species or threatened species under section 

25 4. 

•BR 11'11 m 
113 

20 

1 "(9) APPLICABILITY OF CERTAIN PROVI2 SIONS.-Sections 5, 7, and 9 shall not apply to those 

3 activities of a party to a cooperative management 

4 agreement which are conducted in accordance with 

5 such agreement. 

6 "(10) VIOLATIONS OF AGREEMENTS.-(A) If 

7 the Secretary detennines that a party to a coopera8 tive management agreement is not administering or 

9 acting in accordance with the agreement, the Sec10 retary shall notify the party. 

11 "(B) If a party that is notified under subpara12 graph (A) fails to take appropriate corrective action 

13 within a period of time detennined by the Secretary 

14 to be reasonable (not to exceed 90 days after the 

15 date of the notification)-

16 "(i) the Secretary shall rescind the entire 

17 cooperative management agreement or the ap18 plicability of the agreement to the party that is 

19 the subject of the notification; and 

20 "(ii) beginning on the date of the rescis21 sion22 "(I) the entire agreement shall not be 

23 

24 

25 

•BR 11'1& m 

effective, or the agreement shall not be effective with respect to the party, whichever 

is appropriate; and 
114 

21 

1 "(II) sections 5, 7, an~ 9 shall apply 

2 to activities of the party.". 

3 SEC. 103. GRANTS FOR IMPROVING AND CONSERVING 

4 HABITAT FOR SPECIES. 

5 Section 6 (16 U.S.C. 1535), as amended by section 

6 102(b) of this Act, is amended by adding at the end of 

7 subsection (b) the following new paragraph: 

8 "(11) HABITAT CONSERVATION GRANTS.-(A) 

9 The Secretary may, from amounts in the account es10 tablished by section 13 or from funds appropriated 

11 for such purpose, provide a grant to a non-Federal 

12 person (other than an officer, employee, or agent 

13 (acting in an official capacity) or a department or 

14 instrumentality of a State, municipality, or political 

15 subdivision thereof) for the purpose of conserving, 

16 preserving, or improving habitat for any species that 

17 is determined under section 4 to be an endangered 

18 species or a threatened species. 

19 "(B) The Secretary may provide a grant under 

20 this paragraph if the Secretary determines that--

21 "(i) the property for which the grant is 

22 provided contains habitat that significantly con23 tributes to the protection of the population of 

24 the species; 
115 

22 

1 "(ii) · the property has been managed for 

2 species protection for a period of time that has 

3 been sufficient to significantly contribute to the 

4 protection of the population of the species; and 

5 "(iii) the management of the habitat ad6 vances the interest of species protection. 

7 "(C) A grant made under this paragraph shall 

8 be transferable to subsequent owners of the property 

9 for which the grant is provided.". 

10 SEC. 104. TECHNICAL ASSISTANCE PROGRAMS. 

11 Section 5 (16 U.S.C. 1534), as added by section 501 

12 of this Act and as amended by sections 502(a), 503, 

13 504(a), and 505 of this Act, is amended by adding at the 

14 end the following new subsection: 

15 "(m) TECHNICAL AssiSTANCE PRooRAM.-

16 "(1) IN GENERAL.-The Secretary shall initiate 

17 a technical assistance program to provide technical 

18 advice and assistance to non-Federal persons who 

19 wish to participate in achieving the conservation ob20 jective for a species for which a conservation goal 

21 has been adopted under this section. The technical 

22 assistance provided shall include information on 

23 habitat needs of species, optimum management of 

24 habitat for species, methods for propagation of spe25 cies, feeding needs and habits, predator controls, 

•BB II'JIIB 
116 

23 

1 and any other information which a non-Federal per2 son may utilize or request for the purpose of con3 serving a species determined to be an endangered 

4 species or threatened species or proposed to be de5 termined as an endangered species or threatened 

6 species. 

7 "(2) REGULATIONS TO PROVIDE EXEMPTIONS 

8 FROM SECTION 9.-The Secretary shall promulgate 

9 regulations that establish exemptions from section 9 

10 for any person who participates in a conservation 

11 program under this subsection.". 

12 SEC. 105. WATER RIGHTS. 

13 Section 6 (16 U.S.C. 1535) is amended by adding 

14 at the end the following: 

15 "(j) WATER RIGHTS.-Nothing in this Act shall be 

16 construed to supersede, abrogate, or otherwise impair any 

17 right or authority of a State to allocate or administer 

18 quantities of water (including boundary waters). Nothing 

19 in this Act shall be implemented, enforced, or construed 

20 to allow any officer or agency of the United States to uti21 lize directly or indirectly the authorities established under 

22 this Act to impose any requirement not imposed by the 

23 State which would supersede, abrogate, condition, restrict, 

24 or otherwise impair rights to the use of water resources 

25 allocated under State law, interstate water compact, or 

•BR 11711 IH 
117 

24 

1 Supreme Court decree, or held by the United States for 

2 use by a State, its political subdivisions, or its citizens. 

3 The exercise of authority pursuant to or in furtherance 

4 of this Act shall not be construed to create a limitation 

5 on the exercise of rights to water or constitute a cause 

6 for nondelivery of water pursuant to contract or State 

7 law.". 

8 TITLE II-IMPROVING ABILITY 

9 TO COMPLY WITH THE EN10 DANGERED SPECIES ACT OF 

11 1973 

12 SEC. 201. ENFORCEMENT PROCEDURES. 

13 (a) IN GENERAL.-Section 9(a) (16 U.S.C. 1538(a)) 

14 is amendedIS (1) in paragraph (1) by amending the matter 

16 preceding subparagraph (A) to read as follows: "(1) 

17 Except as provided in paragraph (3), section 

18 6(g)(2), subsections (d)(3) and. (e) of section 5, sec19 tion 7(a), and section 10, with respect to any endan20 gered species of fish or wildlife listed pursuant to 

21 section 4 it is unlawful for any person subject to the 

22 jurisdiction of the United States to-"; 

23 (2) in paragraph (2) by amending the matter 

24 preceding subparagraph (A) to read as follows: "(2) 

25 Except as provided in section 6(g)(2), subsections 

•DR 1275 m 
118 

25 

1 (d)(3) and (e) of section 5, and section 10, with re2 spect to any endangered species of plants listed pur3 suant to section 4, it is unlawful for any person sub4 ject to the jurisdiction of the United States to-"; 

5 and 

6 (3) by adding at the end the following new 

7 paragraph: 

8 "(3) PEIUfiTTED TAKINGS.-An activity of a 

9 non-Federal person is not a taking of a species if the 

10 activity11 "(A) is consistent with the provisions of a 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

final conservation plan or conservation objective; 

"(B) complies with the terms and conditions of an incidental take permit or a cooperative management agreement; 

"(C) addresses a critical, imminent threat 

to public health or safety or a catastrophic natural event, or is mandated by any Federal, 

State, or local government agency for public 

health or safety purposes; or 

"(D) is incidental to, and not the purpose 

of, the carrying out of an otherwise lawful activity that occurs within an area of the territorial sea or exclusive economic zone established 

•BR J1'711H 
1 

2 

3 

4 

119 

26 

by Proclamation Numbered 5030, dated March 

10, 1983, that is not designated as critical 

habitat under section 5(i), and the affected species is not a species of fish.". 

5 (b) REWARDS AND INCIDENTAL ExPENSES.-Section 

6 11 (16 U.S.C. 1540) is amended7 (1) in subsection (d)(2) by inserting after "ternS porary care for any'' the following: "endangered spe9 cies or threatened species of''; 

10 (2) in subsection (e)(3) in the fourth sentence 

11 by striking "Any fish, wildlife," and inserting "Any 

12 endangered species or threatened species of fish or 

13 wildlife,"; 

14 (3) in subsection (e)(4)(A) by inserting "endan15 gered species or threatened species of'' after "All"; 

16 (4) in subsection (e)(4)(B) by inserting "endan17 gered species or threatened speices of'' after "im18 porting of any''; 

19 (5) in subsection (f) in the first sentence by in20 serting "endangered species or threatened species 

21 of'' after "storage of''; 

22 (6) in subsection (e) by adding at the end the 

23 following new paragraph: 

24 "(7) ADoPTION OF REGULATIONS.-(A) No in25 terpretation, policy, guideline, finding, or other in-

•BR 11'71 m 
120 

27 

1 fonnal detennination may be relied upon by the Sec2 retary in the implementation and enforcement of 

3 this Act unless such detennination has been the sub4 ject of a proposed rule, subject to review by the pub5 lie and comment for a period of no less than 60 

6 days. Any proposed rule under this subparagraph 

7 must include--

S "(i) a plain-language explanation of the 

9 reasons for and purpose of the proposed rule; 

10 "(ii) an analysis of the anticipated impact 

11 of the proposed rule; 

12 "(iii) an analysis showing that the restora13 tion benefit of the proposed rule outweighs any 

14 negative conservation impact of that proposed 

15 rule; 

16 "(iv) an analysis showing that compliance 

17 with the proposed rule is reasonably within the 

18 means of the State or the range nation con19 cerned; and 

20 "(v) a summary of the literature reviewed 

21 and experts consulted in regard to the species 

22 involved, and a summary of the Secretary's 

23 findings based on that review and consultation. 

24 "(B) No refusal of entry, seizure of evidence, or 

25 other enforcement action may take place under this 

.aa 11'71 m 
121 

28 

1 Act if the action is based solely on a notification 

2 under the Convention or on a resolution of the Con3 ference of the Parties to the Convention. 

4 "(C) The burden is on the Secretary to show 

5 that a specimen· belongs to a species which is deter6 mined to be an endangered species or threatened 

7 . species under this Act or is included in an Appendix 

8 to the Convention. The Secretary may not detain a 

9 specimen for longer than 30 days for the purpose of 

10 identification. If the specimen cannot be positively 

11 identified within that time, then it shall be re12 leased."; and 

13 (7) by amending subsection (g) to read as fol14 lows: 

15 "(g) CITIZEN SUITS.-

16 "(1) IN GENERAL.-Except as provided in para17 graph (2), a civil suit may be commenced by any 

18 person on his or her own behalf, who satisfies the 

19 requirements of the Constitution and who has suf20 fered or is threatened with economic or other injury 

21 resulting from the violation, regulation, application, 

22 nonapplication, or failure to act--

23 "(A) to enjoin the United States or any 

24 agency or official of the United States who is 

25 alleged to be in violation of any provision of this 

•DR D'JI m 
122 

29 

1 Act or regulation issued under the authority 

2 thereof, if the violation poses immediate and ir3 reparable hann to a threatened species or en4 dangered species; 

5 "(B) to compel the Secretary to apply, or 

6 modify the application of, the prohibitions set 

7 forth in or authorized pursuant to section 

8 9(a)(l)(B) or 4(d); 

9 "(C) to compel the Secretary to apply, or 

10 modify the application of, the provisions of sec11 tion lO(a); or 

12 "(D) against the Secretary where there is 

13 alleged a failure of the Secretary to perform 

14 any act or duty under section 4(d) which is not 

15 discretionary with the Secretary. 

16 The district courts shall have jurisdiction to enforce 

17 any such provision or regulation, or to order the 

18 Secretary to perform such act or duty, as the case 

19 maybe. 

20 "(2) PREREQUISITE PROCEDURES.-(A) No ac21 tion may be commenced under paragraph (l)(A)-

22 "(i) prior to 60 days after written notice of 

23 the alleged violation has been given to the Sec24 retary, and to any agency or official of the 

25 United States who is alleged to be in violation, 

oRR 1171 m 
123 

30 

1 except that a State may commence an action at 

2 any time; 

3 "(ii) if the Secretary has commenced ac4 tion to impose a penalty pursuant to subsection 

5 (a); or 

6 "(iii) if the United States has commenced 

7 and is diligently prosecuting a criminal action 

8 in a court of the United States or a State to 

9 redress the alleged violation of any such· provi10 sion or regulation. 

11 "(B) No action may be commenced under para12 graph (l)(B) prior to 60 days after written notice 

13 has been given to the Secretary setting forth the 

14 reasons for applying, or modifying the application of, 

15. the prohibitions with respect to the taking of a 

16 threatened species. 

17 "(C) No action may be commenced under para18 graph (l)(C) prior to 60 days after written notice 

19 has been given to the Secretary, except that such ac20 tion may be brought immediately after such notifica21 tion in the case of an action under this subsection 

22 respecting an emergency posing a significant risk to 

23 the well-being of any .species of fish or wildlife or 

24 plants. 

•liB D'IIIH 
124 

31 

1 "(3) VENUE.-Any suit under this subsection 

2 may be brought in the judicial district in which the 

3 violation occurs. 

4 "(4) COSTS.-The court, in issuing any final 

5 order in any suit brought pursuant to paragraph 

6 (1), may award costs of litigation (excluding attor7 ney and expert witness fees) to any party, whenever 

8 the court determines such award is appropriate. 

9 "(5) INJUNCTIVE RELIEF.-The injunctive re10 lief provided by this subsection shall not restrict any 

11 right which any person (or class of persons) may 

12 have under any statute or common law to seek en13 forcement of any standard or limitation or to seek 

14 any other relief (including relief against the Sec15 retary or a State agency). 

16 "(6) INTERVENTION.-Any person may inter17 vene as a matter of right in any civil suit brought 

18 under this subsection if such suit presents a reason19 able threat of economic injury to such person. Any 

20 intervenor under this paragraph shall have the same 

21 right to present argument and to accept or reject po22 tential settlements as do the parties to the suit.". 

23 SEC. 202. REMOVING PUNITIVE DISINCENTIVES. 

24 Section 3(26) (as redesignated by section 102(a)(1) 

25 of this Act) is amended to read as follows: 

•BB 1111 m 
125 

32 

1 "(26)(A) The tenn 'take' means to hann, pur2 sue, hunt, shoot, wound, kill, trap, capture, or col3 lect, or to attempt to engage in that conduct. 

4 "(B) In subparagraph (A), the tenn 'hann' 

5 means to take a direct action against any member 

6 of an endangered species of fish or wildlife that ac7 tually il\iures or kills a member of the species.". 

8 SEC. 203. ALLOWING NON-FEDERAL PERSONS TO USE THE 

9 CONSULTATION PROCEDURES. 

10 Section lO(a) (16 U.S.C. 1539(a)), as amended by 

11 section 204(b) of this Act, is amended by adding at the 

12 end the following new paragraph: 

13 "(3) VOLUNTARY CONSULTATION.-(A) Subject 

14 to such regulations as the Secretary may issue, any 

15 non-Federal person may initiate consultation with 

16 the Secretary on any prospective activity of the per17 

18 

19 

20 

21 

22 

23 

24 

25 

son-

"(i) to detennine if the activity is consistent or inconsistent with a conservation plan or 

conservation objective; or 

"(ii) if the person detennines that the activity is inconsistent, to detennine whether the 

activity is likely to jeopardize the continued existence of an endangered species or a threatened species, or to destroy or adversely modify 

•DR 2275 m 

20-707 95-5 
126 

33 

1 the designated critical habitat of the species in 

2 a manner that is likely to jeopardize the contin3 ued existence of the species. 

4 "(B) The voluntary consultation process for 

5 non-Federal persons authorized by subparagraph (A) 

6 shall be conducted in accordance with the procedures 

7 and requirements for consultation on agency actions 

8 set forth in section 7, except that9 "(i) the period for completion of the con10 sultation shall be 90 days from the date on 

11 which the consultation is initiated, or not later 

12 than such other date as is mutually agreeable 

13 to the Secretary and the person initiating the 

14 consultation; 

15 "(ii) the person initiating the consultation 

16 shall not be required to prepare a biological as17 sessment or equivalent document; 

18 "(iii) neither the activity for which the con19 sultation process is sought nor the consultation 

20 process itself shall be deemed a Federal action 

21 for the purpose of compliance with section 

22 102(2) of the National Environmental Policy 

23 Act of 1969 (42 U.S.C. 4332(2)) or an agency 

24 action for the purpose of compliance with the 

25 consultation requirement of section 7(a)(2); 

HR2275IH-2 
1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

127 

34 

"(iv) the Secretary shall provide the person 

initiating the consultation with a written opinion only, unless such person requests a permit 

referred to in paragraph ( 1 )(B) and meets the 

requirements of clause (v); and 

"(v) a permit described in clause (iv) shall 

be issued if the Secretary makes a finding of-

"(1) consistency pursuant to subparagraph (A)(i); 

"(II) no jeopardy pursuant to subparagraph (A)(ii); or 

"(Ill) jeopardy pursuant to subparagraph (A)(ii), but offers a reasonable and 

14 prudent alternative which the person initi15 ating the consultation accepts.". 

16 SEC. 204. PERMI'ITING REQUIREMENTS FOR INCIDENTAL 

17 . TAKES. 

18 (a) INCIDENTAL TAKE PERMIT DEFINED.-Section 

19 3 (16 U.S.C. 1532) is amended by adding after paragraph 

20 (14) (as added by section 301(b)(3) of this Act) the follow21 ing new paragraph: 

22 "(15) The term 'incidental take permit' means 

23 a permit issued under section lO(a)(l)(B).". 

•HR 22711 IH 
128 

35 

1 (b) TAKE PERMITS.-Section 10 (16 U.S.C. 1539) 

2 is amended by striking so much as precedes subsection 

3 (b) and inserting the following: 

4 "SEC. 10. EXCEPI'IONS. 

5 "(a) PERMITS.-

6 "(1) AUTHORITY TO ISSUE PERMITS.-The Sec7 retary may permit, under such terms and conditions 

8 as the Secretary shall prescribe9 "(A) any act otherwise prohibited by sec10 tion 9 undertaken for scientific purposes or to 

11 enhance the propagation or survival of the af12 fected species, including, but not limited to--

13 "(i) acts necessary for the establish14 ment and maintenance of experimental 

15 populations pursuant to subsection (j); 

16 "(ii) the public display or exhibition of 

17 living wildlife in a manner designed to edu18 cate, or which otherwise contributes to the 

19 education of the public about the ecological 

20 role and conservation needs of the affected 

21 species; 

22 "(iii) in the case of foreign species, 

23 acts that are consistent with the Conven24 tion and with conservation strategies 

•HR 12711 m 
129 

36 

1 adopted by the foreign nations responsible 

2 for the conservation of the species; and 

3 "(iv) acts necessary for the research 

4 in and carrying out of captive propagation; 

5 or 

6 "(B) any taking otherwise prohibited by 

7 section 9(a)(l)(B) if such taking is incidental 

8 to, and not the purpose of, the carrying out of 

9 an otherwise lawful activity. 

10 "(2) SPECIES CONSERVATION PLANS.-(A) Ex11 cept as provided in paragraph (3), no permit may be 

12 issued by the Secretary authorizing any taking re13 ferred to in paragraph (l)(B) unless the applicant 

14 therefor submits to the Secretary a species conserva15 tion plan that specifies16 "(i)the impact on the species which will be 

17 the likely result of the activities to be per18 mitted; 

19 "(ii) what steps the applicant can reason20 ably and economically take consistent with the 

21 purposes and objectives of the activity to mini22 mize such impacts, and the funding that will be 

23 available to implement such steps; and 

•BRU'JII m 
130 

37 

1 "(iii) what alternative actions to such tak2 ing the applicant considered and the reasons 

3 why such alternatives are not being utilized. 

4 "(B) If the Secretary finds, after opportunity 

5 for public comment, with respect to a pennit appli6 cation and the related species conservation plan 

7 tha~ 

8 "(i) the taking will be incidental; 

9 '

4

(ii) the applicant will, to the extent real 0 sonable and economically practicable, minimize 

11 the impacts of such taking; 

12 "(iii) the applicant will ensure that ade13 quate funding for the plan. will be provided; 

14 "(iv) ·the taking will not appreciably reduce 

15 the likelihood of the survival and conservation 

16 of the species; and 

17 "(v) the measures specified under subpara18 graph (A)(ii) will be met; 

19 and the Secretary has received such other assur20 ances as the Secretary may require that the plan will 

21 be implemented, the Secretary shall issue the permit. 

22 The permit shall contain such reasonable and eco23 nomically practicable terms and conditions consist24 ent with the purposes and objectives of the activity 

25 as the Secretary deems necessary or appropriate to 

•BRII'JIIIH 
131 

38 

1 can-y out the purposes of this paragraph, including, 

2 but not limited to, such reporting requirements as 

3 the Secretary deems necessary for determining 

4 whether such terms and conditions are being com5 plied with. 

6 "(C) The Secretary may not require the appli7 cant, as a condition of processing the application or 

8 issuing the permit, to expand the application to in9 elude land, an interest in land, right to use or re10 ceive water, or a proprietary water right not owned 

11 by the applicant or to address a species other than 

12 the species for which the application is made. 

13 "(D)(i) The Secretary shall complete the proc14 essing of, and approve or deny, any application for 

15 a permit under paragraph (1)(B) within 90 days of 

16 the date of submission of the application or within 

17 such other period of time after such date of submis18 sion to which the Secretary and the permit applicant 

19 mutually agree. 

20 "(ii) The preparation and approval of a species 

21 conservation plan and issuance of a permit under 

22 paragraph (l)(B) shall not be subject to section 

23 102(2) of the National Environmental Policy Act of 

24 1969 (42 u.s.c. 4332(2)). 

•BB 1111 m 
132 

39 

1 "(E) No additional measures to minimize and 

2 mitigate impacts on a species that is a subject of a 

3 permit issued under paragraph (l)(B) shall be re4 quired of a permittee that is in compliance with the 

5 permit. With respect to any species that is a subject 

6 of such a permit, under no circumstance shall a per7 mittee in compliance with the permit be required to 

8 make any additional payment for any purpose, or ac9 cept any additional restriction on any parcel of land 

10 available for development or land management or 

11 any water or water-related right under the permit, 

12 without the consent of the permittee. 

13 "(F)(i) For such activities as the Secretary de14 termines will not appreciably reduce the chances of 

15 survival of a species, the Secretary may issue an in16 terim permit to any applicant for a permit under 

17 this section that provides evidence of appropriate in18 terim measures that19 "(I) will minimize impacts of any inciden20 tal taking that may be associated with the ac21 tivity proposed for permitting; and 

22 "(II) are to be performed while the under23 lying permit application is being considered 

24 under this section. 

•BRmam 
133 

40 

1 "(ii) An interim pennit issued under clause 

2 (i)-

3 "(I) shall specifically state the types of ac4 tivities that are authorized to be carried out 

5 under the interim permit; 

6 "(II) shall not create any right to the issu7 ance of a permit under this section; 

8 "(Ill) shall expire on the date of the grant9 ing or denial of the underlying permit applica10 tion; and 

11 "(IV) may be revoked by the Secretary 

12 upon failure to comply with any term of the in13 terim permit. 

14 "(G) The Secretary shall revoke a permit issued 

15 under this paragraph if he finds that the pennittee 

16 is not complying with the terms and conditions of 

17 the pennit. ". 

18 (c) MULTI-SPECIES PLANNING.-Section 10 (16 

19 U.S.C. 1539) is amended by adding at the end the follow20 ing new subsection: 

21 "(k) MULTIPLE SPECIES CONSERVATION PLANS.-

22 "(1) DEVELOPMENT.-The Secretary may as23 sist a non-Federal person in the development of a 

24 plan, to be known as a 'multiple species conservation 

25 plan', for the conservation of-

•BB 1111 m 
134 

41 

1 "(A) any species with respect to which a 

2 finding is made and a status review is com3 menced under section 4(b)(3)(B); and 

4 "(B) any other species that5 "(i) inhabit the area covered by the 

6 plan; and 

7 "(ii) are designated in the plan or are 

8 within a taxonomic group designated in the 

9 plan. 

10 "(2) ISSUANCE OF PERMITS.-The Secretary 

11 may issue a permit under subsection (a)(l)(B) au12 thorizing the take described in section 9(a)(l)(B) of 

13 a species for which a multiple species conservation 

14 plan is developed under this subsection, if the Sec15 retary, after providing opportunity for public com16 menton the plan17 "(A) determines that the plan specifies the 

18 information described in subsection (a)(2)(A); 

19 "(B) makes the findings described in sub20 section (a)(2)(B) with respect to the permit ap21 plication and the plan; and 

22 '"(C) receives such assurances as the Sec23 retary may require that the plan will be imple24 mented. 

•BR D'lll m 
135 

42 

1 "(3) EFFECT OF LISTING OF SPECIES.-A mul2 tiple species conservation plan developed under ·this 

3 subsection and a permit issued with respect to the 

4 plan shall remain in effect and shall not be required 

5 to be amended if a species to which the plan and 

6 permit apply is determined to be an endangered spe7 cies or a threatened species under section 4.". 

8 {d) FOREIGN SPECIES.-Section lO(a), as amended 

9 by subsection (b) of this section and sections 203 and 

10 205(a) of this Act, is amended by adding at the end the 

11 following new·paragraph: 

12 "(7) FOREIGN SPECIES.-{A) In determining 

13 whether to issue a permit under subsection 

14 (a}{l){A)(iii), there shall be a rebuttable presump15 tion that the survival of a species is enhanced by the 

16 ordinary benefit occurring from the taking of a spec17 imen for an inherently limited use in accordance 

18 with the laws and wildlife management policies of 

19 the nation in which it is found. 

20 "(B) The Secretary may not refuse to ·issue a 

21 permit for such specimens and may not limit the 

22 number of such specimens which may be imported 

23 unless he makes and publishes in the Federal Reg24 ister a finding that there is substantial evidence that 

25 the detriment resulting from the taking of such 

•BR D715 m 
136 

43 

1 specimens outweighs the benefit derived, and subse2 quently promulgates regulations containing the limi3 tation. 

4 " (C) The Secretary shall transmit the full text 

5 and a complete description of the proposed regula6 tion referred to in the preceding paragraph directly 

7 to the appropriate wildlife management authorities 

8 of the nations from which the specimens are ex9 ported, in the language of those countries, with at 

10 least 180 days allowed for review and comment. The 

11 180-day period shall be counted from the date of the 

12 delivery of the materials to the wildlife management 

13 authority of each of the nations. 

14 "(D) For the purpose of this paragraph, the 

15 term 'inherently limited use' means scientific collec16 tion, live export for captive breeding, sport hunting, 

17 and falconry." . 

18 SEC. 205. GENERAL, RESEARCH. AND EDUCATIONAL PER19 MITS. 

20 (a) IN GENERAL.-Section 10(a) (16 U.S.C. 

21 1539(a)), as amended by sections 203 and 204(b) of this 

22 Act, is amended · by adding at the end the following new 

23 paragraphs: 

24 "( 4) GENERAL PERMITS.-(A) After providing 

25 notice and opportunity for public hearing, the Sec-
137 

44 

1 retary may issue a general permit under paragraph 

2 (l)(B) on a county, parish, State, regional, or na3 tionwide basis for any category of activities that may 

4 affect a species determined to be an endangered spe5 cies or threatened species if the Secretary deter6 mines that the activities in the category are similar 

7 in nature, will cause only minimal adverse effects on 

8 the species if performed separately, and will have 

9 only minimal cumulative adverse effects on the spe10 cies generally. A general permit issued under this 

11 paragraph shall specify the requirements and stand12 ards that apply to an activity authorized by the gen13 eral permit. 

14 "(B) A general permit issued under this para15 graph shall be effective for a period to be specified 

16 by the Secretary, but not to exceed the 5-year period 

17 that begins on the date of issuance of the permit. 

18 "(C) The Secretary may revoke or modify a 

19 general permit if, after providing notice and oppor20 tunity for public hearing, the Secretary determines 

21 that the activities authorized by the general permit 

22 have a greater than minimal adverse effect on a spe23 cies that is included in a list published under section 

24 4(c)(l) or that the activities are more appropriately 

•BR227111H 
138 

45 

1 authorized by individual pennits issued under para2 graph (1) or (3). 

3 u(5) RESEARCH ON ALTERNATIVE METHODS 

4 AND TECHNOLOGIES.-Priority for issuing pennits 

5 under paragraph (1 )(A) shall be accorded to applica6 tions for pennits to conduct research, captive breed7 ing, or education on alternative methods and tech8 nologies, and the comparative costs of the methods 

9 and technologies, to reduce the incidental taking as 

10 described in paragraph (l)(B) of an endangered spell cies or a threatened species for which the employ12 ment of existing methods or technologies for avoid13 . ance of the incidental taking entails significant costs 

14 for non-Federal persons. 

15 u(6) EDUCATIONAL OR PROPAGATION PER16 MITS.-(A) A pennit under paragraph (1)(A)(ii) or 

17 (iv) shall be issued if18 u(i)(I) the applicant holds a current and 

19 valid license as an exhibitor under the Animal 

20 Welfare Act (7 U.S.C. 2131 et seq.); 

21 "(II) in the case of a permit under para22 graph (1)(A)(ii), the applicant maintains a pub23 lie display or exhibition of living wildlife de24 scribed in that paragraph; and 

•HRmam 
139 

46 

1 "(ill) viewing of the public display or exhi2 bition is not limited or restricted other than by 

3 charging an admission fee; or 

4 "(ii) in the case of a permit under para5 graph (l)(A)(iv), the applicant has dem6 onstrated the ability to use propagation tech7 niques that result in increases in the popu8 lations of species held in captivity for eventual 

9 release into the wild, maintenance of live speci10 mens, or falconry purposes. 

11 "(B)(i) The Secretary shall issue a permit with12 in 30 days from the effective date of this subpara13 graph to any qualified organization or person who 

14 has demonstrated the ability to handle or recover 

15 species for a minimum of 15 years or who has at 

16 least 10 permits in the aggregate issued pursuant to 

17 this Act or the other laws listed in subparagraph 

18 (H). 

19 "(ii) The Secretary shall issue a permit within 

20 90 days of receipt of a completed application from 

21 any qualified organization or person who currently 

22 does not hold any permit but who has demonstrated 

23 the ability to handle or recover species for a mini24 mum of 15 years of who has received at least 10 

25 permits in the aggregate and who has not violated 

•BR 12'75 1H 
140 

47 

1 any terms or conditions of any permits previously is2 sued pursuant to this Act or the laws listed in sub3 paragraph (H). 

4 "(C) A permit referred to in paragraph 

5 (l)(A)(ii) shall be for a term of not less than 6 

6 years. 

7 "(D) A permit referred to in paragraph 

8 (l)(A)(ii) shall also authorize the permittee to im9 port, export, sell, purchase, or otherwise transfer 

10 possession of the affected species. 

11 "(E) The Secretary shall revoke a permit re12 ferred to in paragraph (l)(A)(ii) if the Secretary de13 termines that the permittee14 "(i) no longer meets the requirements of 

15 subparagraph (A) and is not reasonably likely 

16 to meet the requirements in the near future; 

17 "(ii) is not complying with the terms and 

18 conditions of the permit; or 

19 "(iii) is engaging in an activity likely to 

20 jeopardize the continued existence of the species 

21 subject to the permit. 

22 "(F) The Secretary may require an annual re23 port on the activities authorized by a general permit, 

24 but may not require reports more frequently than 

25 annually. 

oRR 11'711 m 
141 

48 

1 "(G) A pennit authorized in this paragraph 

2 shall be the only pennit required for the activities 

3 authorized therein, and may cover activities for one 

4 or more species or taxa simultaneously. 

5 "(H) The authorizations for any activities per6 mitted under this paragraph or pennitted by the 

7 Bald Eagle Protection Act (16 U.S.C. 668-668d), 

8 the Fish and Wildlife Conservation Act of 1980 (16 

9 U.S.C. 2901-2911), the Lacey Act Amendments of 

10 1981 (18 U.S.C. 42; 16 U.S.C. 3371-3378), the 

11 Marine Mammal Protection Act of 1972 (16 U.S.C. 

12 1361-1407), the Migratory Bird Conservation Act 

13 (16 U.S.C. 715-715d), the Migratory Bird Treaty 

14 Act (16 U.S.C. 703-712), or the Wild Bird Con15 servation Act of 1992 (Public Law 102-440) shall 

16 be consolidated into a general permit to cover all au17 thorized activities, notwithstanding any law or regu18 lation to the contrary." . 

19 (b) EXCEPTIONS FOR WILDLIFE BRED IN CAP20 TIVITY.-Section 10, as amended by section 204(c) of this 

21 Act, is amended by adding at the end the following new 

22 subsection: 

23 "(1) WILDLIFE BRED IN CAPTIVITY.-For the pur24 poses of this Act or any regulation adopted pursuant to 

25 this Act, the tenns 'bred in captivity' or 'captive-bred', 

•Jill 11'71 IR 
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49 

1 with respect to wildlife, means wildlife, including eggs, 

2 born or otherwise produced in captivity from parents that 

3 mated or otherwise transferred gametes in captivity if re4 production is sexual, or from parents that were in captivity 

5 when development of the progeny began, if development 

6 is asexual. Such progeny shall be considered domestic fish 

7 or wildlife for all purposes and shall not come under the 

8 provisions and prohibitions of this Act and the laws listed 

9 in subsection (a)(6)(H) unless intentionally and perma1 0 nently released to the wild. Any person holding any fish 

11 or wildlife or their progeny as described in this subsection 

12 must be able to demonstrate that such fish or wildlife do, 

13 in fact, qualify under the provision of this subsection, and 

14 shall maintain and submit to the Secretary, on request, 

15 such inventories, documentation, and records as the Sec16 retary may by regulation require as being reasonable and 

17 appropriate to carry out the purposes of this subsection. 

18 Such requirements shall not unnecessarily duplicate the 

19 requirements of other rules and regulations promulgated 

20 by the Secretary.". 

21 SEC. 208. MAJNTENANCE OF AQUATIC HABITATS FOR UST· 

22 EDSPEC~ 

23 The Endangered Species Act of 1973 (16 U.S.C. 

24 1851 et seq.) is amended by adding at the end the follow25 ing new section: 

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50 

1 "RECOGNIZING NET BENEFITS TO AQUATIC SPECIES 

2 "SEC. 20. (a) ENCOURAGING NET BENEFITS.-In 

3 carrying out this Act, if the number of individual members 

4 of an endangered species or threatened species exiting an 

5 aquatic habitat area under the control, authority or owner6 ship of a non-Federal person is equal to or greater than 

7 the number of individual members of the species entering 

8 such area, the Secretary shall not require, provide for, or 

9 recommend the imposition of any restriction or obligation 

10 on the activity of the non-Federal person in a manner 

11 which would require the non-Federal person to support the 

12 maintenance of any greater number of individual members 

13 of the species than that which enters such aquatic habitat 

14 area. 

15 "(b) CONSIDERATION OF HATCHERY POPU16 LATIONS.-In calculating the number of individual mem17 hers of a species entering and exiting a specific aquatic 

18 habitat area pursuant to this section, the Secretary shall 

19 consider hatchery populations. 

20 "(c) LIMITATIONS.-The Secretary shall not require, 

21 provide for, or recommend the imposition of any restric22 tion or obligation on the activity of any non-Federal per23 son in an aquatic habitat area to remedy adverse impacts 

24 on· a species resulting from activities of individuals other 

25 than the non-Federal person.". 

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1 SEC. 207. COMPLIANCE WITH INTERNATIONAL REQUIRE2 MENTS AND TREATIES. 

3 (a) RESPECTING THE SOVEREIGNTY OF OTHER NA4 TIONS.-Section 8 (16 U.S.C. 1537) is amended by adding 

5 at the end the following new subsection: 

6 "(e) ENCOURAGEMENT OF FOREIGN PROGRAMS.-

7 Any action taken by the Secretary pursuant to this Act 

8 in regard to a foreign species which occurs in a country 

9 which is a party to the Convention10 "(1) shall be done in cooperation with the wild11 life conservation authorities of such country; and 

12 "(2) shall not obstruct any wildlife conservation 

13 program of such country unless the Secretary can 

14 show, based on adequate findings supported by sub15 stantial evidence, that the country's wildlife con16 servation program for the species in question is not 

17 consistent with the Convention.". 

18 (b) COMPLIANCE WITH THE CONVENTION.-Section 

19 8A (16 U.S.C. 1537a) is amended by adding at the end 

20 the following new subsections: 

21 "(f) NONDUPLICATION OF FINDINGS.-The Sec22 retary, in making the findings required in paragraph 3(a) 

23 of Article III of the Convention, shall limit such findings 

24 to the purpose of the importation, and shall not duplicate 

25 the findings required to be made by the exporting nation 

•HR 22711 m 
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52 

1 except for good cause based on adequate findings sup2 ported by substantial evidence. 

3 "(g) RELATIONSHIP OF PRoTECTIVE REGULATIONS 

4 TO THE CONVENTION.-ln determining the provisions of 

5 protective regulations pursuant to section 4(d) of this Act 

-6 when such regulations relate to a foreign species7 "(1) the Secretary may · not prohibit any act 

8 that is permissible under the Convention, notwith9 standing Article XIV of the Convention; 

10 "(2) the Secretary shall, prior to publishing a 

11 proposal for such protective regulations in the Fed12 · eral Register, transmit the full text and a complete 

13 description of the proposed regulation directly to the 

14 appropriate wildlife management authority of that 

15 country, in the language of that country, with at 

16 least 180 days allowed for review and comment, the 

17 180 days shall be counted from the date of delivery 

18 of the materials to the wildlife authorities of the 

19 country; 

20 "(3) such transmission must be accompanied 

21 by22 "(A) a plain-language explanation of the 

23 reasons for and purpose of the proposed regula24 tion; 

•BR 11'71 m 
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53 

1 "(B) an analysis of the anticipated bene2 ficial impact or detrimental impact of the regu3 lation on the economic, social, and cultural uti4 lization of the species, if any, and of the bene5 ficial or detrimental impact on the resource 

6 management and conservation programs of that 

7 country; and 

8 "(C) a summary of the literature reviewed 

9 and experts consulted by the Secretary in re10 gard to the species involved, and a summary of 

11 the Secretary's findings based on that review 

12 and consultation; 

13 "( 4) the Secretary shall enter into discussions 

14 with appropriate wildlife management officials of the 

15 countries to which he has sent the transmission re16 ferred to in the previous paragraph, and if those of17 ficials feel that further studies of the species are in18 dicated the Secretary shall assist in finding the 

19 funds for such studies and in carrying out the stud20 ies; and 

21 "(5) the Secretary must obtain the written con22 currence of all the nations contacted, and if such 

23 concurrence is not obtained the Secretary may not 

24 issue the proposed regulation except by an order 

25 submitted to and approved by the President.". 

oHR 22711 m 
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54 

1 (c) CONSERVATION OF THREATENED SPECIES.-Sec2 tion 9 (16 U.S.C. 1538), as amended by section 206 of 

3 this Act, is amended by adding at the end the following 

4 new subsection: 

5 "(i) IMPORTATION AND EXPORTATION.-

6 "(1) LIMITATION ON IMPORTATION.-The pro7 hibition on importation in subsection (a) of this sec8 tion shall not apply to a specimen of a threatened 

9 species taken for an inherently limited use in accord10 ance with the laws of a foreign nation and accom11 panied by an export permit issued by that nation or 

12 an equivalent document. For the purpose of this 

13 subsection, the term 'inherently limited use' means 

14 scientific collection, live export for captive breeding, 

15 sport hunting, and falconry. 

16 "(2) REGULATIONS FOR SlllPPING UNDER CON17 VENTION.-(A) The Secretary shall adopt regulaIS tions regarding the finding required by the Conven19 tion that live specimens exported from the United 

20 States will be so prepared as to minimize the risk 

21 of injury, damage to health, or cruel treatment. 

22 Such regulations shall provide clear, consistent and 

23 reliable guidance to exporters. 

24 "(B) In any instance in which the Secretary be25 lieves that a shipment for export is not prepared in 

•DR 1175 m 
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55 

1 accordance with the regulations, a detailed written 

2 notice of noncompliance shall be issued to the ex3 porter. The notice shall contain recommendations as 

4 to how future shipments should be modified in order 

5 to come into compliance with the regulations. The 

6 notice shall go into effect 30 days after receipt by 

7 the shipper, subject to appeal to an Administrative 

8 Law Judge or a court. The filing of an appeal shall 

9 toll the effectiveness of the notice. The issue of non10 compliance may be appealed as well as the issue of 

11 the appropriateness of the recommendation for com12 pliance. ". 

13 SEC. 208. INCENTIVES FOR PROTECTION OF MARINE SPE14 CIES. 

15 (a) IN GENERAL.-Section 10 (16 U.S.C. 1539), as 

16 amended by section 205(b) of this Act, is amended by add17 ing at the end the following new subsection: 

18 "(m) INCENTIVES.-(1) The Secretary shall exempt, 

19 under such terms and conditions as the Secretary may 

20 prescribe by regulation, any operator of a trawl vessel re21 quired to use a turtle excluder device under regulations 

22 promulgated under this Act from such requirement if such 

23 operator agrees to support a conservation program ap24 proved under paragraph (2) and such support is deter25 mined to be appropriate under paragraph ( 4). 

•IIR 2275 JH 
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56 

1 "(2) No later than 180 days after the effective date 

2 of this subsection and each year thereafter, the Secretary 

3 shall4 

5 

"(A) review all those programs intended to conserve the endangered species and threatened species 

6 of sea turtles found in the Gulf of Mexico and along 

7 the Atlantic seaboard, including those programs inS volving protection of nesting beaches in other na9 tions; 

10 "(B) approve any such program determined by 

11 the Secretary to be of significant benefit to the re12 covery of the species of such sea turtles under this 

13 subsection; and 

14 "(C) publish notice of such determination in the 

15 Federal Register. 

16 "(3)(A) Any person or group of persons operating 

17 trawl vessels may submit in writing a request to the Sec18 retary for an exemption under this subsection. 

19 "(B) Not later than 60 days after receipt of such re20 quest the Secretary shall provide such person or group 

21 written notice of the issuance or denial of such request. 

22 "( 4) The Secretary shall determine that the support 

23 offered by an operator in a written request submitted 

24 under paragraph (3) is appropriate if the benefits provided 

25 by such support to the recovery of such species exceed any 

•BR 117& m 
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57 

1 hann to the recovery of such species incurred as a result 

2 of the operator not using turtle excluder devices under an 

3 exemption provided under this subsection. 

4 " ( 5) The Secretary shall prescribe such regulations 

5 as the Secretary considers necessary and appropriate to 

6 carry out the purposes of this subsection.". 

7 (b) INCIDENTAL TAKE STATEMENTS.-Section 7(b) 

8 (16 U.S.C. 1536(b)) is amended by adding at the end of 

9 paragraph (4)(C)(ii) the following: "including incentives 

10 to encourage the support of conservation programs ap11 proved under section 10(k),". 

12 TITLE Ill-IMPROVING SCI13 ENTIFIC INTEGRITY OF LIST14 lNG DECISIONS AND PROCE15 DURES 

16 SEC. 301. IMPROVING THE VALIDITY AND CREDmiLITY OF 

17 DECISIONS. 

18 (a) BASING LISTINGS ON CREDIDLE SciENCE.-

19 (1) LISTING DETERMINATIONS.-Subsections 

20 (a) and (b) (1) and (2) of section 4 (16 U.S.C. 

21 1533) are amended to read as follows: 

22 "(a) GENERALLY.-The Secretary shall by regulation 

23 promulgated in accordance with subsection (b) detennine 

24 whether any species is an endangered species or a threat25 ened species because of any of the following factors: 

•BR 11'11 m 
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58 

1 "(1) The present or threatened loss of its habi2 tat. 

3 "(2) Overutilization for commercial, rec4 reational, scientific, or educational purposes. 

5 "(3) Disease or predation. 

6 "(4) The inadequacy of existing Federal, State, 

7 and local government regulatory mechanisms. 

8 "(5) Other natural or manmade factors affect9 ing its continued existence. 

10 "(b) SECRETARIAL DETERMINATIONS.-

11 "(1) BASIS FOR DETERMINATION.-(A) The 

12 Secretary shall make determinations required by 

13 subsection (a)(1) solely on the basis of the best sci14 entific and commercial data available to the Sec15 retary after conducting a review of the status of the 

16 species and after soliciting and fully considering the 

17 best scientific and commercial data available con18 cerning the status of a species from any affected 

19 State or any interested non-Federal person, and tak20 ing into account those efforts being made by any 

21 State, any political subdivision of a State, or any 

22 non-Federal person or conservation organization, to 

23 protect such species, whether by predator control, 

24 protection of habitat and food supply, or other con25 servation practices, within any area under its juris-

•BRllli'JIIm 
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59 

1 diction, or on the high seas, and shall accord greater 

2 weight, consideration, and preference to empirical 

3 data rather than projections or other extrapolations 

4 developed through modeling. 

5 "(B) In making a determination whether a spe6 cies is an endangered species or a threatened species 

7 under this section, the Secretary shall fully consider 

8 populations of the species that are bred through pri9 vate sector, university, and Federal, State, and local 

10 government breeding programs for release in the 

11 habitat of the species. In the case of fish species, the 

12 bred populations referred to in the preceding sen- . 

13 tence shall include hatchery populations. 

14 "(2) CONSIDERATION OF STATE RECOMMENDA15 TIONS.-In making a determination pursuant to 

16 paragraph (1), the Secretary shall give consideration 

17 to species which have been identified as in danger of 

18 extinction, or likely to become so within the foresee19 able future, by any State agency that is responsible 

20 for the conservation of fish or wildlife or plants.". 

21 (2) LISTING FOREIGN SPECIES.-Section 4(b) 

22 (16 U.S.C. 1533(b)), as amended by subsection (f) 

23 of this section, is amended by adding at the end the 

24 following new paragraph: 

•DR l12'1'5 m 
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60 

I "(10) FOREIGN SPECIES.-(A) In detennining 

2 under subsection (a) whether a foreign species is an 

3 endangered species or a threatened species, the Sec4 retary shall not detennine that a species that is listS ed under the Convention is endangered or threat6 ened unless he makes an adequate finding, sup7 ported by substantial evidence, that the Convention 

8 · does not provide adequate regulation. 

9 "(B) The Secretary shall, prior to publishing a 

10 proposal in the Federal Register to determine that 

II a foreign species is endangered or threatened, trans12 mit the full· text and a complete description of the 

13 proposed listing directly to the appropriate wildlife 

14 management authority of that nation, in the lan15 guage of that nation, with at least 180 days allowed 

16 for review and comment. The 180 days shall be 

17 counted from the date of delivery of the materials 

18 supporting the proposed listing to the wildlife au-. 

19 thorities of the country. 

20 "(C) Such transmission must be accompanied 

21 by22 "(i) a plain-language explanation of the ob23 jective criteria for and purpose of the proposed 

24 listing; 

•BR 1111 m 
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61 

1 "(ii) an analysis of the anticipated bene2 ficial impact or detrimental impact of the list3 ing on the economic, social, and cultural utiliza4 tion of the species, if any, and of the beneficial 

5 or detrimental impact on the resource manage6 ment and conservation programs of that nation; 

7 and 

8 "(iii) a summary of the literature reviewed 

9 and experts consulted by the Secretary in re10 gard to the species involved, and a summary of 

11 the Secretary's findings based on that review 

12 and consultation. 

13 "(D) The Secretary shall enter into discussions 

14 with the appropriate wildlife management officials of 

15 the nations to which he has sent the transmission 

16 referred to in subparagraph (C). If those officials 

17 feel that further studies of the species are indicated, 

18 the Secretary shall assist in finding the funds for 

19 such studies and in carrying out the studies. 

20 "(E) The Secretary must obtain the written 

21 concurrence of all the nations contacted. If such con22 currence is not obtained, the Secretary may not 

23 issue the proposed regulation except by an order 

24 submitted to and approved by the President.". 

•IIR 2271118 
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62 

1 (b) DEFINITIONS.-Section 3 (16 U.S.C. 1532) is 

2 amended3 ( 1) by adding after paragraph (1) the following 

4 newparagraph: 

5 "(2) The term 'best scientific and commercial 

6 data available' means factual information, including 

7 but not limited to peer reviewed scientific informa8 tion obtainable from any source, including govern9 mental and nongovernmental sources, which has 

10 been to the ma."<imum e:\.-tent feasible verified by field 

11 testing."; 

12 (2) by adding after paragraph (7) (as redesig13 nated by section 102(a)(1) of this Act) the following 

14 new paragraphs: 

15 "(8) The term 'distinct population of national 

16 interest' means a distinct population of a vertebrate 

17 species that is not otherwise an endangered species 

18 or threatened species in the United States, Canada, 

19 or Mexico, but which because of its value to the Na20 tion as a whole has been designated by Congress as 

21 needing protection under this Act. 

22 "(Sa) The term 'foreign species' means a spe23 cies naturally occurring outside the territory of the 

24 United States, but does not include any marine spe25 cies, any species having a significant population oc-

•DR ll276 m 
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63 

1 curring in the wild within the United States, or any 

2 migratory species whose migration route includes 

3 United States territory."; 

4 (3) by adding after paragraph (13) (as redesig5 nated by section 102(a)(1) of this Act) the following 

6 new paragraph: 

7 "(14) The term 'imminent threat to the existS ence of, with respect to a species, means, as deter9 mined by the Secretary under section 4(b)(7) or the 

10 President under section 5(e)(2) solely on the basis of 

11 the best scientific and commercial data available, 

12 that there is a significant likelihood that the species 

13 will become extinct, or will be placed on an irrevers14 ible course to extinction, during the 2-year period 

15 beginning on the date of the determination that the 

16 species is an endangered species or a threatened spe17 cies, unless the species is accorded fully the protec18 tion available under this Act during such period."; 

19 (4) by amending paragraph (22) (as redesig20 nated by section 102(a)(1) of this Act) to read as 

21 follows: 

22 "(22) The term . 'Secretary' means, except as 

23 otherwise herein provided, the Secretary of the Inte24 rior, except that with respect to the enforcement of 

25 the provisions of this Act and the Convention which 

•IIR 227111H 
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64 

1 pertain to the importation or exportation of terres2 trial plants, the term also means the Secretary of 

3 Agriculture."; and 

4 (5) by amending paragraph (23) (as redesig5 nated by section 102(a)(l) of this Act) to read as 

6 follows: 

7 "(23) The term 'species' includes any sub8 species of fish or wildlife or plants, and any distinct 

9 population of national interest of any species or ver10 tebrate fish or wildlife which interbreeds when mall ture.". 

12 (c) SOLICITING SCIENTIFIC INFORMATION.-Section 

13 4(b)(3) (16 U.S.C. 1533(b)(3)), as amended by sections 

14 303(a), 304(a), 305(a), and 306 of this Act, is amended 

15 by adding at the end the following new subparagraph: 

16 "(F) Before any further action is taken in ac17 cordance with this paragraph, the Secretary shall 

18 publish in the Federal Register a solicitation for fur19 ther information regarding the status of a species 

20 which is the subject of a proposed rule to list the 

21 species as an endangered species or threatened spe22 cies, including current population, populations 

23 trends, current habitat, Federal conservation lands 

24 which could provide habitat for the species, food 

25 sources, predators, breeding habits, captive breeding 

•HR 22111 m 

20-707 95-6 
158 

65 

1 efforts, commercial, nonprofit, avocational, or vol2 untary conservation activities, or other pertinent in3 formation which may assist in making a determina4 tion under this section. The solicitation shall give a 

5 time limit within which to submit the information 

6 which shall be not less than 180 days. The time 

7 limit shall be extended for an additional 180 days at 

8 the request of any person who submits a request for 

9 such extension along with the reasons therefor. The 

10 Secretary in making the determination required in 

11 this subsection, shall give equal weight to the infor12 mation submitted in accordance with this para13 graph.". 

14 (d) EMERGENCY LISTINGS.-Section 4(b)(7) (16 

15 U.S.C. 1533(b)(7)) is amended16 (JJ) bY, ;.;riking the matter preceding subpara17 graph (A) and inserting the following: 

18 "(7) EMERGENCY REGULATIONS.-Neither 

19 paragraph (4), (5), or (6) of this subsection nor sec20 tion 553 of title 5, United States Code, shall apply 

21 to any regulation issued by the Secretary in regard 

22 to any emergency posing an imminent threat to the 

23 existence of any species of fish or wildlife or plants, 

24 but only if-"; and 

HR2275 IH-3 
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66 

1 (2) by adding at the end the following new sen2 tence: "The Secretary may not delegate the final de3 cision to issue an emergency regulation under this 

4 paragraph.". 

5 (e) USING BEST DATA.-Section 4(b)(8) (16 U.S.C. 

6 1533(b)(8)) is amended by striking "the data" and insert7 ing "the best scientific and commercial data". 

8 (f) IDENTIFYING DATA USED FOR DECISIONS.-Sec9 tion 4(b) (16 U.S.C. 1533(b)) is amended by adding at 

10 the end the following new paragraph: 

11 "(9) PUBLICATION IN FEDERAL REGISTER.-

12 (A) The Secretary shall identify and publish in the 

13 Federal Register with each proposed rule under 

14 paragraph (1) or section 5(i) a description of15 "(i) all data that are to be considered in 

16 

17 

18 

19 

20 

21 

22 

23 

24 

making the determination under the subsection 

to which the proposed rule relates and that 

have yet to be collected or field verified; 

"(ii) data that are necessary to make determinations and that can be collected prior to 

any determination; and 

"(iii) data that are necessary to ensure the 

scientific validity of the determination, and each 

deadline for collecting these data. 

•HR 22715 m 
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67 

1 "(B) In making a determination pursuant to 

2 paragraph (1) or section 5(i), the Secretary shall 

3 collect and consider the data identified and described 

4 pursuant to subparagraph (A)(ii). 

5 "(C) The Secretary shall identify and publish in 

6 the Federal Register with each final rule promul7 gated under paragraph (1) or section 5(i)-

8 "(i) a description of any data that have 

9 not been collected and considered in the detertO mination to which the rule relates and that are 

11 necessary to ensure the continued scientific va12 lidity of the determination; and 

13 "(ii) each deadline by which the Secretary 

14 shall collect and consider the data in accordance 

15 with subparagraph (D). 

16 "(D) Not later than the deadline published by 

17 the Secretary pursuant to subparagraph (C)(ii), the 

18 Secretary shall19 "(i) collect the data referred to in each 

20 paragraph; 

21 "(ii) provide an opportunity for public re22 view and comment on the data; 

23 "(iii) consider the data after the review 

24 and comment; and 

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68 

1 "(iv) publish in the Federal Register the 

2 results of that consideration and a description 

3 of and schedule for any actions warranted by 

4 the data.". 

5 (g) JUDICIAL REVIEW.-Section 4 (16 U.S.C. 1533), 

6 as amended by section 302 of this Act, is amended by add7 ing at the end the following new subsection: 

8 "(j) JUDICIAL REVIEW OF DETERMINATIONS.-Any 

9 determination with regard to whether a species is a threat10 ened species or endangered species shall be subject to a 

11 de novo judicial review with the court determining whether 

12 the decision is supported by a preponderance of the evi13 dence.". 

14 SEC. 302. PEER REVIEW. 

15 Section 4 (16 U.S.C. 1533) is amended by adding 

16 after subsection (h), as redesignated by section 507(b)(2) 

17 of this Act, the following new subsection: 

18 "(i) PEER REVIEW REQUIREMENT.-

19 

20 

21 

22 

23 

24 

25 

"(1) DEFINITIONS.-In this subsection: 

"(A) The term 'action' means-

•HR 12'711 m 

"(i) the determination that a species 

is an endangered species or a threatened 

species under subsection (a); 

"(ii) the determination under subsection (a) that an endangered species or 
1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

162 

69 

a threatened species be removed from any 

list published under subsection (c)(l); 

"(iii) the designation, or revision of 

the designation, of critical habitat for an 

endangered species or a threatened species 

under section 5(i); and 

"(iv) the determination that a proposed action is likely to jeopardize the continued existence of a listed species and the 

proposal of any reasonable and prudent alternatives by the Secretary under section 

7(b)(3). 

"(B) The term 'qualified individual' means 

an individual with expertise in the biological 

sciences-

•BR 1111 m 

"(i) who is by virtue of advanced education, training, or avocational, academic, 

commercial, research, or other experience 

competent to review the adequacy of any 

scientific methodology supporting the action, the validity of any conclusions drawn 

from the supporting data, and the competency of the individual who conducted 

the research or prepared the data; 
163 

70 

1 "(ii) who is not otherwise employed by 

2 or under contract to the Secretary of the 

3 Interior; and 

4 "(iii) who has not participated in the 

5 listing decision. 

6 "(2) LIST OF PEER REVIEWERS.-In order to 

7 provide a substantial list of individuals who on a vol8 untary basis are available to participate in peer re9 view actions, the Secretary shall, through the Fed1 0 eral Register, through scientific and commercial 

11 journals, and through the National Academy of 

12 Sciences and other such institutions, seek nomina13 tions of persons who agree to peer review action 

14 upon appointment by the Secretary. 

15 "(3) APPOINTMENT OF PEER REVIEWERS.-Be16 fore any action shall become final, the Secretary 

17 shall appoint, from among the list prepared in ac18 cordance with paragraph (2), not more than 2 quali19 tied individuals who shall review, and report to the 

20 Secretary on, the scientific information and analyses 

21 on which the proposed action is based. The Governor 

22 of each State in which the species is located that is 

23 the subject of the proposal, may appoint up to 2 

24 qualified individuals to conduct peer review of the 

25 action. If any individual declines the appointment, 

•BBD7S m 
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71 

1 the Secretary or the Governor shall appoint another 

2 individual to conduct the peer review. 

3 "( 4) DATA PROVIDED TO PEER REVIEWER.-

4 The Secretary shall make available to each person 

5 conducting peer review all scientific information 

6 available regarding the species which is the subject 

7 of the peer review. The Secretary shall not indicate 

8 to a peer reviewer the name of any person that sub9 mitted a petition for listing or delisting that is re10 viewed by the reviewer. 

11 "(5) OPINION OF PEER REVIEWERS.-The peer 

12 reviewer shall give his or her opinion with regard to 

13 any technical or scientific deficiencies in the pro14 posal, whether the methodology and analysis sup15 porting the petition conform to the standards of the 

16 academic and scientific community, and whether the 

17 proposal is supported by sufficient credible evidence. 

18 "(6) PuBLICATION OF PEER REVIEW RE19 PORT.-The Secretary shall publish with any final 

20 regulation implementing an action a summary of the 

21 report of the peer review panel noting points of dis22 agreement between peer reviewers, if any, and the 

23 response of the Secretary to the report.". 

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72 

1 8BC. IILIIAIONO DATA PUBUC. 

2 (a) PuBLIC DATA.-Section 4(b)(3) (16 U.S.C. 

3 1533(b)(3)), as amended by sections 304(a), 305(a), and 

4 306 of this Act, is amended by adding at the end the fol5 lowing new subparagraph: 

6 "(E)(i) All data or information considered by 

7 the Secretary in making the determination to list as 

8 provided in this section, shall be considered public 

9 information and shall be subject to section 552 of 

10 title 5, United States Code (commonly referred to as 

11 the 'Freedom of Information Act') unless the Sec12 retary, for good cause, determines that the informa13 tion must be kept confidential. The burden shall be 

14 on the Secretary to prove that such information 

15 shall be confidential and such decision shall be 

16 reviewable by a district court of competent jurisdic17 tion, which shall review the decision in chambers. 

18 Good cause can include that the information is of a 

19 proprietary nature or that release of the location of 

20 the species may endanger the species further. 

21. "(ii) The Secretary shall minimize releasing the 

22 identification of particular private property as habi23 tat for a species which is determined to be an endan24 gered species or threatened species or proposed to be 

25 determined to be an endangered species or threat26 ened species, unless the Secretary first notifies the 

•BR 12711 m 
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73 

1 owner thereof and receives his or her consent, or the 

2 infonnation is otherwise public infonnation.". 

3 (b) PuBLIC IIEAiuNos.-Section 4(b) (16 U.S.C. 

4 1533(b)) is amended5 ( 1) in paragraph ( 5) (as amended by section 

6 305(b) of this Act) by adding at the end the follow-

? ing new subparagraph: 

8 "(E) promptly hold at least 1 hearing in each 

9 State in which the species proposed for detennina1 0 tion as an endangered species or a threatened spell cies is believed to occur, and in a location that is as 

12 close as possible to the center of the habitat of such 

13 species in such State."; and 

14 (2) in paragraph (6) by amending all that pre15 cedes subparagraph (B) to read as follows: 

16 "(6) PuBLICATION OF DETERMINATION.-(A) 

17 Within the one-year period beginning on the date on 

18 which general notice is published in accordance with 

19 paragraph (5)(A)(i) regarding a proposed regulation, 

20 the Secretary shall publish in the Federal Register, 

21 if a determination as to whether a species is an en22 dangered species or a threatened species is involved, 

23 either24 "(i) a final regulation to implement such 

25 detennination, 

•BR 11111 m 
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1 "(ii) a final regulation to implement such 

2 revision or a finding that such revision should 

3 not be made, 

4 "(iii) notice that such one-year period is 

5 being extended under subparagraph (B)(i), or 

6 "(iv) notice that the proposed regulation is 

7 being withdrawn under subparagraph (B)(ii), 

8 together with the finding on which such with9 drawal is based.". 

10 (c) NOTICE OF HEARINGS.-Section 14 is amended 

11 to read as follows: 

12 "SEC. 14. NOTICE OF HEARINGS. 

13 "Except as otherwise provided by this Act, the Sec14 retary shall provide notice of any hearing or other public 

15 meeting at which public comment is accepted under this 

16 Act by publication in the Federal Register and in a news17 paper of general circulation in the location of the hearing 

18 or meeting at least 30 days prior to the hearing or meet19 ing.". 

20 SEC. 304. IMPROVING THE PETITION AND DESIGNATION 

21 PROCESSES. 

22 (a) PETITIONS To LIST.-Section 4(b)(3) (16 U.S.C. 

23 1533(b)(3)) is amended to read as follows: 

24 "(3) PETITIONS.-(A) A petition submitted to 

25 the Secretary asserting that a species is a threat-

•HR 12111 m 
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75 

1 ened species or endangered species and requesting 

2 that the Secretary make a determination to that ef3 feet shall contain at a minimum the following: 

4 "(i) Information on the current population 

5 and range of the species. 

6 "(ii) Any information on efforts to field 

7 test the population estimates on the species. 

8 "(iii) If literature from scientific or other 

9 journals, dissertations or other such scientific 

10 writings of another person are submitted, they 

11 must be accompanied by an affidavit that the 

12 literature or writings have been peer reviewed 

13 along with the names of the persons performing 

14 the peer review. 

15 "(iv) The qualifications of any person as16 serting expertise on the species or status of the 

17 species. 

18 "(v) Information about the demonstrated 

19 habitat needs of the species, along with the 

20 known occupied habitat of the species. 

21 "(vi) Known causes of the species decline. 

22 "(B) Petitions to add a species to, or to remove 

23 a species from, either of the lists published under 

24 subsection (c)(l) shall be submitted in accordance 

25 with section 553(e) of title 5, United States Code. 

•HR 2275 m 
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1 The Secretary may commence a review of the status 

2 of the species concerned consistent with the prior3 ities set by the Secretary for the listing of species. 

4 The Secretary shall promptly publish any finding 

5 made under this subparagraph in the Federal Reg6 ister.". 

7 (b) CONFORMING AMENDMENTS.-Section 4(g), as 

8 redesignated by section 507(b)(2), is amended9 (1) by striking paragraph (2); and 

10 (2) by redesignating paragraphs (3) and ( 4) in 

11 order as paragraphs (2) and (3). 

12 SEC. 305. GREATER STATE INVOLVEMENT. 

13 (a) STATE CONSULTATION ON PETITIONS.-Section 

14 4(b)(3) (16 U.S.C. 1533(b)(3)), as amended by section 

15 304(a) of this Act, is amended by adding after subpara16 graph (B) the following subparagraph: 

17 "(C) At the time the review provided in sub18 paragraph (B) is commenced19 "(i) the Secretary shall contact the Gov20 ernor of each State in which the proposed spe21 cies is located and shall solicit from the Gov22 ernor information about the action requested in 

23 the petition in that State necessary to render a 

24 decision and shall solicit the advice of the Gov25 ernor on whether the status of species merits 

•BR 22111 m 
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3 

4 

5 

6 

7 

8 

9 

10 

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the action petitioned for, and if the Governor 

advises that the petition action is not warranted 

and thereafter the Secretary proceeds with the 

action, the Secretary shall have the burden of 

showing that the information submitted by the 

Governor is incorrect and that the action is 

warranted; and 

"(ii) the Secretary shall, to the maximum 

extent feasible, require by field testing, the verification of the information presented regarding 

11 the status of the species.". 

12 (b) REGULATIONS To IMPLEMENT DETERMINA13 TIONS.-Section 4(b)(5) (16 U.S.C. 1533(b)(5)) is 

14 amended to read as follows: 

15 "(5) NOTICE REQUIRED.-With respect to any 

16 regulation proposed by the Secretary to implement a 

17 determination referred to in subsection (a)(l) of this 

18 section, the Secretary shall19 "(A) not less than 90 days before the ef20 fective date of the regulation21 "(i) publish a general notice and the 

22 complete text of the proposed regulation in 

23 the Federal Register, and 

24 "(ii) give actual notice of the proposed 

25 regulation (including the complete text of 

•DR 1275 m 
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2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

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the regulation) to the Governor of each 

State in which the species is believed to 

occur, and to each county, or equivalent jurisdiction in which the species is believed 

to occur, and consult with such agency, 

and each such jurisdiction, thereon; 

"(B) in cooperation with the Secretary of 

State, give notice of the proposed regulation to 

each foreign nation in which the species is believed to occur or whose citizens harvest the 

species on the high seas, and consult with such 

nation thereon; 

"(C) give notice of the proposed regulation 

to any person who requests such notice, any 

person who has submitted additional data, each 

State and local government within which the 

species is believed to occur or which is likely to 

experience any effects of any measures to protect the species under this Act, and such professional scientific organizations as the Secretary 

deems appropriate; and 

"(D) publish a summary of the proposed 

regulation in a newspaper of general circulation 

in each area of the United States in which the 

species is believed to occur.". 

•BR ms m 
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79 

1 (c) STATE CONSULTATION ON FINAL DETERMINA2 TION.-Section 4(h), as redesignated by section 507(b)(2) 

3 of this Act, is amended to read as follows: 

4 "(h) SUBMISSION TO STATE AGENCY OF JUSTIFICA5 TION FOR REGULATIONS INCONSISTENT WITH STATE 

6 AGENCY'S COMMENTS OR PETITION.-lf, in the case of 

7 any regulation proposed by the Secretary under the au8 thority of this section, a State agency which consulted with 

9 the Secretary in accordance with subsection (b)(5)(A)(ii) 

10 of this section files comments disagreeing with all or part 

11 of the proposed regulation, the Secretary shall not issue 

12 a final regulation which is in conflict with such comments 

13 until the Secretary further consults with the President, or 

14 if the Secretary fails to adopt a regulation pursuant to 

15 an action petitioned by a State agency under subsection 

16 (b)(3) of this section, the Secretary shall submit to the 

17 State agency a written justification for the failure of the 

18 Secretary to adopt regulations consistent with the agen19 cy's comments or petition.". 

20 SEC. 306. MONITORING THE STATUS OF SPECIES. 

21 Section 4(b)(3) (16 U.S.C. 1533(b)(3)), as amended 

22 by sections 304(a) and 305(a) of this Act, is amended by 

23 adding after subparagraph (C) the following subpara24 graph: 

•BR D'll m 
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1 "(D) The Secretary shall implement a system 

2 to monitor effectively the status of all species with 

3 respect to which a finding is made that the peti4 tioned action is warranted but precluded by propos5 als to determine whether any species is an endan6 gered species or a threatened species and progress is 

7 being made to add qualified species to the list pubS lished under subsection (c) and to remove from lists 

9 published under that subsection species for which 

10 protection of this Act is no longer necessary, and 

11 shall make prompt use of the authority under para12 graph (7) to prevent a significant risk to the well 

13 being of any such species.". 

14 SEC. 307. PETITIONS TO DELIST SPECIES. 

15 Section 4(b)(3) (16 U.S.C. 1533(b)(3)), as amended 

16 by sections 301(a) and (c), 303(a), 304(a), 305(a), and 

17 306 of this Act, is further amended by adding at the end 

18 the following new subparagraphs: 

19 " (G) Any person may submit to the Secretary 

20 a petition to revise a previous determination by the 

21 Secretary under this Act that a species is an endan22 gered species or threatened species and to remove 

23 the species from a list published under subsection 

24 (c), on the basis that-

•BR 11111H 
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1 "(i) new data or a reinterpretation of prior 

2 data indicates that the previous detennination 

3 was in error; 

4 "(ii) the species is extinct; or 

5 "(iii) the population level target established 

6 for the species in a conservation plan under sec7 tion 5(c)(3)(C)(vii) has been achieved. 

8 "(H) Not later than 90 days after receiving a 

9 petition under subparagraph (D) for a species, the 

10 Secretary shall publish11 "(i) a proposed regulation to revise a pre12 vious determination for the species and to re13 move the species from a list published under 

14 subsection (c) on a basis set forth in subpara15 graph (G); or 

16 "(ii) a finding that such a basis for the ac17 tion requested by the petition does not exist.". 

18 TITLE IV-RECOGNIZING OTHER 

19 FEDERAL ACTION, LAWS, AND 

20 MISSIONS 

21 SEC. 401. BALANCE ESA WITH OTHER LAWS AND MISSIONS. 

22 (a) FEDERAL AGENCY ACTIONS.-Section 7 (16 

23 U.S.C. 1536) is amended by amending the matter preced24 ing subsection (b) to read as follows: 

•BR 11111 m 
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1 "SEC. 7. INTERAGENCY COOPERATION. 

2 "(a) FEDERAL AGENCY ACTIONS AND CONSULTA3 TIONS.-

4 "(1) PRoGRAMS ADMINISTERED BY THE SEC5 RETARY OF THE INTERIOR.-The Secretary shall re6 view other programs administered by the Secretary 

7 and utilize such programs in furtherance of the pur8 poses of this Act. Except as provided in section 5(d), 

9 (e), and (i), all other Federal agencies shall, consist1 0 ent with their primary missions and in consultation 

11 with and with the assistance of the Secretary, utilize 

12 their authorities in furtherance of the purposes of 

13 this Act by carrying out programs for the conserva14 tion of endangered species and threatened species 

15 listed pursuant to section 4. 

16 "(2) PRoGRAMS ADMINISTERED BY OTHER 

17 AGENCIES.-Except as provided in section 5(d) and 

18 (e), each Federal agency shall ensure that any action 

19 authorized, funded, or carried out by such agency 

20 (hereinafter in this section referred to as an 'agency 

21 action') is not likely to jeopardize the continued ex22 istence of any endangered species or threatened spe23 cies or destroy or adversely modify any habitat that 

24 is designated by the Secretary as critical habitat of 

25 the species in a manner that is likely to jeopardize 

26 the continued existence of the species. In the case of 

•BR 12715 1B 
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1 any agency action that the agency has detennined is 

2 subject to this paragraph and that is likely to sig3 nificantly and adversely affect an endangered species 

4 or a threatened species, the Federal agency shall ful5 fill the requirements of this paragraph in consulta6 tion with and with the assistance of the Secretary. 

7 As provided in section 5(d)(2), each Federal agency 

8 may initiate consultation with the Secretary to re9 ceive guidance from the Secretary on the consistency 

10 of its action with the conservation objective or con11 servation plan for such species developed pursuant 

12 to section 5, with an incidental take permit for such 

13 species issued pursuant to section lO(a), or with a 

14 cooperative management agreement concerning such 

15 species executed pursuant to section 6(b). In fulfill16 ing the requirements of this paragraph each agency 

17 shall use the best available scientific and commercial 

18 data, shall consider expert opinion and any reason19 able and prudent alternatives developed under sub20 section (b)(3)(A), and shall render the decision of 

21 the agency in a manner consistent with the obliga22 tions and responsibilities of the agency under each 

23 applicable law and treaty. 

24 "(3) INVOLVEMENT OF APPLICANTS FOR FED25 ERAL APPROVALS.-Subject to such guidelines as 

•BR 22111 m 
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1 the Secretary may establish, a Federal agency shall 

2 consult with the Secretary on any prospective agency 

3 action at the request of, with the involvement of, 

4 and in cooperation with, the prospective permit or li5 cense applicant if the applicant has reason to believe 

6 that an endangered species or a threatened species 

7 may be present in the area affected by his project, 

8 that the project is inconsistent with the conservation 

9 objective or plan for such species developed pursuant 

10 to section 5, an incidental take permit for such spell cies issued pursuant to section lO(a), or a coopera12 tive management agreement for such species exe13 cuted pursuant to section 6(b), and that implemen14 tation of such action will likely affect such species. 

15 "(4) CONFERRING ON CANDIDATE SPECIES.-

16 Each Federal agency shall confer with the Secretary 

17 on any agency action which is likely to jeopardize 

18 the continued existence of any species proposed to be 

19 listed under section 4 or to destroy or adversely 

20 modify any habitat that is projx>sed to be designated 

21 by the Secretary as critical habitat of such a species 

22 in a manner that is likely to jeopardize the contin23 ued existence of the species. This paragraph does 

24 not require a limitation on the commitment of re25 sources as described in subsection (d). 

•BR 1171 m 
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1 not require a limitation on the commitment of re2 sources as described in subsection (d). 

3 "(5) LIMITATIONS ON MODIFICATIONS TO LAND 

4 MANAGEMENT.-Notwithstanding any other provi5 sion of this Act, the authority in this Act shall not 

6 be construed to authorize or form the basis for any 

7 Federal agency to modify a land management plan, 

8 policy, standard, or guideline or water allocation 

9 plan unless a determination has been made under 

10 section 4 that a species is threatened or endangered. 

11 Notwithstanding any other law or regulation, man12 agement plans, practices, policies, projects, or guide13 lines, including management plans which, as of Oc14 tober 1, 1995, are subject to modification pending 

15 completion of a final environmental impact state16 ment, shall not be amended for the purpose of main17 taining viable populations of native and desired non18 native species unless it is determined under this Act 

19 tha~ current practices are likely to jeopardize the 

20 continued existence of the species.". 

21 (b) RESOLVING CONFLICTS BETWEEN FEDERAL 

22 AGENCIES.-Section 7{a), as amended by subsection (a) 

23 of this section and section 402 of this Act, is amended 

24 by adding at the end the following new paragraphs: 

•BR 12111 m 
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1 "(8) RELATIONSHIP TO DUTIES UNDER OTHER 

2 LAWS.-(A) The responsibilities of a Federal agency 

3 under this section shall not supersede and shall be 

4 implemented in a manner consistent with duties as5 signed to the Federal agency by any other laws or 

6 by any treaties. 

7 "(B)(i) If a Federal agency determines that the 

8 responsibilities and duties described in subparagraph 

9 (A) are in irreconcilable conflict, the action agency 

10 shall request the President to resolve the conflict. 

11 "(ii) In determining a resolution to such a con12 flict, the President shall consider and choose the 

13 course of action that best meets the public interest 

14 and, to the extent possible, balances pursuit of the 

15 conservation objective or the purposes of the con16 servation plan with economic and social needs and 

17 pursuit of the purposes of the other laws or treaties. 

18 The authority assigned to the President by this sub19 paragraph may not be delegated to a member of the 

20 executive branch who has not been confirmed by the 

21 Senate. 

22 "(9) MODIFICATION OF PROJECTS AND FACILI23 TIES.-Any consultation and conferencing required 

24 under paragraphs (2) and (4) for an agency action 

25 that consists solely of a modification of a Federal, 

•HR .1276 m 
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1 State, local government, or private project or facility 

2 shall be limited to the consideration of the effects 

3 that result from the modification that comprises the 

4 agency action.". 

5 (c) PRocEDURES FOR CONSULTATION.-Section 7(b) 

6 (16 U.S.C. 1536(b)) is amended by striking so much as 

7 precedes paragraph (3)(B) and inserting the following: 

8 "(b) OPINION OF SECRETARY.-

9 "(1) PERIODS WITffiN WlflCH CONSULTATION 

10 MUST BE COMPLETED.-(A) Consultation under sub11 section (a)(2) with respect to any agency action shall 

12 be concluded within the 90-day period beginning on 

13 the date on which initiated by the Federal agency. 

14 The period may be extended by not more than 45 

15 days by the Secretary or head of the Federal agency 

16 by publication of notice in the Federal Register that 

17 sets forth the reasons for the extension. Consultation 

18 on an agency action involving a pennit or license ap19 plicant shall be concluded not later than the earlier 

20 of21 "(i) 1 year after the date of submission of 

22 the application to the Federal agency; or 

23 "(ii) the end of the period established 

24 under subparagraph (B). 

•HR U751H 
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1 "(B) Subject to subparagraph (A), in the case 

2 of an agency action involving a pennit or license ap3 plicant, the Secretary and the Federal agency may 

4 not mutually agree to conclude consultation within a 

5 period exceeding 90 days unless the Secretary, be6 fore the close of the 90th day referred to in subpara7 graph (A)-

8 "(i) if the consultation period proposed to 

9 be agreed to will end before the 150th day after 

10 the date on which consultation was initiated, 

11 submits to the applicant a written statement 

12 setting forth13 "(I) the reasons why a longer period 

14 is required, 

15 "(II) the information that is required 

16 to complete the consultation, and 

17 "(Ill) the estimated date on which 

18 consultation will be completed; or 

19 "(ii) if the consultation period proposed to 

20 be agreed to will end on or after the 150th day 

21 but before the 210th day after the date on 

22 which consultation was initiated, obtains the 

23 consent of the applicant to such period. 

24 " (C) If consultation is not concluded and the 

25 written statement of the Secretary required under 

•llll1171 m 
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1 paragraph (3)(A) is not provided to the Federal 

2 agency by the applicable deadline established under 

3 this paragraph, the requirements of subsection 

4 (a)(2) shall be deemed met and the Federal agency 

5 may proceed with the agency action. 

6 "(D) A permit or license applicant shall be enti7 tled to participate fully in any consultation or conS ferencing under this section with respect to any 

9 agency action required for the granting of an au10 thorization or provision of funding to the applicant. 

11 "(2) PRocEDURE FOR APPLICANT CONSULTA12 TION.-Consultation under subsection (a)(3) shall be 

13 concluded within such period as is agreeable to the 

14 Secretary, the Federal agency, and the applicant 

15 concerned. 

16 "(3) WRITTEN OPINION OF SECRETARY.-(A)(i) 

17 Promptly after conclusion of consultation under 

18 paragraph (2) or (3) of subsection (a), the Secretary 

19 shall provide to the Federal agency and the appli20 cant, if any, a written statement setting forth the 

21 Secretary's opinion, and a summary of the informa22 tion on which the opinion is based, detailing whether 

23 the agency action is consistent with the conservation 

24 objective or plan developed pursuant to section 5, an 

25 incidental taking permit issued pursuant to section 

•BR a:n1 m 
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90 

1 lO(a), or a cooperative management agreement exe2 cuted pursuant to section 6(b). If the Secretary de3 termines that the action is likely to jeopardize the 

4 continued existence of the species as described in 

5 subsection (a), the Secretary shall suggest reason6 able and prudent alternatives (considering any rea7 sonable and prudent alternatives undertaken by 

8 other Federal agencies) that are consistent with sub9 section (a)(2) and that impose the least social and 

10 economic costs. 

11 "(ii) Unless required by law other than sub12 sections (a) through (d), the Secretary, in any opin13 ion or statement concerning an agency action made 

14 under this subsect~on (including any reasonable and 

15 prudent alternative suggested under clause (i) or 

16 any reasonable and prudent measure specified under 

17 clause (ii) of paragraph ( 4)), and the head of the 

18 Federal agency proposing the agency action, may 

19 not require, provide for, or recommend the imposi20 tion of any restriction or obligation on the activity 

21 of any person that is not authorized, funded, carried 

22 out, or otherwise subject to regulation by the Fed23 eral agency. Nothing in this clause prevents the Sec24 retary from pursuing any appropriate remedy under 

•BR 11111 m 
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1 section 11 for any activity prohibited by section 4( d) 

2 or9. 

3 "(iii) The Secretary shall not require a reason4 able and prudent alternative that may or will result 

5 in a significant adverse impact upon waterfowl popu6 lations, waterfowl habitat management, or waterfowl 

7 hunting opportunities in a significant waterfowl 

8 breeding, staging, or wintering habitat area. In this 

9 clause, the term 'significant adverse impact' means 

10 any actions, proposed or in effect, which individually 

11 or cumulatively are likely to reduce the carrying ca12 pacity of habitat for waterfowl by 10 percent or 

13 more of its current capability, as determined on a 

14 local, regional, statewide or national basis. In this 

15 clause, the term 'significant waterfowl breeding, 

16 staging, or wintering habitat areas' means those pri17 vate or public lands managed primarily for, or pro18 viding, waterfowl breeding, staging or wintering 

19 habitat including seasonaVpe:rmanent marsh lands or 

20 land under rice cultivation for three out of the past 

21 five years. 

22 "(iv) Notwithstanding any other provision of 

23 law, if the Secretary renders an opinion or suggests 

24 any reasonable and prudent alternative which has 

25 general application to a group of individuals con-

•HR 2275 m 
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92 

1 ducting a commercial operation, the Secretary may 

2 not promulgate an emergency rule without providing 

3 at least 30 days for public comment on the emer4 gency rule. 

5 (d) ACTIVITIES PRIOR TO COMPLETION OF CON6 SULTATION.-Section 7(d) (16 U.S.C. 1536(d)) is amend7 ed to read as follows: 

8 "(d) LIMITATION ON COMMITMENT OF RE9 SOURCES.-

10 "(1) IN GENERAL.-Except as provided in para11 graph (2), after initiation of consultation required 

12 under subsection (a)(2), the Federal agency and the 

13 permit or license applicant shall not make any irre14 versible or irretrievable commitment of resources 

15 with respect to the agency action which has the ef16 feet of foreclosing the formulation or implementation 

17 of any reasonable and prudent alternative measures 

18 which would not violate subsection (a)(2). 

19 "(2) RELATIONSHIP TO LAND MANAGEMENT 

20 PLANNING REQUIREMENTS.-lf the listing of a spe21 cies, or other procedure or decision related to a spe22 cies listed under section 4(c)(1), requires consulta23 tion under subsection (a)(2) on a land use plan or 

24 land or resource management plan (or an amend25 ment to or revision of the plan) prepared under _sec-
186 

93 

1 tion 202 of the Federal Land Policy and Manage2 ment Act of 1976 (43 U.S.C. 1712) or section 6 of 

3 the Forest and Rangeland Renewable Resources 

4 Planning Act of 1974 (16 U.S.C. 1604), the land 

5 management agency implementing the plan may au6 thorize, fund, or carry out an agency action that is 

7 consistent with the plan prior to the completion of 

8 the consultation, if, under the procedures established 

9 by this section, the head of the land management 

10 agency responsible for the action determines or has 

11 determined that the action12 "(A) is not likely to significantly and ad13 versely affect the species; or 

14 "(B) is likely to significantly and adversely 

15 affect the species, and the Secretary issues an 

16 opinion on the action that finds that the ac17 tion18 "(i) is not likely to jeopardize the con19 tinued existence of the species; or 

20 "(ii) is likely to jeopardize the contin21 ued existence of the species, and the agen22 cy agrees to a reasonable and prudent al23 ternative.". 

24 (e) DEFINITIONS.-Section 3 (16 U.S.C. 1532) IS 

25 amendedHR2275 IH-4 
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1 (1) by adding after paragraph (15) (as added 

2 by section 204(a) of this Act) the following new 

3 paragraph: 

4 "(16) The tenn 'likely to jeopardize the contin5 ued existence of', with respect to an action or activ-

' 

6 ity affecting an endangered species or a threatened 

7 species, means an action or activity that significantly 

8 diminishes the likelihood of the survival of the spe9 cies by significantly reducing the numbers or dis10 tribution of the entire species."; 

11 (2) by amending paragraph (18) (as redesig12 nated by section 102(a)(1) of this Act) to read as 

13 follows: 

14 "(18) The tenn 'pennit or license applicant' 

15 means, with respect to the consultation procedures 

16 established by section 7, any person that requires 

17 authorization or funding from a Federal agency as 

18 a prerequisite to conducting an activity (including a 

19 party to a written lease, right-of-way, license, con20 tract to purchase or provide a product or service, or 

21 other pennit with a Federal agency) that requires an 

22 action from the agency to obtain the benefit of the 

23 activity."; and 

•HR D75 m 
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1 (3) by adding after paragraph (20) (as redesig2 nated by section 102(a)(l) of this Act) the following 

3 new paragraph: 

4 "(21) The tenn 'reasonable and prudent alter5 native' means an alternative action under section 

6 7(b)(3) during consultation on an agency action 

7 that8 "(A) can be implemented in a manner con9 sistent with the intended purpose of the agency 

10 action or the activity of a non-Federal person 

11 under section 10; 

12 "(B) can be implemented consistent with 

13 the scope of the legal authority and jurisdiction 

14 of the Federal agency; 

15 "(C) is economically and technologically 

16 feasible for the applicant or non-Federal person 

17 to undertake; and 

18 "(D) the Secretary believes would avoid 

19 being likely to jeopardize the continued e:xist20 ence of the species.". 

21 SEC. 402. EXEMPI'IONS FROM CONSULTATION AND CON22 FERENCING. 

23 Section 7(a), as amended by section 401(a) of this 

24 Act, is amended by adding at the end the following new 

25 paragraphs: 

•HR 2275 m 
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96 

1 "(6) ACTIONS EXEMPT FROM CONSULTATION 

2 AND CONFERENCING.-Consultation and conferenc3 ing under paragraphs (2) and (4) shall not be re4 quired for any agency action that5 "(A) is consistent with the provisions of a 

6 final conservation plan under section 5(c)(5) or 

7 a conservation objective described in section 

8 5(b)(3); 

9 "(B) is consistent with a cooperative manto agement agreement or an incidental taking perIl mit; 

12 "(C) addresses a critical, imminent threat 

13 to public health or safety or a catastrophic nat14 ural event or compliance with Federal, State, or 

15 local safety or public health requirements; 

16 "(D) consists of routine operation, mainte17 nance, rehabilitation, repair, or replacement to 

18 a Federal or non-Federal project or facility, in19 eluding operation of a project or facility in ac20 cordance with a previously issued Federal li21 cense, permit, or other authorization; or 

22 "(E) permits activities that occur on pri23 vate land. 

24 "(7) ACTIONS NOT PROIDBITED.-An agency 

25 action shall not constitute a taking of a species pro20-707 95-7 
190 

97 

1 hibited by this Act or any · regulation issued under 

2 this Act if the action is consistent with3 "(A) the actions provided for m a final 

4 conservation plan under section 5(c)(5) or a 

5 conservation objective described in section 

6 5(b)(3); or 

7 "(B) a cooperative management agreement 

8 or an incidental take permit.". 

9 SEC. 403. ELIMINATING THE EXEMPI'ION COMMITTEE (GOD 

10 COMMITI'EE). 

11 (a) CONFORMING AMENDMENTS.-Section 7(c) (16 

12 U.S.C. 1536(c)) is amended13 (1) in the first full sentence by striking "(1) To 

14 facilitate" and inserting "To facilitate"; and 

15 (2) by striking paragraph (2). 

16 (b) PRESIDENTIAL EXEMPTIONS.-Section 7(e) (16 

17 U.S.C. 1536(e)) is amended to read as follows: 

18 "(e) EXEMPTIONS.-Notwithstanding any other pro19 vision of this Act--

20 "(1) the Secretary shall grant an exemption 

21 from this Act for any activity if the Secretary of De22 fense determines that the exemption of the activity 

23 is necessary for reasons of national security; and 

24 "(2) the President may grant an exemption 

25 from this Act for any area that the President has 

•BR 11711B 
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1 declared to be a major disaster area under The Rob2 ert T. Stafford Disaster Relief and Emergency As3 sistance Act (42 U.S.C. 5121 et seq.) for any project 

4 for the repair or replacement of a public facility sub5 stantially as the facility existed prior to the disaster 

6 under section 405 or 406 of that Act (42 U.S.C. 

7 5171 and 5172), if the President determines that 

8 the project9 "(A) is necessary to prevent the recurrence 

10 of such a natural disaster and to reduce the poll tential loss of human life; and 

12 "(B) involves an emergency situation that 

13 does not allow the procedures of this Act (other 

14 than this subsection) to apply.". 

15 (c) REPEAL.-Subsections (f) through (p) of section 

16 7 (16 U.S.C. 1536(f)-(p)) are repealed. 

11 TITLE V-BETTER MANAGEMENT 

18 AND CONSERVATION OF LIST19 ED SPECIES 

20 SEC. 501. SETI'ING CONSERVATION OBJECTIVES. 

21 Section 5 (16 U.S.C. 1534) is redesignated as section 

22 5A, and the following new section is added after section 

23 4: 

•BR 2275 m 
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1 "SEC. I. SPBCIB8 CONBEilVA'DON PLAN8. 

2 "(a) IN GENERAL.-Except as provided in subsection 

3 (b)(3)(C), the Secretary shall publish a conservation objec4 tive and a conservation plan for each species detennined 

5 to be an endangered species or a threatened species pursu6 ant to section 4. 

7 "(b) DEVELOPMENT OF CONSERVATION 0BJEC8 TIVE.-

9 "(1) AssESSMENT AND PLANNING TEAM.-Not 

10 later than 30 days after the listing detennination, 

11 the Secretary shall appoint an assessment and plan12 ning team which shall not be subject to the Federal 

13 Advisory Committee Act (5 U.S.C. App.} and shall 

14 consist of15 "(A) experts in biology or pertinent sci16 entific fields, economics, property law and regu17 lation, and other appropriate disciplines from 

18 the Department of the Secretary, other Federal 

19 agencies, and the private sector; 

20 "(B) a representative nominated by the 

21 Governor of each affected State; 

22 "(C) representatives nominated by each af23 fected local government, if the local government 

24 agrees to the appointment of a representative; 

25 and 

•BBD71m 
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1 "(D) representatives of persons who may 

2 be directly, economically impacted by the con3 servation plan. 

4 "(2) AssESSMENTS.-Not later than 180 days 

5 after the listing determination, the assessment and 

6 planning team shall report to the Secretary the as7 sessment of the following biological, economic, and 

8 intergovernmental factors with respect to the listed 

9 species: 

10 "(A) The team shall assess11 "(i) the biological considerations nec12 essary to carry out this Act; 

13 "(ii) the biological significance of the 

14 species; 

15 "(iii) the geographic range and occu16 pied habitat of the species, and the type 

17 and amounts of habitat needed, at a mini18 mum, to maintain the existence of the spe19 cies and, at a maximum, to secure recovery 

20 of the species; 

21 "(iv) the current population, and the 

22 population trend, of the species; 

23 "(v) the technical practicality of re24 covering the species; 
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"(vi) the potential management measures capable of recovering, or reducing the 

risks to survival of, the species, including 

the contribution of existing or potential 

captive breeding programs for the species, 

predator control, enhancement of food 

sources, supplemental feeding, and other 

methods which enhance the survival of the 

young of the species; and 

"(vii) where appropriate, the demonstrable commercial or medicinal value of 

the species. 

"(B) The team shall assess the direct, indirect, and cumulative economic and social impacts on the public and private sectors, including local governments, that may result from the 

listing determination and any potential management measures identified under subparagraph 

(A)(vi), including impacts on the cost of governmental actions, tax and other revenues, employment, the use and value of property, other social, cultural, and community values, and an assessment of any commercial activity which 

cou4t potentially result in a net benefit to the 

conservation of the species. 

•BR 1171 m 
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1 "(C) The team shall assess the impacts on 

2 State and local land use laws, conservation 

3 measures, and water allocation policies that 

4 may result from the listing determination and 

5 from the potential management measures iden6 tified under subparagraph (A)(vi). 

7 "(3) SECRETARIAL REVIEW OF ASSESSMENTS 

8 AND ESTABLISHMENT OF CONSERVATION OBJEC9 TIVE.-(A) Not later than 210 days after a listing 

10 determination, the Secretary shall review the report 

11 of the assessment and planning team prepared pur12 suant to paragraph (2), establish a conservation ob13 jective for the species, and publish in the Federal 

14 Register the conservation objective, along with a 

15 statement of findings on which the conservation ob16 jective was established. 

17 "(B) The conservation objective may be, in the 

18 discretion of the Secretary19 "(i) recovery of the listed species; 

20 "(ii) such level of conservation of the spe21 cies which the Secretary determines practicable 

22 and reasonable to the extent that the benefits 

23 of the potential conservation measures outweigh 

24 the economic and social costs of such measures, 

•BR U'l'a m 
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103 

1 including but not limited to maintenance of ex2 isting population levels; 

3 "(iii) no Federal action other than enforce4 ment against any person whose activity violates 

5 the prohibitions specified in section 9(a), in6 eluding any activity that results in a taking of 

7 the species, unless the taking is incidental to, 

8 and not the purpose of, the carrying out of an 

9 otherwise lawful activity; or 

10 "(iv) such other objective as the Secretary 

11 may detennine that does not provide a lesser 

12 level of protection than the level described in 

13 clause (iii). 

14 "(C) If the conservation objective established by 

15 the Secretary is the objective provided in subpara16 graph (B)(iii), the Secretary shall not develop a con17 servation plan . for the affected species under sub18 section (c).". 

19 SEC. 1502. PREPARING A CONSERVATIO~ PLAN. 

20 (a) IN GENERAL.-Section 5 (16 U.S.C. 1534), as 

21 added by section 501 of this Act, is amended by adding 

22 at the end the following new subsections: 

23 "(c) DEVELOPMENT OF CoNSERVATION PLAN.-

•BR II'IIIB 
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1 "(1) PRIORITIES.-In the development and im2 plementation of a conservation plan under this sub3 section, the Secretary shall accord priority to4 "(A) the development of an integrated plan 

5 for 2 or more endangered species or threatened 

6 species that are likely to benefit from an inte7 grated conservation plan; 

8 "(B) the geographic areas where conflicts 

9 between the conservation of the affected species 

10 and development projects or other forms of eco11 nomic activity exist or are likely to exist; . 

12 "(C) protection of the listed species on 

13 units of the National Biological Diversity Re14 serve as provided in section 5A(a); 

15 "(D) the implementation of conservation 

16 measures that have the least economic and so17 cial costs; 

18 "(E) nonregulatory, incentive-baSed con19 servation measures and commercial activities 

20 that provide a net benefit to the conservation of 

21 the species; and 

22 "(F) plans in which States or private orga23 nizations or persons are the primary 

24 implementors. 

•HR ll2711 m 
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1 "(2) PuBLICATION OF DRAFT PLAN.-Not later 

2 than 12 months after the date of a determination 

3 that a species is an endangered species or a threat4 ened species, the assessment and planning team for 

5 the species shall publish a draft conservation plan 

6 for the species which is based on the assessments 

7 made pursuant to subsection (b)(2) and designed to 

8 achieve the conservation objective established pursu9 ant to subsection (b)(3). 

lO "(3) CONTENTS OF DRAFT PLAN.-Each draft 

11 conservation plan shall contain12 "(A) recommendations for Federal agency 

13 compliance with section 7(a)(1) and 7(a)(2); 

14 "(B) recommendations for avoiding a tak15 ing of a listed species prohibited under section 

16 9(a)(1) and a list of specific activities that 

17 would constitute a take under section 9; 

18 "(C) alternative strategies to achieve the 

19 conservation objective for the listed species 

20 which range from a strategy requiring the least 

21 possible Federal management to achieve the 

22 conservation objective to a strategy involving 

23 more intensive Federal management to achieve 

24 the objective, each of which contains-

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•HR 22715 m 

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"(i) an estimate of the risks to the 

survival and recovery of the species that 

the alternative would entail; 

"(ii) a description of any site-specific 

management measures recommended for 

the alternative; 

"(iii) an analysis of the relationship of 

any habitat of the species proposed for 

designation as critical habitat to the recommended management measures; 

"(iv) a description of the direct, indirect, and cumulative economic and social 

impacts on the public and private sectors 

including impacts on employment, the cost 

of government actions, tax and other revenues, the use and value of property, and 

other social, cultural, and community values; 

"(v) a description of any captive 

breeding program recommended for the alternative; 

"(vi) an analysis of whether the alternative would include any release of an experimental population outside the current 

range of the species and an identification 
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of candidate geographic areas for the release; 

"(vii) objective and measurable criteria, including a population level target, 

that, if met, would result in a determination under section 4 that the species is no 

longer an endangered species or threatened 

species; 

"(viii) estimates of the time and costs 

required to carry out the management 

measures, including any intermediate 

12 steps; and 

13 "(ix) a description of the role of each 

14 affected State, if any, in achieving the con15 servation objective. 

16 "(4) PLAN PREPARATION PROCEDURES.-(A) 

17 The Secretary shall consult with the Governor of 

18 each State in which the affected species is located 

19 during the preparation of each draft and final con20 servation plan. Each plan shall provide for equitable 

21 treatment of affected States and other non-Federal 

22 persons. 

23 "(B) The Secretary shall publish in the Federal 

24 Register and a newspaper of general circulation in 

25 each affected county and parish a notice of the avail-

•BB 11ft IB 
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1 ability and a summary of, and a request for the sub2 mission of comments on, each draft conservation 

3 plan. 

4 "(C) The Secretary shall hold at least 1 hearing 

5 on each draft conservation plan in each State to 

6 which the plan would apply in a location that is as 

7 close as possible to the center of the habitat of the 

8 affected species in such State. 

9 "(D) Prior to any decision to adopt a final con1 0 servation plan, the Secretary shall consider and 

11 weigh carefully all information presented during 

12 each hearing held under subparagraph (C) or re13 ceived in response to a request for comments pub14 lished under subparagraph (B). 

15 "(5) PuBLICATION OF FINAL PLAN.-Not later 

16 than 18 months from the date of a detennination 

17 that a species is an endangered species or a threatIS ened species, the Secretary shall publish in the Fed19 eral Register a notice of the availability, and a sum20 mary, of a final conservation plan for the species. 

21 The notice shall include a detailed description of22 "(A) the reasons for the selection of the 

23 final conservation plan; 

24 "(B) the reasons for not selecting each of 

25 the other alternatives included in the draft con-

•BR 11'75 m 
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109 

1 servation plan, including, if any alternative is 

2 selected other than the alternative that would 

3 impose the least total costs on the public and 

4 private sectors, the reasons for such selection; 

5 "(C) the effect of the priorities specified in 

6 paragraph (1) on the selection; and 

7 "(D) the response of the Secretary to the 

8 infonnation referred to in paragraph (4). 

9 "(6) PARTICIPATION BY OTHER PERSONS . .,...-In 

10 developing and implementing conservation plans, the 

11 Secretary may use the services of appropriate public 

12 and private agencies and institutions and other 

13 qualified persons. 

14 "(7) PLAN REVlSION OR AMENDMENT.-Any re15 vision of or amendment to a conservation plan shall 

16 be made in accordance with the procedures and re17 quirements of subsection (b) and this subsection, ex18 cept that the Secretary by regulation may provide 

19 for other procedures and requirements for any 

20 amendment that does not increase the direct or indi21 rect cost of implementation of the plan or enlarge 

22 the area to which the plan applies. 

23 "(d) No FuRTHER PRocEDURES OR REQUIREMENTS 

24 FOR ACTIONS CoNSISTENT WITH THE CoNSERVATION 

25 PLAN.-If a conservation plan is prepared under sub-

•BB II'IIIB 
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1 section (c) or if a conservation objective is established 

2 under subsection (b)(3)(C)-

3 " ( 1) any Federal agency that detennines that 

4 the actions of the agency are consistent with the 

5 provisions of the conservation plan or conservation 

6 objective shall be considered to comply with section 

7 7(a)(l) for the affected species; 

8 "(2) any agency action that the Federal agency 

9 detennines is consistent with the provisions of the 

10 conservation plan or conservation objective shall not 

11 be subject to section 7(a)(2) for the affected species, 

12 except that a Federal agency may initiate consulta13 tion under section 7(a)(2) if the agency desires guid14 ance from the Secretary on the consistency of the 

15 action of the agency with the conservation plan or 

16 conservation objective; and 

17 "(3) any action of any person that is consistent 

18 with the provisions of the conservation plan or con19 servation objective shall not constitute a violation 

20 concerning the affected species of any applicable 

21 prohibition under section 9(a), except that a non22 Federal person may initiate consultation under sec23 tion 10(a)(2)-

•llll 11'11 IB 
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"{A) if the person desires guidance from 

the Secretary on the consistency of the action 

with the plan or objective; or 

"(B) in order to determine whether to 

apply for a permit under section 10 for any action that is inconsistent with the plan or objec7 tive, 

8 {b) CoNSERVATION OBJECTIVE AND CONSERVATION 

9 RULE DEFINED.-Section 3{4) {16 U.S.C. 1532), as re10 designated by section 102(a) of this Act, is amended to 

11 read as follows: 

12 "(4) The terms 'conservation objective' and 

l3 'conservation plan' (except when modified by 'non14 Federal') mean a conservation objective and a con15 servation plan, respectively, developed under section 

16 5.". 

17 SEC. lOS. INTBBIM MEASURES. 

18 Section 5 {16 U.S.C. 1534), as added by section 501 

19 of this Act and as amended by section 502 of this Act, 

20 is amended by adding at the end the following new sub21 sections: 

22 "(e) MANAGEMENT PRIOR TO PuBLICATION OF CON23 SERVATION PLAN.-

24 "{1) IN GENERAL.-After a listing determina25 tion and before the publication of a final conservaollllB'II51B 
205 

112 

1 tion plan, or, if no plan is required pursuant to sub2 section (b)(3)(C), a conservation objective, for the 

3 species4 "(A) the prohibitions of section 9(a) shall 

5 apply to any person, except in the case of a tak6 ing of a member of the species that is incidental 

7 to, and not the purpose of, the carrying out of 

8 an otherwise lawful activity which incidental 

9 taking activity may include but is not limited to 

10 the routine operation, maintenance, rehabilita11 tion, replacement, or repair of any structure, 

12 building, road, dam, airport, or any irrigation 

13 or other facility which is in operation prior to 

14 the publication of the determination under sec15 tion 4(b)(6); and 

16 "(B) no Federal agency shall be required 

17 to comply with section 7(a)(l) and no consulta18 tion shall be required on any agency action 

19 under section 7(a)(2). 

20 "(2) EMERGENCY RULEMAKING PROTEC21 TIONS.-Notwithstanding paragraph (1), sections 

22 7(a) and 9(a) shall apply fully to the listed species 

23 during a period in which an emergency rulemaking 

24 is in effect pursuant to section 4(b)(7) or if the 

25 President declares, and advises the Secretary, that 

•llll..,.IB 
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1 there exists an imminent threat to the existence of 

2 the species. Such declaration of the President ex3 pires upon the deadline for publication of a final 

4 conservation plan for the species pursuant to sub5 section (c)(5) or the publication of a conservation 

6 objective for the species provided in subsection 

7 (b)(3) or if no conservation plan is required pursu8 ant to subsection (b)(3)(C). 

9 "(f) SUSPENSION OF CONSERVATION PLAN OR OB10 JECTIVE.-If the Secretary issues an incidental take per11 mit or enters into a cooperative management agreement 

12 under section 6, the Secretary, by publication of notice 

13 in the Federal Register, shall suspend the conservation ob14 jective or conservation plan with respect to the geographic 

15 area or action applicable to the species to which the permit 

16 or agreement applies. 

17 "(g) NONDELEGATION OF DUTIES.-The Secretary 

18 may not delegate the authority to make the final decision 

19 to select a conservation objective, issue a conservation 

20 plan, or designate critical habitat under this section. 

21 "(h) REVIEW OF CONSERVATION PLANS.-

22 "(1) DEADLINES.-The Secretary shall reVIew 

23 each conservation plan and the conservation objec24 tive on which it is based before the end of the 5-year 

25 period that begins on the date of publication of the 

•BR lt'I'S m 
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1 conservation plan, and before the end of each 5-

2 year period thereafter. 

3 "(2) REVISIONS.-The Secretary shall revise a 

4 conservation plan or the conservation objective on 

5 which it is based if the Secretary detennines6 "(A) through a 5-year review under para7 graph (1), that the conservation plan or con8 servation objective does not meet the require9 ments of this section; or 

10 "(B) at any time11 "(i) that funding is not available for 

12 the implementation of a specific conserva13 tion measure that is integral to the con14 servation plan or that a more cost-effective 

15 alternative exists for a specific conserva16 tion measure that is integral to the con17 servation plan; or 

18 "(ii) on the basis of scientific or com19 mercial data that were not available during 

20 the development of the conservation objec21 tive or conservation plan, that the con22 servation objective is not achievable or the 

23 conservation plan will not achieve the con24 servation objective. 

•BB 1:171 m 
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1 "(3) No REOPENING OF CONSULTATIONS.-

2 Section 7 consultations shall not be reopened as a 

3 result of modifications to a conservation plan under 

4 paragraph (2).". 

5 SEC. 504. CRITICAL HABITAT FOR SPECIES. 

6 (a) CRITICAL HABITAT DESIGNATION.-Section 5, as 

7 added by section 501 of this Act and as amended by seeS tions 502 and 503 of this Act, is amended by adding at 

9 the end the following new subsections: 

10 "(i) CRITICAL HABITAT DESIGNATION.-

11 "(1) DESIGNATION.-The Secretary may, by 

12 regulation and to the extent prudent and determina13 ble14 "(A) designate critical habitat of a species 

15 determined to be an endangered species or 

16 threatened species that meets the requirements 

17 of paragraph ( 3) utilizing the National 

18 Biodiversity Reserve established under section 

19 5A(a) as a first priority; and 

20 "(B) revise a critical habitat designation 

21 on determining that the critical habitat does 

22 not meet the requirements of paragraph (3). 

23 Designation of critical habitat shall not result in re24 opening or reinitiation of consultations on Federal 

25 actions pursuant to section 7. 

•HR 22111 m 
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1 "(2) DEADLINES FOR DESIGNATION.-Any pro2 posed regulation and any final regulation to des3 ignate critical habitat shall be published not later 

4 than 12 months and 18 months, respectively, after 

5 the date on which the affected species is determined 

6 to be an endangered species or a threatened species. 

7 "(3) BASIS FOR . DESIGNATION.-The designa8 tion of critical habitat, and any revision of the des9 ignation, shall be made on the basis of the best 

10 available scientific and commercial data after taking 

11 into consideration the economic impact, and any 

12 other relevant impact, of designating any particular 

13 area as critical habitat and of the determination that 

14 the affected species is an endangered species or 

15 threatened species. The Secretary shall exclude any 

16 area from critical habitat17 "(A) which does not meet the definition of 

18 critical habitat set forth in section 3(7); 

19 "(B) which is not necessary to achieve the 

20 conservation objective for the affected species 

21 established pursuant to subsection (b); 

22 "(C) for which the Secretary determines 

23 that the benefits of the exclusion of the area 

24 from designation as critical habitat outweigh 

25 the benefits of designation, unless the SeCretary 

•DR IS'III m 
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1 detennines, on the basis of the best available 

2 scientific and commercial data, that the failure 

3 to designate the area as critical habitat will re4 suit in the extinction of the affected species; or 

5 "(D) in the case of property owned by a 

6 non-Federal person, where the owner thereof 

7 has not given written consent to the designation 

8 or has not been compensated as provided in sec9 tion 19. 

10 "(4) PROCEDURE FOR DESIGNATION.-In the 

11 Federal Register notice containing the proposed reg12 ulation to designate critical habitat, the Secretary 

13 shall describe the economic impacts and other rel14 evant impacts that are to be considered, and the 

15 benefits that are to be weighed, under paragraph (3) 

16 in designating an area as critical habitat, along with 

17 maps showing the location of the area to be des18 ignated as critical habitat. The Secretary shall sub19 mit the description, and the documentation support20 ing the description, to the Bureau of Labor Statis21 tics of the Department of Labor. The Commissioner 

22 of Labor Statistics shall submit written comments 

23 during the comment period on the proposed regula24 tion. The Secretary shall hold at least one public 

25 hearing in each State on the proposed rule in which 
211 

118 

1 critical habitat is designated for a species. In issuing 

2 any final regulation designating critical habitat, the 

3 Secretary shall respond separately and fully to each 

4 comment. 

5 "(5) JUDICIAL REVIEW OF CRITICAL HABITAT 

6 DESIGNATION.-The decision whether to designate 

7 critical habitat shall be subject to a de novo judicial 

8 review with the court detennining whether the deci9 sion is supported by a preponderance of the evi10 dence. 

11 "(j) JUDICIAL REviEw OF CoNSERVATION OBJEC12 TIVE OR PLAN.-The standard for judicial review of any 

13 decision of the Secretary, or a Federal agency pursuant 

14 to this section shall be whether the decision is arbitrary, 

15 capricious, an abuse of discretion, or otherwise not in ac16 cordance with law. 

17 "(k) CoNSERVATION PLANS FOR FOREIGN SPECIES.-In developing conservation objectives and coni. . vation plans under this section, the Secretary shall, in 

20 regard to foreign species21 "(1) act consistently with the Convention; and 

22 "(2) cooperate and support the conseiVation 

23 strategy adopted for that species by any foreign na24 tion in which the species occurs.". 
212 

119 

1 (b) CONFORMING .AMENDMENTS.-Section 4(b)(6) 

2 (16 U.S.C. 1533(b)(6)) is amended3 (1) in subparagraph (B)(i) by striking "or revi4 sion concerned"; 

5 (2) in subparagraph (B)(iii) by striking "or re6 vision concerned, a finding that the revision should 

7 not be made,"; and 

8 (3) by striking subparagraph (C). 

9 (c) CONFORMING .AMENDMENT.-Section 4(b)(8) (16 

10 U.S.C. 1533(b)(8)) is amended by striking "regulation" 

11 the third time it appears and all that follows through the 

12 end of the paragraph and inserting "regulation.". 

13 (d) DEFINITION OF CRITICAL liABITAT.-Section 

14 3(7), as redesignated by section 102(a) of this Act, is 

15 amended to read as follows: 

16 "(7)(.A) The term 'critical habitat' for an en17 dangered species or a threatened species means the 

18 specific areas which are within the geographic area 

19 found to be occupied by a species at the time the 

20 species is determined to be an endangered species or 

21 a threatened species in accordance with section 4 

22 and which contain such physical or biological fea23 tures as24 "(i) are essential to the persistence of the 

25 species over the 50-year period beginning on the 

•BR ll276 IH 
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1 date the regulation designating the critical 

2 habitat, or any revision of the regulation, is 

3 promulgated; and 

4 "(ii) require special Ill8Jl8gement considerS ations or protection. 

6 "(B) Except in those circumstances determined 

7 by the Secretary, critical habitat shall not include 

8 the entire geographical area occupied by the threat9 ened species or endangered species.". 

10 SEC. 101. BBCOGNITION 01' CAPI"lVE PROPAGATION AS 

11 MEANS 01' RECOVERY. 

12 Section 5, as added by section 501 of this Act and 

13 as amended by sections 502, 503, and 504 of this Act, 

14 is amended by adding at the end the following new sub15 section: 

16 "(I) RECOGNITION OF CAPTIVE PRoPAGATION AS 

17 MEANs OF CoNSERVATION.-

18 "(1) IN GENERAL.-ln carrying out this Act, 

19 the Secretary shall recognize to the maximum extent 

20 practicable, and may utilize, captive propagation as 

21 a means of protecting or conserving an endangered 

22 species or a threatened species. 

23 "(2) C.API'IVE PROPAGATION GRANTS.-The 

24 Secretary may, subject to appropriations therefor, 

25 provide annual grants to non-Federal persons to 

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1 fund captive propagation programs for the purpose 

2 of protecting or conserving any species that is deter3 mined under section 4 to be an endangered species 

4 or a threatened species, if the Secretary determines 

5 that such a program contributes to enhancement of 

6 the population of the species.". 

7 SEC. 506. INTRODUCriON OF SPECIES. 

8 Section 10(j) (16 U.S.C. 1539(j)) is amended9 (1) by amending paragraph (2)(B) to read as 

fO follows: 

11 "(B) Before authorizing the release of any 

12 population under subparagraph (A), the Sec13 retary shall by regulation identify the popu14 lation and the precise boundaries of the geo15 graphic area for the release and determine, on 

16 the basis of the best available information, 

17 whether the release is in the public interest, 

18 whether or not such population is essential· to 

19 the continued existence of an endangered spe20 cies or a threatened species."; 

21 (2) in paragraph (2)(C)-

22 (A) in clause (i) by striking "and" after 

23 - the semicolon; and 

24 (B) by striking clause (ii) and inserting the 

25 following: 

•BR 1111 m 
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1 "(ii) for the purposes of sections 4(d) 

2 and 9(a)(1)(B), any member of an experi3 mental population found outside the geo4 graphic area in which the population is re5 leased shall not be treated as a threatened 

6 species if the member poses a threat to the 

7 welfare of the public; and 

8 "(iii) critical habitat shall not be des9 ignated under this Act for any experi1 0 mental population determined under sub11 paragraph (B) to be not essential to the 

12 continued existence of a species."; 

13 (3) by redesignating paragraph (3) as para14 graph (4); and 

15 (4) by inserting after paragraph (2) the follow16 ing new paragraph: 

17 "(3) REQUIREMENTS FOR RELEASES.-In au18 thorizing the release of a population under para19 graph (2), the Secretary shall require that20 "(A) to the maximum extent practicable, 

21 the release occurs only in a unit of the National 

22 Park System or the National Wildlife Refuge 

23 System; 

24 "(B) a release outside a unit occurs only in 

25 an area that has been identified as a candidate 
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10 

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12 

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site for release of the population in a conservation plan for the species; 

"(C) in the case of a release outside a unit, 

measures to protect the safety and welfare of 

the public and domestic animals and the funding for the measures are identified in the regulations authorizing the release and are implemented; 

"(D) the regulations authorizing the release identify precisely the geographic area for 

the release; 

"(E) a release on non-Federal land occurs 

only with the written consent of the owner of 

the land; and 

"(F) the regulations authorizing the re16 lease include measurable reintroduction goals to 

17 restore viable populations only within the spe18 cific geographic area identified for release in 

19 the regulations.". 

20 SEC. 507. CONSERVING THREATENED SPECIES. 

21 (a) REGULATIONS.-Section 4(d) (16 U.S.C. 

22 1533(d)) is amended to read as follows: 

23 "(d) REGULATIONS To PROTECT THREATENED SPE24 CIES.-Whenever any species is listed as a threatened spe25 cies pursuant to subsection (c), the Secretary shall issue, 

•HR 2275 m 
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1 concurrently with the regulation that provides for the list2 ing of the species, such regulations as the Secretary deems 

3 necessary and advisable to provide for the conservation of 

4 such species. Such regulations may apply to the threatS ened species one or more of the prohibitions under section 

6 9(a)(1), in the case of fish and wildlife, or section 9(a)(2) 

7 in the case of plants, with respect to endangered species. 

8 The prohibition applied to the threatened species shall ad9 dress the specific circumstances of such species and may 

10 not be as restrictive as such prohibition for endangered 

11 species. With respect to the taking of resident species of 

12 fish or wildlife, such regulations shall apply in any St,ate 

13 which has entered into a cooperative agreement pursuant 

14 to section 6(c) only to the extent that such regulations 

15 have also been adopted by such State.". 

16 (b) CoNFORMING MIENDMENTS.-Section 4 (16 

17 U.S.C. 1533) is amended18 (1) by striking subsection (f); and 

19 (2) by redesignating subsections (g), (h), and 

20 (i) in order as subsections (f), (g), and (h). 

21 (c) CoNSERVATION GUIDELINES.-Section 4 is 

22 amended in subsection (g), as redesignated by subsection 

23 (b)(2) of this section, by amending paragraph (3), as re24 designated by section 304(b)(2) of this Act, to read as 

25 follows: 

•BR 1171 m 
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1 "(3) a system for developing and implementing, 

2 on a priority basis, conservation objectives and con3 servation plans. The Secretary shall provide to the 

4 public notice of, and opportunity to submit written 

5 comments on, any guideline (including any amend6 ment thereto) proposed to be established under this 

7 subsection.". 

s TITLE VI-HABITAT 

9 PROTECTIONS 

10 SEC. 601. FEDERAL BIOLOGICAL DIVERSITY RESERVE. 

11 Section 5A, as redesignated by section 501 of this 

12 Act, is amended to read as follows: 

13 "SEC. 5A PROTECTION OF HABITAT. 

14 "(a) ESTABLISHMENT OF NATIONAL BIOLOGICAL 

15 DIVERSITY RESERVE.-

16 "(1) IN GENERAL.-There is hereby established 

17 a National Biological Diversity Reserve (hereinafter 

18 in this Act referred to as the 'Reserve'). The Reserve 

19 shall be composed of units of Federal and State 

20 lands designated in accordance with paragraph (2) 

21 and managed in accordance with paragraph (3). 

22 "(2) DESIGNATION OF RESERVE UNITS.-(A) 

23 Not later than 18 months after the date of enact24 ment of the Endangered Species Conservation and 

25 Management Act of 1995, the Secretary of the InteHR2275 IH-5 
219 

126 

1 rior and the Secretary of Agriculture shall de~ignate 

2 to the &serve by regulation those units of the na3 tional conservation systems which are within the ju4 risdiction of the Secretary concerned and which the 

5 Secretary determines would contribute to the protec6 tion, maintenance, and enhancement of biological di7 versity in accordance with the provisions of this Act. 

8 The term 'national conservation systems' means 

9 wholly federally owned lands within the National 

10 Park System, the National Wildlife &fuge System, 

11 or the National Wilderness Preservation System, 

12 and wild segments of rivers within the National Wild 

13 and Scenic Rivers System. 

14 "(B) The Secretary of the Interior shall15 "(i) designate to the &serve by regulation 

16 a unit of State-owned lands if such unit is nom17 inated for designation by the Governor of the 

18 State and is managed under State law in ac19 cordance with paragraph (3); 

20 "(ii) designate to the &serve by regulation 

21 privately owned land that is nominated for des22 ignation by the o'Wner of the land, and shall re23 move such land from the &serve if the owner 

24 requests removal; 
220 

127 

1 "(iii) remove from the Reserve by regula2 tion any unit designated pursuant to clause (i) 

3 which the Secretary finds is not managed under 

4 State law in accordance with paragraph (3); 

5 and 

6 "(iv) remove from the Reserve any State7 owned lands at the request of the Governor of 

8 that State. 

9 "(C) Designation of a Reserve unit shall not af10 feet any valid existing permit, right, right-of-way, 

11 access, interest in land, right to use or receive water, 

12 or property right. 

13 "(3) MANAGEMENT OF THE RESERVE.-(A) 

14 Each unit of the Reserve shall have as an objective 

15 for the management thereof the preservation, main16 tenance, and enhancement of biological diversity. 

17 Such objective shall be supplementary to any other 

18 objective established for such unit by or pursuant to 

19 any provision of law applicable to such unit. Each 

20 such unit shall be managed in accordance with such 

21 objective to the extent that such objective is not in22 consistent with the purpose . for which the unit was 

23 established, other provisions of law applicable to 

24 such unit, and the activities which occur on such 

25 unit. 

•DR 2275 m 
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128 

1 "(B) The manager of each Reserve unit should 

2 consistent with paragraph ( 4) utilize his authority to 

3 use active management and recovery measures, in4 eluding those specified in section 5(b)(2)(A)(vi), and 

5 shall conduct a survey to determine the populations 

6 of species within the Reserve. 

7 "(C) Nothing in this· Act shall8 "(i) alter, establish, or affect the respective 

9 rights of the United States, the States, or any 

10 person with respect to any water or water-relat11 ed right; or 

12 "(ii) affect the laws, rules, and regulations 

13 pertaining to hunting, fishing, and other lawful 

14 wildlife harvest under existing State and Fed15 erallaws and Indian treaties. 

16 "(D) Within 1 year of the designation of a unit 

17 to the Reserve, the manager of such unit shall com18 plete, and the Secretary concerned shall make avail19 able to the public by notice in the Federal Register, 

20 an inventory of the species composing the biological 

21 diversity within such unit. 

22 "( 4) OTHER FEDERAL LANDS.-Nothing in this 

23 Act shall be constrned as limiting the authority of 

24 the Secretary of the Interior or the Secretary of Ag25 riculture to take such actions as are necessary · and 

•BB ma m 

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129 

1 authorized by other law to protect, maintain, and 

2 enhance biological diversity on other Federal lands 

3 not designated to the Reserve except that, before 

4 taking any such action, the Secretary concerned 

5 shall make a finding based on the best available sci6 entific and commercial data, that the biological di7 versity· for which such action is proposed is not pro8 tected, maintained, or enhanced in whole or substan9 tial part on any . unit of the Reserve. Such finding 

10 shall be published, along with the reasons therefor in 

11 the Federal Register.". 

12 SEC. 801. LAND ACQUISITION. 

13 Section 5A, as redesignated by section 501 of this 

14 Act and as amended by section 601 of this Act, is amend15 ed by adding at the end the following new subsection: 

16 "(b) LAND ACQUISITION.-

17 "(1) PROGRAM.-The Secretary, and the SeC18 retary of Agriculture with respect to the National 

19 Forest System, shall establish and implement a pro20 gram to· conserve fish, wildlife, and plants, including 

21 those which are determined to be endangered species 

22 or ·,threatened species pursuant to section 4. To 

23 carry out such a program, the appropriate Sec24 retary-

•BR 11'71 m 
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130 

1 "(A) shall utilize the land acquisition and 

2 other authority under the Fish and Wildlife Act 

3 of 1956 (16 U.S.C. 742a et seq.), the Fish and 

4 Wildlife Coordination Act (16 U.S.C. 661 et 

5 seq.), and the Migratory Bird Conservation Act 

6 (16 U.S.C. 715 et seq.), as appropriate; and 

7 "(B) is authorized to acquire by purchase, 

8 lease, donation, or otherwise, lands, waters, or 

9 interest therein, including short- or long-tenn 

10 conservation easements, and such authority 

11 shall be in addition to any other land acquisi12 tion authority vested in that Secretary. 

13 "(2) AVAILABILITY OF FUNDS FOR ACQIDSI14 TION OF LANDS, WATER, ETC.-Funds made avail15 able pursuant to the Land and Water Conservation 

16 Fund Act of 1965 (16 U.S.C. 4601-4 et seq.) may 

17 be used for the purpose of acquiring or leasing 

18 lands, waters, or interests therein under subsection 

19 (a) of this section.". 

20 SEC. 808. PROPERTY EXCHANGES. 

21 Section 5A, as redesignated by section 501 of this 

22 Act and as amended by sections 601 and 602 of this Act, 

23 is amended by adding at the end the following new sub24 sections: 

25 "(c) EXCHANGES.-

•BRD'II m 
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131 

1 "(1) lN GENERAL.-ln accordance with sub2 section (a), the Secretary of the Interior and the 

3 Secretary of Agriculture shall encourage exchanges 

4 of lands, waters, or interests in land or water within 

5 the jurisdiction of each Secretary (other than units 

6 of the National Park System and units of the Na7 tiona! Wilderness Preservation System) for lands, 

8 waters, or interests in land or water that are not in 

9 Federal ownership and that are affected by this Act. 

10 "(2) TIMING OF EXCHANGES.-An exchange 

11 under this subsection may be made if the Secretary 

12 of the Interior or the Secretary of Agriculture deter13 mines, without a formal appraisal, that the lands to 

14 be exchanged are of approximately equal value. 

15 "(3) ENVIRONMENTAL ASSESSMENT.-An envi16 ronmental assessment shall be the only document 

17 under section 102(2) of the National Environmental 

18 Policy Act of 1976 (16 U.S.C. 4332(2)) that shall 

19 be prepared with respect to any exchange under this 

20 subsection. 

21 "(4) ExPEDITIOUS EXCHANGE DECISIONS.-An 

22 exchange under this subsection shall be processed as 

23 expeditiously as practicable. The Secretary of the In24 terior or the Secretary of Agriculture shall periodi-

•BR 11'715 m 
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132 

1 cally provide infonnation to the non-Federal land2 owner on the status of the exchange. 

3 "(5) APPLICABLE LAW.-The Secretary of the 

4 Interior and the Secretary of Agriculture shall proc5 ess exchanges under this subsection in accordance 

6 with applicable laws that are consistent with this 

7 subsection. 

8 "(d) VALUATION.-Any land, water, or interest in 

9 land or water to be acquired by the Secretary or the SectO retary of Agriculture by purchase, exchange, donation, or 

11 otherwise under this section shall be valued as if the land, 

\ 

12 water, or interest in land or water were not subject to any 

13 restriction on use under this Act imposed after the date 

14 of acquisition by the current owner of the land, water, or 

15 interest in land or water. 

16 "(e) __ .-For any land or water acquired by the 

17 Secretary or the Secretary of Agriculture by purchase, ex18 change, lease, donation or otherwise under this section, 

19 the Secretary or Secretary of Agriculture shall ensure that 

20 such purchase, exchange, lease, donation, or other transfer 

21 shall not supersede, abrogate, or otherwise impair existing 

22 easements, rights-of-way, fencing, water sources, water de23 livery lines or ditches, and current uses of adjacent land.". 

•&a 1171 m 
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133 

1 TITLE VII-STATE AUTHORITY 

2 TO PROTECT ENDANGERED 

3 AND THREATENED SPECIES 

4 SEC. 701. STATE AUI'IIORITY. 

5 (a) IN GENERAL.-Section 6 (16 U.S.C. 1535) is 

6 amended by striking subsection (c) and all that follows 

7 through subsection (f) and inserting the following: 

8 "(c) STATE AUTHORITY To PRoTECT ENDANGERED 

9 AND THREATENED SPECIES.-

10 "(1) DELEGATION OF AUTHORITY.-In further11 ance of the purposes of this Act, the Secretary may 

12 delegate to a State which establishes and maintains 

13 an adequate program for the conservation of endan14 gered species and threatened species the authority 

15 contained in this Act with respect to species of fish, 

16 wildlife, and plants that are residents in the State. 

17 Within 120 days after the Secretary receives a cer18 tified copy of such a proposed State program, the 

19 Secretary shall make a determination whether such 

20 program will be adequate to provide protections to 

21 endangered species and threatened species in such 

22 State. In order for a State program to be deter23 mined to be an adequate program for the conserva24 tion of endangered species and threatened species, 

•BRD7&m 
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134 

1 the Secretary must find that under the State pro2 gram3 "(A)(i) authority resides in the State agen4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

cy to conserve resident species of fish or wildlife 

determined by the State agency or the Secretary to be endangered species or threatened 

species; 

"(ii) the State agency has established acceptable conservation programs, consistent with 

the purposes and policies of this Act, for all 

resident species of fish or wildlife in the State 

which are deemed by the Secretary to be endangered species or threatened species or for those 

species or taxonomic groups of species which 

the State proposes to cover under its program, 

and has furnished a copy of such plan and program together with all pertinent details, information, requested to the Secretary; 

"(iii) the State agency is authorized to 

conduct investigations to determine the status 

and requirements for survival of resident species of fish and wildlife; 

"(iv) an agency of the State is authorized 

to establish programs, including the acquisition 

of land or aquatic habitat or interests therein, 

•DR 11'1& m 
228 

135 

1 for the conservation of resident endangered spe2 cies or threatened species of fish or wildlife; 

3 "(v) provision is made for public participa4 tion in designating resident species of fish or 

5 wildlife as endangered species or threatened 

6 species; and 

7 "(vi) the State agency has initiated or en8 couraged voluntary or incentive based programs 

9 to further the conservation objectives for the 

10 species; or 

11 "(B)(i) the requirements set forth in 

12 clauses (iii), (iv), and (v) of subparagraph (A) 

13 are complied with, and 

14 "(ii) plans are included under which imme15 diate attention will be given to those resident 

16 species of fish and wildlife which are deter17 mined by the Secretary or the State agency to 

18 be endangered species or threatened species and 

19 which the Secretary and the State agency agree 

20 are most urgently in need of conservation pro21 grams. 

22 "(2) PRoHIBITIONS NOT AFFECTED.-A delega23 tion to a State whose program is deemed adequate 

24 pursuant to paragraph (1) shall not affect the appli25 cability of prohibitions set forth in or authorized 

•BR 11'71 m 
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136 

1 pursuant to section 4(d) or section 9(a)(1) with re2 spect to the taking of any resident endangered spe3 cies or threatened species in the State. 

4 "(d) ALLocATION OF FuNDS.-

5 "(1) FINANCIAL ASSISTANCE.-The Secretary 

6 may provide financial assistance to any State, 

7 through its respective State agency, which has re8 ceived delegation pursuant to subsection (c) of this 

9 section to assist in development of programs for the 

10 conservation of endangered species and threatened 

11 species or to assist in monitoring the status of can12 didate species pursuant to subparagraph (C) of sec13 tion 4(b)(3) and recovered species pursuant to sec14 tion 4(f). The Secretary shall allocate each annual 

15 appropriation made in accordance with subsection (i) 

16 to such States based on consideration of17 "(A) the international commitments of the 

18 United States to protect endangered species or 

19 threatened species; 

20 "(B) the readiness of a State to proceed 

21 with a conservation program consistent with the 

22 objectives and purposes of this Act; 

23 " (C) the number of endangered species 

24 and threatened species within a State; 

•BR 1111 m 
230 

137 

1 "(D) the potential for restoring endan2 gered species and threatened species within a 

3 State; 

4 "(E) the relative urgency to initiate a pro5 gram to restore and protect an endangered spe6 cies or threatened species in tenns of survival 

7 of the species; 

8 "(F) the importance of monitoring the sta9 tus of candidate species within a State to pre10 vent a significant risk to the well-being of any 

11 such species; and 

12 "(G) the importance ofmonitoring the sta13 tus of recovered species within a State to assure 

14 that such species do not return to the point at 

15 which the measures provided pursuant to this 

16 Act are again necessary. 

17 So . much of the annual appropriation made in ac18 cordance with subsection (i) allocated for obligation 

19 to any State for any tiscal year as remains unobli20 gated at the close thereof may be made available to 

21 that State until the close 9f the succeeding fiscal 

22 year. Any amount allocated to any State which is 

23 unobligated at the end of the period during which it 

24 is available for expenditure may be made available 

•BB 11'761B 
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138 

1 for expenditure by the Secretary in conducting pro2 grams under this section. 

3 "(2) CONTENTS OF DELEGATION AGREE4 MENT.-Such delegation shall provide for5 "(A) the actions to be taken by the Sec6 retary and the States; 

7 "(B) the benefits that are expected to be 

8 derived in connection with the conservation of 

9 endangered species or threatened species; 

10 " (C) the estimated cost of these actions; 

11 and 

12 "(D) the share of such costs to be borne 

13 by the Federal Government and by the States; 

14 except thatIS "(i) the Federal share of such pro16 gram costs shall not exceed 75 percent of 

17 the estimated program cost stated in the 

18 agreement; and 

19 "(ii) the Federal share may be in20 creased to 90 percent whenever two or 

21 more States having a common interest in 

22 one or more endangered species or threat23 ened species, the conservation of which 

24 may be enhanced by cooperation of such 

•BR 11'75IH 
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139 

1 States, enter jointly into an agreement 

2 with the Secretary. 

3 The Secretary may, in the Secretary's discretion, 

4 and under such rules and regulations as he may pre5 scribe, advance funds to the State for financing the 

6 United States pro rata share agreed upon in the co7 operative agreement. For the purposes of this seeS tion, the non-Federal share may, in the discretion of 

9 the Secretary, be in the form of money or real prop10 erty, the value of which will be determined by the 

11 Secretary, whose decision shall be final. 

12 "(3) CoMPLIANCE WITH PROCEDURES.-In im13 plementing this Act under authority delegated to a 

14 State by the Secretary, the State shall comply with 

15 all requirements, prohibitions, and procedures set 

16 forth by this Act. 

17 "(e) REviEw OF STATE PRooRAMS.-Any action 

18 taken by the Secretary under this section shall be subject 

19 to his periodic review at no greater than intervals of 5 

20 years. 

21 "(f) CoNFLICTS BETWEEN FEDERAL AND STATE 

22 LA.ws.-Any State law or regulation which applies with 

23 respect to the importation or exportation of, or interstate 

24 or foreign commerce in, endangered species or threatened 

25 species is void to the extent that it may effectively-

•BR 1111 m 
233 

140 

1 " ( 1) pennit what is prohibited by this Act or by 

2 any regulation which implements this Act, or 

3 "(2) prohibit what is authorized pursuant to an 

4 exemption or pennit provided for in this Act or in 

5 any regulation which implements this Act. This Act 

6 shall not otherwise be construed to void any State 

7 law or regulation which-is intended to conserve mi8 gratory, resident, or introduced fish or wildlife, or to 

9 pennit or prohibit sale of such fish or wildlife. Any 

10 State law or regulation respecting the taking of an 

11 endangered species or threatened species may be 

12 more restrictive than the exemptions or permits pro13 vided for in this Act or in any regulation which im14 plements this Act.". 

15 (b) CONFORMING AMENDMENT.-Section 6(g)(2)(A) 

16 (16 U.S.C. 1535(g)(2)(A)) is amended to read as follows: 

17 "(A) to which the Secretary has delegated au18 thority under subsection (c); or". 

19 SEC. 702. STATE PROGRAMS AFFECTED BY THE CONV£N· 

20 TION. 

21 Section SA (16 U.S.C. 1537a), as amended by section 

22 207 (b) of this Act, is amended by adding at the end the 

23 following new subsection: 

24 "(h) ISSUANCE OF PERMITS FOR ExPoRT.-

•DR 1171 m 
234 

141 

1 "(1) CoMPLIANCE WITH STATE RECOMMENDA2 TION.-In any instance in which a State has a pro3 gram for management of a native species which is 

4 the subject of a request for an export permit under 

5 the Convention, the Secretary shall act in accord6 ance with the recommendation of the State unless 

7 the Secretary makes a finding and publishes a notice 

8 in the Federal Register that scientific evidence justi9 fies a conclusion contrary to the advice of the State. 

10 "(2) APPEAL.-The State which is the subject 

11 to such a finding, or any person in that State di12 rectly affected because of inability to obtain a per13 mit, may appeal the finding to an Administrative 

14 Law Judge or a court.~he burden shall be on the 

15 Secretary to show that the evidence supports a find16 ing contrary to the recommendation of the State.". 

11 TITLE VIII-FUNDING OF 

18 CONSERVATION MEASURES 

19 SEC. 801. AUI'IIORIZING INCREASED APPROPRIATIONS. 

20 Section 15 (16 U.S.C. 1542) is amended to read as 

21 follows: 

22 "SEC. 115. AUI'IIORIZATION OF APPROPRIATIONS. 

23 · "(a) IN GENERAL.-In addition to the amounts au24 thorized to be appropriated under section 6(i) and sub-

•BR D'I'IIB 
235 

142 

1 sections (b) through (e), there are authorized to be appro2 priated3 " ( 1) to the Department of the Interior to carry 

4 out the duties of the Secretary of the Interior under 

5 this Act $110,000,000 for fiscal year 1996, 

6 $120,000,000 for fiscal year 1997, $130,000,000 for 

7 fiscal year 1998, $140,000,000 for fiscal year 1999, 

8 $150,000,000 for fiscal year 2000, and 

9 $160,000,000 for fiscal year 2001; 

10 "(2) to the Department of Commerce to carry 

11 out the duties of the Secretary of Commerce under 

12 this Act $15,000,000 for fiscal year 1996, 

13 $20,000,000 for fiscal year 1997, $25,000,000 for 

14 fiscal year 1998, $30,000,000 for fiscal year 1999, 

15 $35,000,000 for fiscal year 2000, and $40,000,000 

16 for fiscal year 2001; and 

17 "(3) to the Department of Agriculture to carry 

18 out the duties of the Secretary of Agriculture under 

19 this Act $4,000,000 for each of fiscal years 1996 

20 through 2001. 

21 "(b) COOPERATIVE MANAGEMENT AGREEMENTS.-

22 There are authorized to be appropriated to the Depart23 ment of the Interior to carry out section 6(b), 

24 $20,000,000 for each of fiscal years 1996 through 2001, 

25 to remain available until expended. 

•BB 11'71 m 
236 

143 

1 "(c) CONVENTION IMPLEMENTATION.-There are au2 thorized to be appropriated to the Department of the Inte3 rior to carry out section SA( e) $1,000,000 for each of fis4 cal years 1996 through 2001, to remain available until ex5 pended. 

6 "(d) NON-FEDERAL CoNSERVATION PLANNING.-

7 There are authorized to be appropriated to the DepartS ment of the Interior to carry out section 10(a)(2)(F) 

9 $20,000,000 for each of fiscal years 1996 through 2001, 

10 to remain available until expended. 

11 "(e) HABITAT CoNSERVATION GRANTS.-There are 

12 authorized to be appropriated to the Department of the 

13 Interior to provide habitat conservation grants under sec14 tion 6(b)(14) $20,000,000 for each of fiscal years 1996 

15 though 2001, to remain available until expended.". 

16 SEC. 802. FUNDING OF FEDERAL MANDATES. 

17 Section 16 is amended to read as follows: 

18 "SEC. 18. FEDERAL COST-SIIABING REQUIREMENTS FOR 

19 CONSERVATION OBLIGATIONS. 

20 "(a) DIRECT CosTS DEFINED.-In this section, the 

21 term 'direct costs' means--

22 · "(1) expenditures on labor, material, facilities, 

23 utilities, equipment, ~pplies and other resources 

24 which are necessary to undertake a specific con25 servation measure; 

•BR ma m 
237 

144 

1 "(2) increased purchase power costs and lost 

2 revenues caused by changes in the operation of a hy3 dropower system from which the non-Federal person 

4 or Federal power marketing administration markets 

5 power to meet . a specific conservation measure; and 

6 "(3) other reimbursable costs specifically identi7 tied by the Secretary as· directly related to the per8 formance of a specific conservation measure. 

9 "(b) CoST-SHARING.-

10 "(1) CoNSERVATION PLANS.-For any non11 Federal person or Federal power marketing adminis12 tration, the Secretary shall pay 50 percent of any di13 . rect costs that result from the compliance by the 

14 person or administration mandated by a conserva15 tion plan issued under section 5 or any conservation 

16 measure that provides protection to a listed species 

17 under a plan developed under the Pacific Northwest 

18 Electric P.ower Planning and Conservation Act (16 

19 U.S.C. 839 et seq.) including a plan that provides 

20 protection to a larger population unit of the same 

21 listed species. 

22 '~(2) CoNSULTATION REQUIREMENTS.-For any 

23 non-Federal person or Federal power marketing ad24 ministration, the Secretary shall pay 50 percent of 

25 direct costs that result solely from requirements im-

•BB JI'IIIB 
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145 

1 posed by the Secretary on the person or marketing 

2 administration under section 7. 

3 "(3) INCIDENTAL TAKE PERMITS.-For any 

4 non-Federal person issued an incidental take permit 

5 under section 10, the Secretary shall pay to such 

6 person 50 percent of the direct costs of preparing 

7 the application for the permit and implementing the 

8 terms and conditions of the permit. 

9 "(4) COOPERATIVE MANAGEMENT AGREEtO MENTS.-The Secretary shall pay 50 percent of the 

11 direct costs of preparing and implementing the 

12 terms and conditions of a cooperative management 

13 agreement incurred by a party to the agreement and 

14 any costs incurred by any other non-Federal person 

15 or Federal power marketing administration subject 

16 to the terms of such agreement. 

17 "(c) METHOD OF COST-SHARING.-

18 "(1) IN GENERAL.-Except as provided in para19 graph (2), the Secretary may make a contribution 

20 required under subsection (b) by21 "(A) providing a habitat reserve grant 

22 under section 6(b)(14); 

23 "(B) acquiring, from or for the party to 

24 the cost-share, land or an interest in land as 

25 provided in section 5A; or 

•DR lt'JIIIH 
239 

146 

1 " (C) providing appropriated funds. 

2 "(2) COST-SHARE PAYMENT FOR FEDERAL 

3 POWER MARKETING ADMINISTRATIONS AND OTHER 

4 STATE OR LOCAL GOVERNMENTAL ENTITIES.-The 

5 Secretary shall make a contribution under sub6 section (b) to a Federal power marketing adminis7 tration or any other State-or local governmental en8 tity by providing appropriated funds directly to the 

9 administration or governmental entity. 

10 "(3) APPROPRIATED FUNDS.-To the maximum 

11 extent practicable, any appropriated funds paid by 

12 the Secretary under paragraphs (1) and (2) shall be 

13 paid directly (in lieu of reimbursement) to the party, 

14 person, or administration. 

15 "(4) LoANS.-The Secretary may not consider 

16 a loan to the party to the cost-share as a contribu17 tion or portion of a contribution under subsection 

18 (b). 

19 "(5) RECOVERED COSTS.-The Secretary may 

20 not claim as a portion of the Federal share under 

21 subsection (b) any costs to the Federal Government 

22 that are recovered through rates for the sale or 

23 transmission of power or water. 

24 "(6) EFFECT OF FEDERAL NONPAYMENT.-If 

25 the Secretary fails to make the contribution required 

•HRIHII m 
240 

147 

1 under subsection (b), the application of the applica2 ble provision of the conservation plan, requirement 

3 under section 7, term under the incidental take per4 mit, or provision of the cooperative management 

5 agreement shall be suspended until such time as the 

6 full contribution is made. If the suspended provision 

7 or requirement includes a conservation easement or 

8 other instrument restricting title to the property of 

9 the non-Federal person, nonpayment of the full con10 tribution shall result in the nullification of the pre11 viously granted restriction on title. 

12 "(7) IN-KIND CONTRffiUTIONS.-A non-Federal 

13 person or Federal power marketing administration 

14 may include in-kind contributions in calculating the 

15 appropriate share of the costs of the person or ad16 ministration under this section. 

17 "(8) COSTS PAID BY THE SECRETARY.-Com18 pensation from the Federal Government under sec19 tion 19 may not cover costs incurred by a non-Fed20 eral person that were otherwise paid by the Sec21 retary under subsection (b). 

22 "(d) EXISTING COST-SHARING AGREEMENTS.-Any 

23 cost-sharing agreement with a non-Federal person pro24 vided in any recovery plan or other agreement in existence 

25 prior to the date of enactment of this subsection shall re-

•BR 2275 IH 
241 

148 

1 main in effect unless the non-Federal person requests that 

2 the cost-sharing percentage be reconsidered. 

3 "(e) ADJuSTMENTS TO CoST-SHARING PERCENT4 AGE.-At the request of the non-Federal person, the SeeS retary may adjust the percentage of the Federal contribu6 tion to a higher share.". 

7 SEC. 80S. ENDANGEBBD SPBCIBS AND THREATENED SPE8 CIE8 CONSBilVATION TRUST I'UND. 

9 Section 13 is amended to read as follows: 

10 "SEC. IS. ENDANGERED SPBCIBS AND THREATENED SPEll CIE8 CONSBilVATION TRUST I'UND. 

12 "(a) ESTABLISHMENT.-There is established in the 

13 general fund of the Treasury a separate account which 

14 shall be known as the 'Endangered Species and Threat15 ened Species Conservation Trust Fund' (in this section re16 ferred to as the 'Fund'). 

17 "(b) CoNTENTS.-The Fund shall consist of the fol18 lowing: 

19 

20 

"(1) Amounts received as gifts, bequests, and 

devises under subsection (d). 

21 "(2) Other amounts appropriated to or other22 wise deposited in the Fund. 

23 "(c) UsE.-Amounts in the fund shall be available 

24 to the Secretary, subject to appropriations, for the follow25 ing: 

•DR 11'11 m 
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149 

1 "(1) Payment of compensation under section 

2 19. 

3 "(2) Habitat conservation grants under section 

4 6(b)(ll). 

5 "(3) Payment of cost sharing under section 16. 

6 "(d) GIFTS, BEQUESTS, AND DEVISES.-

7 "(1) IN GENERAL.-The Secretary may accept, 

8 use, and dispose of gifts, bequests, or devises of 

9 services or property, both real and personal, for the 

10 purpose of carrying out this Act. 

11 "(2) DEPOSIT INTO FUND.-Gifts, bequests, or 

12 devises of money, and proceeds from sales of other 

13 property received as gifts, bequests, or devises, shall 

14 be deposited in the Fund and shall be available for 

15 disbursement upon order of the Secretary. 

16 "(3) TREATMENT.-For purposes of Federal in17 come, estate, and gift taxes, property accepted under 

18 this subsection shall be considered as a gift, bequest, 

19 or devise to the United States.". 

20 TITLE IX-MISCELLANEOUS 

21 PROVISIONS 

22 SEC. 101. AMENDMENTS TO DEPINmONS. 

23 Section 3 (16 U.S.C. 1532) is amended-

·-11'71 m 
150 

1 (1) by adding after paragraph (16) (as added 

2 by section 401(e)(1) of this Act) the following new 

3 paragraph: 

4 "(17) The term 'non-Federal person' means a 

5 person other than an officer, employee, agent, de6 partment, or instrumentality of the Federal Govem7 ment or a foreign government, acting in the official 

8 capacity of the person."; and 

9 (2) by amending paragraph (3) (as redesig10 nated by section 102(a)(1) of this Act) to read as 

11 follows: 

12 "(3) The term 'commercial activity' means all 

13 activities of industry and trade, including, but not 

14 limited to, the buying or selling of commodities and 

15 activities conducted for the purpose of facilitating 

16 such buying and selling, except that it does not in17 elude exhibition of commodities or species by exhibi18 tors licensed under the Animal Welfare Act (7 

19 U.S.C. 2131 et seq.), museums, or similar cultural 

20 or historical organizations.". 

21 SEC. 882. REVIEW OF SPECIES OF NATIONAL INTEREST. 

22 No later than 60 days after the date of the enactment 

23 of this Act, the Secretary (as that term is defined in sec24 tion 3 of the Endangered Species Act of 1973, as amended 

25 by this Act) shall identify those species which are listed 

•BR 11ft IB 
151 

1 under section 4 of that Act as a result of being detennined 

2 to be a population segment. No later than one year after 

3 the date of the enactment of this Act, the Secretary shall 

4 review and determine whether or not it is in the national 

5 interest to continue to list each such population segment. 

6 Those population segments which the Secretary rec7 ommends for continued listing in the national interest 

8 shall be submitted to the Congress for approval. Any pop9 ulation segment which is not determined to be in the na1 0 tional interest shall be delisted within 60 days after that 

11 determination. 

12 SEC. 903. PREPARATION OF CONSERVATION PLANS FOR 

13 SPECIES LISTED BEFORE ENACTMENT OF 

14 TBISACT. 

15 (a) LISTED SPECIES WITHOUT RECOVERY PLANS.-

16 (1) PRIORITY FOR DEVELOPMENT OF CON· 

17 SERVATION PLANS.-Not later than 30 days after 

18 the date of enactment of this Act, the Secretary (as 

19 defined in section 3 of the Endangered Species Act 

20 of 1973, as amended by this Act) shall publish a list 

21 of all species that were determined to be endangered 

22 species or threatened species under section 4 of the 

23 Act (16 U.S.C. 1533) for which no final recovery 

24 plans were issued under section 4(f) of the Act (16 

25 U.S.C. 1533(f)) (as in effect on the day before the 

•HR 1175 IH 
245 

152 

1 date of enactment of this Act) divided equally into 

2 three tiers of priority for preparation of conservation 

3 objectives and conservation plans therefor pursuant 

4 to section 5 of the Act. Any species which is listed 

5 as an endangered species or threatened species in 

6 more than one State shall be placed in the first tier 

7 of priority. 

8 (2) ScHEDULE FOR ADOPTION OF PLANS.-The 

9 Secretary shall publish pursuant to section 5 of the 

10 Endangered Species Act of 1973 a conservation ob11 jective, draft conservation plan, and final conserva12 tion plan (except when a conservation objective is 

13 published pursuant to section 5(b)(3)(C) of such 

14 Act) for each species within <each tier of priority 

15 identified pursuant to paragraph (1) within the fol16 lowing periods after the date of enactment of this 

17 Act: 

18 (A) Conservation objective: First tier, 120 

19 days; second tier, 12 months; and third tier, 24 

20 months. 

21 (B) Draft conservation plan: First tier, 6 

22 months; second tier, 18 months; and third tier, 

23 30 months. 

elllll:lftiB 
246 

153 

1 (C) Final conservation plan: Firsttier, 12 

2 months; second tier, 24 months; and third tier, 

3 36 months. 

4 (b) LISTED SPECIES WITH RECOVERY PLANs.-

5 (1) PRIORITY FOR REVISION OF EXISTING 

6 PLANS.-Except as provided in paragraph (3), a 

7 final recovery plan issued under section 4(f) of the 

8 Endangered Species Act of 1973 (16 U.S.C. 

9 1533(f)) (as in effect on the day before the date of 

10 enactment of this Act) shall continue in effect until 

11 the expiration of the deadline for revision thereof es12 tablished under this paragraph. Within 90 days after 

13 the date of enactment of this Act, the Secretary 

14 shall publish a list of all species that were deter15 mined to be endangered species or threatened spe16 cies under section 4 of such Act (16 U.S.C. 1533) 

17 and for which final recovery plans were issued under 

18 section 4(f) of such Act (16 U.S.C. 1533(f)) (as in 

19 effect on the day before the date of enactment of 

20 this Act) divided equally into three tiers of priority 

21 for preparation of conservation objectives pursuant 

22 to section 5(b) of such Act and revisions of the re23 covery plans consistent with the requirements for 

24 conservation plans set forth in section 5(c) of such 

25 Act. Any species which is listed as an endangered 

•BRD75 m 
247 

154 

1 species or threatened species in more than one State 

2 shall be placed in the first tier of priority. 

3 (2) SCHEDULE FOR REVISION OF PLANS.-The 

4 Secretary shall publish pursuant to section 5 of the 

5 Endangered Species Act of 1973 a conservation ob6 jective, draft revision of the existing recovery plan, 

7 and final revision of the existing recovery plan (ex8 cept when a conservation objective is published pur9 suant to section 5(b)(3)(C) of such Act) for each 

10 species within each tier of priority identified pursu11 ant to paragraph (1) within the following periods 

12 after the date of enactment of this Act: 

13 (A) Conservation objective: First tier, 180 

14 days; second tier, 18 months; and third tier, 30 

15 months. 

16 (B) Draft revised recovery plan: First tier, 

17 12 months; second tier, 24 months; and third 

18 tier, 36 months. 

19 (C) Final revised recovery plan: First tier, 

20 18 months; second tier, 30 months; and third 

21 tier, 42 months. 

22 (3) SPECIES FOR WHICH NO CONSERVATION 

23 PLAN IS REQUIRED.-If the Secretary publishes a 

24 conservation objective for which no conservation plan 

25 is required pursuant to section 5(b)(3)(C) of the En-

•HRU715 m 
248 

155 

1 dangered Species Act of 1973 for any species subject 

2 to this subsection, the final recovery plan applicable 

3 to the species shall be rescinded. 

4 (c) PROHffiiTION ON ADDITIONAL REQUffiE5 MENTS.-The Secretary or any other Federal agency may 

6 not require any increase in any measurable criterion con7 tained in, or any site specific management action in addiS tion to those provided in, a final recovery plan issued 

9 under section 4(f) of the Endangered Species Act of 1973 

10 (16 U.S.C. 1533(f)) (as in effect on the day before the 

11 date of enactment of this Act) until such time as a con12 servation plan, or, pursuant to section 5(b)(3)(C) of such 

13 Act, a conservation objective, has been published under 

14 section 5 of such Act. 

15 (d) EXISTING BIOLOGICAL 0PINIONS.-ln conjunc16 tion with the issuance of a conservation plan, or, pursuant 

17 to section 5(b)(3)(C) of the Endangered Species Act of 

18 1973, a conservation objective under subsection (a) or (b), 

19 the Secretary (as defined in section 3 of such Act ( 16 

20 U.S.C. 1532)) shall review and reissue, in accordance with 

21 section 7 of such Act, any written opinion of the Secretary 

22 that relates to the affected_ species and was issued after 

23 January 1, 1995, under section 7(b)(3) of such Act (16 

24 U.S.C. 1536(b)(3)) (as in effect on the day before the date 

25 of enactment of this Act). 

•HR 117& m 
249 

156 

1 SEC. 904. CONFORMING AMENDMENT TO TABLE OF CON· 

2 TENTS. 

3 The table of contents at the end of the first section 

4 is amended to read as follows: 

5 "TABLE OF CONTENTS 

"Sec. 2. Findings, purposes, and policy. 

"~. 3. Definitions. 

"Sec. 4. Detennination of endangered speciea and threatened speciea. 

"Sec. 5. Speciea conservation plans. 

"Sec. 5A. Protection of habitat. 

"Sec. 6. Cooperation with non-Federal persons. 

"Sec. 7. Interagency cooperation. 

"Sec. 8. lntemational cooperation. 

"Sec. 8A. Convention implementation. 

"Sec. 9. Prohibited acts. 

"Sec. 10. Exeeptions. 

"Sec. 11. Penaltiea and enforcement. 

"Sec. 12. Endangered plants. 

"Sec. 13. Endangered Speciea and Threatened Speciea Conservation Trust 

Fund. 

"Sec. 14. Notice of hearings. 

"Sec. 15. Authorization of appropriations. 

"Sec. 16. Federal cost-sharing requirements for conservation obligations. 

"Sec. 17. Marine llfammal Protection Act of 1972. 

"Sec. 18. Annual cost analysis by the Fish and Wildlife Service. 

"Sec. 19. Right to compensation. 

"Sec. 20. Recognizing net benefits to aquatic speciea.". 

0 
250 

Statement of the Honorable 

WILLIAM M. THOMAS 

Committee on Resources 

Endangered Species Conservation and Management Act of 1995 

September 20, 1995 

Mr. Chairman and members of the committee, I appreciate the opportunity to comment 

today on H.R. 2275, which will provide for an Endangered Species Act (ESA) that respects 

private property while broadening conservation efforts for endangered and threatened species 

. to embrace private-public partnerships. For too long, this well-intentioned Act of Congress 

has been harming our economy and wasting public resources. H.R. 2275 will provide more 

tools to help protect and conserve species while eliminating the bureaucratic abuses allowed 

under present law. 

Property owners in Kern and Tulare Counties in California and nationwide have gotten 

the message from the current Act, that the government places more value on the existence of 

species like the fairy shrimp and the blunt-nose leopard lizard than on people. That message is 

conveyed by environmental groups and bureaucrats who are too far removed from the human 

side of the equation. It is a message made explicit in the Act itself, which effectively 

precludes consideration of all factors other than the supposed • intrinsic value • of a species. 

Congress has declared in the Act that such species are of • incalculable • value, prompting the 

Supreme Court to rule-that the "plain intent of Congress was to prevent extinction, whatever 

the cost. • Is it any wonder then that Constitutional rights of people are relegated to a 

secondary status behind the non-Constitutional rights of rats and weeds? 

The fact is that if Congress knew in 1974 how the Act would have turned out, it would 

never have passed the legislation in the first place -- at least not in its current form. 

Perhaps part of the problem is the initial process by which ESA was created in 1973, 

when only three hearings were held on the legislation, all in Washington, D.C. By contrast, 

in this new Congress, H.R. 2275, the Endangered Species Conservation and Management Act, 
251 

is the prod.uct of ten Endangered Species Task Force hearings, seven of those hearings 

conducted outside of Washington. Over one hundred witnesses testified at these field 

hearings, and over eight thousand people attended the hearings, as well as twenty five 

Members of Congress. 

H.R. 2275 recognizes that the key to protecting threatened or endangered species is 

through incentives and rewards, not threats and fines. The bill encourages voluntary measures 

to protect species, including cooperative management agreements, habitat reserve grants, land 

exchanges, and habitat conservation planning. It also establishes a "Critical Habitat Reserve 

Program" - to provide payments for farmers to set aside habitat. Finally, it provides 

numerous tax incentives to reward people for species conservation and good land stewardship. 

The Endangered Species Conservation and Management Act will encourage citizens to 

actively involve themselves in species conservation efforts, not hinder them with rigorous 

paperwork, senseless bureaucracy, and burdensome costs. If society wants to protect species, 

' then society should pay for it, and not lay the costs onto the backs of that segment of society 

who own property on which endangered species live. We like animals, and we like nature, 

but something is fundamentally wrong when a person is paying property taxes to mi 

government on property the ~ government says he cannot use. The current Endangered 

Species Act is making private property owners pay the societal costs of what amounts to an 

ideologically-driven biodiversity program. 

If species protection benefits all of us, then we should be willing to compensate those 

landowners whose land is effectively taken to protect endangered species. Those families that 

make their living from the land must be protected from decreasing values of use of their land. 

Until such steps are taken, the Act will continue to fail to achieve its goal of federal wildlife 

protection which reflects the will of the American people. If Congress is steadfast and 

innovative in providing incentives for landowners, compensation becomes the last resort, but 

one that is needed to ensure that all stakeholders in species protection work towards a 

management plan fair to everyone. H.R. 2275 compensates property owners who are 
252 

negatively impacted by endangered species, based on the premise that a small number of 

individuals should not bear the entire burden of a public policy decision. 

It has taken a Republican Congress to bring the ESA back to the drawing board, and it 

has taken a Republican Congress to allow public input into the reform process. Last year the 

Merchant Marine and Fisheries Committee, which held jurisdiction over the Act, refused to 

vote to reauthorize or even hold hearings on the ESA. Why? Because the Democratic 

leadership of the 103rd Congress realized that they could never reauthorize the bill in its 

current form. Yet they continued to appropriate funds for this unpopular law, and the Fish 

and Wildlife Service continued to enforce the ESA, despite its uncertain status. 

Mr. Chairman, the Act, as currently written, does not adequately address the economic 

and societal costs associated with the preservation of species. People and jobs are important 

and I cannot support laws that ignore that fact. It is the duty of the Congress to reform the 

Endangered Species Act, so that it will contain strict requirements for scientific documentation 

and mandate objective evaluation of evidence prior to any species listings and habitat 

designations. H.R. 2275 does just that. 

Mr. Chairman, we are not against bio-diversity or preserving valuable species. What 

we do oppose is a federal bureaucracy that doesn't know about how hard working people go 

about making an honest living and taking care of their land. H.R. 2275 bases conservation 

efforts on the best possible science to restore the faith of the public in decisions made by the 

government. A listing decision will be based on current factual information and requires an 

adequate peer review of the data. It also provides that the data used in the process is open to 

the public. This represents a dramatic shift from the current law, to one which will achieve its 

aim of protecting endangered or threatened species while protecting private property owners 

rights and jobs. 

I also come before you today to discuss an amendment I am proposing to assist with the 

reintroduction of the California condor in California, by enhancing and encouraging cooperation 
253 

between government condor recovery efforts and private landowners who are instrumental to the 

effort. It is the judgment of the Fish and Wildlife Service that successful recovery of the 

California condor will require that condor habitat not be restricted to public lands. As a result, 

private landowners must be made an active part of the recovery effort, and receive assurances 

that their efforts to assist in the recovery of the condor will not severely restrict their activities. 

My amendment accompli.shes two specific things: 1) it removes a largely obsolete 

critical habitat designation from the largest contiguous block of private land, that of Tejon 

Ranch, now designated as part of the historical critical habitat for the bird, and 2) it establishes in 

law that reintroduced California condors will be treated as an experimental population, as 

currently mandated under Section I 0 G) of the ESA when and while such birds are occupying or 

using public lands in California. My amendment is essential to enable private landowners to 

actively cooperate with condor recovery efforts. The condor's value to California and to society 

demand that the recovery effort be practically structured so as to be beneficial to the species 

while not unduly burdensome to private landowners. 

20-707 95-9 
254 

TESTIMONY OF ARIZONA GOVERNOR J. FIFE SYMINGTON III 

BEFORE HOUSE RESOURCES COMMITTEE 

Professional foresters in the southwest are deeply concerned. Unless conditions 

change soon, they predict that catastrophic wildfires will raze large tracts of forest These fires will 

cause immense economic losses, particularly in the growing urban-wildlands interface, and scar 

the fragile arid forests for generations. Yet foresters are being prevented from managing for forest 

health by the political agenda of self-anointed environmentalists, who would prefer that trees bum 

rather than be harvested for timber. These extremists have invoked the Endangered Species Act to 

prevent timber harvesting in the name of a "threatened" species, the Mexican spotted owl. It is 

ironic that wildfue, drought, pests and disease all present a major threat to the forest habitat these 

activists seek to protect, and that "old growth" is the type most at risk. 

Critics of the Endangered Species Act argue that it is a law out of balance. Because 

the law allows species to be listed, and management of land restricted, on the basis of projections, 

speculation, assumption, and "data" that is neither field-tested nor peer reviewed, it has been 

misused to further the political agendas of a select few environmental activists. The Mexican 

spotted owl and other Arizona species listed or proposed for listing present excellent examples of 

this abuse. 

The Endangered Species Conservation and Management Act of 1995 (the 

"Young-Pombo" bill), introduced in both houses of Congress earlier this month would correct the 

ESA's most glaring defects while enhancing its potential to protect rare species. The package of 

reforms takes a number of important steps in the right direction to restore balance and common 

sense to a law that has gone badly awry. 

The beneficial effects anticipated to result from the Young-Pombo bill are best 

illustrated by example, including the Mexican spotted owl. 

I. Young-Pombo Bjll Would Better Assure Scjentjfic Yaljdjty of Decjsjops 

Affecting Listed Snecies 

The Young-Pombo bill requires that the federal government actively solicit 

information when appropriate, and consider all available evidence, not just that furnished by those 

who petition for an action, or agency personnel who are often affiliated with the entities that 

petition for listing. The bill would also requile field testing of data, and provide for peer review of 

important scientific information on which it relies. By improving the reliability of the process, the 

bill would reduce the number of unjustified listings and the waste of resources that results. 

The listing and determination of habitat for the Mexican spotted owl illustrates the 

importance of these changes. Despite the absence of evidence that the owl was in decline, the owl 

was listed as "threatened" in 1993, based upon the petition of Dr. Robin D. Silver. Dr. Silver's 

stated objective is to "save old growth forests;" the owl is incidental to the objective, the means to 

an end. 
255 

The absence of a requirement that data be scientifically valid allowed the manipulation 

of the law so that a species that is not truly in decline could be used to prevent timber harvest The 

scientific evidence strongly suggests that the owl is not threatened, that the owl is not a native 

inhabitant of southwestern forests, and that the owl does not depend upon old growth for its 

survival. The Mexican Spotted Owl Recovery Team, experts assembled to develop a plan to 

protect the owl, stated in its March, 1995 Draft Recovery Plan that there is "no undisputable 

evidence ... that the [MSO] population is declining or is significantly below historical 

levels ... Rather than any documented population decline, the main reasons for the species' listing 

were threats to existing habitat and the lack of regulatory mechanisms to control those threats." 

(The perceived "threat" to owl habitat, evenaged timber management, had largely been 

discontinued years before the owl was listed.) 

The historical records from naturalists who surveyed Arizona indicate that until the 

early 1900's, the owl was reported primarily in southern Arizona, in mid-to-low-elevation riparian 

areas. The frrst sighting of the owl above the Mogollon Rim was in 1929. It was not until the 

forests of central and northern Arizona changed from the open, park like condition in which they 

were maintained by native peoples prior to European settlement to dense, closed canopies that the 

owl began to inhabit them. Furthermore, the association between Mexican spotted owls and "old 

growth" is, at best, a loose one. Analysis of spotted owl territories has revealed that a very small 

percentage of those territories (estimated at 15% ), consisting only of nest and roost sites, manifest 

some of the characteristics of "old growth" forests.lronically, although radical activists claim they 

seek to prevent the clear cutting of trees, to protect "old growth," their proceedings in suppon of 

the Mexican spotted owl have affected millions of acres on which there is presently little or no "old 

growth, n and the management restrictions they advocate may simply fuel the inevitable wildfire that 

consumes the trees they want to save. By "old growth," most activists really mean big trees; they 

assume that large trees are old trees. In fact, at a recent Senate hearing on forest health, scientists 

demonstrated that the size of a tree is not necessarily determined by its age. 

Trees grow large in uncrowded forests. Even old trees may be small and weak 

where they must compete for resources with many other trees. Presently small trees, growing in 

overcrowded conditions in which they cannot flourish, provide most of the closed canopies 

deemed irnponant and designated as "critical habitat" for the spotted owl. According to forest 

health experts, the overcrowding, and resulting competition for moisture and nutrition, 

susceptibility to mistletoe, bark beetle, and other pests, and fuel loading, has set the stage for 

massive crown fires that may decimate large tracts of forest that will take generations to recover, at 

huge economic cost. 

Forest inventories indicate that there are many more trees currently on our national 

forests than there were before Europeans settled the area. In the Coconino National Forest, there 

are currently 116.8 trees per acre with a breast height diameter of 6" or more, whereas in 1911 

there were 16 trees per acre. In the Prescott National Forest there are presently 99.1 such trees per acte, compan:d wilh 20.0 per acte in the past In the Tusayan Ranger District in the Kaibab, there 

are currently 76.7 trees per acre, compared with 10.7 in the past. Moreover, there are tens of 

thousands of acres which have much greater tree densities; the research of professors Covington 

and Moore indicates that average densities of all live sterns in the Coconino National Forest were 

12.1 trees per acre in past conditions, and 7 57 trees per acre under current conditions. 

2 
256 

The data indicates that there are more "big" trees as well as more small trees. 

Comparing the numbers of trees 18" or larger in diameter, inventory data show that in the 

Coconino National Forest, current levels of 8.5 such trees per acre are slightly less than historic 

levels of 8. 7 per acre. In the Prescott National Forest, current levels of 7.0 such trees per acre are 

almost double historic levels of 4.4 per acre; and in the Tusayan Ranger District on the Kaibab, 

current levels of 7. 7 trees per acre are almost double the historic levels of 3. 7 per acre. 

Besides a drastic increase in tree densities, current forest conditions can be 

characterized as having high canopy closures, high fuel accumulations, a lack of low intensity 

ground ftres, signiftcantly reduced water yields, reduction in grasses and forbs, conversion of 

ponderosa pine type to mixed-conifer type, tree invasions into parks and meadows. all of which 

contribute to unhealthy and unnatural conditions. In such conditions the forests are more 

susceptible to insects, disease, stagnation, poor growth, and frre. 

Thus, the end product of the bad science applied to justify listing the Mexican spotted 

owl is not the protection of old growth .trees. It is the decline of forest health, and likely 

destruction of the very trees intended to be saved. 

2. The Youn&-Pombo Bm Would Emphasize Recoyery Reduce Bureaucratic 

Gridlock and Reduce OJ!ponunities for Abuse 

The ESA is both unpopular and unsuccessful because it is being used in a way that 

was never intended. The ESA was designed to function as a safety net, to catch and save species 

that had slipped through gaps in other conservation laws. The occasionally draconian enforcement 

mechanisms intended for use in emergency situations are used as an option of ftrst, rather than last, 

resort. In consequence, the ESA has made the already unwieldy federal bureaucracy even more 

cumbersome and unresponsive. 

Under the present law, most of the federal resources available for species protection 

are devoted to compliance with the mandatory provisions and deadlines. The Young-Pombo bill 

would redress this situation by shifting the emphasis of the law from listing to the development of 

recovery plans, by providing incentives for conservation rather than inflexible mandates, and by 

increasing the involvement by states and the private sector in the recovery process. 

The ESA's mandatory provisions can be simultaneously onerous, costly, and 

ineffective. For example, the law sets deadlines for listing, designation of critical habitat, and 

consultation. However, the sheer volume of research and paperwork that must be done to 

determine a species' status and complete the listing process, and the lack of funding, combine to 

assure that these deadlines are seldom met 

Again, the Mexican spotted owl provides an example of the problem. When the 

statutory deadline for designation of critical habitat had expired, Dr. Silver sued to force the Fish 

and Wildlife Service to designate critical habitat In May of 1995, pursuant to a federal district 

judge's order, and despite a Congressional moratorium on the publication of such a rule, the Fish 

and Wildlife Service designated 4.5 million acres of forested lands in Arizona and New Mexico as 

habitat for the owl. In August of 1995, in a different lawsuit by Dr. Silver, the same judge 

enjoined all timber harvest in 11 million acres of national and tribal forests in those two states. 

3 
257 

In recent statements to the press, Dr. Silver has made it plain that his agenda involves 

"protecting old growth," not protecting the owl. The owl is merely the excuse for the action he 

seeks. Representatives of the Sierra Club have also admitted that the same objective fueled their 

efforts to seek protection for the Northern spotted owl in the Pacific Northwest. However, Dr. 

Silver's refusal to stipulate that the injunction does not affect the cutting of small trees, or activities 

outside of critical habitat, hint at another agenda: the death of the forest products industry in the 

Southwest. 

The bureaucratic gridlock produced by the ESA's mandatory deadlines and other 

requirements have afforded self-anointed environmentalists, such as Dr. Silver, opportunities to 

dictate national priorities and to control the management of millions of acres of land to further their 

own priorities and agendas. As a result, the ESA has become the means to an end that may have 

nothing at all to do with saving species from extinction, and everything to do with certain types of 

activities that some consider "undesirable," such as ranching, mining, timber harvest. and real 

estate development 

Because there is no requirement that information relied upon as the basis for federal 

action be peer-reviewed or otherwise determined to be scientifically valid, there is room for 

considerable mischief. Activists may generate considerable publicity in support of protection for 

"charismatic megafauna" for political purposes or reasons other than species protection. while they 

ignore less popular but often more essential species. Species such as the ferruginous cactus 

pygmy owl, that were never plentiful in the United States, or that are plentiful outside the United 

States, may nevertheless be listed as endangered based upon rarity, without determining their 

historic population levels and without understanding the factors (such as climatic conditions) that 

underlie their rarity. 

The record of the ESA reflects this problem. After twenty years, more than 77 5 plant 

and animal species had been listed (at the rate of approximately 40 species per year), 500 more 

were awaiting listing, and an estimated 3,000 were considered to be in possible jeopardy. Yet only 

5 species had been recovered and delisted. The Department of Interior estimates that in 20 years 40 

species became extinct while waiting for their paperwork to be completed. It is estimared that it will 

cost $140 million just to list the 600 species now thought to be in immediate jeopardy; the cost of 

efforts to recover these species is estimated to be $5.5 billion. Even after such expenditures, it is 

likely that more species will be lost than are saved. 

3. The Young-Pombo Bm Would Better Prioritize Scarce Resources and Balance 

Federal Priorities 

The ESA relies upon the drastic remedy of "deathbed conservation" of individual 

species rather than the forests and rivers which those species inhabit. The ESA's 

species-by-species approach ignores the biologically more significant ecosystem (forest) in favor 

of the species (trees). This approach, which affords each rare species equal treatment, without 

regard to the cause or consequences of its rarity, is both wasteful and doomed to failure. 

4 
258 

All of this activity takes place in almost total ignorance of the process of extinction 

that is the ESA's principal concern. There is serious debate among scientists as to what actually 

constitutes a species, and there is great uncertainty as to the validity of popular mass extinction 

projections. It is often impossible to detennine the cause of a species' extinction, or the path to 

preservation. Species that are truly on their deathbeds are not likely to have sufficient numbers to 

retain their ecological niche and recover sufficiently to retain evolutionary variety and adapt to 

changing environmental conditions and random catastrophes. The ESA makes no provision for 

these possibilities. 

The "deathbed conservation" mentality leads to drastic interruptions of the business 

of federal agencies, often without any demonstrable benefit to a listed species. Again, the 

Mexican spotted owl affords an example. An injunction issued to "enforce" the ESA has resulted 

in the interruption of all federal timber harvest in the southwest region, even though only 4.5 

million of the 11 million acres of forested lands were designated as critical habitat for the owl, and 

the designation included all lands presently occupied by the owl or capable of being occupied in 

the future. 

In the case of individual listed species, much effort and expense may be devoted to a 

process doomed to failure. For example, in Arizona, the Fish and Wildlife Service proposed a rule 

to "preserve" a population totaling three ferruginous cactus pygmy owls, who presently dwell in 

desert thorn scrub habitat It is intuitively obvious that a population of three birds is unlikely to be 

"brought back" from the brink of extinction, and that recovery efforts for this owl are likely to be 

as unsuccessful as the plans to recover the masked bobwhite quail. 

However, in the interest of protecting the pygmy owl (which incidentally dwells in 

much greater numbers in Texas and in Mexico) the Fish and Wildlife Service proposed to 

designate 290 miles of rivers, streams and washes in central and southern Arizona as critical habitat 

for the species, and suggested that any activities that might affect those riparian habitats including 

agriculture, ranching, and groundwater pumping for municipal and other uses, be modified or 

discontinued. 

In short, the lives of hundreds of thousands of Arizonans could be affected by a rule 

to protect three pygmy owls. The direct and indirect economic costs of such a rule could be 

gigantic. Yet Peter Galvin, of the Southwest Center for Biological Diversity, characterized the 

ranchers and farmers who testified in opposition to the proposed rule as "selfish people who 

apparently don't care about anything else but how much money they can make in the next year or 

two" and "the same people who are trying to tum Arizona into an environmental hell and won't 

stop until they have the last acre and will gobble up every place of the Sonoran Desert every creek, 

pump every river dry." This mentality illustrates much of what is wrong with the present law. 

The Young-Pombo bill would require the federal government to take into account all 

of the factors relevant to species recovery, including the biological significance of a species, and 

the technical practicality of recovery. It would also balance the objectives of the ESA with other 

agency objectives. 

5 
259 

4. The Yaung-Pombo Bjl! Would Reouire the Federal Goyernment to Count and 

Pay the Costs of Specjes Protection 

One of the most divisive features of the present law is its absolute directive that 

federal bureaucrats avoid "jeopardy" to listed species, and that species be listed without regard to 

the economic costs of listing. In a manner reminiscent of the base closure commission, the 

Secretary of the Interior has been given discretion to wreak economic havoc in the interest of rare 

species, without the opportunity for public referendum. Such thinking allows the Fish and 

Wildlife Service to propose designating hundreds of miles of river as habitat for three pygmy owls, 

and risking catastrophic fires over millions of acres for the spotted owl. 

The ESA presently provides only a limited exemption process for projects that 

jeopardize a listed species. Nonfederal persons effectively may be forced to ransom their projects 

by donating land or funds, or may spend literally millions of dollars attempting to satisfy concerns 

with no assurance that they will ultimately be granted leave to proceed with their project. If a 

landowner proceeds with a project that modifies "critical habitat." he or she niay be criminally 

prosecuted for unlawfully "taking" a listed species. Thus, instead of encouraging landowners to 

preserve rare species that may inhabit their lands, the ESA has led to the preemptive slaughter of 

listed species. Small wonder that in the Pacific Northwest, some landowners have elected to 

employ the "3-S" alternative for rare species: "shoot, shovel, and shut up." 

Although costs are theoretically considered in the context of designating critical 

habitat, the bureaucrats on a mission to protect species "at all costs" interpret the ESA in a way that 

permits them to trivialize or disregard economic impacts and to shift much of the economic burden 

of rare species protection to nonfederallandowners. Because this economic havoc is wrought on a 

species-by-species basis, its effects are usually local, and in most cases those who suffer the 

consequences can be silenced by the threat of criminal prosecution, or safely ignored, labeled 

"selfish" and "short-sighted." 

The refusal to consider costs is not objectionable merely because it results in the 

tyranny of the majority over the unfortunate few whose lands are habitat for listed species. It 

prevents the government from prioritizing its efforts on behalf of species, and allocating scarce 

resources where they will do the most good. 

The Y oung-Pombo bjl! would require the Secretary of the Interior to take economic 

costs and effects into account, and to prioritize efforts to conserve species, so that scarce dollars can be devoted to efforts that wm do the most good. The bjl! would also require the federal 

government to share in the costs of the measures it mandates, and to compensate nonfederal 

persons for the costs they bear in the interest of species protection. Not only wjl! such measures 

encourage realistic setting of priorities, they will restore a measure of fairness to the law, and in so doing will reduce public opposition to species protection measures. 

6 
260 

5. The Yaung-Pombo Bm Would Reduce Reliance on Inflexible Mandates and 

Encourage Conservation Jbrough lpceptiyes 

The Yaung-Pombo bill would shift the emphasis of the ESA from cumbersome 

mandates to positive incentives for conservation. Rather than depending upon coercion and threats 

of prosecution to compel private landowners to bear the cost of maintaining biodiversity, the bill 

directs that lands needed to implement conservation programs be acquired by the federal 

government, through purchase, gift, or exchange. Instead of using the might of the federal 

government to protect species at the expense of selected individuals or industries who may be put 

out of business, or whose private property is converted to a federal wildlife preserve, the law 

would more fairly apportion the costs of protecting our national heritage according to federal 

priorities by providing for federal cost-sharing, compensation for the use of private property, and 

positive incentives for nonfederal actions that conserves species. 

6. The Youpg-Pombo Would Place Greater Emphasis on Biodiversity 

Scientists have identified and taxonomically classified approximately 1.4 million 

species; it is estimated that 30 million species remain undescribed. Despite total ignorance of 

millions of species, and relative ignorance of all but a few of the classified species, as well as the 

subtle and complex biological relationships that affect and are affected by those species, Congress 

simply assumed that the ESA's fragmented, piecemeal efforts in behalf of selected species would 

somehow result in the perpetuation of biodiversity. 

In fact, well-intended efforts to preserve one species may damage another species, 

and possibly affect an entire ecosystem. For example, protected mountain goats in Olympic 

National Park are reportedly devouring rare and endangered plants; protected sea lions devastate 

steelhead and other fish populations; goshawks prey on spotted owls. On a larger scale, the issues 

become more complex and potentially more devastating. The Florida Everglades is threatened by 

lack of water, but the release of water from nearby impoundments is prohibited because the 

impounded water is habitat for the endangered snail kite. In Arizona and New Mexico, millions of 

acres of forested land have recently been designated as critical habitat for the Mexican spotted owl; 

the management restrictions intended to benefit the owl (preserving an unnaturally dense canopy 

and fuel loading) are likely to result in catastrophic wildfires, and the situation is exacerbated by a 

federal court injunction that prohibits any timber harvest in II million acres of national forest land. 

One side effect of such management restrictions may be the death of the timber industry in the 

region, and with it the loss of a tool essential to maintenance of forest health. 

The ESA presently provides no mechanism by which such conflicts may be resolved, 

or conservation priorities established to direct resources and attention where they can do the most 

good. 

To balance the ESA's present emphasis upon selected species in trouble, the 

Y oung-Pombo bill would establish a Federal Biological Diversity Reserve. Each unit of the reserve 

shall be managed for the objective of preserving, maintaining, or enhancing biological diversity. 

This network of reserves should both enhance protection of species and reduce the burdens now 

imposed on nonfederal landowners. 

The Endangered Species Act must be reformed, and soon. Instead of assuming that 

the needs of nonhuman species can only be protected by absolute, inflexible federal mandates, 

Congress should allow states and private citizens to make responsible, appropriate decisions that 

balance costs and benefits, and take human needs into account. 

7 

262 

•we believe that the BSA can be improved to benefit of both 

wildlife and landowners.• 

" ... making the [Habitat Conservation Plan] more user friendly by 

providing certainty to landowners and reducing the time and cost necessary to complete documentation ~ 

"Clarify the responsibility of private landowners with respect to ' take' . " 

Nicholas Wheeler, Ph.D., Senior Scientist, Taxol Program, 

Weyerhseser Company 

May 25, 1995 Endangered Species Task Porce OVersight Bearing on the Endangered Species Act 

"The . .. BSA must be an ENABLING Act , opening doors of opportunity 

and marshalling latent goodwill that was stifled by the 

proceeding act.• 

"We must put money into carrots not sticks. People respond to i ncentives. For instance, ill-conceived tax structures drive 

rational people to do socially undesirabl e acts.• 

Dr. David G. caaeron, Retired Professor of Biology and Genetics - Montana ·State University 

May 25, 1995 Endangered Species Task Porce OVersight Bearing on the Endangered Species Act 

•congress should •. . focus on the ways t o improve the BSA so i t works better for people ... • 

Steven H. MOyer, Goveraaent Affairs Director of Trout Unlimited 

May 18, 1995 Endangered Species Task Porce OVersight Bearing on the Endangered Species Act 

"In my experience, the Endangered Spec ies Ac t as implemented in 

Riverside County is a disaster. It is a disaster not only for the people who have 1ost their homes a nd the use of thier land, 

but also for the species themselves . " 

"Thousands of . . . landowners .. . are taking .. . severe . .. measures to protect themselves. These kinds o f unfortunate actions are 

the result of the perverse incentives inherent in the Endangered 

Species Act.R 

•oo we really want this to be the legacy of the Endangered 

Species Act, where people continue t o sterilize their land and 

destroy wildlife habitat for no other r eason than the existence 

of thi s law? • 
" ... The Grassroots ESA Coalition advocates replacing the 

regulatory scheme of the current Act with a wholly voluntary, 

incentive based program for private lands." 

Dennis Hollingsworth, Grassroots BSA Coalition 

Kay 18, 1995 Endangered Species Task Porce Oversight Bearing on the Endangered Species Act 

•we seek to provide workable procedures and positive incentives 

in the Endangered Species Act which promote conservation of 

wildlife in a way that considers economic factors and respects 

the rights of private property owners . .. " 

"Frankly, this law [the BSA) is broken and does not work ." 

"At its operating premise, the Endangered Species Act mandatee 

protection of the species to the point of its recovery, without 

regard to the impact on the rest of society." 

• .. . offending characteristics [of the Act) ... include: 

disincentives for landowners to manage for species recovery; no recognition to coste to landowners or to society; no workable 

delieting mechanism; indifference, it not contempt, for the 

rights of property owners; and cavalier use of science . " 

"Private landowners should be provided incentives to work 

cooperatively with the government to protect listed species. " 

w. Benson Moore, President and CBO - American Porest and Paper 

Association 

Kay 18, 1995 Bnd&ngered Species Task Porce Oversight Bearing on the Bnd&ngered Species Act 

"Provide incentives for people to actively help conserve species . . .. The ESA [currently) provides disincentives in the form of 

endless red-tape and pe~ts that stalemate independent 

initiatives to assist species.• 

"For many, the beet incentive to conserve species is regulatory certainty.• 

"We urge Congress to reduce direct regulation of private 

property, increase incentives for such landowners and to live up to the responsibility of compensating property owners for lost use and value of land.• 

The Honorable Glenn Bnglish,Vice Chairman of the Rational 

Bnd&ngered Species Act Reform Coalition 

Kay 18, 1995 Endangered Species Task Porce Oversight Bearing on · the Endangered Species Act 
264 

the history of the Bndangered Species Act is in need of a complete overhaul . The original goal to save species from 

becoming extinct had instead fostered bitter disputes between specie~ preservation and the economic and social well-being of 

rural communities.• 

~we are told that there is a •public interest• in protect these 

species, and that their survival will benefit all of us . Yet 

private landowners are told to bear the entire costs.• 

"The Act should provide positive incentives to enhance recovery 

of listed species rather than using solely negative enforcement 

policies. • 

"The Act should provide strict liability for aamages caused to the person .and property from listed species. " 

Dean Kleckner, PreaideDt - The ~rican Para Bureau Federation· 

May 18, 1995 Bndangered Speci .. Taek Force OVeraight Bearing& on 

the Bndallgered Specie& Act 

Because the Bndangered Species Act requires private property 

owners to provide thier property for the benefit of the public, 

they should receive just compensation ... • 

Bruce Smith, •atiana1 Association of Baae Builder& 

May 18, 1995 Bnd&Dgered Speciea Taak Force OVeraight Bearing• on 

the Bndallgered Specie& Act 

"The incentives are wrong here . If I have a rare metal on my 

property, its value goes up . But 1f a rare bird occupies the 

land, its value disappears. We've qat to turn it around to make 

the landowner want to have the b1rd n his property . • 

Sam Hamilton, Por.er Piah and Wildlife Service Adainiatrator for 

the State of Tezaa (taken fra. witneaa teatt.ony) 

"Strong incentives for conservati on o n private land must be 

created." 

Kiehae1 Bean, EDYiroa.ental Defenae Fund 

(taken fraa witneaa teatt.ony) 
265 

• . . . I have dedicated the bulk of my time and effort to advancing ESA reform and a deeper appreciation for the economic and 

ecological values protected by private property rights.• 

"That the ESA has created perverse incentives is well documented . " 

"Not until the federal government respects the rights of private 

landowners and halts the regulation of private property will the 

ESA be a sustainable law.• 

" .. . in many cases landowners will need no other incentive that 

the assurance that they will not be penalized for having such 

species on their land. In other case, positive ~ncentives will be needed.• 

Ike C. Sugg, Pellow iD Wildlife and Land·Use Policy - Competitive 

Enterprise Institute 

Kay 18, 1995 Endangered Species Task Porce OVersight Hearings on the Endangered Species Act 

"Provide incentives to private landowners" 

"Another way to provide incentives for landowners is to offer 

remuneration for conservation actions over and above those 

required by law.• 

"Provide Certainty to private landowners" 

"By making thoughtful improvements to ESA, we can enable private 

landowners to take a greater conservation role, and thereby 

provide for both species conservation and sustainable development 

·- for the benefit of each of us and generations to come . " 

John P. Kostyack, Counsel - National Wildlife Federation 

May 18, 1995 Endangered Species Task Porce Oversight Hearings on the Endangered Species Act 

"Recognize rights of private landowners and society's 

responsibility to mitigate costs for species protection on 

private land.• 

"Create incentives for landowners to conserve species." 

"Private landowners who cede control of thier lands to society in the name of preserving threatened or endangered species should receive just compensation.• 

Dr. Gene Wood, The Society of American Foresters 

May 25, 1995 Endangered Species Task Porce OVersight Hearings on the Rndangered Species Act 
266 

"The estimated costs in recovery plans do not reflect those costs imposed upon the private sector by implementation of the ESA . " 

Robert,B. Gordan, Jr. and J ... a R. Streeter, Rational Wilderneaa 

XJuotitute 

"The ESA fails to adequately address and assess complex 

biological and taxonomic issues• 

w. Mike Bowell, Ph.D., Profeaaor of Biology, Sanford Univeraity 

Kay 25i 1995 Bnd&ngered $peeiea Taak Force Overaight Bearing• on 

the llndangered Speciea Act 

"Industry .and state and local economies would benefit not only 

from having species preservation and recovery, but also from 

having to shoulder the financial burden of recovery plan 

implementation . • 

Terry D. Ricb.ardeon, Ph.D., Aaaiatant Profeaaor of Biology, and 

Paul Yokley, Jr., Ph.D., ... ritue Profeaaor of Biology, 

'Dniveraity of Korth AlKay 25, 1995 Bndangered $peeiea Taak Force Overaight Bearing on 

the Bndangered Speciea Act 

"the fear of losing private property rights and the costly ... problems ... have all but halted the economic growth set forth i n out original feasibility studies. • 

Mary Welle, Geaeral Kanager of an Agriculture Water Diatrict 

April 28, 1995 Bndangered $peeiea Taak Force Field Bearing on The 

Bndangered Speciea Act 

Stockton, California 

• ... the [ESA) should be reformed . • 

Mark V. Connolly and .. tthew J. Connolly, CPA, Connolly Ranch, 

Inc. April 25, 1995 Bndangered Speciea Taak Force Field Bearing on the 

Bndangered Speciea Act 

Stockton, California 
267 

"Although incentives are useful to encourage habitat production 

under some circumstances, the best incentive for habitat 

production on our ranches is generally for government to intrude 

~east ~nto private efforts. " 

Dan Byrne, Robert A. Byrne Co. 

April 28, 1995 BDdan~ered Speciea Task Force Field Hearin~ on the BDdan~ered Species Act 

Stockton, California 

"Protect private property rights and require full compensation to the owner of the property whenever federal regulators restrict 

the use of property or devalue property. 

"Family Water Alliance urges the House to reevaluate and reform 

the Endangered Species Act, to restore the balance that is 

necessary if agriculture is to remain viable and private property 

rights to remain protected by the Constitution.• 

Marion Mathia, Family Water Alliance 

April 28, 1995 BDdan~ered Species Task Force Field Haarin~ on the BDd&D~ared Species Act 

Stockton, California 

"This Act has been the untouchable of untouchables for too long." 

• rt is clearly time to discard the rhetoric, loosen the gridlock, 

and work together for common sense reform on the Endangered 

Species Act.• 

"The Act must clearly allow reasonable actions to protect private 

property, either by exemption or by a broadly applicable general 

permit." 

"Farmlands are being taken without compensation, to serve as free 

critical habitat .. . this is clearly a violation the landowner's 

constitutional rights.• 

Bob L. Vice, Preaident, California Farm Bureau Federation 

April 28, 1995 BDdan~ared Species Task Force Field Hearin~ on the BDd&D~ared Species Act 

Stockton, California 

"The ESA has been a noble experiment ... but to date, the Act has met with very little success." 

"The ESA is so inflexible and citizen suit provisions so generous 

that ESA litigation controls administration and enforcement of 

the Act . This must be changed.• 
268 

"A system providing private property owners positive economic 

incentives to provide species habitat must be developed to avoid 

(a) the continued failure of the Act and (b) the Act's disregard and no~chalance toward private property rights.• 

"Congress needs to keep in mind what the United States 

Constitution's Fifth Amendment says: 'No person shall be ... deprived to life, liberty or property without due process of law ... nor shall private property be taken for public use, without 

compensation . •• 

Rabin L. Jli.,.tt, Pacific Legal Foundation 

April 28, 1995 Bndangered Species Task Porce Pield Bearing on the 

BDdangered Species Act 

Stockton, California 

"Citizens across the state are ffnding out that the ESA has the 

capability of crippling whole communities, limiting the use of a person's private property, and even limiting the amount of water that can be distributed throughout California.• 

"Remove bias from the listing process and other decisions ... improve notice and participation . . . protect against the 

uncompensated taking of property• 

•Provisions of the ESA should be amended expressly to reaffirm 

Fifth Amendment protections against the uncompensated taking of 

private property and water and mineral rights, to support the 

establishment of voluntary rental agreements with property owners to protect habitat, and to allow state and local public agencies 

(such as water agencies) to sue on behalf of thier customers for 

the diminution of value in property because of proscriptions 

developed under the terms of the ESA." 

Clifford B. Koriyaaa, Director of Agriculture and Resources, 

california Chaaber of Ca.aerce 

April 28, 1995 BDdangered Species Task Porce Pield Bearing on the 

IID.dangered Species Act 

Stockton, California 

"Build partnerships wi th private landowners--Provide financial incentives and technical assistance for private landowners to 

plan for the conservation of listed and candidate species on their property . Remove disincentives that preclude sound 

conservation practices. • 

Daniel Taylor, Western Regional Representative, National Audubon 

Society 

April 28, 1995 Bndangered Species Task Porce Pield Bearing on the 

Bndangered Species Act 

Stockton, California 
269 

"The Act should be modified so that Private Property Owners will 

freely encourage wildlife on thier land without fear of 

government intrusion.• 

" In Sa~ Bernardino County , a new medial facility had to mitigate 

for the presence of Eight Delhi Sand Flies. The cost to the 

public, $3,300,000 . $413,000 per fly!" 

Leroy Oz:nellas, Dairy Far.er -- Tracy, Califoz:nia 

April 28, 1995 Badangered species Task Force Field Hearing on the 

BD4angered Species Act 

Stockton, California 

• ... two serious flaws of the Act which need to be addressed; 

economic imPact of listings and p.roperty rights." 

Anthony Sousa, Realtor 

April 28, 1995 Badangered species Task Force Field Hearing on the 

Badangered Species Act 

Stockton, Califoz:nia 

"Appropriate increased funding to reimburse the private sector for independent studies of assessments of species proposed for 

listing or critical habitat designation.• 

Peter G- Gia.paoli, President, Bpick Homes, Inc. 

April 28, 1995 Badangered Species Task Porce Field Hearing on the 

Bndangered Species Act 

Stockton, California 

"Landowners should be encouraged to c reate and maintain habitat 

for listed and candidate species through tax credits, hold 

harmless agreements, and other incentives. If society values the 

preservation of habitat for declining species on private lands, it should be willing to reward landowners for protecting these resources. CUrrently, landowners are penalized for damaging 

sensitive habitats, but the ESA offers no direct incentives for 

preserving or enhancing these habitats on private lands. • 

Bdward c. Beedy, Ph.D., Wildlife Biologist 

April 28, 1995 Bndangered species Task Porce Field Hearing on the 

Bndangered Species Act 

Stockton, California 

"The Endangered Species Act (ESA) has impacted California 

agriculture in terms of private property use, habitat for 

endangered or threatened species, reduced quantities of surface 
~0 

water for urban and agriculture use, increased cost of surface water supplies, and has created serious limitations with respect to development of any additional supplies of water .in 

Califorpia . • 

Mark W. Burrell, Praaident, The Westmark Group 

April 17, 1995 Endangered Species Taak Force Field Hearings on the Endangered Species Act 

Bakerafield, California 

"Instead of preserving America• a rich natural he~itage, the state and federal governments are using the Act to dictate private land use, to extort land and money from property owners and to drive 

the cost of many local public wor~s to prohibitive extremes. The 

agencies which apply and enforce the Act have almost become a law unto themselves, assuming powers never intended by the Act and, 

in my view, never granted by the Constitution. In very few cases are any endangered species recovering. Humans, however, are reeling from the impact . " 

"The Act is adding immensely to the cost of public projects. • 

"If preserving endangered species is to remain a goal of the 

federal government, the federal government, not the private 

landowner, ought to be willing to devote its landholdings and 

funds to species protection . " 

"Government must pay property owners when their land is condemned 

for other public purposes such as highways or military bases. 

Why should the Endangered Species Act be an exception?" 

~annath W. Pataraon, Chairman, ~ern County Board of Supervisors 

April 17, 1995 Endangered Species Task Force Field Hearing on the 

Endangered Species Act 

Bakarafiald, California 

"This Act has to be changed to allow for property protection, to provide incentives instead of penalties to preserve endangered 

species habitat on private land, ad to give authority bac~ to local government over local affairs. " 

Greg Gallion, Praaidant, Coalition for Property Rights 

April 17, 1995 Endangered Species Task Force Field Hearing on the 

Endangered Species Act 

Bakerafield, California 
271 

"Provisions must be incorporated to protest against the 

uncompensated taking of private property. • 

John ~-r. Bo~• Weateru Oil Corporation 

April t1, 1995 Badangered Specie• Ta•k Force Field Bearing on the 

-.agered Specie• Act 

Baker•rield, C&lirornia 

"Many Kern County residents exhibit outrage and frustration at the manner in which the federal government is using this Act to dictate private land use, extort land and money from private 

property owners and create an environment of distrust and 

scientific suspicion.• 

"Many farmers are fearful that endangered species will recolonize 

lands that have come out of agricultural production due to changing agricultural practices or lost water entitlement . As a result, they keep fallow fields plowed which can aggravate 

airborne dust problems and cause unnecessary fuel costs.• 

"Provisions must be incorporated to address the uncompensated 

taking of private property. • 

Ted J-, Director, Ieru County Pl&DDing Department 

April 17, 1995 BDdangered Specie• Ta8k Force Field Bearings on tU BDdangered Species Act 

Bakerarield, C&lirornia 

"The Endangered Species Act must be reformed and modified to address the concerns of private property owners . • 

•scientific data and study of endangered species must be 

thoroughly peer reviewed to provide assurance of accuracy. • 

Deania J:-...raon, Utah Para Bureau Federation 

April 17, 1995 ~ Specie• Taak Perce Field Bearing• on tU Badangered Specie• Act 

Bakerarield, california 

how seriously distorted the federal Endangered Species .Act 

(ESA) has become. A well-intentioned statute has come to be 

administered in a very punitive way. The ESA of 1995 would not be recognizable to its creators.• 

•congress should change the law so that federal ESA agencies are required to justify their actions with good science and to 

conduct their review and decision process openly, ethically, and 

with adequate public access and comment . The public deserves to know the true costs of the Endangered Species Act . • 
272 

"The overall impact of the unreasonable restrictions imposed 

under the Endangered Species Act has been an insidious, unseen, and yet substantial regulatory tax on the economy of Kern County 

and Cal}fornia." 

Thomas N. Clark, Kern County Water Agency 

April 17, 1995 Endangered Species Task Force Field Hearing on the 

Endangered Species Act 

Bakersfield, California 

•create an orderly process that would protect property values and 

relieve individual properties as quickly as possible." 

Kay S. Ceniceros, Riverside County Board of Supervisors 

April 26, 1995 Endangered Species Task Force Field Hearing on the 

Endangered Species Act 

Riverside, California 

"Only substantive changed to the ESA through significant 

incentives and respect for private property rights, will result 

in effective conservation, and ultimately, greater preservation 

for all species." 

"If private property is devalued as a result of federal 

regulations regarding endangered species, the landowner should 

receive compensation." 

April 26, Scott B. Woodward, Bramalea California, Inc. 

1995 Endangered Species Task Force Field Hearing on the 

Endangered Species Act 

Riverside, California 

"We need to avoid the 'endangered species-of-the-month club' 

approach" 

"The ESA should encourage plans that are built on solid and 

strong biology and reasonably available science, which also 

integrate local economic and land use considerations." 

Michael MCLaughlin, San Diego Association of Governments April 26, 1995 Bndangered Species Task Force Field Hearing on the 

Endangered Species Act 

Riverside, California 
273 

TFSTIMONY OF GEORGE T. FRAMYI'ON, JR., ASSISTANT SECRETARY FOR 

FISH AND WILDLIFE AND PARKS, DEPARTMENT OF mE IN'l'ERIOR, BEFORE 

mE HOUSE RESOURCFS COMMITTEE REGARDING H.R. 2275, THE 

ENDANGERED SPECIFS CONSERVATION AND MANAGEMENT ACT OF 1995 

September 20, 1995 

Thank you, Mr. Chairman, for providing the Department of the Interior the opportunity to 

testify on H.R. 2275, the Endangered Species Conservation and Management Act ofl995. 

While we recognize the efforts of the Task Force and this Committee ;to understand the 

concerns that have been expressed with the Endangered Species Act, the Administration is 

profoundly disturbed by the legislation developed and introduced. It not only undermines the 

scientific foundation of the ESA and abandons this country's support for the conservati~n of 

endangered plants and animals, but its passage would result in . a process layered with cos.tly 

bureaucracy while providing virtually no protection for wildlife The Endangered Species 

Act embodies values important to all Amerieans and we do not believe that the American 

people will support the extreme measures taken in this bill that effectively repeal the Act. 

Nor does the Administration believe that this legislation brings us any closer to our mutual 

goal of reauthorization of the Act. Accordingly, the Secretary of the Interior would 

recommend that the President veto the bill if it is presented to him. 

The Endangered Species Act is one of the country's most enduring, innovative and important 

environmental laws and has placed the United States in the forefront of species conservation. 

As it was passed twenty years ago and subsequently amended, its core purposes are to 

conserve endangered and threatened species and the ecosystems on which they depend. 
274 

2 

Recognizing that the Act needed to be reformed, this Administration has taken major steps 

towards improving how the Act is implemented by working with state and local governments, 

other federal agencies and private landowners, both large and small. We have found 

flexibility in .the Act where critics have said it didn't exist and have created new tools that 

address landowner concerns. 

In order to achieve necessary reform of the Act we have provided this Committee with the 

Administration's 10-point plan, which was announced earlier this year by Secretary Babbitt 

and the Department of Commerce's Undersecretary Baker. The plan describes the 

administrative changes we have begun to implement, and recommends legislative changes that 

Congress could undertake to make the Act work better. The objectives of the plan are based 

on a: common sense approach t~ the Act and a concerted effort to solve legitimate problems 

while preserving the core goal of protecting our nation's priceiess biologicai heritage. These 

objectives include, but are not limited to: expanding the role of states; reducing socioeconomic effects of listing and recovery; ensuring that the best available peer-reviewed 

science is the basis for all ESA decision-making; and increasing cooperation among federal 

agencies. H.R. 2215 does not. follow any such constructive paths, nor does it adopt the 

approach taken by groups such as the Western Governor's Association (WGA) and the 

Keystone Group to develop consensus proposals to reauthorize the Act in a biologically sound 

manner. On the 'contrary, H.R. 2275 subverts each of the positive principles upon which any 

workable Endangered Species Act must be built. 
275 

3 

ABANDQNSSOUNQSCffiNCE 

A fundamental flaw of the H.R. 2275 is. its dramatic departure from the use of sound science. 

It ignores and in fact, seems intended to repudiate the findings and recommendations of the 

recently released National Academy of Science (NAS) report on the Endangered Species Act. 

The N AS found that habitat protection is essential to conserve and recover species and to 

avoid the need to list species in the_ first place. H.R. 2275 clearly abandons protection of 

species by abandoning habitat protection. The legislation changes the Act so that its purpose 

is no longer to conserve the "ecosystems• _that endangered and threatened species depend 

upon. 

Most significantly, H.R. 2275 redefines the term "harm" to include only direct action against 

an endangered species that actually kills or injures individuals of the species. This change is 

intended to overturn a recent decision by the Supreme Court in the Sweet Home case that it is 

reasonable to coriclude that "harm" includes destruction of habitat. Modificatiol) or 

destruction of habitat upon which a species depends would not constitute "harm" and 

restrictions on habitat destruction, the primary cause of endailgerment, would be lifted. This 

change alone would fundamentally imperil many threatened and endangered species, and 

warrants our strong opposition to.the bill. 

The legislation further separates the concept of conservation of species and the need for 

habitat by placing an increased emphasis on the use of captive propagation to conserve 

species. The Administration does not disagree with the utility of captive propagation, but it 
276 

4 

should be used as a 1221 of last resort in the recovery process. American zoos and 

aquariums are wonderful places and play a vital role in providing a window to the rich 

heritage of North American wildlife; th~y should not, however, become museums for species . 

of wildlife and fish that have been wiped off the American landscape. The NAS report. 

clearly detailed the problems associated with captive propagation such as inbreeding, disease 

and loss of genetic diversity and found that this tool is not a substitute for the conservation of 

species in their native habitat. In addition, the costs of captive propagation are prohibitively 

high and, therefore, preclude its use except in extreme cases. The goal of our efforts must 

remain the recovery of species in their native ecosystems. 

H.R. 2275 would also force us to abandon our commitment to protecting distinct populations 

of species such as the gray wolf, the grizzly bear, and bald eagle because they exist in 

Canada and Mexico, unless Congress designated these as being in the national interest. This 

once again ignores the NAS report which found that protection for distinct populations should 

be expanded and encouraged to ensure long-term viability of species. It replaces science with 

politics. 

Similarly, the bill rejects past findings of the National Marine Fisheries Service (NMFS), the 

National Academy of Sciences and other experts that shrimp fishing without turtle excluder 

devices poses a serious threat to sea turtles by granting an exemption from take restrictions. 

Yc;mng turtles need .to spend years in their marine environment before they mature enough to 

reproduce. During this time lethal taking would occur. In fact, it is estimated that 55,000 
2:77 

5 

sea turtles drowned annually in shrimp trawls in U.S. waters before TEDS were required. 

This exemption and other provisions in the bill exempting ceriain non-Federal activities in the 

marine environment from ESA protection and puts all protected marine species including 

salmon, manatees, whales, seals, and sea lions at substantial risk as well. 

The Administration strongly supports the use of peer review. However, the approach to peer 

review taken in H.R. 2275 illustrates that the authors are more interested in "good politics" 

than they are in "good science."· In the name of objectivity, the bill prohibits peer reviewers 

from being employed or under contract to the Secretary of Interior or Commerce, but does 

not prohibit a consultant io an . industrial concern with a direct financial interestin the 

outcome of an action from being a peer reviewer. Under H.R. 2275, Rachel Carson (a 

FWS employee) would have been "black-listed" from peer reviewing the bald eagle listing but 

scientists from the chemical companies manufacturing DDT would have been welcomed at the 

table. 

The Administration opposes the intent of this bill in section 30l(b)(4) to eliminate the distinct 

role of the Department of Commerce, National Marine Fisheries Service (NMFS) in 

administering the ESA for species under the jurisdiction of the Secretary of Commerce. 

NMFS is the premier fisheries science and management organization in the world. Since its 

inception 25 years ago, NMFS has managed over 300 marine and anadrornous species that · 

inhabit two million square miles of ocean. Based on data gathered from scientific 

investigations, these species are managed in a sustainable manner to ensure their protection. 
278 

6 

It does not make sense to ignore or duplicate the efforts of NMFS. 

ABANDQNS GQAL OF RECOVERY 

One of our greatest objections to the bill is that it abandons the goal of species recovery, 

which has been the touchstone of the ESA since its creation. Instead, it establishes a 

cumbersome process by which a conservation objective would be established for a species, 

which could reject recovery as its goal and only prohibit direct killing of an individual 

member of the species. These latter species would not even be protected from incidental 

take. For those species who happen to enjoy a higher conservation objective, a conservatio!l 

plan would be developed through a protracted and lengthy process. 

But even these species are put at great peril by the fact that during the;: lengthy interim period 

between a listing and development of a conservation plan, the species would have virtually no 

protection. Federal agencies and private landowners would have an incentive to accelerate 

actions harmful to the species, especially to the habitat of the species, during this critical 

interim period. This could move the species further toward extinction and limit the options 

that may be available to the team organized to develop the conservation plan. 

ABANDQNS SPECIES PRQTECTION ON PRIVATE LANDS 

The Administration is sensitive to the concerns of private landowners about the· impact of the 

ESA on their lives. In order to address those concerns and alleviate them, the Department 

has worked diligently with landowners on the development of Habitat Conservation Plans 
279 

7 

,HCPs) and voluntary agreements, and has put into effect a "no surprises" policy and a "safe 

harbor" policy. It is also why we have proposed a new regulation to exempt small 

landowners from select requirements of the Act and why we have emphasized proactive 

species conservation on Federal lands. These efforts are a work in progress to make the ESA 

more user-friendly and we are seeing new successes and innovations almost daily. 

H.R. 2275 completely undermines the efforts the Administration has made to date and would 

fundamentally undercut the ability to protect species on private lands. Most significantly, it 

creates a complex and sweeping system for compensation of private landowners. Not only do 

these provisions go far beyond any standard for "taking" that has been established by the 

Courts, they even go far beyond other compensation bills before Congress. Claims for 

compensation could be based on a laundry list of agency actions which would make it 

virtually impossible for the Department to administer the Act. Extraordinary time and effort 

would be required to assess when and how this provision would be implemented. Worse still, 

it would be impossible for the Fish and Wildlife Service to know how to plan its budget for 

implementation of the Act since compensation would be paid out of the annual appropriations 

of the agency. Predictably, this would hinder agency efforts to protect species even when 

necessary to keep a species from going extinct. 

While H.R. 2275 provides for the development of cooperative management agreements under 

section 6 for States, groups of States, local governments and any non-federal persons for the 

management of listed species, these agreements represent only a shell of the protection that 
280 

8 

species on private lands currently receive and need to receive in the future. Specifically, 

these ~greements would not even apply to private land without the consent of the landowner. 

In addition, the bill does away with HCPs and replaces them with a species conservation plan 

that requires the applicant to only take those steps that can reasonably and economically be 

taken to minimize impacts. 

REDUCED SPECIES PROTECTION ON FEDERAL LANDS 

After granting exemptions for private lands, the bill gives false hope that species will be 

conserved on public lands. The bill creates National Biological Diversity Reserves, giving 

the casual observer the sense that the bill is creating "new" habitat for species. In reality, the 

bill actually shrinks the federal lands which may be used to protect species to those which are 

in existing national parks, national wildlife refuges, wilderness areas, and wild and scenic 

rivers, where protection already exists for species. 

State and private lands would be included only with the consent of the Governor or the 

landowner and could be removed at either's request. In addition, designation of land in a 

Reserve would not affect any existing interest in land, water right or property right. In other 

words, it would mean very little and we view it as simply an attempt to give the bill a 

cosmetic makeover. 

Under H.R. 2275, millions of acres of lands managed by the Bureau of Land Management 

(BLMi and U.S. Forest Service would cease to serve as critical habitat if that purpose 
281 

9 

conflicted wiih some other mission of the federaJ agency such as inining, grazing or timber 

harvesting. This would be a huge step backward in Federal leadership in the conservation of 

fish and wildlife resources. 

This bill's narrowing of protection on Federal lands is made worse by other provisions of the 

bill that allow Federal agencies to do less than current law requires to conserve species and to 

put it off until a later time. First, the bill eliminates the current requirement that Federal 

agencies use their authorities to conserve listed species. This alone will substantially reduce 

our ability to recover species since iri most cases the use of laws ru:td authorities other than 

the ESA is critical to a comprehensive recovery .effort for many listed species. As 

importantly, the use of these authorities, such as the Clean Water Act, can be critical to the 

avoidance of the need to list species. This provision shows the true color of the bill because 

it essentially relegates endangered species conservation to the back of ihe bus in terms of 

national priorities. 

Under H.R. 2275, federal agencies get to decide for themselves if their mission conflicts with 

the ESA. They decide for themselves if their activities are consistent with a Conservation 

plan for a species and therefore, are exempt from consultation under section 7, Even if it is 

determined that consultation applies, the bill substantially weakens the regulatory threshold by 

requiring a finding that the activity will "significantly diminish the likelihood of survival of 

the ~species. • Not only could this standard be met if a few species exist somewhere in 

a zoo, it would allow many species to slip toward extinction because many "insignificant" 
282 

10 

impacts would only reach the new threshold if they were viewed cumulatively. 

Worse still, during the critical interim period under this bill between the listing of a species 

·and the finalization of a species conservation plan, no Federal agency would have to consult 

on activities affecting that species at all. This is a powerful disincentive for these agencies to 

take steps to conserve a listed species or, for that matter, to facilitate the completion of a 

conservation plan. 

In addition, the bill imposes time constraints on the Department for completion of consultation 

while expanding the number of people participating in consultation and imposing new 

procedures and considerations that would make the deadline nearly if not totally impossible to 

meet. The bill provides that if the Department fails to meet the deadline, the federal action 

agency is deemed to have met the requirements of section 7, regardless of the adverse impact 

the agency action may have on the continued existence of a species. Needless to say, this 

provision creates an incentive for delay and manipulation of the process to avoid timely 

completetion of consultations. 

By reducing the responsibilities of both private landowners and federal agencies, this 

legislation takes two giant steps backward in our ability and commitment to conserve species. 

REDUCED PROTECTION FOR FOREIGN SPECIES 

In regard to international issues, H.R. 2275 prevents the U.S. from implementing effectively 
283 

11 

the Convention on International. Trade in Endangered Species of Wild Fauna and Flora · 

'(CITES) and severely hampers our ability to protect species like panda bears, African 

elephants and Siberian tigers. The bill would limit the U.S. efforts to implement CITES to 

those. steps which are "practicable" and prevent the listing of foreign species which are 

already included in the CITES Appendices unless a determination is made that CITES is 

inadequate. H.R. 2275 grants any nation a veto over our decisions about the listing of a 

foreign species located in that nation. The only way the veto can be overridden is by 

executive o~der of the President. We cannot imagine why the Congress would overturn our 

responsibilities to conserve these species due to the whim of a country which may be the 

principle cause . of its decline. 

H.R. 2275 also prevents the U.S. from implementing CITES resolutions and notifications 

even if they were unanimously adopted by all other CITES parties and were essential to 

address an emergency situation, until a lengthy and bureaucratic regulatory process is 

completed. These limitations would severely curtail efforts to protect foreign species from 

illegal trade within the United States. H.R. 2275 dramatically reduces the threshold to obtain 

both public display permits and import permits. Under this legislation we would be required 

to allow the import of the giant panda for anyone who promised to put them on public display 

and pass out leaflets about the ecology and conservation of the species, even if the animals 

were removed from the wild in a harmful inanner.and there was no scientific or conservation 

merit to the activity. The bill also would require that all permits be issued for a minimum of 

six years, even though CITES limits the validity of export permits to only six months. The 
284 

12 

bottom line is that it would reduce the international leadership role of the U.S. il1 the 

conservation of species and create new loopholes for illegal trade in these species. 

A BETTER APPROACH 

Mr. Chairman, we know there are better means of protecting biodiversity than the methods 

laid out in this legislation. We renew our request that the Committee review and consider the 

recommendations in our previous testimony and our March 6, 1995, package of 

administrative and suggested legislative reforms to improve the ESA. In criticizing H.R. 

2275 the Administration is not indicating that we accept the status quo. Quite the contrary, 

we are dedicated to improving the Act. The Administration, however, is not willing to 

sanction a repeal of the Act and an abrogation of our responsibilities to future generations to 

leave this planet and its species in better condition than we found them. 

Our suggested reforms address some of the persistent criticisms associated with the way the 

Endangered Species Act is implemented and the conflicts that have surrounded the Federal 

government's attempts to protect threatened and endangered species over the past several 

years. These reforms are intended to minimize the impact of the Act on private landowners, 

particularly small landowners, and provide them with more certainty on how they can comply 

with the Endangered Species Act when a species is listed. These reforms propose new 

partnerships with State, tribal, and local governments. These reforms address ·concerns about 

the quality of the science that is used when implementing the Endangered Species Act. 

Finally, these suggested administrative and legislative reforms are designed to improve the 
285 

13 

process of recovering threatened and endangered species and enlist the participation of a 

broader array of individuals to help develop these recovery plans. 

I would also suggest that the Committee need only to look at proposals like those being 

circulated by groups such as the Western Governor's Association (WGA) and the Keystone 

Center to find a constructive path to reauthorization. These two organizations have 

demonstrated a commitment to wor.k with a variety of interests to formulate real solutions to 

real problems. 

The WGA, spent several months working to craft a proposal that reauthorizes and improves 

the Act while retaining the underlying and crucial components of science and habitat 

protection. WGA's proposal recognizes the important role that States have to play in the 

conservation of species and the need for landowners to have certainty. The WGA proposal 

expands partnership opportunities with the States and allows them to take the lead for the 

conservation of species through state-initiated conservation plans. 

The WGA proposal alSo advocates enhanced fairness and increased certain.ty for private 

landowners by reforming the HCP process and providing a policy similar to our "no 

surprises" policy by exempting landowners who participate in these plans from being asked to 

do more, even if a species covered by the plan is subsequently listed. It encourages voluntary 

agreements by private landowners to conserve species by creating a mechanism similar to our 

"safe'liarbor" policy. In addition, WGA's proposal provides enhanced flexibility for 

20-707 95-10 
286 

14 

threatened species conservation and incentives for species conservation. 

The Keystone Group brought a wide array of interests together to develop a set of regulatory 

and economic incentives that would reward and encourage .conservation by private. 

landowners. The Administration views collaborative efforts such as these as a solid 

foundation for reauthorization of the Endangered Species Act. In both cases, improvements 

to the ESA are proposed in areas where the Act is currently being criticized without gutting 

the protections the Act affords J.o both species and their habitats. 

I will reiterate that ihe Administration is committed to working with the Congress to improve 

and reauthorize this Act. However, in the Secretary's opinion, H.R. 2275 does nothing more 

than further polarize the. issue of ESA reauthorization while undermining the essential goals 

the Act. Based on the compensation provisions alone, which are worse than those irt other 

bills the Secretary has recommended that the President veto, and without even considering the 

fact that this bill effectively repeals the Endangered Species Act, one of our most important 

wildlife and habitat protection Jaws of the last quarter century, it is clear that the Secretary 

will recommend that the President veto H.R. 2275 if it is presented to him in its current 

form. 
287 

VIEWS OF 

SOUTHERN AFRICAN ENTITIES 

BEFORE THE 

COMMITTEE ON RESOURCES 

OF THE 

UNITED STATES BOUSE OF REPRESENTATIVES 

REGARDING ASPECTS OF PROPOSED LEGISLATION 

AMENDING THE ENDANGERED SPECIES ACT 

INSOFAR AS THAT ACT RELATES TO 

FOREIGN SPECIES 

Septeaber 20, 1995 
288 

VJ:EWS OF SOtJTIIERN AFIUCAN ENTJ:TJ:ES 

REGARDING ASPECTS OF PROPOSED LEGISLATION 

RELATING TO FOREIGN SPECIES 

OVERVJ:EW 

These hearings canter on B.R. 2275, legislation 

designed "To reauthorize and amend the E~dangarad 

Species Act." 

Moat of B.R. 2275's prov1a1ons concern regulatory 

actions affecting species and parsons within the 

United States. :It would be inappropriate for foreign 

nations to azpraaa an opinion about U.S. domestic 

matters. The southern African governments are 

aztremaly gratified, however, that the bill contains a 

number of eztramely important and beneficial 

provisions about the treatment under the Act of 

foreign species. :If enacted, these provisions will go 

a long way towards correcting the southern African 

nations' problema with the way that the ezisting Act 

has bean applied to foreign species. 

In addition, these provisions about foreign 

species can help African nations and others to ezpand 

wildlife populations and to save habitat. 

GOVERNMENTAL EXPRESSIONS OF CONCERN 

Onder the currant Act, the U.S.qovernmant 

authorities' determinations about southern African 

species have bean aztramaly troubling to the southern 

African nations' governments. These concerns have 

bean azpresaad repeatedly. 

On March 10 of this year, for ezampla, the 

Directors of the wildlife management agencies in four 

southern African countries--Zimbabwe, Namibia, 

Zimbabwe and Malawi--wrote to the Chairman of this 

Comadttaa. Ezpraaaing their belief that "[t]ha Act is 

fundamentally flawed as far as foreign species are 

concerned," the agency directors offered detailed 

suggestions for improving the Act in this regard. 

1 
289 

Soon thereafter, on April 27, the Ambassadors of 

these southern African nations presented a formal 

Diplomatic Note on this subject to the U.S. Department 

of State. In their Note, the Ambassadors note that 

deficiencies in the application of the Act to foreign 

species "have been a source of deep regret to our 

Governments." 

Copies of the March 10 latter and the April 27 

Diplomatic Nota are attached to the tezt of this 

document. 

BOW THE CURRENT ACT CAN UNDERMINE 

CONSERVATION PROGRAMS IN FOREIGN NATIONS 

As applied to countries like those in southern 

Africa, the current Act discourages conservation. 

Most southern Africans are rural people who cannot 

be expected to practice conservation for aesthetic 

reasons. They are poor: family incomes are about 

$100 yearly. These people compete with the wildlife 

for use of the barely-arable land. On that land, the 

large mammals frequently threaten the peoples' crops 

and villages and even their lives. 

These rural people will have an incentive to 

conserve the wildlife only if their families can get 

soma economic benefit in return. 

The southern African governments have strict 

programs to conserve and protect wildlife, but these 

programs allow rural families to get income from 

carefully-regulated use of their wildlife. 

But the current Act often frustrates these 

governments' conservation programs. The problem is 

that the Act assumes that conservation is best 

accomplished by strict prohibitions on trade and use. 

In southern Africa, however, much of the wildlife can 

thrive with limited trade and use. And this trade and 

use provides the rural population with income that 

relieves their poverty while giving them an incentive 

2 
290 

to conserve their wildlife. At the same time, this 

trade and use provides southern African governments 

with funds that are used to finance wildlife parka and 

anti-poacher campaigns. 

For these reasons, in their March 10 letter to 

Chairman Young, the southern African governments urged 

that the Act should be aligned with the the 

International Convention on International Trade in 

Endangered Species of Wild Fauna and Flora (known by 

ita acronym, "CITES"), an international organization 

that regulates trade in wildlife. Although CITES 

totally prohibita trade in some wildlife, CITES allows 

limited trade and use under quotas where this helps 

conservation. 

PROVISIONS OF B.R. 2275 

REGARDING FOREIGN SPECIES 

Respect £or Foreign Programs. Of special 

importance are B.R. 2275's provisions directing U.S. 

authorities to "cooperate" with and "support" foreign 

nations' conservation strategies, and not to 

"obstruct" foreign conservation programs (§§ 207(a), 

504 (a)) . 

In their Diplomatic Note, the Ambassadors noted 

that the currant Act has been administered so as to 

"frustrate our Governments' strategies for wildlife 

conservation" and to "infringe upon the sovereign 

right of our Governments to take responsibility for 

managing our own wildlife. " 

B.R. 2275's provisions for foreign species take 

account of the foreign governments• right to have 

their sovereignty respected. 

It is important to note that these provisions of 

B.R. 2275 apply only to foreign nations whose wildlife 

programs are responsible under international 

standards. Those standards are set by CITES. Thus, 

B.R. 2275's provisions "Respecting the Sovereignty of 

Other Nations" (§ 207), apply only to foreign species 

which occur in a nation that is a member of CITES, and 

3 
291 

O.S. authorities retain the power to act unilaterally 

whenever they have substantial evidence that a foreign 

conservation program "is not consistent with" CITES 

Al.igning t:he Act: Wi t:h CITES. B . R. 2 2 7 5 also 

contains many provisions that align the Act with 

CITES. In the case of a foreign species that is listed 

under CITES, for example, O.S. officials are directed 

not to determine that the foreign species is 

endangered or threatened unless CITES does not provide 

adequate protection (S 301(a)). Similarly, with 

respect to foreign species that are threatened but not endang~red, the O.S. authorities are instructed not to 

prohibit any act that is permissable under CITES (S 

207 (b)) . 

This provision recognizes that the United States' 

duplication of CITES regulation is inappropriate. 

It is also an anachronism. 

Onder current law, the O.S. authorities make their 

own independent determinations about whether non-O.S. 

species are endangered or threatened; these 

determinations need not conform to CITES' findings. 

The U.S. authorities' findings can result in trade 

embargoes and prohibitions on use--even when CITES has 

determined that limited trade under quotas will aid 

the species' conservation. 

This conflict is an unintended consequence of 

earlier O.S. endangered species laws. The current 

Endangered Species Act's provisions for the listing of 

foreign species originated at a time when there was no 

effective international regulation. The Endangered 

Species Preservation Act of 1966 protected only 

"native fish and wildlife." 

Three years later, in the Endangered Species 

Conservation Act of 1969, Congress broadened the reach 

of the law to forbid importation from a foreign 

country of any "species ... threatened with worldwide 

extinction." 

4 
292 

In the 1969 legislation (§5) , Congress noted that 

there was no international organization working "[t]o 

assure the worldwide conservation of endangered 

species." Congress therefore directed the Secretary 

of State to convene a meeting of the world's nations 

for the purpose of creating an international 

convention on the conservation of endangered species. 

As a result; of Congress' direction, in early 1973, 

eighty nations1 met in Washington and adopted the 

Convention known as CITES. CITES now counts more than 

120 countries (including the United States) as 

Parties, or member states. CITES embodies a detailed 

set of regulations designed for "the protection of 

certain species of wild fauna and flora against overexploitation through international trade." 

CITES can and has imposed sanctions for violations 

of its rules. CITES is now empowered to take remedial 

actions. Where CITES regulation is adequate, there is 

no longer any need for U.S. authorities to continue 

making their own independent assessments as to foreign 

species. 

~roving Consultation. The Ambassadors observed 

in their Diplomatic Note that their governments' 

concern about the Act is aggravated by the U.S. 

officials' failure to consult adequately with the 

foreign governments before taking actions affecting 

foreign wildlife. Under the Act, the U.S. authorities are not required to consult with foreign governments, 

and they often fail to heed those governments' views. 

Thus, in their March 10 letter to Chairman Young, the 

southern African nations noted that--when the U.S. 

authorities proposed to reclassify the Nile crocodile 

as "threatened," they sent a short telex to the U.S. 

embassies in the range states, but in many cases the 

telex never reached the appropriate foreign government 

agencies. 

As the Ambassadors also observed, their 

governments' wildlife management agencies, staffed by 

well-qualified professionals, have a special 

5 
293 

competence in developing wildlife management 

strategies that are suitable for local conditions. 

These local officials work in the field with their 

wildlife on a daily basis. Yet, under the current 

Act, Washington-based U.S. officials, located far away 

from the foreign wildlife, are put in a position to 

second-guess and overrule the foreign professionals' 

wildlife strategies and programs that have proven 

successful in practice. 

B.R. 2275 provides for meaningful consultations 

(§§ 207(b) and 301(a) (2)). At the end of those 

consultations, if the officials of the United States 

and the foreign nation cannot agree, the U.S. 

officials would still be able to put their proposal 

into effect, but the President of the United States 

would have an opportunity to review the matter first. 

If the President is required to resolve any conflicts 

between different U.S. federal agencies, as B.R. 2275 

requires (§401(b)), it is especially appropriate that 

the President resolve disputes between a U.S. federal 

agency and a foreign nation. Under standard U.S. 

government procedures, this provision of B.R. 2275 

would ensure that the President receives the views of 

the U.S. Department of State about a federal agency's 

proposals under the Act that may violate the United 

States' international obligations.' 

De£ining "Conservation." Under changes made by 

B.R. 2275, the Act would no longer define 

"conservation" so that it authorizes "taking" as a 

"conservation" measure only when population pressures 

within an ecosystem cannot be otherwise relieved 

(S502(b)). In their March 10 letter to Chairman 

Young, the southern African wildlife agency directors 

opposed restricting "offtakes" to situations where 

For similar reasons, the Civil Aeronautics 

Board was required for many years to submit its orders 

with respect to any foreign air carrier to the 

President for the President's approval. Sea Chicago ' 

S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 115 

(1948) . 

' 
294 

they were necessary to relieve population pressures. 

As the wildlife agency directors noted, regulated 

offtakes are an important source of revenues that fund 

conservation programs. Such offtakes also provide 

income for rural peoples, income that gives those 

peoples an incentive to conserve their wildlife and to 

oppose poaching. 

• • • 

B.R. 2275 also contains other prov1s1ons 

regarding foreign wildlife that are welcome. These 

include recognition of CXTES' role in imports and 

parmi ts, vindication of CXTES' "non-detriment" 

standard, and recognition of the benefits from 

inherently limited uses (§§ 204(b) and (d), 207 (b) 

and (c)). 

Such provisions can allow our governments to 

create a better environment and better conditions for 

our people. The southern African nations hope that 

such provisions for foreign species will become part 

of an amended Endangered Species Act. 

The southern African nations thank this Committee 

and the Congress for their attention to these 

problems. 

7 
295 

DEPARTMENT OF NATIONAL PARKS AND WILD LIFE MANAGEMENT 

P.O. Box CYHO, CAUSEWAY, Huare, Zimbabwe 

Congressman Don Youns 

Chairman of the House Natural Resources Committee 

lOth March 1995 

Dear Sir, 

REVISIONS '1'0 THE ENDANGERED SPEaES ACf 

The Oiri'!Ctnrs of the agencies responlible far wtldlife in the faur KaUtllem A frU-..an 

aovcrumcnts of Botsw&Da, Malawi, N&mibi&, aiKl Zimbabwe met on 23·24 Febnwy 1995 

• and discuued, inur GliiJ, tlae iD.itiative you are currently taJWas to revise tlae Unillld States 

Endangered Species Act. Enclosed are a number of comments wbicb resulted from our 

discussions which we would ask you, and tlae llou.sc: Natural Resources COJJUDittcc, to 

take into account durin& tlae rewrite of tlae Endansered Speciei Act (ESA). 

We would lib to CODptulate you OD tlac illitiative to rewrite tlae Act. We do Dot 

feel tlaat tlae deficieacies in tlae present lepiatioa cu be remedied simply by applyinJ 

irs provisions more liberally or by ilnroduciD& "llser·frfendly" polfdes, as appears tO be 

tlae approach of tlae present Ex.cutiv~ . no Act ia fluadamenlallyilawcd u far u forcip 

~cie,; are ennt'.emed (and, J'C)Wbly, Nortll Amerieu species too!) md requires a 

lboJough rc-cumiuatiou. 

Our preferred changes to Act are amnged in order of impnrttftt'.e. Whilst we 

arc not optimistic tlaat our inputa arc likely tO affect dae b• plai1010phy behincl &he . 

ESA or its system of operatioa in tlae United Statal, we hope that we may at least 

Influence your approach to the Ustin& of forelp species ucla!* Act - dae issue of 

direct CODCCrD to US. 
296 

We nore dlar die 1966 Act iDc:luded only native species: forei&n species were 

added in 1969 when tbe listiq provision was added. The inclusion of foreign species 

in the Endangered Spc:cics Act is discussed by Richard Littell in bis book "Endan,ered 

and Other prorec:red Species: Federal Law and Repladon": 

"The U11i11'.d ~Ia caiiiiOlleplatc a JOiulioa 10 a problem !hat i~ eJnhal in Th<' 

princi~l 1hrl'~t 1n ~ llernS frotn the cleslnlc:lioa of !heir hahitaL~ While il i~ 

beyoad .,ur eaptoeiry ro Jlf"U'<l all hahiws impnrWit tn et\danpn!d .lf'H.il'.t, l.llnJress 

~liewd 1ha1 Ibis Dllion choald m1l..s. tn the atet~t nf its aho1iry tn dn en.• 

"01ltsido US bordeis, tile Eadaqered Species ~ rauids proilibited autduct by 

penoulllbject 10.111e ~of tile Uaitad Slates. To eafomt this IIlla, the U.S. 

GcwetiUIMIItmay ~Jaw ealorcemeat iawllipliouud researdt ia fcteip laadt. 

"llleUaite4Sw.inlllluilllponaa&-utlorwildlifalnde. Allowiagvarestric1ed 

trade wovW.ilu:r-&M~ IN ~.,..._ud lAW prodwll&. It -~~w 

pe · _,loit.rs aa -.M to violate 1M law. By ~ tile& trade, Coacrdccidcd, tllit OOilDll)' _ ... alipificat .....,_ to aM --Of COIISAMIIioa." 

we appreciare die coacem sbown by me Unfted Swcs for conservation in foreip 

lands, but point out that the attampt to help aJoba1 ecwervatiOD efforts through the ESA 

has not worked well becmaJc dae Aa lw fundamCiltal flaws. On behalf of the SACIM 

RMrd (Southern Afric:aa Ceatre for Ivory l'tfarblbll). I have pleasure in submitting 

some comments which may addna IGIIla of these deficienciu. 

lt is relevant to your wnrtr that the CI"IrS treaty~ alV) undergoing lift eYIIIuarion 

at the moment. Sinoe CriES is basad oa wry similar pnAciples to the ESA, many 

criticUm5 of CITES arc cqully applil:ablc to lhc ESA. We cudCliiC Cur your interest a 

documeDt •a:r.t:=J:S u• wllidr'Cietllils tJt~:enc:ies in OlES· from a sout.llem .Afriean 

pcrspcctivc. Some of these may also affect tbc clelibcnations of your committe~. 

Yours faithfully 

. ,'? -

j'i.tii.k~L W.K. Nduku 

DIREcroR 

CHAIRMAN OF SACIM BOARD 

CITES MANAGE.\fENT AUTHORITY mR ZIMBABWF. 
297 

SUGGESTIONS FOR THE IMPROVEMENT OF 

TilE UNITED STATES ENDANGERED SPECIES ACf 

lillbmittcd by 

Botswana, Malawi, Namibia and Zimbabwe 

An Issues Analysis (Fi,. l. paze 7) summarizes the commena which are to follow. 

1. INFLEXIBLE UNKAGE OF SPECIES STATUS AND PRESCRIBED AcrJONS 

Tbe ESA operates on a set of prescriptions which proJreSSively reduce the possibilities 

of use (or, in the ease of fore.ip species, trade with the US) as wildlife populations reach 

the critical levels "threatcJted"and "endansere.d~;' Usually, a total trade b&D is the result. 

However, we have strong cvideucc &o show lbal lu&al lr.wc bans can be hi&hly 

enunterprnduetive. Many species need protection but can thrive with cnntmlled tradf'!. 

Trade provide& economic incentive& that aid and finance wildlife conservation. 

Particularly in the re,ionswhcre most wildlife lives, lite South ·America, Asia &Dd Africa, 

1ovemments cannot enforce: conservation without local suppon. A total baD may 

deprive local populAtions of any 111wful ~·rr.e of income from their wildlife, whereas, 

in contrast, well-re,ulatad trado c:an provide sizeable eccmomic incentivet to local 

populations thus encouragins coD.SCrvation. 

The inflexible prescriptive· approach of the ESA coatlicts with common-sense. In the 

sou them African repon we have learnt that the decree of endnn,ermcnt of a species is 

" mallc:r Cur uotc only: how to imptoVe lhe status o£ lhal lpCC:ia iiii a tocaDy iiiCJ)Ua&c 

issue. In the more and more frequent cases where the answer to the decline of a 5Jiecie.o; 

is to increase its legal value to those on whom.its survival cliract1y depends (notably, in 

many contexts, londhoJdcrs), the ESA actually<Worll:. ~ ecmicrvation. 

I''IRS1' PRF.FF.RF.NCE 

The btuic tunm~ption oftlw Aa tMt 1M ~or ·~.r sbllaJ of a s/*ia 

s/tDu/d 111111 ID llllllllltuory llbDltlltm or mafttiDII O/llJ IIJI lflftllto be r«oiUidlntt. TM 

Aa slrDuld N IIIM1UIMI to IIIIDw.jllzlbUU, so llull .,.,. if 11 q«in u tn111 nrtllllfi'Tftl tllltl 

SllbS«flllllflly IJ#H, II trillk Na bu IUIItllllllllflllietJIIJ rGIIJt. lfl1tm It "" be 

unwnstriiUd t/1111 ,. 111111 C1W/IIt ln«nnlws whkh will co-a• Ill 1M m:uruy (1,/ 1M 

fP«Us, lhl II1ISWT 11141111111 ~ 1M «DifDIIIie wrllla tJ/ spcla rtlllrlr IJuUI 

Dltt1111pti11f to TtiiiiO'Itl lt. 

1 
298 

2. THE LISTING OF FOREIGN SPECIES 

In our view. It Is questionable whether the ~~mment of any counuy should 10 so far 

as to assume the mande of Jlobal c:oaxrvator of ~ies. No country possesses the all· 

ccomp~ine c:xper..Uc uccdcd 10 c~ the statllS of all foreign ~pa:ic:) currcctly and. 

more imporusutly, to dia~nosc: their conservation requirements. The rapid development 

of capllcity auu Qpertisc: iD m05t deYelopiD1 countries bas resulted iD a situation where 

the majority of expert opiDioll on both specie£' status and appropriate methods for 

$pc:cies consel'f'atioo resides iD the raDIC states for that spcaes. 

The follawinx arc valid rcuoDS for uy country to conuol the import of specimctLS of 

foreixn spec:ies -

(a) where a COillltr)' is c:allcd · upoa to iDitiate such ac:tio11s as a Party to aD 

intematioDal ucaty; 

(b) where a C:OilDtry is dirccdy requeSted by llDOtb.r country to do so; 

(c) for veterinary health oonsideratiou; 

(d) where the import of live specimens. of a species may pcsc a conservation threat 

to loeal .spee:ies. 

Beyond these rusou, it inDon:diffiailt for .. ·ution which it is not a ran&• state for 

a species ro·just:ify!the iDclulioD•in ill lepiatioD of selec:tive or prohibitive measures 

which override the;iDtentioaa ud spirit ofib .. GATI' treaty. 

It is not necessary to list foreip species under the ESA. Combined with the Baa Act 

of 1926, the Lacey Act of 1900 prollihitl interstate rramportation offish or wildlife taken 

in violation of national, data « fcnip law. We caatead. thenfore, that armed with the 

Lacey Act, together with CI1B, cenaia Doa-coarrouersial requirements of the ESA and 

the Pelly Amendment to tbe Fisberman~s Proreetive Act (uoder which the President has 

the dicererion to embUJo wildlife products from a utiall wbose pracrises diminish the 

effectiveness of CffES), the USA has more thaD adequate tools to iDfluuee the 

conservation C)f foreip species. lbe parts of tile J:SA to wbieh we refer here are those 

p11rt5 thllt trellt ·eerrain vkJiatmas. tlf ern:..~ AS vioWmaS 'Of US domestic Jaw. ror 

f!Y.:lmpiP., 11n pl'!rutn ~hject ra US juriKdicbnn may trllde·in any specimen eontnry to tbe 

C:ITF-~ C:nnvP.ntinn. Tf l JS damuric: lqUiatianwere modified to Ac:eord still more eloseJy 

to C:ITF.S, thi!l would he more appmpriate than the npentinn of whAt i~ essentially a 

parallel synem in whieh there is a major diveiJenee frnrn C:ITF.S Jininp. 

SECOND PllEFEll.ENCE 

T1u moll~ way 111 tiiJII.,. Jim1ta q«:ta Ill rill £SA Is 111 GbadM 1M 11sttnt proem 

tllld tu11Jp1 11 pTOCfdlln IMI .a,ru * lhll1al Slar:r /lflsiiiiiOII wllh 1M CDnniiiWn on 

flllmuJIIIIIUIJ Trfllll Ill &1M lfNil SPfdG II/ FtiiDIIJ UJII'IIJN.. 77rf "" llfiiiiiiPIIOII rluJl 

1M Unllld Slllln aur or sllotl/4 1rJ 111 · rtll4ll/l .,.,_,., Ill «1m' urmtrn 

colllllriG ls hifhly colllrtnnUlutl ~ Ol/tflfhllllso. drela. 

2 
299 

3. REQUIREMENTS IF FOREIGN SPECIES ARE TO BE LISTED 

(a} Criteria for Listing 

For the purposes of the Act a species is considered "endangered" if it is in danger of 

extinction throughout aU or a signific:ant pan of its range. While the status of a species 

is judged according to five factors, these do not constitute true criteria. Therefore the 

decision as to what conmtutes "endangered", which is fundamental to the listing process, 

is highly arbitral')' and often, we submit. capriciOus. This would appear to be the opinion 

of the House U)O. We note that iD 1982 the House Committee stated its concem that 

the endangered species lists "harbor a Dumber of improperly listed species" noting that 

some listings were made "for emotional reasons or based on improper biologieal data". 

As with CITES, obj«tjw miM1Il an 1f4Uind·tn utmtriu wlrDI a Jnrr.ifrt .rp«in Is 

"thmtU.II~d" or "md/JIIftrttl' Ill tlnrt.t nf:IM Ad. 

(b) J£t.nnomle faetnrutaaueDdng cansenetioar»Uor.elp species 

In 197R amendments weremide that required:th6Secrewy of llnerior mate economic 

a.~o;e,~Qilents at the time cl&liq and. as far as fo~species are concerned, this would 

have gone a long way to solvlllg some of the pJQblcms we taee - especially if the 

analysis was made at the level ofloca.l communities. Untonw~ately, in19S2 an economic 

considerations were removed from the Act. 

'lf'1lnt Jorelfll sptctu are eoiiUI'Md, «<IMmtc co1JSiilntJlllJ111 sl»uld be rttnl1'0duud 111UI 

UW/betufll tullllysU rtlllllmJ Ill riiiiJstlnr prot:m. 

(c) Tbc requirement &o show enbancen~t~~t or need CO recluce populatJuus 

As a result of:various.c:aiJit~·wMDaUiu& aaupticms i~.Dc.W a requirement that 

the regulated taking is '3hOWD to eilhauce popWuiou or that~ ·offt&kc is ncc;eaauy to 

relie111: population pressures. This has proved a major obstacle with foreip species, 

especially when thc:sc: are inappropriately listed. I;Dhanc:ement is notoriously difficult to 

define: and demonstrate. The ESA should adopt the lead of crn:;s which simply 

require.s a dc:mon.stration of "non·detrimcat". The idea that spon hunting is only 

sustainable or desirable when a population has to be reduced is clearly incorrect and, if 

applied in soutbcm Africa, wiD simply be a hillclrucc to the recOVC:JY of species. 

'1'1u:.AJ:t slwiJtl H duurpl J(J 1/wt U611tptlolu iqall 011 tlemoiiiiNIIItr ltOII-MiriiMtll 

(rtitMr tlum ~"lumatMIII) tWI ,_,.,-Ill for lport luutliJir IMIIIII 1101 H tkpnuklll 011 

IM II«(/ to rw~ue. popllliiMIII. 

3 
300 

(d) Application of the Precautioury Principle 

Under the ESA, the killing of endangered species is expressly forbidden but, for 

threatened species, the SccretaJy of Interior ha.s considerable di3(;retion to "is.5uc ~ucb 

regulations as he deems oc:c:I:SliU)' and advisable to provide for the conservation of 

~pecies " In 1990, tbe Secretary decided to err on the side of protection anct aftl!r 

codifying the protections for elldangered species, issued a regulation that extends the 

same protections to mOlt threatened species. &emptiou haw to be sought to 3Uow 

sport bunting trophies of thrcatcnc:d spc:cies, sueh u the African elephant, to be 

imponed into the United Stata and to AllOIJ CCliiiJDercW impons when, for QaiUp)c, it 

is argued that -Australlao bDproas or AfrlcaD crocacWcs are inappropriately listed or 

when it is argued that. for these species. trade js-A means to encourage conservation. 

With foreip SJneia tlwrw ir • .-Ill U.U..-flte.-.fitttreel/4• biiW«tNtulapred lind 

thnueMd spedn. With ~ ..-tlw.- slriMM be CHI tlu puty lhlll is 

r«umm~tulinx lisliltJ( lo tk~lltlll sport~ Mil~ im~~t~m will bt 

tlizmllrtnr m rht sp«tu. £Me V liltS ts * ara. spillltsltlfr flllll ruy SP«tlk sillrCliDns 

mJLU lu rwquired. 

(e) Creatins disincentiwu by paaishinl where there is no inteut 

We consider It a fluther problem that the Act iS adminiStered with the belief that.even 

an inactverteot impnrution of a des~pated species violates the Act's purpose. As a 

result, tourists are penalised wllen th.y unwiuillgly attempt to impon into the USA items 

comprising p:uu or products of listed speoies. 11tis has the effect of discouraging 

tourisu from purchuing 4:Urioa iD dftelopiDg ecuntries cvcu where these arc clearly 

listed by the producer c:ouutry as )CJaL Where COIUicMl&iun is bllliCd on the return that 

wildlife species can make to IIDpolatsbed I"'IRR~Dides;-asiJrmuch "Of southern 

Africa. this has marked neptnle cnn~ervation affedl. Hunters have been similarly 

affected when trying to import species - SOIDa1imes becuae they have been listed 

between the time of the SlUt of die safari aad the time of importation of the trophy. 

In the: same vein, we rcaliac that the ESA docs not prohibit huntina world·wide. -The 

prohibitions of Section 9 do not apply ill (wcign uta. However, hunters risk penalties 

and forfeiture if they briDI their lnlpJlfes ot eadaqered-or dlreatened species (for which 

there Is no exemption) bact to the United States. Aa•m. this works aaainst spon 

hunting in pneral and neaati\'ely affeea our conservatioa prosrammes, many of which 

are driven b"*e value imparted by trophy huntiq. 

IR~Zl~Hmnt ~ioltUion ofiM Ml wid~ I'GIIKIIII fot'dp sp«<G IIIMIIillflll mull lit ]lf1UIIq. 
301 

<0 Conccnu about possible aid withdrawal 

The Department of the Interior decided that federaUy funded projecu ovcnc~ Arc not 

within the 3COpc of the ESA's consultaU,.·e proc:eaures. The court of appeals di.sagrccd, 

and the Supreme Coun reviewed the cue. Only one Justice expressed a view on the 

merits of the cue, with the majority ruling that the complaining panics lacked standing 

to litigate the issue. It is therefore still a moot point as to whether Federal Action under 

Section 7 is limited to action within the USA. It is therefore of major concern to four 

southern African nations that a c:oun action could stop USAID funding to a natural 

resource mana&ementprojcct (:such as Zimbabwe's CAMPFIRE) in which elephants are 

hunted and culled if the elephant was reclassified as "endangered". 

T111RD PREFERENCE 

If fonip species will aJIIIil!w Ill be lisUII lllfUr 1M ~ Sp«Us Ad, then on t1 

munlnr of impro"Jftf~Dfb wllida could be ,.. 110 aluuta UJ~ in the off«~d 

nurpst#IIG. 

4. INAPPROPRIATE USTINGS DUE TO INADEQUATE CONSULTATION 

It i! common that foreip specica are Jimd inappropriately becaux the US fish and 

Wildlife Service has an iuadccpwc conaltation proc:cas wida tbe range aa&tes, is unduly 

influenced by domestic c:oudtlaeDCiu wldch bear ilone of tbe c:osa of listinp. &ad has 

no capacity to inwsti&atc by direct mcaiaJ the status of 'A>' population in a forei~:n 

counuy. Consultation is, in fact rcatrieted to a wholly inadequate requirement that the 

Secretary must 11'1 111 notify forcip govcrDJDeats and take iDto aocount uy efforts tbey 

may be making to protect thupcc:iu. 1llis is rdlc:r:aahot.OD)y iD listiDg. but.alsc tbe 

formulation of replations ud piddiDu. Whai tile Nile crocodile was bcinK 

considered for traDsfer fnlm tbe eadaDJCftd to thrcatcDed Qtqory, each ranxe stAte 

received a mon telex thrcup the US Embusy in its tcrritoly. 1D muy cases, thu never 

even reaehcd the appropriate government dcpanmCDt. 

FOURTH PREFERENCE 

When tlw listUtf offordp q«<G u • ~. "-is • ..-Ill__,.,. tlw 

etJIUIIitJuiN pr«G$ ..... Ad, flllll tM p~WGS sltotiJ4 H lapiy .,.,..,., Oil IM 

'"'~""-"" •I 1M .... .,... CNI .,._ 1M SllrliNl "'* s,«<G dqatls. 
OUR Alt~.: 

302 

I:MDA£SO:Y OJI' TME RI:PU8LIC OF Z I M8A8Wt-.. 

1M)8 Nt:W HAM~$HIA[ AVLN\ol&, N . "f'i. 

wA:»"•,.GTor., c. e . aoooo 

APRIL 27,1 9!15 VnuA REF.: 

Tho Embassies or the four uuuersigned Covernmonts being membArs of 

Southern African Centro for Ivory Marl<eting present their compliments to the 

Dopartment of State and have the honor to refer to the current deliberations of 

the Congress regarding amendmonls to the Endangereu Species Act of 1073. 

Our GovP.rnments have been dislres:;cd for s:ome · time ahnut the Act"s 

appfication to cpocies: located within our territorial burclers. 

In the oplniun of our Governments, the Endangered Species Act should b11 

amended to end United States oversight of species that do not n3turally occur 

within the United States. There is simple regulation of trade and use of such 

species by competent International amJ national entities. Over 120 Parties: to 

the Cunvention on International Trade in Endangered Spedes of Wiltl Fauna 

nnd Rora have agreed to observe stringent restrictions on international trade in 

lmp~:~riled species. Pnrtles to tho Convention, including the undersigned 

Governments, have enacted national laws that implement the Convention and 

that restrict use Md trafficking in these species. 

Unlike the ConveuUCin, the Cndangered Spacies Act Is premised upon the 

assumption that conservation Is be.c;t accomplishw by trade embargoe$ nnd . 

strict prohibitions against use. For Wildlife in countries fikQ ours, however, that Is 

not true. In our countries, inhabitants of our •ural communiUe3 and' I::JJ'go 

mammals cumpete for ~r.~e of the lnnd. Our rural people Cllnnot be expected to 

cooperate in conservino the wildfife as having some economic value to 

themselves. Wen-regulated trndo in such species ean provide economic value 
303 

for people in locnl communitie~s while still allowing the wih.Jiire to thrive. 

Similarly, restricted truplly·hunting can provide revenues for conse~rvation with 

little loss of wildlife. Unlike the Convention. which allows trade in at-risk species 

under a quota system. the Endangered Species Act fllil!:i to take account of local 

conditions affecting non-United States spi'!CiP.~;. 

The result is that, under the EndangerP.d Species Act, the Department of Interior 

has made determlnctlions regarding non-United States spades that: 

. are umlrary to the regulatory plan of the Convention; 

• fru:;trate our Govemmenta' G!rategies for wildlife conservation; and 

• iullinge upon the sovereign right of our Governments 

to take respon~bllity for managiuy our own Wildlife. 

Such actions by the Department of Interior, as illustrated In the attachment to 

this Note, have MAll a source of deep regret to our Governments. 

Our r.nncem about the Endangered Species Act is oggr.:Mltod by tho failure of 

the Department of Interior to r.nnsult with our Govemmenls about 

determination:; conceming our wildlife. Our govemmantal agencies, staffed by 

wcll-quaflfied professionals, have a spedal competence in developing wildnife 

management strategies that are suitable to local c:ond'rtlons.. Under the Act, the 

Dopartmont of Interior IS not required to consult wiU1 our Governments, and it 

often falls 10 heed or defer to the-views of our Governments. 

Our Guvarnment Wildlife agencle3 have written to chairman Young of the House 

Committee on Resourca-;. suggesting amemlments to the Endangered Speciea 

Acl We request that the Department of State inform the COngrP_c:s of the views 

of our Governments. 

2 
304 

Our Embassies avail themselves of tM opportunity to renew the a~urances; of 

our highest consideration. 

Ambassador, Malawi 

#Amb~or Narrubia ' Ambassador, Zimbabwe 

3 
T.,._•OGJ) ,.,-.,aap 

...._-. .......... o.c. 

Tells ~ 

.. :(20Z)KSI'If1lll 

.. ---

~ _'"' ............... 

uear colleague, 

305 

• 

t •• ,J-11 Jo1-•-1/o. M_E/ADI'If_l/?4 

KAlA WI EMBASSY 

Mila MASUOIUSETTS Alii., H. liT. 

WASHINGTON. D.C. 211111 

5th May, 1995 

~1nQly ~!*C to ou~ diocuooiono rectorday, May 4th, 

1995. Aa inc!icate.S in our .Siscuaaions, MllliiVi is in tull 

agraaaant vith t:ha ~tepa taken aDd in order to expedite the 

proeessillCJ of the juiut U•quest to Congrese, it ioCJ propoocd, 

1111d it voulll appear you vcro iD agrae .. nt that the initial 

docu .. nt aigned by Rnbn•~tna, Namibia an4 Zimbabwe Is 

~nrvarQed to the relevant autho~itiea. 

on the part of. ""'·•ovf, and in the absence or any 

.m'<:uments at ·our Ottlce here Lu 'J~Ye a backgrcun.S to the 

IJUbjftC:t of the en.Scngarc.S apaciea, it vaa eollaidered 

dcc·irable that the part!'nt. Ministry in Lilongve be appraised 

nt the aituation and the agrtotocl ...., .. .i.tion. 'l'o thia end, cu~unication vao sent to Lilongwe and aa aeon aa a elearaDce 

h:u: boan gi,.n ve shan eoa~a~nnicate vith you an4 in turn, ve 

,.hall send to the author1t1ea here the neceasary .Socuaent 

viLh our signature appended to validate the proposal in the 

prcaont:ation by the Ambassadnr11 ot the tour governaenta 

invoJv.a in the matter. 

M~vhile, in the apace p~ovldad tor Malawi's signature 

in ynnr presentation, kindly indicate "l'lalavi authorization 

and a1gnal:urtt Lo follow" • . 

t •• aare this arrangement vill be !uuu~ satiafacto~ to all partie» cuo>cerned. 

xoura raithrDlly, 

w-fi-

"· Choltli'ai AMDAOCADOII. 

· Bia zxc.Jlaney Allloa B. M. Kidzl 

Alllbaaaador 

Babaaay o~ tho Repablie of ZiababVI!' 

160R •av &aapahire Avenue, &.w. 

waahiugtou, D.e. 20009 
306 

JOINT TESTIMONY 

ALASKA STATE SENATE PRESIDENT DRUE PEARCE 

AND 

ALASKA STATE HOUSE SPEAKER GAIL PHILLIPS 

BEFORE THE 

UNITED STATES HOUSE COMMITTEE ON RESOURCES 

REGARDING 

H.R. 2275 

REAUTHORIZATION OF THE ENDANGERED SPECIES ACT 

September 20, 1995 

Mr. Chainnan and members of the House Committee on Resourcee, I want to thank you for 

this opportunity to testify on one of this countries most powerful conservation laws - the 

Endangered Species Act. For the record, my names is Drue Puree, President of the 

Alaska State Senate. I will be presenting joint testimony on behalf of the Alaska State 

Senate and for House Speaker Gall Phillips and the Alaska State House. 

Since my time is limited, I would ask that our entire testimony be submitted for the record 

and use of the Committee. We have spent conSiderable time participating in the 

reauthcrization process and offer our assistance in any way possible to support you in this 

endeavor. 

Mr. Chainnan, I want to make it clear that my reason for being here is not to advocate the 

dismantling of the ESA. Our reasons for testifying are that we believe the Act is bedly in 

need of repair, it is not meeting the original intent of Congress and the agencies given the 

responsibility for implementing the Act have abused their authorities and have used the Act 

to further unrelated agency objectives. 

We want to express our sincere appreciation for the dedication and hard work of the 

Endangered Species Task Force chaired by Representative Pombo. Many individuals and 

organizations have worked diligently in support of the Task Force's efforts and have 
307 

provided substantial testimony and supporting documents. House Speaker Gail Phillips 

and I presented joint testimony to the Task Force with specific recommendations for ways 

to improve the performance of the Endangered Species Act. We hope the Committee on 

ResoLirces will utilize those records as you proceed with your deliberations on H.R. 2275. 

Congress. as well as state legislatures, frequently avoid trying to legislate minute details into 

complicated laws because of the difficulties in anticipating all possible legitimate exceptions 

which should be considered, the complexities of the issues or the politics associated with 

those minute decisions. In good faith. we extend authority to the agencies to develop 

implementing regulations which provide the detail neceMary to implement the laws while 

adhering to the basic intent of the original legislation. The ESA has. quite frankly, suffered 

from this lack of consideration for detail in the law. 

It is unfathomable that Congress intended for the ESA to be used as the legal corner stone 

of all biodiversity and environmental planning within the federal government. It is also hard 

to believe that Congress intended for the law to be used as a legal bludgeon or blockade 

against all legitimate resource development in our country. 

From Alaska's perspective, we can point to some definite successes associated with the 

federal ESA and the state's own Endangered Species Act. Alaska's bald eagles have been 

used to successfully reestablish populations of our national bird Into areas where they have 

virtually disappeared due primarily to the indiscriminate uses of DDT. Similarly, peregrine 

falcon populations, bolh in Alaska and in the contiguous United States have recovered 

dramatically due to good consetVation programs, cooperation between the states and the 

federal government and the contributions of many private sources throughout the country. 

The Aleutian Canada goose, a ground nesting goose in the Aleutian islands. are on the road 

to recovery following the removal of very effective predator foxes and the reintroduction of 

the species back to its former range. Here again. good cooperation between the citizens of 

our state. the state agencies and the federal agencies made it all possible. In virtually all 

of the successes you have seen one key Ingredient - cooperation and old 

fashioned partnerships. 

Unfortunately. for every success of the ESA, your Committee will find seemingly endless 

examples of governmental abuse of authorities. In our testimony before the Task Force in 

April of this year, we used four examples to illustrate how the ESA was being effectively 

abused by the federal agencies and the court system. The ~xamptes were salmon, wolves, 

goshaviks and sea lions. 

Our testimony emphasized that the listing or potential listing of many species including 

salmon wolves, goshawks and others have been primarily done to meet the political agenda 

of the listing agency. Significant abuse of power in the listing of "distinct population 

segments" has occurred with the listing, or threatened listing, of populations that would 

never qualify under any strict scientific standards. The potential listing of every stock of 

salmon as a "species", for instance, under the Act presents insurmountable odds against 

2 
308 

successful implementation of the law. It also illustrates a prioritiZation process gone badly 

awry. 

Our testimony also highlighted the conflicts associated with the listing or potential listing of 

populations associated with the extreme outer fringes of a species range. We also 

questioned the prioritization process within federal agencies in dealing with endangered 

species problems. We have expressed our opinion that the listing process has been used 

to expand federal agency authorities over traditional state resources and to leverage 

Congress for more agency funds. Frequently, federal agencies have ignored declining 

resources until they reach the level where listing is possible. 

Since our previous testimony is available for your use, I will not duplicate those examples 

here but will assume that the Task Force material is available for the use of this Committee. 

Over the last several years, we have witnessed a significant change for the worse in 

federaL'state cooperation and the creation of true partnerships. The ESA has been 

effectively used by the federal agencies as a weapon and not a tool of 

conservation. It is also important to add that the federal courts are equally responsible for 

the hostility towards the ESA. Rigid interpretations of the law by the federal courts 

have tied both the hands of the federal and state agencies in trying to craft 

reasonable solutions to very complex problems. The combination of agency and court 

interpretations of the law have served to create a conservation program that is 

phenomenally expensive and practically ineffective. If you want to measure the success of 

this program, ask how many species have been delisted. 

Mr. Chairman, we congratulate the Committee for the thought and consideration for public 

testimony that went into the drafting of H.R. 2275. It is our belief that this legislation is a 

step forward in our attempt to craft a federal law that is workable and effective. We strongly 

support many of the concepts presented in this legislation but we are, however, still 

concerned about some new concepts which are included and some essential items that 

were e)(cluded. The following are our comments directed specifically at H.R. 2275. 

Definition of Species 

The Alaska State Senate and House strongly support your efforts to redefine species under 

the act. From our perspective, the definition of species and the interpretation and 

implementation by the federal agencies is the single biggest problem with the Act in Its 

present form. Although we support the concept of requiring congressional approval for 

listing of population segments, we really recommend that "distinct population 

segments" be dropped from the act and strict taxonomic standards be established 

or required for listing of species or subspecies. Leaving the listing process to agency 

discretion has not been remotely satisfactory. 

Conservation Goals 

3 
309 

We strongly applaud the proviSions which authorize the selection of an appropriate 

conser~ation objective for each tisted species. One of the greatest difficulties arising from 

existing law is the judicially established mandate that each listed species is to be fully 

recovered regardless of cost or consequences. No rational conservation program can 

operate. especially in an era of limited financial resources. under such a regime. It is 

imperative that Congress establish a more ftelcible approach that enables resources to be 

directed toward those species where recovery can be achieved. Moreover. recovery efforts 

must be able to accommodate other uses and users. 

Tne comprehensive conservation planning program outlined in the bill will facilitate the 

establishment of a more rational and discriminating program. With greater rationality 

injected into the conservation and reaNery efforts, the battles over listings and consultation 

should diminish since their consequences will not be so arbitrary and onerous. We are 

persuaded that amending the conservation and re.;overy standards is the very heart of ESA 

reform. 

Private Prooertv Rights 

We concur with the general direction taken by the committee in the protection of private 

property rights and for the development of reasonable and positive Incentives for the 

protection of endangered species on private lands. To-date the governmental track record 

regarding cooperative prdection and enhancement of endangered or threatened species on 

private lands has been abysmal. 

Consultation Process 

We agree with the approach to allow non-federal persons to use the consultation 

procedures in section 1 0. We also strongly recommend that an amendment be considered 

to allow the states to participate in the section 7 consultation process. It is frequently not 

necessary or advantageous for a cooperating agency with concurrent jurisdiction to utilize 

the section 10 process. 

Federal Bioloaical Diversity Reserve 

Mr. Chairman, we have to respectfully oppose the creation of a new system of 

Federal Biological Diversity Reserves. For one thing, we are strongly opposed to mixing 

biodiversity management with the Usting .-ld I'8CCMtfY of endangered species. Although we 

do agree that proper implementation of biodiversly concepts and good conservation 

practices should avoid species listings, integrating biodiversity management with the ESA 

results in a frightening expansion of agency authorities under the ESA. Biodiversity is a 

sound scientific principle but transmuting it irtD an unknown legal standard is fraught with 

problems. We would propose thllt biodiversity~ principles should be 

debated separately on their own nwtts and not mixed Into the reauthorization of 

ESA. 

We are strongly opposed to the creation of another overlapping classification for "national 

4 
310 

under the ESA. Biodiversity is a sound scientific principle but transmuting it into an 

unknown legal standard is fraught with problems. We would propose that biodiversity 

management principles should be debated separately on their own merits and not 

mixed into the reauthorization of ESA. 

We a:e strongly opposed to the creation of another overlapping classification for "national 

conservation systems" in Alaska. Of all the restrictive land classifications in the United 

States, Alaska is blessed with ea percent of all national park service lands, 85 percent of all 

fish anc wildlife service refuge lands and 60 percent of all wildemess acreage. When these 

areas. totaling almost 130 million acres, were created in 1980, Congress established major 

use exceptions to accommodate traditional Alaskan uses and to provide for compatible 

develo~ment of some natural resources. Alaskans are already witnessing the losses of 

!Tlany supposedly protected privileges due to the overly restrictive policies of the federal 

agencies who seem to totally disregard the needs of Alaskans and the guarantees provided 

by Congress. We are concerned that overlaying national park status with wilderness 

designation coupled with biological diversity reserve status would virtually guarantee the 

most ;estrictive management possible at the expense of most Alaskans. The existing 

1anguase in Title VI provides virtual carte blanche to the agencies to exercise their 

discretion in pursuit of an undefined goal. Vesting that kind of discretion in the agencies is 

1nconsistent with the thrust of H.R. 2275 and contrary to good public policy. 

Many Alaskans are also fearful that the creation of this type of protective classification for 

;'latioral parks and refuges would only be a hop-skip-and-jump away from other federal 

:ands which are now supposedly committed to multiple use management. 

Ne are strongly opposed to such action and request that Congress clearly state its intent to 

avoid expansion of the "Reserve" concept to any multiple use lands. 

Quantitatjve Listing Criteria 

As submitted in our previous documents, the Alaska legislature strongly supports the 

development of precise quantitative criteria for listing species as endangered or threatened. 

1f these criteria are not available, then we propose a process for the development of criteria 

for listing. 

Mandatory Delistinq Process 

·:ongress has mandated that recovery plans be developed for threatened and endangered 

species. There is no reason not to require mandatory delisting once population 

objectives have been met. Congress should require immediate initiation of the delisting 

process once population thresholds have been reached. 

Greater Role of State& 

VIr. Chairman. we concur with the importance the Task Force and this committee have 

olaced on elevating the role of the states in the implementation of the endangered species 

act. Since the states carry the bulk of the burden for protecting and enhancing wildlife. 

5 
311 

including threatened or endangered species, we believe the states must have a more 

meaningful role in the listing. delisting. and recovery processes. Consultation and 

cooperation must extend beyond mere notification. 

Federal Advisory Committee Act 

If the states are going to have any substantial role in the implementation of the federal 

Endangered Species Act. the Endangered Species Act or state agencies must be 

eKempted from the provisions of the Federal Advisory Committee Act (FACA). It is 

particularly important to exclude state agencies from FACA if true partnerships between 

federal and state agencies are going to become a reality. We contend that Congress never 

intended for governmental organizations with statutory or regulatory authority to be included 

under the Act. The Act is presently being interpreted by the federal agencies and the 

courts to treat state agencies exactly the same as any private citizen. 

Clearer distinctjon between Threatened and Endangered Species 

H. R. 2275 has attempted to address the need to separate "threatened" listed species from 

those that are listed as ·endangered." Congress should make it clear that greater flexibility 

for both state and federal agencies has to be applied to the management principles related 

to threatened species. The agencies should be Ldillzing the threatened listing as a category 

which identifies a species in a precipitous and l.llnatural decline but which can allow for 

management flexibility during the recovery stages. The federal agencies have for all 

practical purposes combined the two listing because it makes their lives simpler and it fits 

an anti-use agenda being adopted by many of the federal conservation agencies. 

Peer Review 

We strongly support provisions in H.R. 2275 to provide a technical peer review process for 

lmpleme'lting the Endangered Species Act. 

Conclusion 

Mr. Chairman. we would be negligent if we did not formally recognize that there have been 

some rnajor and positive changes initiated by Secretary Babbitt towards his agency's 

implementation of the Endangered Species Act. There has been significant improvements 

in the policies towards private property owners, improved cooperation between the U.S. 

Fish ar:d Wildlife Service and the National Marine Fisheries Service, greater perceived 

n~olvement by state agencies and more realistic policies related to public involvement and 

ESA interpretations. The problem is. quile frankly, that the Secretary and the federal 

agencies have offered many of these revolutionary changes only after Congress and the 

public have threatened a major cwerhaul of the Act. Why were these changes never offered 

before when it was abundantly clear that the Act was failing? 

Some of the policies adopted by Secretary Babbitt should be considered for inclusion in this 

rewrite of the ESA. We are, however. adamant that Congress should precisely spell out its 

6 
312 

intent in this revision of the Act. Secretarial actions cannot overcome faulty court 

interpretations of the Act which have hampered effective implementation of the law. It is 

also safe to say that after 20 years of intolerance and indifference towards the public and 

the state agencies, the public and the states do not trust the federal agencies to establish or 

maintain a cooperative attitude in the implementation of the ESA. Congress must precisely 

spell out its intent so that the agencies and the courts have little or no room for mischief 

and. more importantly. to assure that genetic diversity is adequately protected. 

Mr. Chairman, I want to thank you for this opportunity to testify on behalf of the Alaska State 

Senate and Alaska State House of Representatives. We have offered an honest critique of 

H. R. 2275 from Alaska's perspective. 

We want to emphasize the importance of the task-at-hand and the importance to Alaskans. 

Although Alaska presently has very few species listed under the ESA, we have already 

witnessed the abuses instigated by insensitive and uncooperative federal agencies. We 

have a lot at stake in this process. 

A true partnership between the federal, state and private land owners are essential if we are 

to come close to meeting the expectations of Congress and the American public. A true 

Endangered Species Act partnership will never occur unless Congress clearly mandates 

the conditions and the role of each participant in that partnership. That partnership must 

reward performance and provide real incentives for the partnership to be effective. The 

states must be given some latitude to devise unique management programs or recovery 

efforts which will work successfully in that specific state. 

We hope our suggestions and comments here wi!l prove helpful in your deliberations. We 

stand ready to assist you in any way we can in this momentous effort. 

Thank you again for this opportunity to address this Committee. 

7 
ENVIRONMENTAL 

DEFENSE FUND 

313 

STATEMENT OF MICHAEL J . BEAN 

CHAIRMAN, WILDUFE PROGRAM 

ENVIRONMENTAL DEFENSE FUND 

on 

Cupiwl O.ffice 

l81S Connecticut Ave .. N.W. 

Washington. DC 20009 

(~02) 387-3500 

Fax 202-234-6049 

HR 2275, niE ENDANGERED SPECIES CONSERVATION 

AND MANAGEMENT Acr OF 1995 

.Vcuioll(t/ H.-uJquanen 

::.1 Parl. uc South 

.\..:w Yurk. ~y 10010 

l:! l~l ~05 00 

.5655 Culkt:e A,·e. 

Oakbnd.CA '1-U> Ig 

t5 10l 658-8008 

September 20, 1995 

1-W:"i ,.),rap.ahoe Ave. 

Bould~r. CO IW302 

IJ03l~YOI 

I ~8 E:lst Hartzell St. 

Raiei~h. :\C : 760 1 

c919l 821-Ti9~ 

-1~ East A\'e .. Suite 30-J 

Austin. TX 78701 

151~1-178-5161 
Testimony of Michael J. Bean 

September 20, 1995 

Page 1 

314 

The bill before the Committee will not accomplish its stated purposes of 

improving protection of endangered species while sensibly reforming the 

Endangered Species Act. The principal practical consequence will be the 

denial of effective protection for many of our most imperiled wildlife species. 

Moreover, certain of its requirements are contrary to basic principles of 

wildlife management. Congress -- and the Chairman of this Committee --

have previously rejected similar requirements as unnecessary and wasteful. 

HR 2275 also contravene the first, and most fundamental, principle of the 

recent Republican Party policy statement on reauthorization of the 

Endangered Species Act: the prtmacy of sound science. The bill goes 

overboard -- way overboard -- in its effort to correct the problems that have 

artsen in the administration of the Endangered Species Act. Finally, certain 

provisions of fue 'll!ll simply make no sense: others are so laden with 

Inconsistencies and ambiguities that they will invite repeated litigation over 

how the Act's administrators choose to resolve them. 

1. The Practical Consequence of HR. 2275 Will be the Denial of 

Effective Protection for Many of Our Most Imperiled Wildlife 

Species 

The changes made by HR 2275 will have real and dramatic practical 

impacts for many endangered species. The result will be the denial of effective 

protection for many of our most imperiled species. The following are among 

the consequences that will occur: 

Smugglers of rhino hom. elephant Ivory. and other wildlife contraband 

will find It much easier to thwart law enforcement efforts. Proposed section 

1l(e)(7)(C) (page 28. lines 4-12) requires the Secretary to release any specimen 

detained at entry or seized as evidence If he is unable within 30 days to 

identify it as being from a species protected by the Act or CITES. Though 

probably drafted with the example of a single sport hunting trophy in mind, 

this provision Is not so limited. Instead, it applies to all situations, including 

commercial shipments of large quantities of contraband, such as medicinal 

powders suspected of containing rhino hom, mixed shipments of legal 

mammoth and illegal elephant Ivory, and reptile skin watch bands. shoes, 

purses, and the like. To determine whether rhino hom Is included in 

medicinal powders, sophisticated laboratory tests must be conducted to 

determine the presence of characteristic enzymes or other chemicals. Such 

tests may take as much as two weeks to conduct. Similar lengthy tests are 

often needed to make other positive identifications. Moreover, when a large 
Testimony of Michael J . Bean 

September 20, 1995 

Page 2 

315 

quantity of specimens is seized (e.g., thousands of pieces of ivory). each must 

be tested to determine Its legality. The practical consequence of the proposed 

provision will be to require the Secretary to hand back to smugglers rhino 

horn. elephant ivory, and other contraband that cannot be positively identified 

within the arbitrary time limit imposed. Smugglers attentive to what Congress 

has done will learn two easy lessons: break their shipments up Into In as 

many individual components as practical, and time shipments to arrive as 

close together as possible. In these ways, they can be assured that even If 

their shipments are seized, the government will likely have to return them 

because Its resources for making positive identifications will be overwhelmed. 

The oil industry will no longer be required by the Act to take any 

measures to avoid kllling sea turtles and other endangered species in Its outer 

continental shelf operations. At present, the oil industry must sometimes 

take measures to reduce the likelihood that Its offshore oil operations 

(including drilling operations; rig removal, tanker operations, and other 

activities) will kill or Injure endangered species, including sea turtles, 

California sea otters, whales, and others. Under proposed section 9(a)(3)(D) 

(page 25, lines 22-25, and page 26, lines 1-4), however, they will no longer 

need to so because such klllings would no longer be contrary to the Act. 

Whereas the kllling of any endangered or threatened animal incidental to 

otherwise lawful activities Is generally prohibited by the Act, this provision 

excepts incidental taking In the territorial sea or the U.S. exclusive economic 

zone. Thus, the oil industry and other industries operating In that area will 

no longer be required by the Act to do anything to avoid killing endangered 

species, no matter how Inexpensive, reasonable, or necessary such 

restrictions may be. 

To continue on the successful path toward recovery of the bald eagle, 

the Secretary must first determine that It Is In the national interest to do so. 

seek and obtain congressional concurrence with that determination. Invite 48 

Governors and nearly 1.500 county governments to nominate representatives 

to serve on an "assessment team." appoint an assessment team with 

potentially In excess of 1.000 members. review the team's assessment. 

determine a "conservation obJective" for the eWe. and replace the existing 

successful recovery plans for the eagle with a new conservation plan. all of 

which must be done within 18 months while simultaneously carrying out 

similar requirements for several hundred other species. Given that the bald 

eagle Is well on the road to recovery and that Its recovery has been 

accomplished with little controversy. one might rationally ask why these many 

byzantine requirements must be met In order simply to continue the efforts 
Testimony of Michael J . Bean 

September 20. 1995 

Page 3 

316 

that have worked so smoothly and effectively for the past two decades. 

Unfortunately. although one can rationally ask this question, one cannot 

rationally answer it. 

The govemments of Rwanda. Burkina Faso. Uganda. Tanzania. 

Burundi. Angola. and more than 20 other African nations would all have to 

consent In writing to any proposal of the Secretarv of Interior to strengthen 

protection for the African elephant by moving It from the threatened list to the 

endangered list. Without the consent of these foreign governments, only the 

President himself could order Increased protection for the elephant. Even the 

President could not act, however, before the Secretary first transmitted any 

such proposal to each of these governments In the official languages of the 

various governments. These requirements, found In section 301(b) of HR 

2275, require the prior written consent of all relevant foreign governments 

before any foreign species Is placed on the endangered or threatened list. It Is 

unclear whether these requirements are Intended to apply retroactively, to 

species already on such list. Regardless of how that ambiguity Is eventually 

resolved, It Is clear that had such requirements been part of the law when It 

was enacted in 1973, the United States would have had to seek the consent of 

China and North Korea before putting the tiger on our own endangered 

species list, the consent of Libya before protecting the slender-horned gazelle, 

the consent of Iran and Iraq before protecting the Persian fallow deer, and the 

consent of Cuba before protecting the Cuban parrot, a bird that occurs In the 

Bahamas and Cayman Islands as well as Cuba. 

2. HR. 2275 Violates Basic Principles of Wildllfe Management 

The Chairman and other members of this Committee who served In 

Congress In 1982 will remember the controversy then over a court ruling that 

held that before the export of bobcat pelts and products of other species 

included on Appendix II of CITES (the Convention on lntemational Trade In 

Endangered Species) could be approved, federal officials had to have "reliable 

population estimates" of such species. The effect of this ruling was to prevent 

the government from approving such exports, since there were no reliable 

population estimates. 

Wildlife management professionals sought relief from Congress. 

William S. Huey, then Secretary of the New Mexico Natural Resources 

Department, testified on behalf of the International Association of Fish and 

Wildlife Agencies that population Information was "difficult to obtain and 

wholly unnecessary to sound management decisions." He added that 
Testimony of Michael J. Bean 

September 20. 1995 

Page4 

317 

"(r)equiring wildlife management decisions to be based on estimates of total 

population numbers is contrary to wildlife management as practiced for most 

species in this country." Douglas Crowe, then of the Wyoming Department of 

Game and Fish, added that "(w)ildlife resources are routinely managed 

without absolute numerical estimates of the population level." John D. 

Newsom, Assistant Secretary of the Louisiana Department of Wildlife and 

Fisheries, noted that "the state of the art in wildlife management has not 

advanced to the point that precise animal population numbers are possible, 

and more importantly it quite likely never will." Lonnie Williamson of the 

Wildlife Management Institute noted that the status of most wildlife "is 

monitored by use of population trend data and habitat analysis rather than by 

actual counts, which are extremely difficult and expensive." He characterized 

requirements to make reliable population estimates as entailing a ''wasteful 

expenditure of scarce funds." Randy Bowman, of the Wildlife Legislative Fund 

of America, went even further. He maintained that requiring population data 

"threatens the entire structure of wildlife management," and would "at best 

result in the diversion of thousands of scarce wildlife management dollars into 

the accumulation of worthless data." 

The Chairman of this Committee, who was then a senior member of the 

old Merchant Marine and Fisheries Committee, heard the complaints of the 

wildlife management professionals and played an important role in changing 

the law in response to those complaints. The result was enactment of section 

8A of the Endangered Species Act, which provides that the Secretary "is not 

required to make, or require any State to make, estimates of population size in 

making" the determinations required by CITES. In its report explaining the 

provision, the Merchant Marine and Fisheries Committee noted, as the wildlife 

professionals who previously testifted before it had done, that population 

information "is frequently impossible to obtain" and that to require it would be 

to impose a requirement "not based on sound wildlife management." 

Anyone familiar with the history of this issue will be startled to learn 

that the bill now before the Committee imposes exactly the sort of information 

requirements that wildlife management professionals earlier denounced as 

unnecessary, nearly impossible to meet, wasteful of scarce conservation 

dollars, and contrary to sound wildlife management practice. Indeed, the bill 

·imposes such information requirements not once, but at least three different 

times. Proposed section 4(b)(3)(a)(i) (page 75, lines 4-5) requires a petitioner to 

include in any petition to list a species "[i]nformation on the current 

population ... of the species." Proposed section 5(b)(2)(A)(4) (page 100, lines 

21-22) requires assessment and planning teams to assess "the current 

20-707 95- 11 
Testimony of Michael J. Bean 

September 20, 1995 

Page 5 

318 

population, and the population trend" of each endangered or threatened 

species. Finally, proposed section 5(c)(3)(C)(vii) (page 107, lines 3-8) adds to 

the law's existing requirement of objective and measurable criteria for recovery 

a specific requirement for a "population level target." 

The legislative imposition of these requirements will have exactly the 

same result as the judicial imposition of similar requirements had prior to 

1982: paralysis of the program due to the government's inability to fulfill the 

demands placed upon it. lf, as the Chairman and Congress concluded in 

1982, it was unnecessary, unrealistic, wasteful of scarce resources, and 

contrary to sound wildlife management practice to impose one such 

requirement then, it. is triply unnecessary, unrealistic, wasteful of scarce 

resources, and contrary to sound wildlife management practice to impose 

thrc:e such requirements today. 

3. HR 2275 Violates the First Principle of the Republlcan Polley 

Statement on the ESA: Insistence Upon Sound Science 

On August 1, the House Republican Policy Committee released a policy 

statement concerning reauthorization of the ESA. Its first. and most 

fundamental, principle was to insist upon the use of sound science 

throughout the implementation of the ESA. With that principle. I 

emphatically concur. Unfortunately. however, HR 2275 cannot be reconciled 

with that principle. The requirements described above for the gathering of 

information judged unnecessary, worthless, and wasteful by wildlife 

management professionals would be sufficient by themselves to demonstrate 

the flawed science at the root of HR 2275. Unfortunately, however, that is but 

one of many such examples, and hardly the most significant. 

_ A few other examples will reinforce the point that HR 2275 is so flawed 

in its understanding of science that it makes a mockery of the Republican 

policy statement. First. despite the drafters' evident desire to interject "peer 

review" into a variety of decision-making processes. it is clear that they have 

only a superficial understanding of how peer review actually works. Proposed 

section 4(b)(3)(A)(ill) (page 75,lines 8-14) requires anyone who petitions for the 

listing of a species to submit an affidavit identifying "the names of the persons 

performing the peer review'' of any "literature from scientific or other journals" 

submitted with the petition. That requirement is truly impossible to fulfill. 

Scientific journals do not divulge the identities of peer reviewers. either to the 

authors of the articles being reviewed or to others. Essential to the integrity of 
Testlmony of Michael J. Bean 

September 20. 1995 

Page6 

319 

the peer review process is its confidentiality. HR 2275 makes the impossible 

demand that that confidentiality be breached. 

Another eye-popping example is the requirement of proposed section 

4(b)(l) (page 59, lines 1-4) that, in making listing determinations, the 

Secretaxy must "accord greater weight, consideration, and preference to 

empirical data rather than projections or other extrapolations developed 

through modeling." This is exactly the approach Congress rejected in 1982 

when it recognized that the health of bobcat populations could better be 

determined inferentially by extrapolating from data regarding habitat 

availability, visits to scent posts, hunter trapping success, animal weight, and 

the like, than from direct measures of population size. Furthermore, the effect 

of this curious statutory requirement is to relegate the mathematical science 

of statistics to a second class status. Very frequently, empirical data will only 

have utility if their statistical signiflcance is known. Determining statistical 

signiflcance, however, requires the application of mathematical models built 

on assumptions (the most common of which is that a normal distribution of 

data will be along a bell-shaped curve). The bill, therefore, requires the 

Secretaxy to treat conclusions drawn from the use·of scientlflcally sound 

statistical tests as of lesser weight than those drawn from often nearlymeaningless raw data. 

A familiar example Illustrates the utter folly of this approach. Imagine a 

farmer who is trying to decide whether to incur the considerable expense of 

hiring a crop duster to apply a pesticide to his field. To make that decision · intelligently, he needs to know the extent to which a pest infestation exists. 

To check every individual plant in the field is impossible (and unnecessary). 

Instead, a random sampling of a few sites gives him the information upon 

which to extrapolate to a conclusion about the extent of infestation overall. 

He may decide to spray thousands of acres on the basis of having actually 

examined a few square meters of land. He may incur an expense of 

thousands of dollars on the basis of having seen only a dozen or fewer 

individuals of a particular pest. Decisions such as these are not only rational 

(and scientiftc), but they are made by farmers every day. HR 2275, however, 

would handicap the Secretary's ability to engage in similar rational decisionmaking. It would instead force him to base his conclusions primarily on the 

empirical data (the dozen individual pests on a few square meters of land), 

and only secondarily on statistically sound extrapolations from that data. 

Once again, therefore, the bill does exactly the opposite of what the 

Republican policy statement lritends: it frustrates, rather than furthers the 

use of sound science. 
Testimony of Michael J. Bean 

September 20, 1995 

Page 7 

320 

Another example that unmasks the bill's disregard of sound science 

concerns recovery plan goals. The only peer-reviewed study of recovery plan 

goals, a study that recently appeared in the American Association for the 

Advancement of Science's authoritative journal, Science, concluded that 

recovery plan goals have generally been set too low and are insufficient to 

assure meaningful recovery. In direct opposition to that conclusion, however, 

section 903(c) of HR 2275 arbitrarily prohibits, for a period of up to three and 

a half years, the Secretary from "requir(ing) any increase in any measurable 

criterion contained in ... a final recovery plan" already in existence. The only 

changes the Secretary can make under this provision are changes that lower, 

rather than raise, recovery plan goals. That restriction effectively prevents the 

Secretary from doing the very thing that the Science report indicates is clearly 

necessary. 

On other issues addressed in this bill, the nation's most prestigious 

scientific institution, the National Academy of Sciences, has already given 

Congress the benefit of its advice. This bill, however, consistently chooses to 

ignore that advice. In a 1990 report. Decline of the Sea Turtles, the Academy 

emphatically affirmed the scientific need for regulations requirtng shrimp 

fishermen to use gear that would reduce the drowning of sea turtles in shrimp 

nets. This bill repudiates that scientific conclusion and eliminates the legal 

basis for those regulations. Earlier this year, the Academy released another, 

more comprehensive report, Science and the Endangered Species Act. The bill 

before us today either ignores or rt<jects most of the conclusions and 

recommendations of that report. F1nally, the Academy.is expected soon to 

release a third report, this one on the problem of salmon in the Pacific 

Northwest. I expect that report will address the role of hatcheries in salmon 

conservation. I doubt, however, that it will contain the same uncritical 

enthusiasm for hatcheries evident in this bill. The overwhelming weight of 

scientific opinion today is that hatcheries have exacerbated the decline of wild 

salmon stocks in the Pacific Northwest. The bill, however, perpetuates the 

scientifically discredited 1930's view of hatcheries as an important part of the 

solution to the salmon problem. In short. the bill not only fails to fulflll the 

promise of the first principle in the Republican policy statement, but it clearly 

repudiates it. 

Attached to this testimony is an article that recently appeared in the 

journal Science. In it, the foundations for a scientically sound policy for 

protecting endangered species are described. The authors of this short article 

include the President-elect of the American Association for the Advancement 

of Science, Dr. Jane Lubchenko, the world's preeminent authority in the study 
Testimony of Michael J. Bean 

September 20, 1995 

PageS 

321 

of biological diversity, Dr. E.O. Wilson, one of the foremost authorities on 

chemical ecology, Dr. Thomas Eisner, my colleague Dr. David Wilcove, and 

myself. 

4. Certain provisions of HR 2275 simply make no sense. 

Whether through careless drafting or purposeful intent, certain 

provisions of HR 2275 simply make no sense. Take, for example, section 

1 O(a)(6)(B) (page 46, lines 11-18), which requires the Secretarv to issue an 

endangered species educational display or propagation permit to a person on 

the basis of the fact that such person has previously been authorized to kill 

blackbirds. This provision directs the Secretary to issue a permit (it does not 

say what kind of permit, but since the heading for the provision is 

"educational or propagation permits," that is presumably what is intended) to 

a qualified person who "has at least 10 permits in the aggregate issued 

pursuant to this Act or the other laws listed in subparagraph (H)." Among the 

many laws identified in subparagraph (H) is the Migratory Bird Treaty Act, 

and among the many permits it authorizes are permits for controlling 

depredation by blackbirds. Thus, the farmer who has been plagued by 

blackbirds and who has received at least ten permits to shoot them will 

doubtless be surprised to learn that he now is entitled to a permit to begin 

captive rearing of gtant pandas, chimpanzees, and other species. 

As another example, states can be delegated the authoritv of the Act 

with respect to endangered plants even though they have no conservation 

programs or legal authoritv to protect such plants. Proposed section 6(c) 

(page 133, lines 10-16) authorizes the Secretary to delegate "the authority 

contained in this Act with respect to species of fish, wildlife and plants" if it 

establishes and maintains an "adequate program." To have an "adequate 

program," a state must meet specified criteria (page 134, lines 3-25, and page 

135, lines 1-21) that pertain solely to wildlife. Thus, a state that meets these 

criteria for wildlife, and that has no programs or legal authority for the 

protection of rare plants, can be delegated the authority of the Act for both 

wildlife and plants. How delegation of authority to a state affects the Act's 

prohibition against taking endangered species is the subject of two mutually 

inconsistent provisions. Proposed section 6(c)(2) (page 135, lines 22-25, and 

page 136. lines 1-3) states that such prohibition is unaffected by delegation to 

a state. Proposed section 6(g)(2)(A) (page 140, lines 17-18) says exactly the 

opposite. 
Testimony of Michael J. Bean 

September 20, 1995 

Page9 

5. Conclusion 

322 

HR 2275 represents neither sound science nor effective conservation. 

The practical consequences described above are just a few of many that could 

have been offered to make the point that the bill strips needed protection from 

many highly imperiled species and subjects the administrators of the 

endangered species program to requirements that are unnecessary, needlessly 

complex, wasteful of scare conservation dollars, without scientific foundation, 

and inconsistent with the professed goal of improving the protection of 

endangered species. Moreover, HR 2275 is laden with inconsistencies and 

ambiguities that will invite repeated litigation over how the Act's 

administrators choose to resolve them. The flaws in this bill are many and 

serious. If the committee is willing to take the time to address them, a much 

better, more effective bill could emerge. 
323 

.POLICY FORUM . ..::.. _______ ~~~~::::! _____ _ 

Building a Scientifically Sound Policy 

for Protecting Endangered Species 

Thomas Eisner, Jane Lubchenco, • Edward 0. Wilson, 

David S. Wilcove, Michael J. Bean 

The primary legislative tool for protecting 

imperiled 

~ 

specie; in the United Smtcs is the 

Spcci" Act (ESA) oi 1973. 

Tho pending reaurhorization oi thia law lw spuked a fierce debate on the ~eience, eco. 

-and ethics oi ~ vanilhing 

specl<s; the ouu:ome oi the debo1< wiU In· 

fluenc:e domac:ic and intemational conatrvation policia for lUR- Recent advances 

in our scientific undemanding of biodiversity have undencor<d the impomnce of 

$pecics protection fot human welfare. Each 

species, by vinue of ia genetic uniquenes.s, 

is the source of information we can learn 

hom no ocher source. Species can provide 

us with novel molecules and new undersw.ding of genetic capacities. which can be 

used to fashion new agriculrural products, 

medicines, and other chtmitala of direct 

bmeiit to humans. Indeed, pi<>Opeetifta for 

biottnetic information could well become a ... ;or scicntif'lc exploratorY venrure of the 

it century. Species at.:> provide c:uential 

ecolori<al servica to humanity by ,..W.t· 

inc climate; cleansing water, soil, and air; 

pollinating cropa; maintaininc soil fertility; 

and performing other life • ....,.lning func. tiona (I). 

Oapite tM importanc:e of species to 

people, a siptiliant fraction oi the bioco oi the United States is at risk of extinction or abady loot. Somewhat In .. _ oi 100,000 

nad.ve species ( tem:strial and hah.water) 

have been deoaibed from the Untl<d Stata, including 22,150 YOKUiar plana: 

3110 vertobrotes; and (very ""''hly) 75,000 

inleca. Within thole taxa most c:arelully 

cl•ified and 1nodied to date, about 1.5'!6 of 

the species alive at the rum of the cerwry are now contidered to be certainly or prob.. 

ably extinct. Extinction estimates ranae 

from 0 in reptiles and gymno1pe11n1 to 8.6% 

in frahwatet mUDCis. In lhe:Je poup&, the 

overall percencqe o( species ranked as imperiLed or ~ is 22.2%, wid\ a peak of 

60.1'!6 in frah-ter m.-b (2). 

R.ecmt scie:nrific dilcoveria and assasa.r.~~tr.twllhlllc:lnOI~~Ccmll 

WWa.NY148153.USA.J L.t.D:fwlcoitin._ 

,. 

~~. ......,.ZDt::Jogy,.....,~ ~~sa.:~ CiitrOidlga. 

!138. USA. 0 . S. 'lttcolle_.,M,J. a.,.,. • ._ t. .. oiOI'mlnii!O....F\rd.1875~~ 

HN ~.OC200CJIJ.USA. 

ll'la\D provide valuable insights about endaneered species proc:ection (J). We focus on thtr:t issues: (i) Doe. the act protect the 

rtaht elemena of divenityl Shoukl the limited resources available for conservation be 

......... toword the prot<etion of hicher ccoloiicolleveb oi divenity, such u eco-

•-. .. ther thin toword the -- of lndividualspeciesl Shoukl protection encompass categOries below the species level 

(that b, to subopeci" and populatioN)? (ii) 

Have decisions tO clauify particular plana 

and animals as endanaereci been based on 

sound science? (iii) Can ecological and biogeographic knowledae be used to increase 

<he efficiency of the ESA! 

Whet Should Be Protected? 

Although the sral<d purpooe of the ESA ~ 

"to provide a rne:am whereby the ecosystems upon which endan,ered species and 

threatened species depend may be con- serwd," it atmnpa to do so by prot:ecting 

indivtdual speciel, sut:.pecics. and. in the 

cae of vcrtcbn.tes, distinct population segments. This focus on individual axa has 

come under increainc criticiam from thole 

who believe it to be an inefflcient and inef'ftttive means of safeauardinc bioqlcal 

divasity (<f). The sheu number of species 

praent in molt felions of the country and 

the lac.k of ecolocical infonnation about 

molt species are cited a lhe primary reuons 

foe thiitina CONti'Yition activities to higher 

leveb oi bioloeical orpnization. There are 

four •none reuoru for noc abandoning the 

u.ditional focus on individual species. (i) 

Because ec:osyatems are lea di.taete entitles, 

species provide a more objective means o( 

deraminina the location. site, and spacing 

of protected area necasary to con.erve 

biodlvmity. (ii) Population declines of individual species (foe example. freshwater 

I'1Uiels, perqrlne falcons) may indicate the 

praence: of stres1 to an ecosysmn before it 

~ olwiouo 1yotem wide. (iii) Individual ope· 

cia lft the source of new medicines. a,ricukunl procluca. and ,....OC infomwion 

uoeful tO humans. (iv) Although ecolosical 

servica are provided by ecc:Jiyltet1\S. individual species often play pivotal roles in the 

provision o( theac services ( J }. Efforts to 

proteCt declinin1 species an consistent 

with the goal o( protecting ecosyJtems. We 

SCI~ • VOL 268 • I SEPTEMMBER 199S 

strongly concur with recent reportS from 

(he National Rexarch Council (NRC) and 

(he Ecoloeical Society of America that emphulle the need to protect bcxh apecies and 

habitats; neither is a complete substitute for 

the other (J). 

Subapecies and distinct population segments of vertebrate~ have been protected 

by the ESA since its inception and currently constitute about 20% of listed taxa 

(5). Leglslation to reduce proteCtion for 

units below the species level has been 

inaoduced in Concraa and will be debated in the forthcomina reauthorization. 

Advocates of thia meuure aque that it 

will reduce the number of ESA-related 

conllica by r<duci"' the number of lial<d 

taxa and will allow the fedaal pvemmau to focus limited reiOUICel on the 

protection of full species. Althouch sympathetic to both concerns, we believe the 

current policy is aound because it facilitates the protection of 1enetic diversity 

within species and encourages people to 

act earlier to protect declininc species. 

rather than waitinc until all subspecies or 

populations of a liftn apecies are imperiled. Moreover, as noted In the NRC report, there is no scientific justification for 

protectinl populatioN only of vertebrates. 

Plants, for example, may differ chemically 

at the population level, reflecrina eenetic 

di~rences that may prove weful to humaru (6). 

Criteria for Llatlng 

Under the ac< pro<eaed specicl aro clasoi· 

fied as either "endanpred" or "tfuatened." Tho former includeo .. ...., specicl which ~ In 

danser oi extinction rhrr,..hout all "' a sig· 

nificant portion of its ranee"; the laaa- indudes "any species which illibly to become 

an endangaed speci" within the foc.oeeoble futuro. . . . " n- ...... _, deflni. 

tiona provide the Seaearr ol the Interior 

with conoidmlble ladaode In detonnining 

which taxa '""'""' proteCtion. Critia oi the aa allqe that nwnen:u taxa haw: been 

acaxded prorection hued on incomplete or inKCUI'2te information. 

'Theft is, however. little evidence that 

the Department o( the Interior has abused 

its authority by listinc wca that arc noc at 

risk of extinction. Since paiiiCt of the 

ESA, only 1 of ""'"' thin 950 proreaed 

wra have been removed from the endanaend list becowe s~t srudiel 

showed them to be more abundant than prmoo.ly thought <n. In foa..,.. speciel 

are listed when rhei.r populations are close 

to extinction. A recent study found that the 

median population sUa of taxa at time of 

listinc were only about 1000 individuals for 

animab and 120 individuals for plants; at 

least 39 plana were listed when 10 or fewer 

,.., 
individuals were~ known to survive (5). 

Where to Protect Endangered Species? 

The fear that the presence of endan~Kd 

SpKies will lead to restrictions on the use of 

private lands has spawned much of d~ 

backlash against the ESA. It is reasonable, 

therefore, to ask how imponant private 

lands are to endangered species protection. 

Approximately 50% of listed taxa occur 

only on state and local public lands, tribal 

lands, and private lands (8}. 

The current pattern of federal land ownership is imperfectly suited to pro~ecting 

biodiversity. Fedemllands are concenttaled 

in the western United States, including 

some areas with few imperiled species. Other regions that harbor high concentrations 

of localized, rare species contain little or no 

federal land. A carefully designed program 

of land exchanges becween the fe<kral govemmem, other public landholders, and private landowners could improve the federal 

portfolio from a biodiversity perspective 

while providing private land.ownen with 

relief from their endangered species obligations and compensation in kind at little or 

no federal cost (9). Such a program would 

not negate the need to protect endangered 

species on private lands, but it would reduce 

the impact of doing so. 

Improving the Process 

To argue that species conservation must 

remain a central goal in conservation is not 

to say how that goal should be met. New 

approaches with respect to both the scirna 

and economics of protecting biodiversiry 

could significantly improve the performance of the ESA. 

Prioririfi far prottction. Some ecosystems 

a~ more _endangered dum others and contain a large number of species found ~ 

else. Such hot spots are critical to conservation effortS because many {but far from aU) 

endangered species will occur within them. 

It is therefore most effective for the [)qmtment of the Interior to give priority to the 

identification and protection of such places 

by expediting the fonnal listing of imperiled 

species associated with them. Examples in 

the United States include the rain foresu of 

Hawaii, the sand ridge scrublands of cmaal 

Aorida, the d~rt wetlands of Ash Meadows 

in westem Califomia and eastern Nevada, 

and the rivers of the Cumberland Plateau 

and southern Appalachians (IO). The 50 

counties in the United States with ~ largest number of federally listed species, which 

together comprise about 4% of the nation's 

land area, contain populations of approximately 38% of all listed species (ll). 

When ecosystems are in a narural or 

1232 

324 

ocminarural stat<. d>< numbc< of spec;., S. 

expected to penis( is sy.srrmatically rt=lated 

to ara. A This species-area rt=lationship is 

~asS= cA1

, ~tis usually in 

d>< '""~!" of 0.2 to 0.4. dcpcOOmg oo d>< 

group and place. nu. tdatKlnslup impl;es 

that a tenfold incRase in habitat <Ra approximarely doublrs d>< numbc< of spec;., 

within it. An impon:ant consequena ci tM _........ .. labomhip ~ that lands protected 00 behalf of animab with Ia,.. home 

rancr:s or low population densities wiU ~ 

-d. facto~ Itt"""""""' other 

..,..... .mh smaller home """"' "' highet 

.-..... The ilq>onment of ""' lntmot can maximizle the effrimcy o{ its listing 

~by cogmng ouch ..... commonly ... 

fcmd to .. "umbtdla species" (11). o.hcr 

~ 

...,{ul aitnia Itt clcurmining priorities Itt 

include ""' ..,...... =logical role. taxonomic distinctiftneSS, and rttOV-

<rf pomuial (3). 

!"""'""' foo- pror.cDon. The ESA ,.1;., 

on fines and jail se1tences to punish or 

detet lwmful conduct. but it provi<l.. no 

incenl:iw$ (O ~ or reward beneficial conduct, such as restoring habitaa for endangered species. ~ in both the 

federal ta:1: codr and ~xisting subsidy programs could be used to dtis effect. 

For c:umple. to pay fedmtl estate taxes, 

inhmtnts of Ia,.. land holdings are occasionally foo:cd to sell. ...bdivU:, "' de..lop 

""'propeny, taulting in loosof wildlik habiCil. In cza ~ me property contains 

~species. ""' hein oould be gi .... 

""' opponun;ty to dda- pan of ""' estate rues by mrering into an endangered species 

,..,......., ag=mnu with ""' i)q>anmcnt of the lntaior. In orbrr cases, mdangeml species wiU peuist on a site only if the 

halmr .. aai>dy ~ 00 ""'"behalf. 

"The rxpensrs a5BOCialed with habitat man-

_., (Itt aample • ...,mbed ,.,., ... ld CWft:lldy tax deductible; if lhcy -=n:. 

man:: landowners would likd.y participatr in 

dtQns to recover endangered species. 

The fedtral goYmUDel\t funds a nwnber 

o{ incent:M:s prtJgJaiRS aimed at cnc:ountging 

........._ rancbets. and mWI woodlot owners 

to pnnct wetlands. forr:su. soils, and water 

quality ( 13). To datr. oo diOtt has targ<ted 

..,..... 

"""" """""'"' 

... likely to to """' benefit. w),.,. nu. ~ oould be 

dooe by simply modifying m. aitnia '"' eligibie lands or bv paying a premium Kw 

lands harlxxino endangered species. Such 

""""""'cannot wholly supplant m. ..,..Ia. 

toty ............... of ""' ESA. but they "'" limit ""' n<cd-b, and """"""' ""' flexibil- ity o{, such RqUilancnts. 

lhc ESA is scimtifD.Ily sound. A continued ktcus on ipttles prc:uction is neces-

""Y and appropriate and complemmt> m. proo:ction o( eoosysrems.. l1te effectiveness 

of tM act can be: improved by ~izing 

SCIFNCE • VOL 268 • I SEPTEMMBf.R 1995 

the protection of hot spots and umbrella 

species, by protecting disa~ring spr 

and ecosystems earlier, and by supplemt. ... • 

ing the law's regulatory requirements with 

economic incentives. 

REFERENCES AND NOTES 

1. C.Permgs.C. FQI(e.K·G. Maler.C.S.Holing.B-0 

Jansson, Eds., 8iodNefsity Loss: Ecological ano Econcmc Issues (Carrbridge \Jiiv. Press. Cam· 

bridge, 1994);H.A. Mooney.J. L..ubchenCO.R. Dirzo, 

O.Sala,Eds .• ~end~Fooction­

~.Sections5.-.d6,inR.Wat8onetiJ.Eds.,Giobel 

8i:lcMnify Asses:srnent (Canbndge l.lnl'l. Press. 

carrtr'dge,inpressj. 

2. Dalaoorurtllrsofspec:ial81nskd81di1ctionorreonly8ICIR:I:WEretakenlrom1hiiNationaii-IEdage 

Canll:lalabMes ollhe Nalu'e ConelrvMcy • ..knl 

1!112.lheautbttw"**rutt.oflntw«llll*:ias 

iscrt(.,..rn..lill!ltolhe~Rllt.nolamrraydalall:.es tor U.S. biota. cu- 8ltinilte is a con-

~CI"'II espec:&tyinvilwofthalackddea" 

eslmllesforgtq)SSI..Chasln;;IW'drric:roc:Jrglwl· 

ilm&.SeeatsoE. T. l..afbi.G.S.Faorts.C.E.Puckett 

P. D. Dora-t, M. J. Mac. Eds., OlilirgResollt::es: J. 

IQxfttolheNaliaflcntheD'strt:Uii:n~ 

tnJHetlllhdU.S.Pfants.Ani'n!llstn:J6::osystan(IJ.S 

[)epwtmenlolthe~ NationiiiBiological5a'vice. 

~OC 1995). 

3. NalionaiAesean::hCou"lcil. Scil!lnceandtheEIIdan· 

gBifldSpscissAct(NationaiAcadamyPress, Wash· 

~.OC.1995):C R.Garrolet8/I.,Ecoi.Appi. ,in 

.,.,.._ 4. J. F. Ffaridin. Ecol. Appl. 3. 202 (1993t, G. Easter· 

bmok.AMomenrMEBtth{\!101g,N8WYork. 1995}. 

5. D. S. \\flc:ove. M. Mc:Mian, K. C. \Yneton, Conserv. Bioi. 7, 87(19931. 

6. T.Eisrw,BioSc::i&nce42.578(1992). 

7. The 

~ 

tour taxa include three p1a-rts (Tumsm.... 

Astr'8gal\Js perianus, and Hedwnoa 

~andone~(Aoridapopulation 

ofHyflt&'ldllrscnli). 

8. B.A. Stein. T.Bnldan.R. Wt!llrW.inO!.rl..iWigR&-

.scuaJSisae(21J. 9. M~iSiheCdiarllrdedlll'lgfi8IJPR)IIfldbl.· 

Cc:1r9ess in 1988. in wtich the Depam1n: a/ the lnte· 

riel"wltrme 111 ac:rasinf'hoarilc.Mlore.lor 122,C:WX 

acres a/ prillale land in Florida The Florida llrd ....,. 

bemme part a/Big C)1)r8SS Ne6:nl F'rwlro'8 and two 

naticnllwHferelJgesMOwlpctacthabitatforthe 

endWlgeredfloriclapenther. WrdeKdWlgas noom· 

pl8l: tor rac:annendatiOn see National Ae98lrctl 

Qua. S6ftilg A1(riies lor Unt1 ConsarvatJon (Na-

.....N:tltltiJmfPre!ls.W8stWiglen.OC.1993j. 10. D. w. Lowe. J. R. ....___ C. J. ~- The 

OllciaiKtri1Wldiii!!Ft.lldGuicletoEnctangered 

Species c1 North AmM::a (Beec:ham. Wastingtofl. 

OC.19901. t 1. Oeta Cf1 OOU1ty oca.mn::es a/ ttnetenad and &"1· 

dangered species obtained from U.S. EPA's Office of P8Siici08 Progra-ns' EndWigerecl Species-ByColny USl, 31 March 1995. 0.. analysis is based 

cnkni:Wmoc::o.JITalC66ofie0er11tyliat.tspaaes lfl 

12. -"""" TherQ!hemspcttedo.\'I(Stm-o::odllntalsc.auTla · )iS 

an_,.o/.-.untlrelaapec:iea.OnellUClyconclua· 

ed .. 280speOBsolplwltsi'4ICUirsndnorwasc::Ua··l 

810 \Vteb8Ce awnals closl!lti associll8d wilh ole 

~fcreslsinlh8PacilcNol1hweslWCU:!bepro · 

tedldila1891!1'1oesys!emestlltilstedfortheowl. See 

J. ThomasattJJ., ·'ViabMy~sndi'Tllll1llglt' 

mont considBration$ lor spedea asaociated wilh latesux::.sional and old.gowlh fcr8sls ol the PacifiC Ncx'llMst'. (I.JSilA Forest SaMoa. W8!t*Jglcn. oc:. 

13. Ellamplas '"""· of such programs ilduda the Conse 

tionRaerve~.Willlar'OsResetlleProgrc. 

W..OualilylncentMirs~.andForastL.ega· 

14. """""""We lt'lafV( M· . McMilan lor dala ~and A. R. 

Blausteilfl. T . .Janetos. S. A. Levin. T. E. LovejOy. G. 

Orians.O. Poicansky,G. B.Rabb.J. Reic:tmwl. !W"'Id 

C. D. TrowbridgeklrhelplulconYI'WintS. 
325 

Supplemental sheet for the Endangered Species Act testimony of: 

Michael J. Bean 

Chairman, Wildlife Program 

Environmental Defense Fund 

1875 Connecticut Avenue, NW, Suite 1016 

Washington, DC 20009 

(202) 387-3500 

Summary of Testimony: 

1. The Practical Consequence of HR 2275 Will be the Denial of Effective 

Protection for Many of Our Most Imperiled Wildlife Species. 

A. Smugglers of rhino hom, elephant ivory, and other wildlife 

contraband will find it much easier to thwart law enforcement efforts. 

B. The oil industry will no longer be required by the Act to take any 

measures to avoid killing sea turtles and other endangered species in its 

outer continental shelf operations. 

C. To continue on the successful path toward recovery of the bald 

eagle. numerous costly and unnecessary procedures must be carried 

out. 

D. The governments of Rwanda. Burkina Faso, Uganda, Tanzania, 

Burundi, Angola. and more than 20 other African nations would all 

have to consent in writing to strengthen protection for the African 

elephant by moving it from the threatened list to the endangered list. 

2. HR 2275 VIolates Basic Principles of Wildlife Management. 

3. HR 2275 Violates the First Principle of the Republican Policy Statement on 

the ESA: Insistence Upon Sound Science. 

4. Certain Provisions of HR 2275 Simply Make No Sense. 

A. HR 2275 requires the Secretary to issue an endangered species 

educational display or propagation permit to a person on the basis of 

the fact that such person has previously been authorized to kill 

blackbirds. 

5. States can be delegated the authority of the Act with respect to 

endangered plants even though they have no conservation programs or 

legal authority to protect such plants. 
AMERICAN 

FOREST Be 

PAPER 

ASSOCIATION 

326 

1111 ,s-, ... s""~E£, ,.\1\, _ !IJ'"E e:o~ \'l.•s ... ,,G,.c-... _ oc: i::!~ 

~ .. 0,[ 2~2 .i~!-:;:'7C.C CE•4C'T',!['T F'Ax ~:,4 0:~!-.:.:..:: 

TESTIMONY OF W. HENSON MOORE 

President and CEO 

American Forest & Paper Association 

On Behalf of 

American Forest & Paper Association 

and 

Endangered Species Coordinating Council 

on 

H.R 2275 

OFFICE OF' THE PR[SIO[ '" ":' 

"Endangered Species Conservation and Management Act of 1995" 

September 20, 1995 

Before the 

Committee on Resources 

United States House of Representatives 
327 

STATEMENT W. HENSON MOORE 

Mr. Chairman and members of the Committee, thank you for the opportunity to testify 

today on H.R. 2275, the "Endangered Species Conservation and Management Act of 

1995." 

I am W. Henson Moore, President of the American Forest & P~er Association. 

AF&PA Is the national trade association of the forest, pulp, paper, paperboard, and 

wood products industry. We represent approximately 450 member companies which 

grow, harvest and process wood and wood fiber; manufacture pulp, paper and 

paperboard products from both virgin and recovered fiber; and produce solid wood 

products. The association is also the umbrella for more than 60 affiliate member 

associations that reach out to more than 10,000 companies. AF&PA represents an 

Industry which accounts for more than eight percent of total U.S. manufacturing 

output. It directly employs about 1.4 million people and ranks among the top 10 

manufacturing employers in 46 states. 

I am also here today representing the Endangered Species Coordinating Council. The 

ESCC Is a coalition of more than 200 companies, associations, Individuals and labor 

unions involved in ranching, mining, forestry, manufacturing, fishing and agriculture. A 

current list of members is attached. We seek to provide workable procedures and 

positive incentives in the Endangered Species Act which promote conservation of 

wildlife in a way that considers economic factors and respects the rights of private 

property owners without impairing its fundamental commitment to protect listed 

species. 

First, I would like to thank Chairman Don Young and Rep. Richard Pombo, the 

Chairman of the Committee's ESA Task Force for introducing H.R. 2275 which will 

bring much needed changes to the operation of the Endangered Species Act. We 

fully support your efforts. We also appreciate your efforts to provide additional 

incentives and funding for endangered species conservation by introducing H.R. 2284 

to establish a "Conservation Habitat Reserve Program;• H.R. 2285, the "Theodore 

Roosevelt Commemorative Coin Act" for funding purposes; and H.R. 2286, which sets 

out several tax Incentive programs. 

Congress enacted the Endangered Species Act to protect endangered and threatened 

species, a goal which we support. We believe the principles behind the Endangered 

Species Act represent those qualities which make our society the finest in the world. 

However, believing in these principles and writing a law that works are two entirely 

different matters. Frankly, this law Is broken and does not work. 

As Hs operating premise, the Endangered Species Act mandates protection of the 

spades to the point of its recovery, without regard to the Interaction of these steps 

with the rest of society. Humans are part of the diversity of nature and are one of the 

natural elements that is capable of causing changes, sometimes dramatic change, In 

the environment. Humans have modified the natural environment In North America for 

hundreds, If not thousands, of years. A recent example Is the virtual elimination of fire 
328 

from the environment In the Southeast A number of species, some of which are now 

listed under the Endangered Species Act, were dependant on these fires for their 

existence. It would be sheer folly to require by law that these species be recovered 

because that would mean the return of the widespread fires upon which the species 

thrive. Yet, that is the literal mandate of the Endangered Species Act. 

H.R. 2275 contains several key provisions which we believe are essential to provide 

for a workable Endangered Species Act: 

• giving the Secretary of the Interior the discretion to choose the appropriate 

conservation objective for each listed species; 

• providing a compensation mechanism for private landowners; 

• improving the quality of the science to be used for listings, critical habitat 

designations and consultations; 

• bringing efficiency and fairness to the consultation process; 

• defining "take" in a manner that provides certainty and avoids speculation; 

• recognizing the important multiple use values of national forest lands and public 

lands; and 

• establishing incentives for private landowners to work with conservation rather 

than against it. 

Secretarial Discretion. Under the current law, the Secretary of the Interior must 

strive to recover each and every species that has been listed as endangered or 

threatened, currently over 900 in the United States alone. The current law does not 

allow the Secretary to take into account biological factors, available financial and other 

resources, or the social and economic impacts. Rarely, if ever, does the Secretary 

consider alternative methods of recovery, but rather is compelled to pursue recovery 

"whatever the cost.· 

Eliminating this concept will allow the Secretary to allocate scarce resources where 

they will do the most good and to alleviate some of the more outrageous social end 

economic dislocations. These will be accomplished in three ways. First, the 

Secretary must actually assess the biologic condition of the listed species, the cost of 

management as compared to resources realistically available, the social and economic 

impacts of species management and other factors. Second, the Secretary may select 

a conservation goal that is consistent with these assessments. Finally, the Secretary 

must develop alternative strategies to achieve the conservation objective, which will 

allow further adjustment for available resources and impacts. 

An important provision in the bill sets a baseline conservation objective which requires 

the Secretary to protect all listed species from intentional take and commercial 

2 
329 

exploitation. We would expect this authority to be used only In extreme cases where 

intervention is considered inappropriate. 

Compensation. The Fifth Amendment to the Constitution of the United States 

guarantees every citizen just compensation if the government takes their property for a 

public purpose. In 1973, Congress declared protection of endangered species to be a 

proper public purpose. Unlike other environmental laws which merely regulate how 

activities are conducted on private lands, the presenca of listed-species on your land 

often means that you are unable to conduct any activity. It Is unfair - it is unAmerican 

- to impose the cost of carrying a public purpose on a few unlucky citizens. 

H.R. 2275 recognizes the inherent unfairness In this practice and resolves this 

unconstitutional burden by establishing a compensation mechanism for landowners 

whose property loses at least 20% of its value as a result of the operation of the 

Endangered Species Act. A statutory compensation requirement gives landowners the 

knowledge that if all else fails, the government will be responsible for the public 

purpose of species protection. This will allow those who believe that they have a 

stewardship responsibility, as our industry does, to work with the law as much as 

possible. This provision is essential for the other incentive measures to work. 

Quality Science. We applaud the decision to continue to assure that listings are 

based on science. While we have disagreed on occasion with the science that has 

been used, we nonetheless believe the listings must be kept in the scientific arena. 

However, H.R. 2275 provides several important and needed Improvements: 

a peer review process for listings, delistings, critical habitat designations and 

consultations; 

an emphasis on empirical data over models; 

a definition of "best scientific and commercial data available;" 

• identification, and public availability, of data used for the determination; 

• identification, and subsequent collection, of data which is necessary for the 

continued validity of the determination. 

The Administration has identified several of these provisions as important elements of 

competent implementation of the Endangered Species Act. Done properly, they 

should not cause any delay in the listing process. 

H.R. 2275 contains two other amendments which will improve the public accaptance 

that credible science is in fact being used. The first is the elimination of deadlines for 

the review of petitions to list species. For too long, petitions have driven the priorities 

for review of species precisely because the Secretary must place any species that is 

the subject of a petition at the top of the list for review. H.R. 2275 also sets standards 

for the information that must be set out in a petition. 

3 
330 

Second, H.R. 2275 restricts the listing of population segments to Congress. No longer 

may the Seaetary engage in the often controversial practice of listing a population of 

a species just because it lives in the United States, even though It Is abundant 

elsewhere. The Secretary will have the authority, of course, to recommend that 

Congress designate by law that a particular population Is of •national interesr and 

should be listed under the Endangered Species Act or have Its own statutory 

protections. This has been done In the past for that great symbol of America, the bald 

eagle. Moreover, species' populations which are currenUy listed. such as the 

populations of bald eagle, grizzly bear and grey wolf in the lower 48 states, would 

continue to be listed. 

Consultation on Federal Actions. H.R. 2275 addresses three issues which have 

caused particular problems for industry: delayed and repetitive consultations; the 

status of "applicants" and programmatic consultations. In each of these areas, we are 

pleased that the Committee's Endangered Species Act Task Force aafted workable 

solutions after hearing testimony throughout the nation. 

For delayed and repetitive consultations, the bill sets a strict time limit for completion 

and eliminates multiple consultations if critical habitat is subsequenUy designated. 

The Fish and Wildlife Service has stated that most consultations are currently 

completed within 90 days, so this strict time limit should have litUe impact other than 

to act as encouragement for the agency to continue Its good work. Similarly, the 

Service has recognized that the consultation on jeopardy to the species is the critical 

analysis. 

H.R. 2275 provides real opportunities for applicants to have a substantive role in the 

consultation process. Not all applicants will avail themselves of this, of course, but we 

thank the Task Force for recognizing that statutory support is needed for those 

applicants who desire to participate. 

Finally, the bill eliminates the monkey wrench which the U.S. Court of Appeals for the 

Ninth Circuit has thrown into the management of the national forests. In its Pacific 

Rivers Council decision (30 F.3d 1050), that court ruled that all timber harvesting 

within a forest must cease and no sales may be held when a new species is listed 

until the Forest Service consults with the Secretary on the forest management plan. 

In the Ninth Circuit's view, consultation on each sale Is not sufficient. H.R. 2274 

recognizes this as unnecessary red tape that has nothing to do with species 

protection. 

Redefining •Take. • The Endangered Species Act and regulations prohibit the "take" 

of a fish or wildlife species by any person. This is the principal means of regulating 

activity on private land. The statute defines "take" as "harass, harm, pursue, hunt, 

shoot, wound, kill, trap, capture, or collect," or any attempt to do so. The Seaetary of 

the Interior defines "harm• in Its rules as •an act which actually kills or Injures wildlife 

... [including) significant habitat modification or degradation where it actually kills or 

injures wildlife by significanUy impairing essential behavioral patterns .... • 

4 
331 

Unfortunately, the courts and the Secretary tend to ignore the •actual injury• 

requirement In practice and base enforcement on speculation rather than fact. Thus, 

federal courts ordered the State of Hawaii in the ~ cases to remove all feral sheep 

from state land because their presence II!19.!:!1Impede recovery of a bird listed under 

the Endangered Species Act and mi9.!:!! lead to extinction of the bird 100 years from 

now. These expansive precedents serve as the basis of citizen suits against 

landowners under the Endangered Species Act. In Oregon, the Secretary has sued a 

private landowner alleging that proposed harvesting of a 71-aCFe patch of timber would 

"harm• a northern spotted owl pair that nests over one and a half miles away. 

However, the government has been unable to document owl use of the property In 

question. As a result of these Interpretations, the public for many years has been 

under the misapprehension that the Endangered Species Act prohibits habitat 

modification of any kind. 

Much of this speculative enforcement may be alleviated if the Secretary follows the 

letter of the Supreme Court's decision in Babbitt v. Sweet Home Chapter of 

Communities for a Great Oregon. The Supreme Court held that habitat modification 

by itself does not violate the Endangered Species Act, but must be the proximate 

cause of an actual death or injury to a member of a listed species. Justice O'Connor, 

in her concurring opinion, emphasized that the death or Injury may not be speculative 

or hypothetical. Justice O'Connor also invited Congress to revisit this issue if further 

clarification is needed. 

The Task Force has accepted Justice O'Connor's invitation and redefined "harm" in 

the statute Itself. The new definition states more strongly than the Court was willing to 

that there must be a direct action causing an actual death or injury to a member of a 

listed species. Neither the Secretary nor a court may find "take" based on Inaction, on 

hypothesis, or on speculation. 

Multiple UseiDiverslty. Congress has stated twice in the past thirty-five years that 

the national forests must be managed for multiple use. In the Multiple Use-Sustained 

Yield Act of 1960 and again in the National Forest Management Act of 1976, 

Congress emphasized that no single use of the forest, whether it be timber harvesting 

or preservation, should direct forest management (unless ordered by a statute such as 

the Wilderness Act), but rather management must recognize and balance a number of 

uses, Including wildlife. 

H.R. 2275 continues this policy In the establishment of the "National Biological 

Diversity Reserve" on federal lands within units of the single-use, conservation 

systems such as national parks, wildlife refuges and designated wilderness areas. 

Wildlife concerns will continue to be part of multiple use management on national 

forest lands but diversity considerations on those lands are subordinate to the 

Reserve. The bill also recognizes that while it Is appropriate to adjust forest 

management where a listed species Is likely to be jeopardized, other wildlife concerns 

should remain one of several multiple use considerations. 

5 
332 

With respect to establishment of the "National Biological Diversity Reserve," we 

strongly recommend that the Committee proceed with caution. Too often, new 

programs dedicating Federal lands to a particular purpose have, over time, grown well 

beyond the original intent. Moreover, it is not dear whether the bill protects existing 

resource permitees who currenUy conduct activity on some conservation system lands. 

Incentives. Encouraging voluntary cooperation In species conservation Is critical for a 

viable endangered species program. Too often, the law and the Fish and Wildlife 

service treat private landowners as the enemy rather than the solution. We are 

pleased to see that not only does H.R. 2275 contain numerous provisions designed to 

encourage landowner cooperation but that Task Force Chairman Richard Pombo has 

Introduced two other bills for this purpose: H.R. 2284, containing several tax Incentive 

proposals; and H.R. 2286, containing a conservation habitat reserve program. 

An important element of H.R. 2275 is the recognition that money Is not the only 

incentive. Regulatory relief to remove the adversarial nature of the law also provides 

incentives for cooperation. Thus, the bill provides for voluntary private consultation, 

technical assistance to landowners, cooperative management agreements and land 

exchanges in addition to habitat reserve grants. 

Conclusion. I have summarized just a few of the needed changes to the Endangered 

Species Act which will transform this statute from the "pit bull of environmental laws• 

to a law that actually achieves wide support for species conservation. I should also 

note that we support the provisions in the bill which greatly enhance the role of the 

States in this effort, including the opportunity to obtain delegation of program 

management. 

Based on our experience over the last 22 years. this law has caused unnecessary 

economic and social dislocations while at the same time has recovered few species. 

We support H.R. 2275 and believe it will remedy these problems within the framework 

of the original law. 

On behalf of the American Forest & Paper Association and the Endangered Species 

Coordinating Council, I appreciate the opportunity to offer our views on H.R. 2275, the 

"Endangered Species Conservation and Management Act of 1995." I would be happy 

to answer any questions you may have. 

6 
333 

Endanae!'!d SD!Cin Coordlnatina Council Members 

(248) 

American Forest & Peper Assn 

American Sh!!p Industry Assn 

American Soybean Association 

National Assn of Manufacturers 

National Assn of Wheat Growers 

National Cattlemen's Assn 

National Com Growers Assn 

National Cotton Council 

National Fisharies Institute 

National Mining Association 

Coalition of Oil & Gas Associationll 

ACCORD (Arizona Citizens Coaltion R8IIOUI'C! 

on Decisions) 

Addoco, Inc. 

Alabama Forestry Assn 

Alabama Lamb, Wool & Mohair Assn 

Alaska Forestry Assn 

Alaska Mining Assn 

Alaska Wool Producers Assn 

Allegheny Hardwood Utiization Group 

Alpine Engin!!red Products 

American Iron Ore Assn - Cleveland, Ohio 

American Plywood Assn 

American Pulpwood Assn 

American Sheep Industry Women 

American Wood Preservers Institute 

Amos-Hill Associates 

Appalachian Hardwood Manufacturers 

Aristokraft, Inc. - Jasper, ln., Crossvile, Tn. 

Arkansas Forestry Assn 

Arizona Cotton Growers Assn 

Arizona Wool Producers Assn 

Arizona Cattlegr-ers Assn 

Associated Oregon Loggers, Inc. 

Atlas Pallet Corp. 

Backcountry Horsemen of Washington, Inc. 

B.A. Mullican Lumber & Manufacturing 

B.L. Curry & Sons, Inc. 

Balfour Land Co. 

Bell Fibre Products 

Bibler Brothers, Inc. 

Black Hill Regional Muliple Use Coaltion 

Black Hills Forest Resource Assn 

International Assn of Bridge, Structural and 

Ornamental Iron Workers 

International Brotherhood of Painters and Ailed 

Trades 

International Longshoremen's Assn 

International Union of Operating Engineers 

lntemllliouel Woodworkers of Americe 

United Pap&IWOrkers International Unlon 

Utiily Workers Union of Americe 

United Brolherhood of Carpenters end Joiners 

ofAmerice 

Assn of Western Pulp and Paper Workers 

••••• 

Brownlee Lumber, Inc. 

Calfomia Cattlemen's Assn 

Calfomla Foreslly Assn 

Calfomia/Oregon Miners Assn 

Calfomia Wool G.--ers Assn 

Cardac:o - An Alcoa Co. 

Chalenger Pale! and Supply, Inc. - ld. 

Cherry tu Wood Products, Inc. 

Cinton Palet Co. 

Coaslal Lumber Co. 

Coast Range Conifers 

Colorado Calllemen's Assn 

Colorado Mining Assn 

Colorado Tllllber Industry Assn 

Colorado Wool G.--ers Assn 

Conex Forest Products 

Conlinentel Ume Inc. 

Cullan&, John 

Delawant Sheep & Wool ProdUC&fS 

DenPak Building Products, Inc. 

Denver Reel & Palet Co. 

Dixon Lumber Co. 

Dougllls Tll'llber Operators 

Duo-Fast Corp. 

East Peny Lumber Co. 

Econotool 

Export Corporation 

Fann Cnldlt Bank of Texas 

Florida Calllemen's Assn 

Florida Forestry Assn 

Florida Sheep Industry 

Forest Farmers Association 
Garnett Co. 

Georgia Cattlemen's Assn 

Georgia Forestry Assn, Inc. 

Georgia Mining Assn 

Georgia Sheep & Wool Producers 

Granite Hardwoods, Inc. 

Groves Pallet Co. 

Haag, William S. - Kodiak, Alaska 

Hallwood Ent. 

Hardwood Manufacturers Assn 

Hurder, Paul 

Idaho Cattle Association 

Idaho Mining Assn 

Idaho Wool Growers Assn 

lhlo Sales and Imports 

Illinois Lamb & Wool Producers 

Independence Mining Co.,- CO 

Indiana Sheep Industry Assn 

Industrial Pallet & Packaging Co. 

Intermountain Forestry Industry Assn 

International Association of Drilling Contractors 

Interstate Pallet Exchange, Inc. 

Iowa Cattlemen's Assn 

Isaacson Lumber Company 

Jay Dee Transport Co. 

Johnson Industries 

Kentucky Beef Cattle Assn 

Kentucky Forest Industries Assn 

Kentucky Sheep & Wool Producers 

Kitchen Cabinet Manufacturing Assn 

Kingsberry, Dennie 

Lake States Women in Timber 

Lavelle Building Materials 

Lewis, L.G. and Batte- Richmond, VA 

Litco Inti 

Louisiana Forestry Assn 

Louisiana Sheep Producers Assn 

Love Box Co. 

Mr. & Mrs. Gerald Lucas 

Lumberman's Assn of Texas 

Manufacturers Wholesale Lumber 

Mason, Tad - Redding, CA 

Marriott's Incorporated - Canyonville, Or. 

Massachusetts Federation of Sheep Assn 

Merillat Industries, Inc. 

Mezquite Madaras Procasados (NWPCA) 

Michigan Assn of Timberman 

Michigan Cattlemen's Assn 

Michigan Forestry Assn 

Michigan Resource Alliance 

Michigan Sheep Breeders Assn 

Mid-America Lumbermen Assn 

Mid-Ohio Wood Products 

Misaitsippi Cattlemen's Assn 

Misaitsippi Forestry Assn 

Misaiesippi Sheep Breeders Assn 

2 

Missouri Cattlemen's Association 

Missouri Forest Products Assn 

Missouri Sheep Producers 

Mitchell Veneers 

Montana Stockgrowers Assn 

Montana Wool Growers Assn 

Melvin Morris, Hawthorne, Cal. 

Mullican Jr., Mr. and Mrs. Bill A. 

National Lamb Feeders 

Narl Lumber & Building Material Dealers Assn 

National Particleboard ANn 

National Wood, Window & Door 

National Wooden Pallet & Container Assn 

Nebraska Cattlemen's ANn 

Nebraska Sheep Council 

Nevada Cattlemen's Assn 

Nevada Wool Growers 

New Hampshire Sheep & Wool Growers 

New Jersey Wool Growers ANn 

New Mexico Cattle Growers 

New York Empire Sheep Producers Assn 

Nor-Cal Moulding Co. 

Noranda Exploration 

North American Wholesale Lumber Assn 

North Carolina Forestry ANn 

North Carolina Sheep Producers 

North Dakota Lamb & Wool Producers 

North Dakota Stockmen's ANn 

North Star Lumber, Inc. 

Northeastern Loggers' Assn 

Northam Michigan Veneers, Inc. 

Northwest Forestry Assn 

Northwest Reforestation 

Northwestern Public Service Co. 

Oelze, Kim 

Oklahoma Sheep & Wool 

Oregon Forest Industries Council 

Oregon Forest Products Transportation Assn 

Oregon Sheep Growers 

Pallets Inc. 

Pallox, Inc. 

Paragon Corporation 

Paul Bunyan Products 

PFSITECO 

Pennsylvania Sheep & Wool 

Porter's Wood Products, Inc. 

Powell Industries, Inc. 

Prerndor 

Professional Reforestation of Oregon, Inc. -

Cooe Bay, OR 

Public Lands Council 

Putting People First 

Ranier Pallet Corporation 

Reel lumber Service 

Rhode Island Sheep Cooperative 

Richardson Brothers Co. 
Richins, Robert and VK:toria 

John Rock & Co. 

Savanna Pallets, Inc. 

Scott Pallets, Inc. 

Sheep Producers Assn of Hawaii 

Shipshwewana Hardwood& 

Sierra Care 

Simplot Co. 

Sonoma Pacific Co. 

South Carolna ForasiJy Assn 

South Carolina Sheep Industry Assn 

South Dakota Cattlemen's Assn 

Southeastam Lumbar Manufacturera Assn 

Southam Cypress Manufac:lurars Assn 

Southam Forest Produds Assn 

Southam Oregon Timber Industries Assn 

Southam Pallet, Inc. 

Southam Timber PurchaHrs Council 

StarMark Inc. 

Stewards of Family Farms, ~ & Forest 

Tennessee Shaap Producers Assn 

Texas Cattle Feeders 

Texas Forestry Assn 

Texas Shaap and Goat Raisats 

Texas & Southwestern Cettla Raisan5 Assn 

Texas Wildlife Assn 

Thomasson Lumbar Co. 

Timber Producers Assn of Mich. and Wise. 

Tumac Lumber Co. 

Tuolumne Chapter of Western Mining Council 

United Forest Familes 

Upham & Walsh Lumber 

Utah Cattleman's Assn 

Utah Mining Assn 

Utah Wool Growers Assn 

Virginia Shaap Federation 

Washington Cattleman's Assn 

Washington Forest Protection Assn 

Washington Wool Growers Assn 

Western Forest Industries Assoc. 

Western Mining Council 

Western Pistachio Assn 

Western Utah Mining Council 

Western Wholesale Moulding, Inc. 

Western Wood Products Assn 

West Virginia Cattleman's Assn 

West Virginia Shepherds Federation 

Wisconsin Box Co. 

WISconsin Shaap Braaders Assn 

The Wood Company of Oxford, Inc. 

WoocHvlizer Products, Inc. 

Woodgrain Millwork, Inc. 

Wyoming Timber Industry Assn 

335 

3 
336 

Center for Marine 

~ ConServation 

STATBIIBNT OP '1111. ROBERT IRVIN . DBPU'l'lt V:tCB: PRBSIDBNT FOR · MARINE WILDLIFE AND PISBBRIBS CONSERVATION CBNTBR POR· KARINB CONSERVATION . . 

· Before the 

COMNITTBB ON RBSOORCBS 

PNITBD STATES BOOSB OP .RBPRBSBNTATIVBS 

. Concerning 

B.-R . . 2275 

TBB ~GBRBD SPBCIBS CONSERVATION AND MANAGBMBNT ACT 

SEPTEMBER 20, 1995 

Mister Olainnan and Members of the Colllll)ittee, on behalf of the Center for Marine 

Conservatiori, I am pleasCd to have this opportunity to address the reauthoriz3tiori of .the 

Endangered Species Act (ESA) and, In particular, H.R. 2275, the Endangered · Spe(:ies . 

·. Conservation and Management Act: In my testimony tnday, I will briefly review ihe ESA's ·. 

· RcJm!. of success, address the serious shoru;omiilgs of H.R. 2275, and offer some suggestions· for · 

responsible improvements to the ESA which, unlike H.R. 2275, would address concerns that have 

arisen about the ESA while ensuring ihat it remains an effective iaw for conserving lhreat<:ned · 

and endangered species. · 

THE ESA'S RECORD OF SUCCESS 

.Reauthorization of the ESA is one of the most imporomt environmental issues.faeing this · 

Congress. The ESA embodies a solemn commitment to ourselves, our. children,-and the world 

to pass on to fUture generations a rich heritage of biological diversity. Mister Chairman, what 

this Congress does to the ESA will be felt ·not only by . those · of us livi.Dg today, but (or 

generations to come: · · 

At a time · when · some in this Congress are intent on rolling back progress made-in 

protecting the environment over the past quarter century, we sometimes forget that .this progress 

has been the result of strong bipartisan-cooperation. The ESA was enacted by. overwhelming 

bipartisan majorities in. Congress and signed-into law by a Republican President, Richard M . . 

N"IXon. in December 1973. It has been reauthorizi.d three times; each time by large bipartisan 

majorities in Congress. Those reauthorizations were signed into law by Democratic President, 

Jimmy Carter, in 1978, and by Republican President Ronald Reagan in 1982 and 1988. T])e · 

present Speaker of the House, Mr. Gingrich, has been counied among the ESA's strongest 

I 725 DeSales Street. NW. Ste. 500 Washington. D.C. 20036 12021 429·5609 Telefax 12021 872.()619 

0 Printed on lOCI% pos~·consu mer, ·unbleached, recycled paper 
Swr:inent of WDL Robert Jrvin 

c:.:..= fer Marine COIIR<nlion 

Pqe2 

337 

suppcru:n _,_. tbc yars. Many Mc:mbasilf Ibis~ oo both sides of tbc aisle, have 

been. and coalinue to be. 11111111 SllpiiOIIaS af.tbc ESA. Ia sbort. Misla"·Oiainnan. maintaining 

a strooc ESA is not a RepublicaD issue er a Dl:lnocDii: isiue-it is an American issue. This ·is 

born out by poDs which COIII:illue to show 11111111 support 11110111 tbc American people, reganlless 

of party lffi1iarioo, fer ~ eadupnd species aad foe tbc ESA. 

Mainlainin& a strooc ESA is m...-io out Nalion bcl:au& in a very rCa! ~ the 

ESA proliOCIS_ US. Nearly IWf -.,.. out J*c:auipii&a mOdicines m: daived from plarits and other 

wildlife. You may have ~ af tbc rusy pcriwiatlc, a flowaing plant native to Madagascar, 

where much af iD IWIInl IWmt las beca cleslroyed. NoW powD in nurseries, this innocuous 

plut is used to produce tbc clnap V'IIICiistine aad V'IIIIUsaine, wbicb IICbicYe a 99 peri:ent 

remissioa rue in c:bildR:o suffaing from k:ub:mia. Closer to borne, tbc badt of dxoPacific yew 

tree, naDve to tbc endanpnd ancient bat ccosy$lr:ms of tbc Pacific Northwest, produces raxol, 

which bas proven to be tbc most d&:ctive 11a1m1:11t foe advancal ovarian canccc. The Houstor> 

u.d. 1n eadu,aal species. pnxluca albiDids diu may be usdul in preventing heart atiacks. 

Various stocks of salmoa, including _....,_. sockeye salmoa, coatain Omega-3 fatty acids 

dw c:ao reduce bigb blood J111Sft laid cbolo:sll:lal aad may be usdUI in lieating arthritis. By 

proeectinc species like these and tbc babiJIIIS oo which they and ~ species depend, the ESA 

pRsave$ our abi1i1J to discove>- tbc medical mindes. dw lay bidden in natllre. · 

The ESA' s role in proiCCting lliolagical divenity is also essential to agricultUie. The 

world relics oo only about 20 af tbc ~ 2so,ooo idcntitic4 pl3nt specieS for 90 pen:Cnt 

of our food supply. JUSl3 species- cora, wbcal, aad ril:e- provide half tbc _world's food. This 

incredibly cbin reed 00 which ..__ ..-viva~ dqlcads" is . susceptibic. to devastating insect 

infeswioos and blights. Oue of tbc besnrays to pr.-:t clomesticaled crops from sucb disasters 

is to crosstRcd diem with wild varieties. Ia die 1970's, a com blight in tbc United States was 

c:omrollcd by crosstRcding domeotiuiiDi:d com with a wild variety from Mexico. In 1992, 

~ JJR*Cied clomesbc wbc:al from a .banQfal leaf iust by crossbn:eding it with a wild 

variay from BnziL By proiCCting species like tbc eDdaDpnd Texas wild-rice, which could hol!l 

tbc key to c:omrullinc....., t=n lblal toG cS1·med ria: aops. tbc ESA proiCCtS our ability 

to combat lbreats to qril:altiR lad. ~.ear survival. . 

Allboup tbc ESA bas oflleD beca c:aricaluRd a a law dw Costs jobs. it is, in fact, a Ia;., 

dw J1111Ci0C1S jobs. As. Mr. Glea Splia af tbc Pacific Coat Fcdciatinn of FJShelmen's 

Associ•rions wiD lell you lillday. in 1bc Pacific Narlb'wcsr, tbc ESA's prou:ction of endangered 

salmoo raas is essential to proiCCting a caamadal aad ia:latiooal fisliing industry providing 

60.000 job& aad Sl billioa -oy ia ~ iacome IlDdie rqioa's economy. Even protecting 

leu cianxiruus spec:ics. IUI:b - ~ IIIIISIIds,. 43 pcn:eDl of which ..., threarened, 

eadupnd. er extinct. pr.-:tS jobs. &parr af IIIIISSd slodls from tbc United States to Japan . 

fer tbc c:ulluRd peal indumy ;. ......, $60 mi11ioo allllually to tbc American economy, 

suppcining 10.000 jobs. 
Staiement of Wm Robert Irvin 

Center for Marine Conservation. 

Page 3 

338 

The truth is,. in the vast majority of cases, the ESA works, striking a balance between 

wildlife conservation and. the needs of people. Studies by the World Wildlife Fund and the 

National Wildlife Federation, confmned by the General Accounting Office, show that, between 

1979 and 1993, of more than 150,000 projects reviewed for conflict with endangered species, 

99.9 percent of the ·projects went forward. 

1n virtually every .Provision of the ESA, social and economic factors are taken into 

account. The ESA prohibiis consideration of non-biological factors only iri the decision whether 

to list a species as threatened or endangered. Economic and other impacts resulting from critical 

habitat designation must be taken into account, purs~ant to Section 4(b)(l)(B)(2) of the ESA. 

Special regulations balancing species conservation with other concerns ate issued pursuant to 

Section 4(d) of the ESA. Section lOG) authorizes more flexible conservation programs for 

reintroducing nonessential experimental populations of endangered species to their former habitat. 

Sections 7 and 10 allow the Secretary of the Interior to issue incidental take permits, allowing 

.people ti:> harm or even kill individuals of a listed species in the course of some otherwise lawful 

activity. Section 7 requires the Secretary to suggest any available reasonable and prudent 

alternatives to a proposed federal action whenever the Secretary concludes that the action will 

jeopanlize the continued existence of a listed species or result in the adverse modification or 

destruction of critical habitat. Regulations set forth at 50 C.F.R. § 402.02 implementing Section 

7 requine that reasonable and prudent alternatives must be "economically and technologically 

feasible." Even when there ai'c no reasonable and prudent alternatives; Congress has provided 

an escape valve in Section 7 of the ESA, via the Cabinet-level Endangered Species Committee, 

which has the power to grant exemptions from the ESA when it determines that. the benefits. of 

a project outweigh the benefits of conS<;rving a species: The fact that the Endangered Species 

Comminee has only been called upon three times since its creation to resolve endangered species 

conflicts is eloquent tesiirnony. to ·the ESA's effectiveness in ·resolving conflicis short of an 

"either/or" decision. 

Oesjiite the heavy consideration ·given to economic and other concerns under the ESA, 

the ESA has still been quite successful in its central mission, saving species from extinction. 

Acconling to the Department of the Interior in iis 1992 Report to Congress on the ESA. 270 

species are either stable or improving under the ESA 'scare. As the National Research Council 

concluded in its recent study, Science and . the Endangered Species Act, "fl1he ESA has 

success(ully prevented some species from becoming extinct Retention of ihe ESA would help 

to prevent species eXtinction." · · 

H.R. 2275: A RECIPE FOR EXTINCfiON 

H.R. 2275, the bill before this Comminee, ignores the ESA's record of success and the 

reconunendations or the National· Research Council to ret.o.in a strong ESA. While there would 

still be an ESA foUowing enactment of H.R. 2275, the ESA would exist in n'lrDC only, stripped 

of its ability to effectively conserve threatened and endangered species. Indeed, H.R. 227S is 
Statement of Wm. Roben Irvin. · 

Center for Marine Conservation 

Page 4 

339 

such a misguided bill that it is difficult to enumerate all of its flaws. Nevenheless, .here are some 

of the bill's major problems: · . 

I. H.R. 2275 Abandons the Central Goal of the ESA. Recovering Species. 

Since 1973, the ESA has had a simple goal; to recover species 10 the point that the 

protections of the ESA are no longer necessary. While recovery may not be possible for all 

species in every circumstance, the law has emphasized the need to try. H.R. 2275 abandons this 

goal in Section 501, authorizing the Secretary of ihe interior, without public input. to establish 

lower conservation objectives for threatened and endangered species. 

Thus, the Secretary may decide that it is not wonh the time and expense to seek to 

recover a particular species. Instead, the species will only be protected from direct. intentional 

killing or injury. Such a policy seems designed to highlight our ignorance rather than 

demonstrate our Wisdom. While a future ~ecretary might fmd it difficuli to write off the bald 

eagle, the Secretary may find it easier to abandon the recovery of an endangered reptile or 

amphibian. Of course, we now know that the Houston toad produces aJkaloids that may be 

·useful in fighting hean disease, so.maybe it will be allowed to recover. But ·what of the 

Wyoming toad or the Plymouth redbelly tunle, of which we know very little? As Aldo Leopold, 

the father of scientific wildlife management so eloquently put it. ''To keep every cog and wheel 

is the fust precaution of intelligent tinkering." H.R. 2275 flies in the face of this wisdom. 

2, H.R. 2275 Eliminates Crucial Protections for Listed Species Particularly Marine and 

Foreign Soecies. 

The ESA proteCts threatened and endangered -species in a variety of ways, flll)ging from 

protecting_ individuals of a listed Species from being directly taken to protecting the habitat upon 

·which listed species depend for their survival and recovery. In addition, by requiring federal 

agencies "to consult on their activities which may harm listed species and requiring others to 

obtain incidental take permits for their activities that adversely affect listed species, the ESA 

institutionalizes caution in our approach to threatened-and endangered species. f!.R. 2275 throws 

caution to _the wind, W)dennining crucial protections for listed species on every level 

Section 301 of the bill raises numerous substantive and procedural hunlles must be 

overcome before any of the ESA's protections can bC extended to a species. For example, the 

Secretary must identify and colli::ct extensive data; considercaptive.bred populations found in 

zoos and private hands. and. in the case of fori:ign species~ obtain written concurrence from each 

nation in which a species· proposed for listing is found Indeed, even before the· Secretary can 

exercise the authority to temporarily list .a species on an emergency basis, there must be a 

significant likelihood that the speCies will be placed on an irreversible course to extinction within 

2 years unless the species is fully protected under the ESA. With this requirement, the rarely 

used emergency listing authority will become r.irer still 
Statement of Wm Robert Irvin 

Center for Marine· Conservation 

Pagcos 

340 

Once·a species has run the gauntlet established by the bill for listing, numerous provisions 

of the bj.ll operate to ensure that .actual protection for the species. will be minimized. Section 503 

provides that. until a conservation plan haS ~n completed, newly listed species will be protected 

only .from direct. inientional take. l\.ftel: a ·conservation objective has· been established and a 

conservation plan completed, Section 502 exempts individuals· and fedeinl agencies acting in 

accordance .With those less protectiv~ plans from the take prohibition and interagency consultation 

requirements; ·. Iii case that exemption is. not broad enough, Section .205 authorizes the Secretiuy 

to. exempt broad·categories of actil(ities·from the take ·prohibition, tlirough the.issuance of general· 

pennits, patlemed after thqse under Section 404 of the Clean Water Act .which have led. to the 

continued loss of valuable wetlands. 

Section. !Oi provides that the normal protections of the ESA for listed and candidate 

species wiU be suspended in· any area covered .by a cooperative management ag:ref;ment which 

the Secretary has.· determined ·.will pnimote the conservation of a species. . Thus, once a 

cooperative management .ag:ref;ment has been signed,. the ESA's prohibition against· taking 

eru!lmgered. species, its ~uirement for interagency consultation, as well as any of the diluted 

conservation measures provided by· H.R. 2275 will cease to operate in the area covered by the 

agreement In shon,' the door will be open to the balkanization of wh'at, untii now, has been a 

successfUl national endangered species con~rvation program. . . . 

Section 507 reverses the lorig-standing regulatory practice of providing threatened species 

with the same protection afforded endarigered species, unless circumstances dictate otllerwise. 

Instead, the bill requires that threatCned species be given less protection than endangeted species, 

even in. ~s like that of the In yo California .:rowhee, . which had fewer than 200 individuals 

when it was.lisled as direatened.less than many endangered spec;ies . . This.shon-sighied.policy 

will; in .the long ruit,likeiy'·reswt in more .endangered species listings as earlier conservation of 

threatened species is blcicked. · 

- . A. H.R.' 2275 eliminates proteCtion of endangered inarine wildlife. 

. H.R. · 227S'.s elimination of effective p10tections for endangered species' is most ·apparent 

in the bill's special treatinent of endangered marine wildlife. Section 201 effectively eliminates 

protection for threatened aNI endangered marine wildlife other ihan fiSh in u.s, waters out to the 

~00-mile limit, -allowing iiicidenl!ll take of threatened or endangered whales, sea lions, seals, sea 

tuitles, sea otters, .or seabirds in the course of otherwise lawful· activities in tJ.S.· waters not 

cksignated as criticiil habitat In other words, the oil'indusll)' will no longer be required tO-take 

precautions. to prevent si>iils that might take. ·whales or sea oners along the Califoniia .coast 

·Shrimper$ in. the Gu)f of Mexico wiU no longer be required to. use lljl't)e excluder' devices (TEDs) 

to prevent sea turtles frOm drowning. in· their nets, returning to the days when according to the 

National Acadeniy of Sciences, Without TEDs, as many a5 SS,OOO sea turtles .drowned annually 

in shrimp nets: · · · 
Statement of Wm. Roben Irvin 

Center for Marine Conservation 

Page 6 . 

341 

In case Section 20 I' s broad exemption is not sufficient. Section 208 expressly requires 

the Secretary to exempt shrimpczs from 11ID requirements when the Secretary· detenniites that 

their contributions to sea turtle consavilion programs c:xceCd the. harm to sea turtles resulting 

from not using TEDs. Similarly, Section 104 exempts from the take prohibition anyone who 

palticipates in some unspeCified way in captive breeding· programs, predator control, artificial 

feeding, or habitat managemenL Thus. a shrimper who sends a donation to a program to preserve 

sea tunic nesting beaches along the Persian Gulf could be allowed to capture and _drown SC3 

tunles in the Gulf of Mexico. This special assistance to the Gulf of Mexico shrimp .fleet is 

particularly outrageous in light of the recent report in ihe October 1995 issue of Nalional 

Fishennan that niore than 100 new s11riq1 trawlas are being built ·or on order at yards along the 

Gulf of Mexico, fueled by bigh shrimp priCes. lower insurance aild interest rates, and industry 

optimism. 

In addition to removing substantive protections for endangered marine wildlife, H.R. 2275 

mal<es a fundamental and costly change in the implementation of the ESA for marine species. 

Section 301 elimiilates the Secretary of Commen:e from the definition of "Secretary" under the 

ESA; elimiilating . the authority of the Secretary of Conunerce, the National Oceanic and 

Atmospheric Administration. and the National Marine FISheries ·service over endangered marine 

species. However, the bill never directly lr.insfcrs aulh9rity over such species to the Secretary 

of the Interior and the U.S. FISh ind Wildlife Service, and nlake8 no provision for replacing the 

Comme[!:e Department's ·personnel and its quarter-cenrury ·of expertise in this arena. 

Inexplicably, Section 801 ~tinues to authorize increasing appropriations for ESA 

implementation by the Coirimen:e DepartmenL 

B. H.R. 2275 undennines protection of foreign species. 

·Under the ESA, ihe U.S. has beel:t a global leader conserving threatened and endangered 

species. Aitesting to this is the fact that the Convention on International Trade in Endangered 

Species (CITES) is commonly known aroUnd ihe worl4 as the Washington Convention, as a 

result of its development and signiRg undea'. U.S.Ieadcishlp in Washington, D.C. in 1973. H.R. 

2275 proposes~ abandon our Nilion's inlanationa1leadcnhip in this regard · 

Numerous provisioiJS of the bill will require the U.S. ·to subordinate our o;,.., best 

judgment on endangered -species conservation to that 1>f olher nations, even when ihe wildlife 

conservation laws and pOlicies of those nations are ~ protective than our own. Section 207 

prohibits the Secretary fiom adopting more restrietive conservation measures than _those specified 

under CITES, despite the clear reservation in Article XIV of CITES of the righl of parties to 

adopt more restrictive measures. Section 207 also requires the Secretary to obtain the written 

consent of all: nations in which a threatened· species i$ found before adopting any protective 

regulations. Thus, before protecting Argali sheep in the threatened i>ortion of their range, the 

Secretary would have to ·get the written. consent of Kyrgyzstan, Mongolia, and Tajikistan. 
Statement of Wm Robert Irvin 

Center for Marine Conservation 

Page 7 

342 

Section 305 requires the Secretary to give actual notice to, and consult with, foreign 

nations which take on the high seas a species proposed for listing. Thus, under this provision, 

the U:S. would constantly find itself having to consult with Japan, Russia, and numerous other 

nations operating high seas fishing fleets around the world before a species could be listed. 

Similarly, Section 204creates a rebuttable presumption that the survival of foreign. species 

is enhanced by taking for scientific collection, captive breeding, sport hunting, or falconry in 

accordance with the wildlife conservation Jaws of the nation in which . the species is found. 

Before the Secretary could deny a permit for such purposes, the Secretary would have to give 

the nation of origin six months notice and opportunity to comment Once again, the U.S. will 

be forced tO delay or forego its world leadership in endangered species conservation. 

3. H.R. 2275 Abandons Habitat Protection. 

The National Research Council recently concluded in its report Science and the 

Endangered Species Act, that habitat destruction is the most serious threat to endangered species 

and, therefore, habitat protection is essential to endangered species conservation. The U.S. 

Supreme Coun reached a similar result when it ruled in Babbitt v. Sweet Home Chapter of 

Communities for a Great Oregon that the ESA protects endangered species from indirect harm 

in the form of habitat destruction as well as from direct take. 

H.R. 2275 ignores .the importance of habitat conservation and overturns the Sweet Home 

decision. Section 202 restricts the definition of harm to direct action that actually ions or injures 

a member of a listed species. Thus, Texas developers could destroy the entire remaining nesting 

habitat for an endangered migratory songbird such as the golden-cheeked warbler when the bird 

is in Central America, as it is most of the year. 

The bill also reduces protection for designated critical habitat Section 504 redefines 

critical habitat to encompass only occupied habitat that is necessary to the persistence of a 

species for the next 50 years .. Thus, formerly occupied portions o(the historic range of a species 

which may be essential to the long-tenn recovery of the species would be left unprotected. 

Section 601 creates a biological reserve system which perversely will result in Jess habitat 

protection for listed species. Endangered species conservation efforts on units of the reserve 

system must be consistent with other resource activities that occur on the units. Endangered 

species .conservation on federal lands not included in the reserve system can only occur if the 

Secretary finds that the species is not otherwise protected within the reserve system. 

4. H.R: 2275 Eliminates Federal Agency Conservation Duties. 

What has set the ESA apari from other wildlife conservation Jaws is its requirements in 

Section 7 that federal agencies· use their authorities, in consultation with the Secretary, to further 
state~nt ofWm. Roben IrVUi Center for Marine Conservation 

Page 8 

the conservation or· thmuencd a"n.t endallgcn:d :spCcics.-· In _t97s; die U.S. Supreme Conn ruled, 

ui-Tennessee Valley Awhorjty v. Hill, dw wider lbc_ESA. endangcnd species are to be accorded 

the highest of priorities and · fcdt:nl ap;es must Worlc to ensuR: that tbeir other duties are 

carried out in hamiony with lbeir obligation to conserve endallgcn:d species. Secti_on 401 of H.R. 

2275 reverses this priority,. ~'!iringfcdenlap:ncies to" conserve listed spCcies orily to the extent 

thai it fits in withthcir other duties, · · 

. In ·addition, Secti~ ...Ot and .502 make lbc · intcrag.;.,.,y consultation ~uirement discretionary widt the federal aga~ey proposing .an aC:uon. Thus, if the u:s. Forest Service Is 

proposing logging in endallgcn:d "grizziy bear b8biJU." it will be up to the Forest Service to decide 

whether it wishes to cOnsult widt lbc U.S. Fish and WJldlife Service on die· impacts of the 

logging·. on the species.· · FUI1hennorc, even if lbc · fc:dc:rill agency chooses to consult, that 

consultation must be conclUded within 90 days, subject .to limited extensions, or. the action· may 

go forward regardless of lbc impact on lbc sjlccies: 

Section 402 creates broad · eUrripc;ons from intcragency conSultation requireinents, 

including an exemption for routine operation and mainlalarice ·of a project or facility . . Thus, 

conservation me3Sures iden~ through interagency coi.swtatioa; Su.:b as underpilsses to prevent 

endangered Florida pall~ from:being Struct by highway traffic, might never come to light . 

The bill al~ ~at least-nii.c other ~e ~ati~n laws in addition to tlie ESA . 

. Section 102 exernpis lbc prq)aratioaud implementation of coopcirative managerneot a~ments 

·from the National Enviionnientall'olicy Act (NEP A). Secti911 2oS provides that a permit issued 

under tlie fiSA will suffi<:e as a j,.mut imder me Baid and Golden Eagle PrOtection Act, the 

Marine Mammal Protection Act. lbi; Lacey Act, lbc · Flsh and Wildlife Conservation Act, the 

Migratory Bird Treaty Act, lbc Migrarmy Bird Conservation Act, and lbc Wild Bird Conservation 

Act · Seelion 401 effecliveiy n:peals lbc National Forest Management Act's requirement that 

national fori:sts be · managed to m3intain viable populations of native and desired non nativ~ wildlife. · · · · · 

In light of .all of die exempcions "C:ttated by H.R. 1I15 for fcdetai and non-federal 

activitieS alike, it is atmost superfluous dw Section 403 elimina~CJ lbc. En4arig=d Species 

Commiitee .and its <;arefully craf1ICd proi:almes for granting exemp_tions from the ESA in the rare 

case of a truly irreconcibible conflict between ·a projo:ct and species cOnservation. In its place; 

.the Secretary of Defense is giyen ~ ~ty _to exempt activities on national security 

grounds and the President is given tile authority to exeinpt activities in fcderill disaster, areas. 

5, · · H.R. 2275 Is Saeaiitkan~ Fla~ _ 

As Dr. Sruan Pimm. of lbc U~ty of Tennessee will tell yo.u in greater detail in his 

testimony, the bill Is Dot bised on soond ~ . For eumple, even though the National 

ReSearch Council concluded in its_ ·n::a:nt rePort cioJ the "ESA that. captive breeding is not a 
Statement of Wm. Robert Irvin 

Center for Marine Conservation 

Page 9 

substitute for conservation of endangered species in the wild, including habitat protection, Section 

505 requires the Secretary to emphasize captive breeding as a conservation measure. Similarly, 

while the National Research Council recognized the biological importance of protecting distinct 

populations, Section 902 requires the delisting of any ·distinct population segment that is. not 

designated as· a distinct population in the national interest by Congress and subjects all future 

listings of distinct populations to this political popularity contest. 

While Section 304 creates a host of minimum standards for the scientific information 

contained in a petition to list a species, Section 307 authorizes delisting petitions with virtually 

no minimum requirements other than that the Secretary respond to them within a prescribed 

period. "In addition, Section ·205 requires the Secretary to give priority to research on alternative 

methods and technologies to reduce incidental take of listed species if existing methods and 

technologies are alleged tP entail significant costs to· non-federal persons, even if the existing 

methods and technologi.es are effective in reducing incidental take. Thus, the Secretary would 

be required to give priority to research on alternatives to TEDs, even though the National 

Academy of Sciences has concluded that requiring TEDs in shrimp nets is the most effective 

way, short of banning shrimping, to protect sea turtles and, if construction of new shrimp trawlers 

is any indication, the Gulf of Mexico shrimp fishery is booming. 

6. H.R. 2275 Undermines Law Enforcement . 

. In addition to the numerous ESA exemptions created by H.R. 2275, the bill undefmines 

the ability of the federal government and of citizens to enforce the law. Contrary to longestablished rules under U.S. wildlife laws such as the Lacey Act, Section 201 restricts the seizure 

of wildlife in an ESA enforcement action to specimens of a listed species. So, for example, a 

shrimper fishing without a TED would only forfeit any sea turtle speeimen illegally taken, not 

the entire shrimp catch. Clearly, H.R. 2275 would dramatically ·weaken the deterrence value of 

ESA enforcement provisions. 

Section 201 also limits the ability of citizens to enforce the ESA. Citizen suits against 

anyone other than !lie federal government would be. barred, no ·matter how egregious the 

violation. Citizens would be barred from bringing suit, even in emergencies, to compel the 

Secretary to make a listing decisio·n. The award of attorney fees and expert Witness costs, 

designed !O encourage citizen enforcement, would be eliminated. . On the other hand, suits by 

those claiming economic injury or challenging a decision to list a species would be expressly 

authorized. 

7; H.R. 2275 Will Be Enormo·usly Costly. 

At a time when man)i" in Congress are focusing on reducing bureaucracy and the burden 

on American taxpayers, H.R. 2275 goes in the opposite direction. Sections 302 and 303 mandate 

numerous public hearings, peer review. and other procedural requirements regardless of whether 
Statement of Wm Robert Irvin 

Center ·for Maiine Conservation 

Page I(} 

345 

there is any controversy surrounding a listing decision or other ESA action. Section 903 alone 

will require the Sccrciary to develop conservation objectives and plans and revise existing 

recovery plans for approximately 1,500 cum:ndy lisled species within 42 months of enactment 

H.R. 2275 will also cost taxpayers millions of doUars. Sections 802 and 803 require 

taxpayers to pay up to half the cost of activities which. but for the ESA, would haqn threatened 

and endangered specieS. Scctioli 101 requires compcns:ition to be paid to any owner of real or 

perSonal property whO claims a diminutiOn in value of any portion of the property of as tilde as 

20 percent This is a far broaclet Slandard dian the standard for compensation under the takings 

clause of the Fliih Amendment to the COnstitution and one that is particularly unjustified in light 

of the fact that there has never been a finding by any- federal court that the. ESA ·has resulted in 

an unconstitutional taking of priviue pr'opcny. Moreover, by requiring compensation to be paid 

from the inadequate annuai appropriations of the U.S. Rsh and Wildlife Service, Section 101 is 

designed to cripple the Service's abilicy to effectively conserve species: · 

In sum. Mister Olairman. H.R. 2275 will undermine the ESA 's most important protections 

for threatened and endangered Species and itnpose additional bureaucracy and cost to .taxpayers 

j n the process. lf H.R. 2275 is enacted, the progress ·our Nation has made over the past two 

deca.1es .in stemming the tide of specieS ·extinction will be lost Quite bluntly, H.R. 2275 is a 

recipe for extinction.· 

RECOMMENDATIONS FOR ltESPONSmLE REFORM 

Rather than adopiing thC misguided "reforms" embodied in H.R. 2275, this Comrriittee 

and the House should adopt an ESA reauthorization bill which responsibly addresses the concerns 

that have been raised about the ESA and itS implementation, while ensuring that the ESA remains 

what it has been for more ihan twenly years, an effective law for the conservation of threatened 

and endangered species. Resp00sible reform of the ESA should · be based on the following 

principles: 

· FICSI, we should not. spend our.cbildn:n's inheritance. Conserving species benefits future 

generations as well as· ourSelves. 1bese ~fits may not always be quantifiable in monetary 

terms. · Long·term benefits to future generations must not be sacrificed for short-term econoinic 

gains. 

Second, an ounce of p..evention is worth a pou~ of cure. Conserving speeies ~fore they 

aie on the brink of ex~on offcn more ~~opportunities to balance sj>ecies conservation 

against economic and other considerations. belping avoid conflicts. 

Third. we must put out money when: our mouths are. Sustained and adequate funding 

of historically underfunded end:ingered spcclCs conservation programs is essential. Similarly, 

greater ~ntives should ·be provided to private landowners to encourage endangered · species 
s-ot wm. Robcn Irvin 

c-for Marine Consavali011 

Pafoll 

.caasavalioo 011 lheir properties. 

346 

Foanb. - IIII1SI keep our eyes on lhe baiL 11le purpose of the ESA is ro conserve 

1braleaed llld endancaal species and lhe ecosysrans upon which they depend. While it is 

inlpara. 10 make lhe ESA flexible, effective. conservali011 of. species and their. habiws ·must 

mmiD lhe fundamenlal goal oldie law. 

W"ub dloe principles ill mind, I offer lhe following suggeslions for responsible refoims 

to lhe ESA: 

• · ri.e · ESA, iD combiutioa witil otller laws, should do a better job of preventinc 

lpecis rn. llleaJmia& mdaJI&end ia tbe first place. 11le ESA can be improved by providing 

cxpraa . Ulborily ill lhe law for a ~entive program 10 identify imperiled eicological 

CGimlllllilicl and ecosyaems. key species within those conunllllities, and cooperative measures 

wbicb c:aa be Qk.ea by fedaal. Slale, local and privare parties 10 conserve those species, 

eGIIIIIUIIilia, and ec:os,-s&ems. In pnicular, S11epS must be Ween 10 conserve species before they 

declillc 10 lhe poial wbeR lisling ~ lhe ESA is necessary. . 

In 8ddilion, lhe ESA was never illlended 10 solve all our wildlife conservation problems. 

lulead, lhe ESA wu illtellded • a safely ne1, proleCiinJ species from exlinclion when other 

meuara baYe failed. Thus, ill .sdilioo10 nllll<inJ lhe ESA iuelf more proactive, it is essential 

.dial Ill oar wildlife conservalioolaws and poliCies, particularly those covernillg management of 

pablic: - lath u federal lands and mariae resoun:es, be more proactive ill conserving 

wildlife llld plams. 

• Tile ESA lllauld be iaapr6¥ed to provide more effective recovery measures ro.. .......... .., eede pnd lpecis. 11le besl way 10 e!iminare conflicts berween development 

llld specirs couavalioo is 10 recover species .0 llw lhey can be removed from the endangered 

specia list. ODcc a species is lisa!, lhe Se:cmary should assemble a recovery 1eam, consisting 

ol •ep mttriva ol federal ap:ncies, Swe, local, and aibal JoverruneniS; privare landowners, 

JCialcisll, cuuavalioaisll, iadusay repn:sanalives, and ocher iliiCreSICd persons to prepare a 

-err plaD wiillia 18 rnondls ol lislinJ. Plans should be developed wilh suffiCient 

~ 

oppai!Milia for public review and comment, including review and comment by the regulated 

aDd odlr:r iDierelled c:iJizcns. 

~ 

Recovery pa.. lllould cmpbuia lhe role of fedaal qencies and public lands ill 

_,-. Recovery tarp:U. bued 011 lhe besl available science, should be established 

a lhe -. bctcn COIIIidaiaJ lhe various alia'naiives for achieviliJ the targets. 11lese tar&eiS 

llooald povide objecrive bellcbmub for uaesaial propaa10ward recovery and delislinc. Plans 

lllaald illclude Cllfan:able cladliaes for recovery aclivita. Recovery plans should Jive priority 

10 aca.. ... will povide lhe sre-a ncovery beftefits and identify ways 10 reduce costs of 

_,. widaoul IIICririCinJ species conservation. Recovery plans should provide JUidancc to 
Statemcrit of wm:·Robc:rt lrvio · . . Centcr·fot MIIJ'inC Conso:rvalioot. 

Page 12 

347 

privale landowners reprding wbil ~ may tault in an illegal iaking· of a li$1ed species. 

Habitat c.Onservation plans ~ punlWilto Seclioa 10 ·of the ESA should be required to 

be COI!sistent with recovajr pliini . Wbca possible. recovay plans should. be ~veloped for 

multiple species dcpendalt on a .,.,.,..- ecosysla1i. Adeqowc funding for rccovcry planning 

and implementation is essentiaL · · 

• Tbe ESA ~d provide ~ lDcdYa for private limc;owners to conserve 

species on their prOperty. A ~ lou fuol;lllli assist Swe and local governments· in th~ 

dC\-elopmcnt aod ~ of babiat c:ouerv8booi plans should be established. Tax 

incentives, including dcfaral'oi ~ taXes Oil propaty subject to a cOoperative agrccmcnt for 

tlic conservatiOn of 1iSIIed « c:aiiilidllli rp:da; sbould be c:rced. Existing land stewardship 

programs, suclus the Consi:(Yation ReXrvc l'logram and the Forest Stewardship Program, should 

.be amended to provide additioaallieoefits fbr activities thai i:oasave Usled and candid&te spcc;ies 

while also serving the Original soab of the programs. NeW inCentive prograins, tuthorizing the 

Secretary of the Interior til pay privu: 1andoWnas for imdatalring additional endanccrcd spceies 

conservation activities beypn<i' those mi~ by existiJig law, should be authorizecL , Regul8tory 

incentives which provide lanoloWneis with Usunnces lbat ibelr conservation obligations Will not 

incm~SC as a result of their voluntary coiaservation activities while ensuring that sjlecics truly 

benefit, should be considered. . • . . . 

. • Immediate steps sllouJd be .takm to ieduce tbe ·rrusanwoo .citizens sometimes feel in 

deBunc witb fedenl ~ doar&ed witll ESA illlpleDolatioa. , Each field ofticc of the 

u.s; FISh ana Wlldlifc: .Service sbould ·have a c!esigaated Propary OwJier. and Commurury 

Assistance officer whose . job is to pnividc timdy advice and assistance .tO 'landowners in 

complying with· the. ESA and to . .....ir qUcstioaJ ·mr respond fC> complaints and suggestions 

froin landoWners; These · officas ·will abc:i . be mcsponsiblc for providing landowners with 

infO!DJ8tiOil about the ll..maDve dispulc .-,utioa lllCChanisms llrcady available in the u.s. Claims· Court to those claiming that. the fcdcnl ~t bas taken their ~ropcrty without COmpcnsatiOII. . . .. ' . 

In concluSion. Mister awmian, me ESA is _: ~· s promise io leiiVe our cliiJdrcn 

·and grandc~a a ~ as rich in plants and wild ·111in11k as the one we enjoy. H.R, 2275 

wc:iuld bn:ak that pillmise. scriously ~the ESA's .effectiveness. Fottunalely, there is 

another path ~ to thiS. Commiaee and .the: ,liouse. A bill based 011 die respcmsible reformS I 

have ji!St outliried will~· the ~ that have arisen regarding the ESA while. ensuring 

that we keqi oor promise tO future: ~ · I urge tbi.s Committee to follow that path •. · 

11iarik yoii. I Will be haW)' to &~~SW<Z yaur queslions: 
348 

Testimony 

of 

Bob Stallman 

President, Texas Farm Bureau 

on behalf of the 

National Endangered Species Act 

Reform Coalition 

before the 

Committee on Resources 

U.S. House of Representatives 

Endangered Species Act Reauthorization 

September 20, 1995 

II 1050·lltOMAS JEFFERSON STREET. NW 8TH R.OOR W~ON. DC 20007 1202)333-7481 
349 

Mr. Chairman and distinguished members of the Committee. I appreciate the 

opportunity to appear before you today to testify regarding H.R. 2275, the 

Endangered Species Conservation and Management Act of 1 995. 

As Mr. English testified before this Committee several months ago, the 

National Endangered Species Act Reform Coalition is made up of a broad crosssection of Americans most affected by the Endangered Species Act. Our members 

range from small individual land owners and farmers, small companies, rural electric 

cooperatives and public power entities to agricultural interests, water districts, 

mining interests and other companies. As we have stated before, we are not big 

business. We have some large businesses among our members, but we primarily 

represent small, rural interests. 

The National Endangered Species Act Reform Coalition was founded by rural 

people seeking to make some sense out of implementation of the Endangered 

Species Act. Over the past four years, the Coalition has grown to include more 

than 200 companies and associations representing millions of Americans across the 

country. As more and more people have been affected by the Endangered Species 

Act, they have come together to seek some balance in this law to make it work 

better for species, citizens and whole communities. 

As a national coalition, we recognize the responsibility that our society as a 

whole has to protect our fish and wildlife. We also recognize that economic wellbeing in rural areas, suburban areas and urban America are all interrelated. So are 

providing jobs and providing for the wildlife of our nation. We strongly believe that 

our nation can have a healthy and strong economy and protect the most vulnerable 

of our fish and wildlife. But to do so, we must recognize all of our responsibilities 

to our communities, our children, and generations to come who will depend on a 

healthy and strong nation. 

We commend this Committee for the work of the ESA Task Force chaired by 

Mr. Pombo. We commend you for listening to the voices of America as many 

expressed concerns about the implementation of the Endangered Species Act and 

some expressed support for the current law. We urge the members of this 

Committee to favorably report H.R. 2275, the Endangered Species Management 

and Conservation Act of 1995. This legislation offers the only clear hope for 

reform of the Endangered Species Act in the United States House of 

Representatives. 

We recognize that H.R. 2275 is long and complex. I think all of us in this 

room would like more simple answers to the problems of endangered species 

management. But the simple fact is these issues have become complex and 

difficult. We urge you as a Committee and as members of the U.S. House of 

Representatives to recognize that complex and difficult endangered species 

management issues which have been years in the making cannot be papered over 

with vague changes in the law. 

20-707 95- 12 
350 

Members of our Coalition have participated in national dialogues on ESA 

reauthorization, governors dialogues including those sponsored by the Western 

Governors' Association and numerous formal and informal ESA reauthorization 

discussions with a wide range of groups having various points of view regarding 

the ESA. Through participation in these dialogues, our Coalition has come to the 

conclusion that there is strong agreement on many basic concepts for modifying 

the Endangered Species Act. 

Such areas of potential agreement include increased peer review, 

strengthened state and local participation in ESA management and strengthened 

public involvement in recovery planning conservation and other decision making. 

These areas of agreement are significant and can and should form the bases of a 

reauthorization and strengthening of the Endangered Species Act. 

At the same time, we urge Congress in the strongest possible terms to 

address the more difficult issues as well. It is the more difficult decisions that we 

as communities and businesses throughout this country must face every day. 

Should the ESA remain supreme over other laws? Should the consultation process 

remain closed? What is the best method of conserving a species? All of these are 

difficult choices that this Congress must make. If this Congress moves forward on 

legislation which does not address these very real every day problems, our 

communities and our economy will continue to be in peril and the Endangered 

Species Act itself will remain in jeopardy for years to come. 

We first began to seek reform of the Endangered Species Act before it 

expired in October of 1992. That expiration date has come and gone and the 

authorization of this statute has formerly expired. Now is the time to act to 

reauthorize and reform the Endangered Species Act. 

The Coalition strongly supports H.R. 2275 and opposes weakening 

amendments or alternatives which would leave the ESA a law based on absolute 

requirements, few incentives and a harsh closed door regulatory attitude. 

We believe H.R. 2275 represents responsible reform. To make the 

Endangered Species Act work, any reform must accomplish at least the following 

specific changes in the law: 

• Place the ESA on equal footing with other laws and responsibilities. 

Conserving species is an important goal for our country and our 

federal government must play a role in that process; however, that role 

cannot be undertaken at the expense of all other government functions. We 

must also build homes and schools, provide water and power to our 

communities and provide jobs for our people. The federal government's 

- 2-
351 

obligations under the ESA should be considered and acted upon, but only on 

equal footing with other laws and obligations which are just as important to 

our nation's health and security. 

• Provide compensation for lost use of propertv. 

We recognize that compensation can be a difficult subject for local 

governments as well as for the federal government. As a Coalition, we 

strongly believe that proper endangered species management should seldom, 

if ever, require that an individual land owner lose his or her property in a 

manner that requires compensation to be paid. If land and water are 

required for species conservation purposes, they should only be acquired on 

a willing seller basis. However, if a regulatory approach to ESA management 

is maintained in the upcoming reauthorization, a sense of fundamental 

fairness requires that property owners be compensated for lost use of 

property which has become dedicated to a public good-the conservation of 

endangered or threatened species. 

• SignificantlY increased incentives for species conservation. 

There are several significant incentives for species conservation 

contained in H.R. 2275. Some of these incentives include cost sharing for 

species conservation, the creation of a habitat reserve grant program and the 

establishment of clear standards for regulatory certainty which are found in 

several sections of the legislation. In addition, we commend the leaders of 

this Committee for introducing separate legislation dealing with the important 

issues of tax incentives and a greater agricultural critical habitat reserve 

program. We feel these separate bills are an important part of a package of 

ESA species conservation bills based on incentive principles. These other 

bills are significant and necessary if we are to establish a truly incentive 

based system for species conservation. 

All too often, incentives for species conservation are overlooked as an 

effective tool for endangered species management. To a large degree, many 

of the grassroots voices are correct in calling for an incentive based 

approach to species conservation. We urge this Committee to consider over 

the long term a more significant incentive based approach, with greater 

attention to incentive based species conservation efforts. 

- 3 -
352 

• Provide a more ooen and balanced recovery planning process. 

The public ultimately holds the keys to a better working ESA. In areas 

· where there has been a heavy regulatory approach to ESA decision making --

with decisions on recovery plans based on little or no input from the public --

support for the ESA fades rapidly upon imposition of the conservation 

measures. Title V of H.R. 2275 establishes a conservation planning process 

which allows much greater public input and provides for public hearings in 

affected communities. 

H.R. 2275 also provides a significant change in the Endangered 

Species Act. It allows the government to determine the most appropriate 

level of species conservation. We recognize that in some cases this may fall 

short of full recovery for the species; however, we must make the best 

choice for the species and for the people and communities affected by the 

conservation choices. We have urged the Congress to clearly authorize 

conservation standards other than full recovery. H.R. 2275 does so. 

• Authorization for cooperative conservation agreements. 

Local species conservation requires the cooperation of private land 

owners and all types of communities. We believe that the ESA must be 

changed to contain a broad, flexible authorization for the use of cooperative 

management agreements to bring non-federal interests into the species 

conservation equation. However, we must stress that without regulatory 

certainty, such agreements are of little use. We support the provisions of 

H.R. 2275 which provide for cooperative management agreements with 

regulatory certainty. Such agreements will allow for flexible approaches to 

species conservation and in our view are far better than a pure regulatory 

approach. 

• The ESA listing proce11 should remain based on science. but should be open 

to scientific oeer review on key biological decisions. 

Title Ill of H.R. 2275 ensures that listing decisions will be based on 

the best available science by providing proper peer review of scientific 

decisions and by opening scientific data collection. and analysis to a more 

public process. This is critical to ensure that species listed for protection 

under the Endangered Species Act truly are threatened or endangered. 

- 4-
353 

• Significantly increase involvement of state and local government. 

State and local governments have a great deal of expertise in land 

management and fish and wildlife conservation as well as conservation of 

wildlife habitat. We believe it is imperative that Congress recognize this 

expertise and significantly increase the ability of state and local governments 

to manage species conservation efforts. The role of state and local 

governments should not be limited to minor consultation roles. 

We support the delegation of endangered species management to the 

states as is called for in H.R. 2275 as well as the significantly increased role 

of state and local governments found throughout the bill. Anything less than 

the working relationship established in the proposed legislation is to say that 

federal answers are always superior to state and local answers. 

• Establish clear standards for making the most difficult ESA decisions. 

There are several areas where ESA management decisions are most 

difficult. It is imperative that Congress establish clear standards in these 

areas, such as: 

Conservation of population segments of species should require 

special consideration or separate Acts of Congress. 

The advocates of the current Endangered Species Act point 

with pride to the progress of our nation's symbol, the American Bald 

Eagle. It is crucial to note that Congress enacted several specific 

provisions to protect the bald eagle including FIFRA amendments 

banning the use of DDT and the Bald Eagle Protection Act. In the Bald 

Eagle Protection Act, Congress established a significant precedent that 

a species can be of .such national significance that a specific federal 

protection statute can and should be enacted. Many of the great 

symbols of our country are of national significance. Just as it did with 

the Bald Eagle, Congress should enact specific statutes to conserve 

these species of national significance. 

- 5-
354 

Establish clear standards for when habitat modification will be 

viewed as a violation of the law. 

There are few if any more important rights to a property owner 

than the ability to own, build upon or modify land. It is fundamentally 

wrong and unfair to inform land owners that modification of their 

property may cause criminal liability to the U.S. government without 

establishing in law a clear standard for what activities will be found to 

violate the law. 

To us, it doesn't matter which U.S. federal court is correct in its 

view of liability in the Sweet Home case. What matters to our people 

is that there are clear standards for determining if an activity might 

result in civil and criminal penalties. We support establishment of a 

rule which clarifies that such extreme liability only will occur if a 

federally protected species is physically harmed by an activity. 

Critics of endangered species reform often point to what they 

call extremist positions. It is hard to find a more extreme position 

than asserting that a law abiding citizen can be subject to criminal 

prosecution for disrupting essential behavior patterns of a species 

when such behavioral patterns are unknown to nearly all citizenry. 

Establish clear requirements for the designation of critical 

habitat. 

In many respects, the existing law has reasonable language 

with respect to the designation of critical habitat, such as the habitat 

must be essential to the conservation of species. However, the 

current law also allows unoccupied habitat to be designated as critical 

habitat. There are good arguments for expanding the habitat of a 

species in trouble, but it is extremely unsettling for ordinary citizens to 

find their homes or property to be within zones designated as critical 

habitat for a species. We believe that critical habitat designations for 

lands where species are not currently located should be rarely used 

unless an overriding need for such designation is proven. Such an 

overriding need is not required under current law. 

- 6-
355 

H.R. 2275 improves the require,rnents by establishing clear 

standards for critical habitat designation. If more habitat is needed, 

the proposed legislation authorizes the Secretary of the Interior to pay 

for more habitat through habitat reserve programs, cooperative 

management agreements and other means. This approach is better in 

our view than designating critical habitat for lands not occupied by 

these species. 

CONCLUSION 

The National Endangered Species Act Reform Coalition has worked on ideas 

for ESA reform for close to four years. We believe that this Congress has an 

opportunity to reauthorize and improve the ESA and bring this law, which has 

direct impact on so many communities, closer to the people. If the politics of the 

past are allowed to continue to stalemate progress on this important matter, the 

law is doomed and with it are many of our smaller communities as well as the 

species which could be saved if the law received needed improvements. 

- 7-
356 

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md1v1duals who support the go.1ls and ohJl'CtiV£'S or the CoJ.I1t•on 

Sept~mbPr 19 1995 
358 

Statement of: 

Robert Gordon 

Executive Director 

National Wilderness Institute 

on behalf of 

Grassroots ESA Coalition 

Committee on Resources 

Wednesday 

September 20, 1995 
359 

Mr. Chairman, Chairman of the Endangered Species Task Force and Committee members, I 

appreciate the opportunity to appear before you today on behalf of the Grassroots Endangered 

Species Coalition. The Grassroots ESA Coalition is a true grassroots organization comprised 

of about 300 organizations representing over 4 million members. We commend the Chairmen 

and Task Force Chairman for addressing some of issues in their proposal which we consider 

most important and which we anticipate will be most heatedly opposed by those who would 

defend the status quo and are inherently opposed to changing the way Washington does 

business. 

The Coalition is dedicated to promoting a series of principles which we believe represent the 

future of conservation. These principles are the foundation of non-regulatory and incentivebased endangered species conservation program which will result in the actual recovery and 

conservation of endangered species, something the current program has failed to do. Such an 

approach will save species because it removes the adverse social, economic and conservation 

consequences stemming from a regulatory approach. In short, our goal is to create an 

endangered species program which works as opposed to the current program which has been a 

failure as is well documented in attached material. 

There are many individuals, organizations, interests and opinions on how to best approach the 

issue of endangered species but I think they can be generally divided into three groups. 

First, there are those who wish to basically retain the program as is without significant 

changes. A few years ago they argued it was doing a good job, not really causing any 

significant conflict and, if any changes were needed they were only needed to expand the 

program's regulatory authority and punitive approach. As it has become clear that the claims 

that the current Act has been a success cannot be substantiated and that the Act is clearly 

creating incentives perverse to the conservation of endangered species and habitat, these 

reform opponents have begun to present the argument that the programs is basically sound but 

only a few minor modifications are needed. These arguments are clearly an attempt to reduce 

the momentum of those promoting real reform; they are basically arguing for perestroika in 

lieu of meaningful changes. 

Secondly, there are those who recognize that this program has been a failure for people and 

wildlife and who wish to alleviate the tremendous and adverse economic and social costs and 

to lessen the adverse conservation consequences of a regulatory program by amending the 

current law with such elements as tax incentives and measures to protect property. These 

leaders, individuals, organizations and interests are dedicated to bringing about reforms within 

the structure of the existing Act. 

Third and finally there is group which shares many overlapping concerns with the second 

group but believes in a fundamentally different approach. In this group fall the members of 

the Grassroots ESA Coalition. As, I alluded to this group sees our current endangered species 

program as inherently unproductive or even counterproductive because it is a regulatory 
360 

approach rather than an incentive-based approach. We recognize that those regulations which 

cause the social and economic conflict are also the root cause of this policy's failure to 

conserve endangered species. A regulatory approach creates disincentives for the provision of 

habitat, making endangered species or suitable habitat a liability. It creates an adversarial 

relationship between landowners and government officials charged with carrying out 

conservation programs and loeb out many possible solutions and creative and proven 

management strategies that could be brought to bear in an effort to conserve endangered 

species. Our overall view is explained in more detail in the attached mission and principles 

statements. 

Today, However, we have been invited to specifically address the measure pending before the 

Committee. As it is a large proposal with three companion bills, my remarks will focus on the 

two elements which members of the coalition consider the most important. 

First is compensation for regulatory takings. The members of the coalition firmly believe that 

no reform will be of any significant value, and in fact, will be counter productive, unless 

property rights are protected. This critical step is essential not only on economic and social 

grounds as well as matter of individual freedom but also to reduce the extreme adverse 

conservation consequences that regulatory takings cause. 

Second, is the reversal of the arbitrary and counterproductive extension of the existing law and 

regulations through the expansive interpretation "harm • provision by the US Fish and Wildlife 

Service and courts. The adverse conservation, economic and individual liberty effects of this 

action are well demonstrated by the experience of Mr. Cone who has also addressed you 

today 

The adverse conservation consequences of the expansive interpretation of harm are becoming 

increasingly clear. Michael Bean of the Environmental Defense Fund recently described the 

problem in a talk to U. S. Fish and Wildlife Service employees when he said there is 

• increasing evidence that at least some private land owners are active! y managing their land so 

as to avoid potential endangered species problems. • He went on to say: 

The problems they are trying to avoid are the problems stemming from the Act's 

prohibition against people 'taking' endangered species by adverse modification of 

habitat. And they're trying to avoid those problems by avoiding having 

endangered species on their property. Because the woodpecker primarily uses 

older trees for both nesting and foraging, some landowners are deliberately 

harvesting their trees before they reach sufficient age to attract woodpeckers, in 

their view, and in fact before they reach the optimum age from an economic point 

of view. 

Now it's important to recognize that all of these actions that landowners are 

either talcing or threatening to take are not the result of malice toward the redcockaded woodpecker, not the result of malice toward the environment. Rather, 

they're fairly rational decisions motivated by a desire to avoid potentially 
361 

significant economic constraints. In short, they're really nothing more than a 

predictable response to the familiar perverse incentives that sometimes 

accompany regulatory programs ... 

Sam Hamilton, former USFWS State Director in Texas, said, "The incentives are wrong here. 

If I have a rare metal on my property, its val.Je goes up. But if a rare bird occupies the land, 

its value disappears. • 

Other wildlife officials have pointed out how listing a species under the present law can further 

imperil its prospects. Larry McKinney, Director of the Resource Protection Division of the 

Texas Parks and Wildlife Department stated: 

I am convinced that more habitat for the black-capped vireo, and especially the 

golden-cheeked warbler, has been lost in those areas of Texas since the listing 

of these birds than would have been lost without the Endangered Species Act at 

all. 

There is increasing acknowledgment of the adverse conservation consequences that 

punitive regulations cause, and there is almost general recognition about the need to 

incorporate incentives into endangered species conservation. 

• ... [Encourage} large landowners to enter into voluntary agreements to manage 

their land to protect species, as a substitute for regulation . .. • 

NThe reauthorization must reduce administration, economic, and regulatory 

burden on small landowners while providing greater incentives to conserve species." 

---George T. Fraapton, Jr., A••iatant Secretary, May 18, 1995 

"The ... ESA must be an ENABLING Act, opening doors of opportunity and 

marshaling latent goodwill that was stifled by the proceeding act.• 

"We must put money into carrots not sticks. People respond to incentives. For 

instance, ill-conceived tax structures drive rational people to do socially undesirable acts." 

--- Dr. David G. caaeron, Retired Profeaaor of Biology and Genetica, Montana State Uni versity, May 25, 1995 

MCreate incentives for landowners to conserve species.M 

--- Dr. Gene wood, The Society of Aaerican Forestera, Nay 25, 1995 

•we seek co provide workable procedures and posiCive incentives in Che 

Endangered Species Act which promote conservacion of wildlife in a way that 

considers economic faccors and respects Che righcs of private property 

owners .. . • 

•Privace landowners should be provided incencives to work cooperatively with 

the government to protect listed species. • 
362 

w. Beaaoa Moore, Preaid•at and CEO, A.•ricau Por••t and Paper Aaaociatioa, 

Kay 18, 1995 

•we are told that there is a •public interest• in protecting these species, 

and that their survival will benefit all of us. ret private landowners are told to bear the entire costs.• 

~xhe Act should provide positive incentives to enhance recovery of listed 

species rather than using solely negative enforcement policies.• 

--- DeaD Kleckner, Preaident, The Aaerican Para Bureau Federation, Kay 18, 1995 

• ... in many cases landowners will need no other incentive that the assurance that they will not be penalized for having such species on their land. In 

other cases, positive incentives will be needed.• 

--- Ike c. Sugg, Pellow iD Wildlife and Land-Uae Policy, COapetitive Bnterpriae 

Inatitute, Kay 18, 1995 

•Provide incentives to private landowners• 

--- JohD P. Koatyack, COunael, Rational Wildlife Federation, Kay 18, 1995 

•Although incentives are useful to encourage habitat production under some circumstances, the best incentive for habitat production on our ranches is 

generally tor government to intrude least into private efforts. • 

---Dan Byrne, Robert A. Byrne co., April 28, 1995 

~A system providing private property owners positive economic incentives to provide species habitat must be developed to avoid (a) th~ coneinued failure 

of the Act and (b) the Act's disregard and nonchalance toward private property 

rights.• 

--- Robin L. Rivett, Pacific Legal Foundation, April 28, 1995 

•suild partnerships with private landowners--Provide financial incentives and 

technical assistance for private landowners to plan for the conservation of 

listed and candidate species on their property. Remove disincentives that 

preclude sound conservation practices.• 

--- Daniel Taylor, Weatern Regional Repreaentative, Rational Audubon SOciety, 

April 28, 1995 

"The Ace should be modified so that Private Properey OWners will freely encourage wildlife on their land without fear of government intrusion.• 

--- Leroy Ornellaa, Dairy Pa~r. Tracy, California, April 28, 1995 

"Landowners should be encouraged eo create and maineain habitat for listed and 

candidate species through tax credies, hold harmlesa agreementa, and other incentives. If society values the preservation of habitat for declining 

species on private lands, it should be willing to reward landowners for 

proeeceing ehese resources. Currenely, landowners are penalized ror damaging 

sensitive habitaes, but the ESA offer• no direct incentives for preserving or enhancing these habitats on private lands.• 

---Edward c. Beedy, Pb.D., Wildlife Biologiat, April 28, 1995 
363 

What many parties do not recognize or refuse to publicly acknowledge is that there is a direct 

and inverse relationship between the effectiveness of incentives and the degree of regulatory 

burden. Simply put, as regulations increase, the effectiveness of incentives decrease. To most 

effectively use incentives we need to reduce and remove of regulations. Landowners will not 

be responding to an incentive put forth in one hand if they know that in the hand behind the 

back is a club. As R.J. Smith has put it: • If the government willJ..rotect private property, 

private property owners will protect wildlife. • The expansive interpretation of "harm" is the 

prime example of a specific regulation supposedly designed to benefit conservation of 

endangered species but having the opposite affect and which, in its present form would work 

profoundly to offset incentives. 

Without the two elements - private property rights protection and a responsible clarification of 

the term "harm" the Coalition does not feel that any reform proposal would address any of the 

underlying faults in the current program. The Coalition unequivocally believes in full 

compensation for losses of private land use from regulation. The greater the protection of 

property rights, the greater the benefit to wildlife and the greater the degree to which 

landowners can be enlisted as allies in the conservation of endangered species. 

We commend the Chairmen and Task Force Chairman for addressing these issues in their 

proposal. We also anticipate that these are the elements which we be most heatedly opposed 

by those who would defend the status quo and are inherently opposed to changing the way 

Washington does business. But, clearly these are the elements of this proposal which are most 

important and which reflect the sentiments of the average American. 

The public is ready for such an approach. A poll by the Tarrence Group for Project Common 

Sense and a poll conducted for the Competitive Enterprise Institute both reveal overwhelming 

support for a program founded on incentives, that provides for protection of private property 

and which increases the role of the states. That material is attached to my statement 

This type of thinking does not seem to be comprehensible to some in environmental 

establishment who are still wedded to policy proscriptions developed in the time of Brezhnev 

and a time when we had wage and price controls. We have learned a lot about the 

shortcomings of big government since then. The current Endangered Species Act is a prime 

example of a well intentioned but outdated law that isn't working well and needs to be 

replaced with a more effective program. Not a single endangered species has recovered as a 

result of enforcing the law's land use regulations in the entire history of the Act. The current 

punitive, regulatory law pits people against animals and as a result, they both loose. It's 

primary results are not conservation of wildlife but bureaucracy, litigation and strife. Those 

interests that thrive on that diet will resist any real reform, but the conservation and recovery 

of endangered species will continue to be held back until we replace outdated policies with the 

more dynamic and creative ones. 

Frankly, what most members of the Grassroots ESA Coalition would prefer is to trade in the 

old law for a new model rather than attempt to make repairs. We do recognize that the two 

provisions I have addressed, property rights and clarifying the definition of harm, as well as 
364 

other specific provisions represent meaningful reform to existing law; indeed without these key 

provisions no amendment proposal to the current law could be considered a genuine and 

positive change or gamer any enthusiasm from our members. We recognize the value of these 

provisions and will work to educate the public as regards the importance of protecting property 

so that property may be used to protect nature. The ESA Grassroots Coalition will continue 

to work diligently to spread the ideas which we are confident will serve as the basis of a new 

era in conservation. 

We commend you for the many provisions of your bill that correct serious flaws in the current 

law and thank you for the conviction to undertake these reforms. 
365 

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GRASSROOTS 

£SA 

COALITION 

PosrOIRaBoar:423 

8ATTUI Geoutm, WA 91604 

(2116)617-:ZSOS 

(206) 6r1·2973 MCSDaU! 

Epnmyw c._,... 

"""""""~ 

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367 

Slatement of Principles Regarding Endangered Species 

Tbe Endangered Species Act bas: 

- failed 10 cooscrve endangCied and threatened animals and plants; 

- discouraged, hindered, and prohibited effective conservation and habitat 

stewardship; 

- aeated perverse incentives, tbns promoting the destruction of privately 

owned endangCied species habitat; and 

- wasted scarce conservation resources. 

Tbe Eadangered Species Act bas failed in large part because it has engendered a regulatory regime - bas: 

- violated the rights of individuals, particularly property rights; 

- destroyed jobs, devalued property, and depressed human enterprise on private and public lands; 

- bidden the full cost of conserving endangCied species by foisting those 

costs on private individnals; and 

- imposed significant burdens on State, county, and local governments. 

We therefOR support replacing current law witb an Endangered Species Act 

...... upoll these principles: 

• Animals and plants sbould be responsibly conserved for the benefit and 

enjoymem of mankind. 

•The primary responsibility for conservalion of animals and plants shall be 

reserved 10 the States • 

• Federal conservalion eliorts shall rely entirely on volunlllry, incentive-based 

programs 10 enlist the coopenlion of America's landowners and invigorate 

lbeir conservalion etllic. 

• Federal conservalion efforts shall encourage conservation through commerce, including the private propagntion of animals and plants. 

• Specific safeguanls shall ensure that Ibis Act cannot be used 10 prevent the wise use of the vast fcdcral estate. 

• Federal conservalion decisions shall incur the lowest cost possible 10 

citizens and taxpayers. 

• Federal conaervntion efforts sbaD be based on sound science and give 

priority 10 more 13X0nontica0y unique and genelicaDy complex and more 

econonticaDy and ecologicaDy valuable animals and plants. 

• Federal conservalion prohibitions sbould be lintited to furbidding actions 

intended 10 kill or pbysicaDy injule a listed vertebrate species with exception of uses that =ate incentives and limding for an animal's conservalion. 
GRASSROOTS 

~SA COALITION 

POST Ofl'ICB Box 423 

BATTUI Gaouwo, WA 98604 

(206) 687-2SO.S 

(2()6) 687-m3 I'ACSIMD..J! 

Evomn Csp.wmp 

lV.TlltzEH BI!MEDeml 

Boa Boese 

DAl'IBYFli!LD 

CHI.ICX CusHMAN 

PAULA EAsLEY 

MA.llO.o\IIZT'GABB.U.D 

R.ot'!JttGoKDON 

DBHwts Hot.Uro~oswoRTH 

DAVIIHOOJt 

Tow DEWEESe 

M..nl'uUOT 

luSuoo 

BauCB V!HalfT 

PamqreiJNG GRmJPlS 

Aw.u4CB Foa AMaleA 

AMEJJC\N l..ulo RIOHl'S Assoc. 

...J.lANCE FOR RasouaCI!S .l F.NvmoHWEHT 

AlAsKA LoooDS Assoc. 

AWUJCAH AoJU-WOWIIJ'I 

AMD.l:CAH PoUCY CEtc'ru 

8LUB RmaoH COAUTOH 

CAufoiMIA WOMEH!lf TIWBBJ: 

Co.wnoN PlOTeCT CoAsTAL PaoPUY"Y (FL) 

COWWUHITY POl A COMSn.IJCTIVB Towonow 

CowwuHnms POl A GUAT NoltTHW1!!T 

COWPimllVB ErfrEI:nlsa lHSTTtVT1! 

CoNsvwn Awrr 

DEFENDER$ or Pulrun Rlo~m 

EHvmoNM!N'TAL PounCAL T.ur. Foacs 

Exanc WIIJ)uFB A.ssOCIAnoN 

FAIIU'IESS TO i...Nm 0tmE15 Cow:MITTI!l! 

fAAM Clt!Prr 8AI'f5. or Tex.u 

FROtmUS or fiU!I!l)OW 

HARDWOOD M.\NUFAcrtJUH Assoc. 

MAna CoNSEitvA110M R.t<»m lH:rrmm! 

NAnoNWJos PtJouc PawECn Co.\Ul'ON 

NAnOHAL C£fmlll PuBuc Poucv R£sv.a01 

N.mONAI,. WATD. RE.souRCIIS Assoc. 

NA110HAL Wll.DfltHESS INSTmll'll 

NEW HAWPSHtJ.!Il.,.u{o OwNERS Al..u.ulca 

NEW MEXICO CAnu Gaowu.s Assoc. 

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STtW.u.os OF T1IB R.uiaB 

Ti!XAS WllDUFB Assoc. 

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368 

MISSION STATEMENT 

A diverse and large coalition of organiutions representing everyone from 

environmental groups and property owners to ranchers, miners, loggers and 

outdoor recreationists has publicly unveiled principles for establishing a new 

way to conserve our nation's endangered species. 

The Grassroots ESA Coalition organiutions united to promote lhese principles 

so that the old Endangered Species Act could be reformed in a way lhat benefits 

bolh wildlife and people, something the old law has failed to do. 

The old law has been a failure for endangered species and for people. It has not 

led to lhe legitimate recovery of a single endangered species while costing 

billions of dollars and tremendous harm. The old way destroyed trust between 

people and our wildlife officials. We need to reestablish trust so we can conserve wildlife · no program will succeed without the support of our farmers, our 

ranchers. our citizens. 

The old law failed because it is based on flawed ideas. It is founded on regulation and punishmenL If you look at the actual law by section you see it is all 

about bureaucracy - consultation, permits, law enforcement. .. there isn't even a 

section of the law called "conservation," "saving" or "recovery." 

It is a bureaucratic machine and its fruits are paperwork and court cases and 

fines · not conserved and recovered endangered species. What the Grnssroots 

ESA Coalition and all Americans want to see is a law that works for wildlife, 

not one that wmks against people. 

The furore of conservation lies in establishing an entirely new foundation for 

the conservation of endangered species · one based on the truism that if you 

want more of something you reward people for it, not punish them. The debate 

that will unfold before the public is one between methods of conservation. 

The old way is shackled to the idea that Washington bureaucrats can come up 

with a government solution through national land use controL Is supporters do 

not want to acknowledge that the law has failect because doing so would mean 

an end to the influence and power they have under the old system. 

The Coalition sees a new way that can acrually help endangered species because it stops punishing people for providing habitat and encourages them to do 

so. It creates an opportunity for our officials · for government · to reestablish 

trust and work with and earn the support of citizens. The Grassroots ESA 

Coalition is wodring to promote this new way. 

If you think that government bureaucmcy works, that welfare stops poverty and 

does not need reform Dr that the DMV and Post Office operate the way they 

should, then the old endangered species program is for you. If you do not, and 

you want to conserve endangered species without wasting money, intruding on 

people's lives and causing more pain and problems, lhen the Grassroots ESA 

Coalition is for you. 
GRASSROOTS 

ESA 

COALITION 

Posr 0...::. Rca 423 

8ATTU GROUND. WA 91604 

(l06) 68742SOS 

(206) 687-2973 FM:mGLE 

Euarrm c._ua 

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--8YRB.D 

C.ucr Clmuwo 

PAUlA EAsuT ..........,,......, _......, 

0.....""'"""""' DAVB Hooc. 

TOIIIDIWBIIII 

MAu.l'cu.oT 

IuSooo 

8tUCEVINCIIIIT 

P•B'Y7"JP'i GMM• 

..........,. ... .._,. Alauc.ull..ulo a-m Assoc. 

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BUlB~ eo.wn. CAuJoouaA w.- ·T~ 

eo.uno. """""'eo.s... ......... (FL) 

CololuHrn fOa A CollmwcnvaT.....,., 

Cotonnmms tooa A GaA:r Noa1lwBrr 

Coammnva &n.naa 1amnvn 

C......"'- Dttfal..u,. ~ ltarn 

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STnumor ... ~ 

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WU~DJ~ S'Din!S eo.ur.. WOIIII(s~eo.ur.. 

WYOMIMO 

(~-....., 

FARJt Bua.w ~ 

369 

Endangered Species Facts 

DidYooKnow ••• 

•'lbat no endangered species can be legitimately claimed as having recovered because of the Act? 

Allbougb a few spc:cics arc claimed as recoveries. in eacb case it is more accurate to 

attribule removal from lbc CDdangcred species list 10 'data error' -meaning it should not 

have been lislcd iD tbc first place or ils improvement is atlribulable to a factor other tban 

the E:odallg<ml Species Act. For example, some species were improving before being 

lisu:d wbi1e some owe tbcir n:<:0VC1J1 in 1arJe part to 111c non-ESA-relaled ban of DDT. 

•'lbat 68.4% of animals that are candidates for addition to the Endangered Species Act are insects, snails, spiders and other invertebrates? 

(Based upoo 111c USFWS Animal Nolice of Review--amdidate tist....,<!/11/94.) 

• "That the ESA disrourages private property owners from providing 

habitat for endangered species: 

According to Michael Bean of the Environmental Defense Fund: "there 

is ... increasing evidence that at least some landownerS are actively managing their land so as to avoid potential endangered species problems." 

"Now it's importi.Uit to recognize tlult all of these actions that landowners 

an: either talcing or threatening to talce are not the result of malice toward 

the red-cockaded woodpecker, not the result of malice toward the environment ... Rather, they're fairly rational decisions motivated by a desire to 

avoid potentially significant economic constraints. In short, they're really 

nothing more tJum a predictable response to the familiar perverse incen· 

tives tlult sometimes accompany regulatory programs. " 

According to Larry McKinney of Texas Parks and Wildlife Commission: 

"While I have no hard evidence to prove it, I am convinced that more 

habitat for the black-capped vireo, and especially the golden-cheeked 

warbler, has been lost in those areas of Texas since the listing of these birds 

tJum would have been lost withaut the ESA at alL " 

•'lbat numerous species have been added to the Endangered Species List 

by accident including lhe: Mexican dock, Pine Barrens tree frog, 

McKittrick pennyroyal, Palau dove, Palau owl, Palau flycatcher, 

Rydberg milk-vetch, Thmamoc globeberry and Maguire daisy? 

Based upoo the USFWS lbrcateoed aod Endangered Species List (8194), GAO Report on 

Eodangered Species (1988) aod Fcdcral Regisl<r delisling -=· •"That plans to """'ver endangered species include statements like: 

Iowa Pleistocene Snail: "With a return to glacial conditions it will be 

resuscitated over a major part of the upper Midwest, provided its relictual 

areas arr pr2served and maintained ... " 

(continued on page 2) 
370 

Florida Scrub Jay: "Because of the extreme usefulness of the Act in this case, it is not desirable to remove 

the scrub jay from protection under the "Endangered Species Act ... " "There is no anticipated date of 

recovery because it may qever be feasible to de list this species . .. 

Blunt-nosed Leopard Lizard: "A current target acreage figure of 80,000 acres has been established for the 

San lof11Juin Valley floor. with additional emphasis on optional habitats containing high density blunt-nosed 

leopard lizard ... populations in identified 'priority' habitat areas ... conflicting land users will be reduced or 

eliminated in an effon to restore habitat to optimal condition." 

• That the ten species covered by the most expensive endangered species recovery plans are: 

Atlantic Green Turtle $88,236.000 

2 Loggerhead Turtle $85,947,000 

3 Blunt-Nosed Leopard Lizard $70,252,000 

4 Kemp's Ridley Sea Turtle $63,600.000 

5 -8 Colorado Squawfish $57,770.000 

Humpback Chub 

Bonytail Chub 

Razorback Sucker 

9 Black-Capped V1reo $53,538,000 

10 Swamp Pink $29,026,000 

• That there is a kind or cockroach - the Thna cave cockroach - on the candidate species list? 

• That the government has no estimate or the economic cost of the Endangered Species Act? 

• That while the government has no estimated cost, if you use USFWS estimates or the average cost to list 

($68,400), recover ($2.76 million) and delist ($39,220) a species and multiply that by a fraction of the 

number or species on the list plus a fraction of the candidate species estimated by the Interior Department to require future listing, the cost of recovery alone reaches $7.3 to $9.1 billion. 

This projection employs the methodology of the Interior Department Inspector General using USFWS's 

"high range" estimate of $2,760,000 for recovery of 70% of currently listed species. The projection assumes 

that USFWS has made sufficient progress to recovery 30% of currently listed species without additional funding 

and uses the Inspector General's estimate that a range of 43-60% of Category 2 candidate species will eventually be listed. Figures based upon USFWS's own estimates and the USFWS Budget Justifications for FY '93 are 

adjusted to 1994 dollars. 

page2 
GRASSROOTS 

ESA 

COALITION 

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371 

EllllaDgeRd Species and Public Attitudes 

• n 'II. Fa....-loceDtins 81K1 Rewards. Wben !X"S"Dted the oplion of the most effective 

"""""' fu£ impementing ESA laws (an endangeR<~ species program based upon incentives 

oraESAprogram based on penalties audrestriclions on public aud private laud) 71% of 

1IOII:IS indicated they belie>ed lbat the c:sW>Iishment of incentives aud rewards would be 

oo;tellective. 

- Only 15% believe that punisbmeDis aud penalties would be more effective. 

- Only 4% believe that bolb should be utilized. 

-The view lbat incentives aud rew3lds are more effective rises with education (50% of 

those witbout abigb scbool education, 77% among college graduates.) 

-There ism dilkrence in attitude based on parlisan<ihip (72% of Republicans and 

ticket-splitters aud 70% of Democrats believe in incentives.) 

• n 'II. ut...cers believe that tho Stales should have at least equal authority in setting 

- eafon:iog ESA policy in tbeir stale. 

- 65% believe that stale govcmmelll should have alleast equal authority on setting and 

enfun:ing policy on tederally owned lands in their stares. 

-Among 'IIlier groups sudl as African Americans, Democrats, Clinton voters, selfidcotified liberals, aud WIJIIdng women 64% bold this view . 

•48'11. ut...cers81K162'!1. ul1UCa"siD MaualaiD region agreed that the Act ru.. adftne impact 011 people 

- Respondems were askfd if the agreed with the statement that ESA laws are hurting 

many industries, denying people the chance to find good jobs, provide fur their 

tiunilies aud build fu£ their cbildlm's future. 

-48% agreed aud 9% were IIIICCitain 

- 62% of voters in the Mountain region. 53% West. 50 Midwest agreed aud 51% in the 

N<ll1beast disagreed 

-54% of self-identified conservatives agreed while 57% of self-identified liberals 

disagreed 

-58% ofRepublicaJL'I agreed while 50% of Democrats disagreed 

• Oaly 18'11. ul ~Is believe that tho Endangered Species Act should be 

applied equally to puhlic- privale laDd. 

-39% believe that ESA should be applied to bolb public aud privale laud but thai private 

laDd owners should be COIIIpCIIS3Ied fu£ any negative ecomntic impact 

(There are bigbcr levels of support fu£ this position among Texas voters, moderntel 

1ibcral democr.lls, Demoaa< men, 35-44 year old voters aud self-identified liberals) 

-"IT% believe that it should be applied to ooly public laDd 

(die subgroup bolding this view is primarily RepublicaJL'I, South -central region, 

'IIIOIIlellal home, seniors, self-idclltified conservatives aud Bush aud Perot voters.) 

-9% believe thatESA laws should be 'done away with' 

(This rises to 19% in Mounlain staleS region. as do men over the age of 45 and older 

Republicalls) 

Surft)' raults ul a poll ul1,000 "'ikdy" n:gjslerecl voters across the country enndadied.., Man:b '15-1:1- aa -.dated COIIIIcleDcl! iDterval ul ±3.1 %. "The Survey 

.,... coaducled by phooe by tbe 1llrraDa! Group for Project OJmmon Sense. 
372 

C!JII 

COMPETITIVE ENTERPRISE INSTITUTE 

For Immediate Release: Contact: Greg Smith (202) 331-1010 

PUBLIC SUPPORTS REAL ESA REFORM 

WASHINGTON, September 7- The American public supports much stronger Endangered Species Act 

(ESA) reforms than have been proposed in Congress, according to polling results released today by the 

Competitive Enterprise Institute. "The current Endangered Species Act is a disaster for both people and 

wildlife," said Ike Sugg, CEI's fellow in land and wildlife policy. "This poll shows Congress lags far 

behind the public's support for real reform." 

According to the poll, conducted in August 1995, only I I percent of Americans support the current ESA 

which regulates private land use without compensating landowners for their losses. 37 percent support 

compensation for "any Joss" incurred by 

landowners as a result of the ESA"s regulation 

of private property. 35 percent support the 

adoption of a non-regulatory, incentive-based 

approach to species conservation. 

''Tbat 72o/o of those polled believe private 

landowners should not be made to suffer any 

uncompensated losses under the ESA is 

significant," said CEI's Ike Sugg. "That 35% 

of them believe that even compensated 

takings are inferior to not regulating private 

property at all, is astounding." 

The text of the question was as follows: 

WHAT IS THE BEST WAY TO PROTECT 

ENDANGERED SPECIES? 

"""' .......... '"' 

" Most Americans agree that saving endangered species of plants and anim:1Js is an important public goal. but they disagree on 

bow best to go about achieving it. I will now read you three options which some pe(lplc have suggested, and I would like to 

know which one ~st describes bow you think we should protect endangered species in this country. 

"A) To continue prewotiog private landowners from usiDg their o...,n land where endangered species arc found on their 

land, without compensating them for the loss-es incutTcd from such land-use regulation." 

"B) To allow the federal aovcrnmeot to continue restricting the usc of private land. but require that the federal government 

compensate the landowner for any loss." 

"C) To do away with the federal regulation in this area and instead have the government offer incentives to lando .... ners to 

keep endangered species on their property.·· 

II"• chose (A), 37% chose (B), 35°1. chose (C), and 17% did not know or re fu sed to answer the question. The question on 

Endangered Species was i.Dcluded in a national poll of 1,000 Americans seh....:te J at random, conducted August 21-24, 1995 by 

the polling company. The poll bas a margin ofmor of +/-3 perceol. 

CEI is a non-profit, non-partisan public policy group dedicated to free markets and limited government. 

For a copy of the poll or for more infonnation, call Greg Smith at (202) 331-1010. 

1001 Connecticut Avenue, NW • Suite 1250 • Washington, D.C. 20036 • Telephone: ( 202) 331-1010 • Fax: (202) 331-0640 
373 

BENJAMIN CONE, JR. 

35·8 Fountain Manor Drive 

Greensboro, North Carolina 27405 

H 910·272-5530 8 910-273-0166 

DECRIPTION OF PROPERTY AND PLIGHT 

I, Benjamin Cone, Jr., live in Greensboro and own 8,000 of timberland in eastern North 

Carolina in Pender County. A small family lodge, caretaker's home, shed, dog pens, and barns 

are the only structures on the property called Cone's Folly. Approximately 2,000 acres are 

swampland along the scenic Black River and are not suitable for timber farming. 

A wildlife biologist has documented the presence of 29 Red Cockaded Woodpeckers living 

in my old growth pine forest areas. Under current interpretation of the Environmental Protection 

Act by U.S. Fish and Wildlife personnel, I must maintain 1,121 acres of my timberfann as 

habitat for these 29 birds. I cannot cut my timber on the infested acreage. Penalties for cutting a 

tree where one of these birds lives or for killing a bird are severe- a felony conviction results in 

$25,000 in fmes and/or up to five years in prison per incident 

EARLY HISTORY OF THE LAND 

1n Colonial times, the major industry of eastern North Carolina was provision of naval 

stores with transportation provided by the natural rivers. The pine forests were rich sources of 

pitch and turpentine. It appears that the Cone's Folly land was clear-cut in the early 1700's due to 

the large number of tarkels (tar kilns) on the property. 

Large numbers of stump holes indicate that the property was clear-cut on additional 

occasions over the next 200 years. The last major clear-cut occurred in the early 1930's just prior 

to acquisition of the property by my late father, Benjamin Cone. 

Of general interest, a scientist from the University of Arkansas, testing bald cypress trees 

as party of a study of weather panems over the centuries, has discovered the oldest living trees east 

of the Rocky Mountains on the Black River perimeter of the property. The State of North Carolina 

has recently declared the Black River an Outstanding Rei!IOUJ'Ce Water. 

HISTORY OF CONE'S FOLLY PROPERTY 

My father bought the land in the 1930's, not as an investment, but as a place where he 

could always bunt and fish. Most of the timber bad been cut prior to his purchase; be replanted 

the pine forests. The property gained the name Cone's Folly because his friends from Greensboro 

thought he was a fool to buy timberless land in the middle of nowhere. At his death in 1982, 

significant inheritance taxes weR pai4 IRIIIhe propeny pasee4 to me . 
374 

Benjamin Cone, Jr. Page 2 of 3 

MANAGEMENT PRACTICES AT CONE'S FOLLY 

Benjamin Cone, Sr. bought the land in order to hunt and fish. About every six or seven 

years, he would cut enough timber to show a profit and maintain the tax advantages of land 

ownership. The timber cutting was usually done through selective thinning. Plantings were done 

to benefit wildlife: chufa for turkey, bi-color for quail and songbirds, com for deer and bear, rye 

for deer, sunflowers for dove. This practice of letting timber mature and frequent burning of the 

undergrowth was considered the best method for managing land for timber for wildlife and is 

recommended by most environmentalists. This practice was followed for 60 years and it also 

created a perfect habitat for Red Cockaded Woodpeckers. 

CONE'S FOLLY AND THE ENDANGERED SPECIES 

In 1991, I told my consulting forester to plan for a sale of timber in my bird hunting area. 

He reponed that he had discovered signs of Red Cockaded Woodpeckers which are protected by 

the Endangered Species Act and that I had a problem I requested that the U. S. Fish and Wildlife 

Service come to Cone's Folly, review my situation and explain the guidelines for dealing with Red 

Cockaded Woodpeckers. At that time, the guidelines were slowly being shifted from "Henry's 

Guidelines" to "Costa's Guidelines" which appeared to be more lenient than "Henry's." 

For every active colony of Red Cockaded Woodpeckers, "Costa's Guidelines" call for 

all three of the following within one-half mile radius: 

• A minimum of 60 acres of suitable foraging habitat 

• 2,950 sq.feet of basal area of pine trees greater than 10" DBH (diameter at breast height) 

• A certain stem count of pine trees greater than 10" DBH 

I hired a wildlife biologist who determined that I have 29 Red Cockaded Woodpeckers 

living in 12 active colonies. I hired a forester to cruise the timber. With this additional 

information, the wildlife biologist calculated that I have 1,121± acres that cannot be cut The 

U. S. Fish and Wildlife Service accepted the wildlife biologist's report by letter dated July 25, 

1994. 

With this acceptance letter in hand, I hired a qualified real estate appraiser. He determined 

that the value of the land and timber in the 1,121 acres without woodpeckers would be $1 ,685,000 

and that the value of the land and timber with the presence of woodpeckers is $260,000. 

Therefore, my loss in value, the difference, is $1,425,000. 
375 

Benjamin Cone, Jr. Page 3 of 3 

THE U.S. FISH AND WILD LIFE SERVICE OFFERED ME A "DEAL" 

Because of the loss of value of my timber and fear of additional loss, I told the U. S. Fish 

and Wildlife Service that I was going to change my past management practices and would begin to 

clear cut the rest of my propeny to prevent the expansion of woodpeckers on it 

Mr. Ralph Costa of the U. S. Fish and Wildlife Service offered me the following deal: "If 

I would maintain the existing habitat for the 29 birds, he would give me incidental-take rights on 

the rest of my propeny." (11rls existing habitat is confirmed as 1,121 acres.) 

I did not accept this "deal" because I would receive no compensation for the propeny 

required for the birds and I already have the right to cut timber on the rest of my propeny where 

there are no birds. 

MY COUNTEROFFER 

Since I cannot cut the timberin the 1,121 acres of woodpecker habitat and the U.S. Fish 

and Wildlife Service will not compensate me for my losses, I want to give the Red Cockaded 

Woodpecker-infested land to my heirs to get it out of my estate. I requested that the Internal 

Revenue Service agree on a value of my affected land prior to my gift The IRS has refused to prevalue my land so I can't risk giving the land to my children. 

CONCLUSION 

By managing Cone's Folly in an environmentally correct way, my father and I created 

habitat for the Red Cockaded Woodpecker. My reward has been the loss of $1,425,000 in value 

of timber I am not allowed to harvest under the provisions of the Endangered Species Act. I feel 

compelled to change my previous practices and massively clear cut the balance of my propeny to 

prevent additional loss. Finally, I plan to sue the U. S. Fish and Wildlife Service to try to recover 

my losses. 
376 

'\.i -\. , -···( ) ' . ' FI"'HERlE" 1'" -- ~.~ -.,--E l''C _. ,-. ·:\l.. .. ..., . ..:) . 'I:" . .1 .i. L ~ ~ -~ • 

1525 WILSON BOULEVARD • SUITE 500 ·ARLINGTON. VA 22209 

703 • 524 • 8880 • FAX; 703 • 524 • 4619 

STATEMENT 

NATIONAL FISHERIES INSTITUTE 

BEFORE THE 

HOUSE COMMITTEE ON RESOURCES 

ON H.R. 2275 

SEPTEMBER 20, 1995 

My name is Chris Nelson. I am Vice President of Bon Secour 

Fisheries in Bon Secour, Alabama and the Regional Vice President of 

the National Fisheries Institute (NFI) for the Gulf of Mexico 

region. 

The NFI appreciates this opportunity to testify on the Endangered Species Conservation and Management Act (H.R. 2275). We also 

wish to thank the Committee for holding field hearings around the 

country to hear directly from working Americans on why the Endangered Species Act needs to be reformed. The commercial fishermen 

from the Gulf of Mexico who had a chance to testify during these 

hearings, and who had an opportunity to discuss the issues with 

members of the Committee during your travels, appreciate the 

Committee's extraordinary effort. 

The NFI represents 1,000 companies engaged in all aspects of 

the u.s. fish and seafood industry including harvesting, processing 

and marketing. Our members operate commercial fishing vessels in 

all major U.S. fisheries including the shrimp fisheries of the Gulf 

of Mexico and the south Atlantic. My family's company, for 

example, operates 11 shrimp trawlers and has been in the shrimp 

processing and oyster business for more than 100 years. 

The seafood industry needs and supports strong conservation 

laws like the Endangered Species Act which recognize the vital role 

that conserving habitat plays in resource conservation. Many 

commercial fisheries, particularly those like the shrimp and oyster 

fisheries, depend upon nearshore habitats which can be hurt by 

pollution and coastal development. We also strongly support the 

Act's goals and believe that more needs to be done to recover species to healthy levels. 

At the same time, our industry is heavily regulated under this 

Act and we know through painful first-hand experience that excessive and unnecessary costs can be imposed when this law is misused. 

We also know how much effort and money are being wasted in seemingly endless litigation. 
377 

The NFI believes that the reforms proposed in H.R. 2275 are long overdue and that they will help thousands of commercial 

fishermen who are struggling to make a living under increasingly onerous restrictions. 

The need for a better planning and regulatory process is 

apparent. Realistic goals and priorities, for example, have not 

been established for sea turtles and way too much effort has been 

focused on shrimping rather than protecting nesting beaches. The 

result is that federal monies are being wasted. 

Part of the problem is that listing decisions, recovery 

planning, habitat designations, jeopardy consultations, incidental 

take permitting and rulemaking, and enforcement priorities are reactive and uncoordinated. Another problem is that there is no clear process whereby all stake holders can interact with each 

other in an open and fair way. It seems the only time commercial 

shrimp fishermen get to meet with federal officials and animal 

protection groups under the Act is in federal court. Much more emphasis is needed in opening up the regulatory process to public 

participation and scientific peer review. 

The new regulatory and planning process proposed in H.R. 2275, we believe, is a positive change. 

We also are pleased, Mr. Chairman, that you haven't forgotten 

fishermen in those parts of the bill which refer to compensation . 

The fishing gear restrictions which have been imposed under 

the Act cause fishermen to lose catch---how much is lost depends 

upon fishing conditions. We also face possible fishery closures 

because of incidental take of some species. A fishing vessel which 

loses part or all of its catch is worth less than a vessel which 

doesn't. Fishermen, we believe, should be treated the same way as other property owners who face substantial regulatory costs under 

this Act and H.R. 2275 does this. 

We do, however, have several suggestions on how the bill might 

be strengthened. 

First, we recommend that the present authority of the National 

Marine Fisheries Service under the Act with respect to marine 

species not be transferred to the Department of Interior as proposed in H.R. 2275. Instead, we recommend that this authority be retained by the National Marine Fisheries Service and that all 

authority over sea turtles be consolidated into that agency. 

Dividing authority over ocean species between two agencies leads to 

duplicate efforts which are wasteful and potentially disruptive. 

Plants and animals interact with each other in the marine 

environment in many complex ways. Conserving them _over the 

long-term requires comprehensive approaches and unique expertise 

under a single agency. 
378 

We agree with the decision of this Committee last week that 

the conservation and management of living marine resources should 

continue to be the responsibility of a single ocean agency with the 

necessary scientific expertise. 

Second, we recommend that the bill be amended to encourage the 

use of incentives in the marine environment when these incentives 

result in a net benefit for the recovery of species. 

Shrimp fishermen, for example, want to be part of "the 

solution" when it comes to recovering sea turtle populations. They 

have proposed a program which uses incentives to reduce fishing 

pressure in the nearshore fishing grounds where turtles concentrate, and increase fishing in offshore waters where turtles are 

rarely found. Such a program could be a win-win proposition 

benefiting both turtles and fishermen. 

H.R. 2275 recognizes that incentives are an important 

conservation tool, and it includes provisions which apply on land. 

What's needed are a few changes to the bill to make the incentive 

concept work in the oceans as well. 

Finally, we believe that more needs to be done to encourage 

international conservation. The sea turtles found in U.S. fisheries, for example, migrate through the waters of many nations. 

Earlier declines in their populations, which were caused by direct 

harvests in other nations, are an international problem---and so is 

the solution. 

Multilateral standards are needed to protect nesting beaches, 

foster enhancement, and control direct and indirect turtle harvests. International standards, rather than the present unilateral 

regulations, would put all fishermen on a level playing field and 

would also foster the international cooperation needed to speed 

recovery of turtle populations. 

Several Western Hemisphere nations, including the United 

States, are seeking an agreement this week in Mexico. If they are 

successful, we ask that the Committee consider including provisions 

in H.R . 2275 to facilitate its implementation and to foster the 

negotiation of similar agreements for other populations. 

Thank you again Mr . Chairman for the opportunity to testify. 

The National Fisheries Institute looks forward to working with you to improve a law which is of critical importance to our industry. 
Pietro ParravaJW President 

Davtd Allen 

Vin:-Pn.•sido.•m 

J o hn Greertville 

S<•nct:ny 

Don Sherer 

Trc:tsun:r 

Please reply to: 

Mllinillfl«: 

II P.O. Box 'JH9 

S:m .">;llito. CA 94966 

Td: (41')) 352-5000 

Fax: (115) .i31-2722 

Office of the PresjdeQ! 

II P.O. ox~ 

... :1 (irJnada , CA 1)40 1K 

Tel: (415) 726- 1607 

rax: (4 1 5) 726-1607-3" 

379 

llahila1..Qffu; 

I I P.O. Uox JH3 

Mendocino, ('.A I:}S4(Xl 

Td: (707)1)37-4145 

F:lX: (707) 937<l617 

STATEMENT OF THE 

PACIFIC COAST FEDERATION 

OF 

FISHERMEN'S ASSOCIATIONS 

TO THE 

W.F. "Zeu · Grader. Jr. t'.xt.·cutivc Dinx'tor 

Natbtnrld S. Bt•gbam 

H:1hita t Dirc:-ctor 

Gletl H . Spain 

Nnrthwc._-st HcJ.:kln:.ll l>in.·t1or 

MltcbFarro 

Din.'dor of Enhanet•ment 

Northwest Rcgjona! Office 

~ P.O. llmc 11170 

E~o J.,"Cr'll..' , OR ')7440-3370 

Td : (S03) 689-2000 

ra~~: : (')(J3)6H<J-ZSOO 

HOUSE COMMITTEE ON RESOURCES 

Washington, OC 

September 20, 1995 

H.R. 2275 - The Endangered Spedes Conservation 

and Management Act of 1995 

My name is Glen Spain. I am the Northwest Regional Director for the Pacific Coast Federation 

of Fishennen"s Associations (PCFF A), the largest organization of commercial fishennen on the west 

coast, with member organizations from San Diego to Alaska. We represent thousands of working 

men and women wbo are commercial fishennen in the Pacific fishing fleet and wbo are the economic 

mainstay of many coastal cornnamities and cities. PCFF A represents several billion dollars annually 

in economic interests which generate tens of thousands of family wage jobs - not only in coastal 

communities, but far inland as well. We are the men and women who help put fresh, high-quality 

seafuod on America's table, create a job base for coastal communities, and help support federal, state 

and local community services through our taxes. 

The commercial fishing industry as a whole is a major economic power throughout this country, 

accounting for well over $50 billion in economic impacts and more than 700,000 jobs. When 

combined with another $1 S billion per year generated by the marine recreational fishery, the whole 

STEWARDS OF THE FISHERIES 
380 

offshore fishing industry now accounts for about $65 billion per year to the US economy' 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 

combined economic input to the national economy in excess of$111 billion and supporting I ,500,000 

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 $1 II billion dollars in annual income and 1.5 million jobs in this economy that we 

generate- without strong environmental protections. Our industry is a prime example of a basic 

economic principle: 

Thefundamental source o(a/1 economrc wealth rs the natural environment. In 

the long-run envrronmental protect ron does not destroy johs --it creates them 

and maintains them on a sustamahle hasisfor the future. 

The biological wealth of this country is its "natural capital." Like any economic capital, we can 

invest it wisely or we can allow it to dissipate and waste. 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 

The ESA dispute is not really a clash between owls vs jobs, nor between public trust values vs. 

private property rights-fimdamenwlly, rhe ESA di.>pule ;,, a dash hetween short-term profiteermg 

vs. long-term and sustainah/e economic.: de velopment. 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 ofec:onomic >'ltMainability as well. As a society. we violate 

nature's biological limitations at both our biological.!!l!d 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 future will be 

fed. Wasting our "natural capital" dramatically impoverishes our society by limiting our future 

1

Ec:m.omicfigures from 011r l-tvmg Oceans. Report on the Suwu o(CS l.tvmg Jlarme Resotuces. 1992. ~OAA TIXft. ~lem. .. mfFSFiSP0-2. Natimal Marine Fidleries Sen icc. NOAA l ".S. Dq!t. ofCOI11Jno:l"oe. Walotlington. lX.". S« al!<O Analpts o(rhe potentwl ecanomtc 

beiU!fitsfrom rebNtldmg L'.S. jishertes (1992). National ~Iarin~ Fishcrics &:nice:. NOAA 

2 From Fuhenes. lf"etlands onJ Jobs: The l"al11e o(ll'etland.< toAmencu's FuJume.1. a r~ by \\"illiam !1-1. 1\.ier Assoo.:iates (~lard!. 

I994)fortheCau..,aigntoSa\"eCalifomia W.:tlands. S.:calsof-edl<'l". AJ. andD.M !\"ili.WJL The 1991 E.Conomtclmpacto(Sportl'tthmgmthe 

United States. by the Sportfishing Institute. Washinl!f.on. DC 
381 

industrial 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 regulated 

under the Endangered Species Act (ESA) than the Northwest timber industry. 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 oflistings for chinook salmon in both the Columbia 

and Sacramento Rivers, sockeye salmon in the Columbia, sea turtles in the Gulf, and various marine 

mammal species protected under both the ESA and the Marine Mammal Protection Act (MMP A). 

On the west coast, we are also facing the imminent prospect of coastwide listings for coho salmon, 

chinook salmon and every other anadromous salmonid on the west coast. The effects of these 

upcoming listings will potentially be far more restrictive than any past restrictions caused by spotted 

owls or murrelets. 

There is, in fact no industry more regulated under the ESA presently, nor more likely to he 

regulated in the foreseeable fu!ure, than tbe commercial fisbing industry. And yet (in spite of 

short-term dislocations) we view the protections offered by the ESA as vitally important in 

protecting and preserving our intiMstry, our jobs and our way of life for the long term. It is species 

declines which are the enemy, not the ESA. 

Species only qualifY for listing under the ESA beca111·e they are sedOJtslv decljnjng. They get 

listed because they face 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. but does nothing to reverse declines. 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 as well as the east coast, 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 . 

. l Th<." fishing indust~ is but one o:xanvlc. Full)' 400o of the k.nov.11 lnl:ldical \'aluahl<." pharmao;euticals. for instanoe, ar<." domv«< from 

nalur;ll SOUNeS. This n:pNW!ts an indwtria l C\nlom)' also in th.:hunlk.:ds ofbillims ofdollarsworldY.·ide.. as well as many millioo.s of lives uvcd. 

Yct ooly about l0oofall the plant !p\.'C,:icsnow kn<J'.'n ba\'C ~ ado~.quat.d sut\'C) .:d forthrirphann.~~o::ut.ical value.. and only a small fraaion of plant. 

!'P""~.:o< ha'" ._., ..,.,t~-g<,...;l.xi . ,\{OTI)' •nil hi.: d)· h..comt< <tXImct ht!fore thut t:•m foot ucct:>mplul"uJ. The booming hi,Jtc:d.nology indul(ty is a iM• 

anliChi.T cnfl1)lc. Th..-ir shrl in trade i~ gmt!S. Theso: g~S~es, h<M'e"\"et". co11 011f)" come f rom k110wn noturof .wurce3 - tv«< the irfvlest g_er~e is 

milliQns oftim.s too <."\ml) l~s to s)mh..-siu in the labuutOI")· b~· any known tedvloiO&'"· l 'nknov.n plant specie$ may oontain genes for disease 

r<.!!ii!llaniJC w<.)fth billions to a failing crop industry. or 1••01\h billions fllOJl: for atl)" of a number of other unknown and as yd. undisoovef"td indwblal 

prou:ssc:s. On~ e.\1inct. hov.o.:1·o:r. the potential use; oftht organism will n<!'"et" be lnov.n. Every sp.rio:lS drinn to e111inttioo gi1·es U$ f~·er llCOflomic 

•lptiom. 

3 

20-707 95- 13 
382 

The great salmon runs of the east coast are all but gone, more than 98% of those runs now extinct' 

Salmon in east coast restaurants are almost always inferior Norwegian salmon raised artificially --

which exports to Norway thousands of jobs that .,hould huvr helonwcf!o American fishermen. 

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 years 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 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 darns. In the eight federally operated Columbia 

and Snake River mainstem darns alone, each dam's turbines kill up to 20% of the outmigrant fish 

making their long journey to the sea' 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 tfom 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 Ninos) which combined with all the upstream 

hymap-eaysed assaults can be the final blow on 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 "extinction vortex" and numbers drop precipitously tfom that point onward -- only major 

intervention can then save them. This is precisely what seems to be happening over much of the 

coast. 

Salmon are tbe most sensitive to their environment in the egg stage and as juveniles when they are 

still in lfeshwater streams just after spawning Some species (such as coho salmon) spend a fairly 

long time in tfeshwater 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 tfeshwater. then adapt to salt 

4 Th.: Jajt r.:maining \o\ikl salmon nlll ~ in th~·.:a ~cm ._,,a!<l "fth.: I ' S ~r.: in:-.; ......., F.t~gland. Th.:s.:han.• 1\X.'<.'IItl~ h.:.l1 f'dili<Jn ... "CC for 

protcdi<tl und..,- th~ ES.\. There ar~t m_fact morf! Junu m Xf!M' I·:nghmJ thatthert! <rre md1wJuu/ udr1l1 su/mun returmng to your rtvl!r abollt 

2.500 "ild s.a lmoo !till rd.um to :-.;<."Yo 1-ilg.land. \o\hil.:th..r.: at\: about 1.000 m..'dium and snull daiJ'L'; in th.: s.amc area. 

S !}<J(h lh.: "1'.rt.~ from uppo.:r "'"*~cd ~~i\llli ...... l. '"1'ropo...-1oggins. ' " · ...,.g,a..ing. road " alohoo.sts. ~"1c ) and th~ i"1'•'-'s frnm the 

hHiTUfk.>w..-r turbin..s at\: larg..-ly 11-bn)" ofth.s.:pra..:ti..U< .aro: ob!.t>l&: .,d unn.:ou..""531') . .u~dpwrtU lfl th~ indu~ri~ will not gr.:atl:- sutTer 

l'rom <.'\HUihng nr mft.igatin@. ~ probkms. "The ot..:m li 1~ d.irTY&c Cllu..-...-d b~ th.::5.: J><'Or TNII<~f,CITICIII. pra<..til.:..:s is. in many ~::~s.s. nl<.lfc of 3 harm 

tu su..i..S.~ (.and h> th..: in~ il.l;...i0 th;an an~· .uw..i• ~t>k dit>l"t..(..nn h..!n~ofll!. . • \.-. an in ~ <our.;..: In~. w..: nc ~-n· ~~"ftlla th..S. K: to th..: <."UrT\%\t 

plig,t ••flimht..T wtrl.~ (man)""'""""'-"" arc ,}sn fish.:rmoll\) - h<M.r\'.:'1". it i~ clcar that short il!tll«i l<>gging. gr.u .ing and h~ droptM <.'I'" pra~1il,:d. 

.. 'tlll.du~1<.-d wMotJl jHl)" rgwdtosllgmofda.'d.ioo ~ t>a:n ~tOr uur in~· and man~ C\~Ual c;vmmuniti.:s. !1- IO!l ofth..: f.:Oo.:r;,l 

dn1pO'Atf dams w.:r.: buill "'ilhwl duu.rult~ s.Jin"II.WI puug.:. and wmo: (sud! th.: d<. ouk~ Dam)withoot any upstr.:<~mpa~g< 

"h3L~•-.. . Sa lnl<~ ar.: "'""' tub II~ ..:lilind ;~huv..: Grand Ct>ul~ r>am. ;and thi ~ ..:)>tindi<fl ••u d.::sipP<XI into th..: snt .. m . Th.: fishing in~ i~ 

f<."d<fall r.:gulatt.'d on th.: N~i s ufbiolop.:al MJ:<aain;~t>ilit~ (\buau~ Ad). It is t~ that th0o: .n.:r indu.~ri<.os "~.:as " ·.:11. Th.:<."U rT~t 

disk",:ations in th.s.: indu.<Ui.:i arc furtdarn.slt.all)' c:~u...:d b~ p;ast W'!f'dlri<..tdl o\ <fl-1 ~ <lfth..ir re:o;oui'IX "hid! TIO'A- has tl> h.: balan~'-'11 out and nud.: 

more u.':o1•in bk l 'h.: histori<.'111 r-.: oftimbt:r hal" ~ing O\t:f the Jut li:\o. docad.:s hu t>.xn man · ti ~ "hat is biological!~ ~inabl.: without 

doing major ,mirunnU!Ul danug..:tu dh<:J induslli.:s. The fund.l~l pwbl.:m "ith th..: timh.:r wppl~ i.'l that aft .. ,.- d.:ca&s tlf on.Tcutting ·•ld 

grt.Mthtimh...T th.:t mh...'findu_,.l) ks~t~ .,.._<>f l'tigttt.'\:!1. 

4 
383 

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, 

jn addition to natural predation and other natural impacts. Salmon evolved for drought, for El Ninos, 

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 poUution, oil spills and the many other 

unfortunate environmental problems created by modem civilization. 

Roughly speaking, we have lost about 80% of the productive capacity of salmon streams in the 

west coast as a direct result of various causes of watershed destruction. According to a 199 I 

comprehensive scientific study by the prestigious American Fisheries Society, at least I 06 major 

popUlations ofsaJmon and stee!head on "tbe West Coast are already extinct. Other studies place the 

number at oyer 200 separate stock extjoctjons jo the Columbia Riyer Basin alone. The AFS report 

also identified 2 I 4 additional native naturally-spawning salmonid runs at risk of extinction in the 

Northwest and Northern California: I 0 I at high risk of extinction, 58 at moderate risk of extinction, 

and another 54 of special concern, plus I run already ESA listed' In a recent extensive GIS mapping 

study of present 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 & California 

Current Distribution as a Percentage of Historir Habitat 

Extinct Endan[t.eret.l Threah:net.l Spa:ial Conccm Not K.Jm\\nlo he 

Species Dcclinintt 

Coho 55% Do/o 20% 5% 7% 

Sprin[t!Summ~o.-r 63% 8% J(,o/o 7% 6% 

Chinook 

Fall Chinook 19% 18% 7% 36% 20% 

Cbwn salmon 37% 16% 14% II % 22% 

Sockeye 59% 7% 3% 16% 15% 

Pink salmon 21% 5% <1% <1% 73% 

Se3-nm Cut1hroat 6% 4% Ill % 29% U% 

Winter Stc:dhe3d 29% 22% 7% 18% 24% 

Swtunt:r Stedhcad 45% 5% 5% 27% JR% 

According to GIS mapping, Pacific Northwest salmon are already extinct in 38% of their 

historic range, between S0-100% of these species are at risk or extinct in 56% of their historic 

range, and jn only 6o/o of tbejr hjstorjc babjtat range are fewer than 50o/o of these salmon 

6 .:hiS<r~ , d . al.. 1991 "Padfi<.: Salmon allh<<"rossroods: Sto.:b al Risk from l"alifumia. Or.:g ... n. ldah ... and("alifumb." f·iJh.,,., ... f 

16:2(4-21 ). 

5 
384 

apn:jn at risk or n!jgct.' The condusions oftbis study (the bestond most complete to dote) 

o"' cbilliDg- 9 oul of 10 known species of Pocific salmon will be ntinct in the lower 48 stoles 

in the neor fu!u"' unless bond use pollems pressing those stocks toword ntinction are 

revened.1 

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 

Nonhwest salmon industry (including both commercial and recreational components) still supponed 

an estimated 62,750 fiuniJy wage jobs in the Nonhwest and Nonhero California, and generated $1 .25 

billion in economic personal income impacts to the region. ' 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 economic losses per year 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 re.•·u/t of dam-related so/moll dedi11es ill the Columhia ha.<ill prior to /988.

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 

7 From (;JS su · mlpSp«pan:d~· sci.:nt~ m cmtrad to Th~ Wilderness Society. and publ~ed in lb.: WildemdS Socid>'• rqx.rt 

The Lwmg l.ufiJscu~: Pcu:tfic Salmon artd Federal Wfllls (J .ulwme 11. PuNi$bed by the Bolle (\,'lla- for Forat F.msyllcrn Mana~ {QaoM.-

1993}. Th ... r.:port anddlta wct~ p«r~ i.,'Wtd. 

8 Th.; 1Th: .:x\.'qltioo was pinL ulmcn. ~hidl mly 11(1114' 00..'\ln in th.: ~upper pcxtim ofth.! Pugd: Sound are~ in limited 

population ~. Tho::so:arealso(incicSo:nlally)lhe~k:atl aft'cdldbyfk\ d~ W.oemudtofth•uca isinOiyn11icSitional Part -Cf11'hasizing 

th.: difo.t .. 'On"dJtion Wv. ~ w lmon procb:tion Md iru<t ..... cnhc:d llQOI.)'Sl~. 

9 figuro.'!l> taluro from 1M f:«JJt((mtc lm~roft'llf! ofPrOl«f~r~g Rn't!r"'e Hahtlot m t~ Poctfic .'•.-orth•'tJt (Rql'Ort 5. Jwnary 1992) 

puNidlcd ~ 1M Padf!C Rh'<n Council hued m official federal !btOOa. tfom thr Pacifte Ftshcr)· ~t-ascmcra COI.rlcil. The' f~cry related job 

bn:U.~ntn ,uu. ao.::ordina. to thaln!PCW\. VIIUb(ol~ : 

Slat.: ('onwncrcial R«n::~timal T..,l 

"''""' 4.450 9.500 ll.954J 

W;uhinl1on 6.11110 4.2~ 21 .0SO 

:". C1Iifomia 4.000 19.000 21.000 

"'"'• So.-gligibk 4.750 4.750 

PacificSortJI\~.:51 15.250 47.)00 62.750 

Twl 

Comm..Taal fish.:ry Jobs au ba,-.t,. ~Jlcd ... coattal •cas. R~al fnhcr) johs.. while a l•gcr number. IlK mort di,·cne .. d arr 

distribut<ld more di.ffusd) throu&J-ll inland oc.mu~ili4. 

10 fwm a report tickd Tlr~ ( ·().ftf o{OO/ff[( .\'Ofhr~JR : F.xternulct'd Com to tilt! .•.;ortlf'll.'fW f-iJIIIflf( Economy of the< ·ummt Op~trafl (lfiJ 

o.fthe Cofumftla Rn,er HyJropotoerSptem. lmlitau ror FUh.rics Rcsourocs(2:J0.95) chit rcport (unpublidled). bu«< 0\ figures from IVa')' 

, .. ~ ~~tudy~· Dr. I fans Ra4k .... Ph.D .. anatunl raouro.seoonomiJt m cm~rao;t to the lmlilllk. C~ldkwa ofthc 1 .. main«.:m f~l 

dropo.M o..,. clams was in the lat.c70's. andnonc,..d'tbu.ilt with ~fnh pauago:-. That5lud)·oondudodthll ubnm ~in tho: Columbia 

Basin todato!hi\'O: atr'IIJUI1loxit<>lho:MDO\·allicmthc:rqjonal cconomyofbctw- 1].000 and 25.000 jobcanwally ll 1 <.'<*tultKea:Jnomy of 

b.:tw«n Sl50to 50!\ millim dolt.t. ann~&.~lt . ,..bW:fl tnrullloStothc k$ofnllW'II apil.allads of up to SIJ billim. 

6 
385 

the world. Now, however, in the Columbia and Snake rivers the hydropower system accounts for at 

least 90% of all human-induced salmon mortality, as oppo.">f!d to only ahout 5% f or all ,·ommerdal, 

recreational and trihal.fisherie.\· <:omhined. Official figures from the Northwest Power Planning 

Council indicate that the Columbia River dams kill the equivalent of between 5 million and I I million 

adult salmon every year, with several million more killed by a variety of habitat loss factors in the 

upper watersheds of the region ." Many millions more fish are killed in the Central Valley Project 

and in the Klamath Basin by loss of in-stream flows and many of the same habitat loss factors 

Another problem is wetland losses throughout the west coast California has already lost 9 I% of 

its original wetlands, Oregon has lost 38% and Washington has lost another 31% and the remaining 

percentages of original wetlands have been severely compromised in their biological functions 12 

These wetlands are vital in protecting oven.vintering 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 Nonhwest has been the rampant destruction of the area's wetlands. Loss 

fi!:,rures for the most valuable coastal and estuarine wetlands are much greater chan che overall state 

loss averages 

ESTIMATES OF SALMON JOB LOSSES DliE TO LACK 

OF PROTECTION OF SALMON RESOURCES 

With one major exceptionLl off central California, and a few ~ minor mostly sportfishing 

exceptions in Washin,brtOn and Oregon, the entire ocean going salmon fleet was closed down in 1994 

and I 995 because of these declines, panicularly of coho. Most of the coast is still under a Secretary 

of Commerce ''Declaration of Fishing Emergency·· for this reason. Even with some harvests returning 

in central California. we estimate that coastwide we have still lost 90°/o of our income from the 

commercial fishery as compared to the I 976- I 993 averages -- which translates to loss of 90% 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% in that same time period, with some areas (such 

as central Oregon) also suffering 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 I 988 Doing the calculation we get job losses as follows 

12 h<.1s un "dland los.o;es ~ lt..to: !Tom a r'T"'II"' h\'tho: I'S lkpl: nfint~nor .:ntitl~>d lrt•tlunJ .m 1.: "' tht' I :mtr.J .'\ru ;· · 1-Rtf.f to JQ/i((J'., 

h~ lhruna~ Dahl. Californi3 has los! a higll~TIJ'-1'~~13g&! llrits.,..,!tlandsthan an\ tth..-r !.tat.:. ]f,lllh ~'<>astal ur ..-stu3rino: ••~1lan~ is irn:lud..xl in tlws..: 

figun:s. ~·ad! !.tat~·\ \\\dand~ ~~~ "uuld h..· mud! gr .. ·at<.T. 

l.l Th<.' n<.'ar 1'<.'\.\ll'd salm.lll h:ir\'<.'SI this ,• r in (',Titral CalifomiJ is an in!.tnK1h·o: ~Co:('tioo to th'-'5<! d..~lin..- tr.:nd . 'I h..: prima~ c"u"-"' ul 

th~ i.n<.T<.'IS<.'!i hil~ pn•hahl:.· b..'dl "..t~T n.•fonm in th.: (.'mtra\ Yan .. , -. dri\·,ya b~ th<.'listing Wldo:r the f-:S ,\ s..-...·..-ral ~-.:ars ago oflh.: d..-... ~~; )tat .. >d natiw 

rum ofSa..,.-aT~M"tto "int~T-run dlinoolo.. !i-i!lmon andth.: ddt• ~<mC: . Althougta some ot thos..·n.iOrms ar"n"" <.wtt>..-.di.:d in th.: (.'o.rou-al \'all~~ Proj~'d. 

lmpru~ .._'111<211 ALt. th.._· ES,\ listing prL'\IJt .. ~ th.: ('\'r'J:\ ~ !oo.'hTitl y..:Jrs. Thus.. lll&~Y ufthos..: !>.!.mO: \\ ..,_.._,- r.._form.' i'!..:gilll to t.j.._i, in pnur tu th..: [l.lS.YS..: 

ofth,·C\'PI.-\. t'<t rhr~thM1 thr .. -.: h'ltr"o ~"- r~h I<II he '""*' !I <t kl' ~ fi'>, u R<'l1f'm l m n o{.m/,.,on 10 •nururt'. Or-.,-a1 .. --r in-~1'<.'11m !lfJK!k suni\'111 'OU('k-d 

11ith !Onunat.: or..'c:an ~utditiun~ haw thus g.i\'<21 w. a larg..• hitf"\'<.'Sl.lt>k run ""hi I<.' <lltk.T ar.:•s .,..h.:r.._. ho~hital W dl'ld .. at ... ,- di1 mi-••n~ g ill •uttinuo: an: 

!<liltind..'\:lin .. • 

7 
386 

I 5,250 x 90"/o = 13,725 jobs lost since 1988 in the commercial salmon fishery 

47,500 x 70"/o = 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 wtthinthe last 

two decades of approximately 72,000 fami(v wage jobs. 

In other words, roughly 47,000 jobs have been lost in tbe northwest Pacific salmon fishing 

industry (including both commerdaland recreational) just sincr 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 two decades. 

Overfishing is not a likely cause of these declines. Had overfishing been a major contributing 

filet or 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." 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/or which there is tw sport or commercial harvest (searun cutthroat) but 

which originate in inland watersheds in which tbere 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 gillnetjleet alone an estimated S//0- S/19 

million dollars in capital assets is invested" 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 many fishing 

I <I Or. C1uU Frissdl. ""'ho did INkh oftbc G IS TNII'P ... S for "The Wild.:ma.s So<,.;., ~ d tod ahm·c:. took an in ~dd! ool al 

"'bdba harve.l rcdr.KticiN were a~ fac~or irl population d)ftarnics for ooho salmon. lf o~ crfashing w.:re a s.iptifu::.1t ..:ause ofJI(l)ulation 

dodW\cs. tbcn han at Rduclioos should be df«th'C ill Ribuikliagdepldcd • cxb. He omcludcd ill his ... t)'As u follw-·1: 

~Ov«fuhiag i5 ollOl cita:las 1 priocipk f.aor causing dc:dine of salmon rum. HOYo·e\·cr. there are few hl$toril.::al or~ f«:lwds to 

indicce ~ Cl.llbilmcd. ofti.hiJtghas Del to inaeascd ~pn.ning a~ of" coho salmon. l'or ~le. ~ilmmt ot"lilhing seasons 

has bl:al~ tohav.:Nduocdhan.·at«llt.:dmort.alil} ~~ {)rqpl cod.ll coho wbstartially dumgth<:past dr.:cad.:. 11 · .. , .. .:.-. 

~haabem noeviclatoeofinaalcd~pawnc:~"~ <Nmgthis p«lod.. $UU;ellingthat fishingcurtailmmt is Ill bc.<it ll"kft'ly 

kecpingpiQCwilh .-.pid habib~~~ md dldiniogpro.b1i\ity of coho populations. ~ 

(Pacifte R.i\"a'I Councilp«jtioo fordteCIOUtwide liltin&ofcoho Almon. dUd 10 19·91). 

15 Figure5. from Or. H- e. Ph.D .. rllh..Tia ~a""mOfl"lisl. 

8 
387 

communities and the waste of a tremendous capital investment built up over generations.

16 

Again these extinctions represent lost jobs, lost family income and lost local tax revenues 

suffered by fishing communities as a result of poor enyjronmeotal protedjon of Northwrst 

ulmlm. These losses are being suffered by real peqple, 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- $I II BILLIONNEAR 

AND 1.5 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 utter~y dependent on species which themse/ve.'l require 

healthy watersheds and estuaries for the most critical parts of their life <ycle. Nearshore waters, 

including rivers. streams and coastal wetlands, are essential nursery areas for fully 75% of the entire 

US commercial fish and shellfish landings These sensitive ecosystems are valuable national assets 

which contribute about $46 billion per year to the US 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 $Ill 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 led to 

billions of dollars in lost revenue to the nation every year, lost employment, lost food production, and 

16 There is also a cuc;tdingdf.:tt nfth\:5C salmon declines which iltl"ad. Alasl:a'$ e<XJnomy all well Fishing is the eadin induslr~' 

in Alad.a. grenly cxceedingtimher produd.im u a 50UIW of co:ftOmic support for iu communitit:S. \tud! of that fili!in g indu!otty is n(l\lo· thrntmed 

OOcause of intematicnal disputes with Canada O\'Cf th.: oollapso: of the PacifiC Salmon Treat)' (PST). That treaty cotlapsed primarily N:cause of 

salmon losses in the I~:M·er 48 !ll.ates (particularly the losses from the Columbia). Oregoo and Washin§.on s.abnon tend to migrate north towud oolder 

water. \ lndo!r the PST as pn:sdltly writt.s~. for C'\'efY Canadian~g.Wl ftsh caui!Jtt in Alaskan waters. ConuJian fishermen are supposed to be ohle /o 

catch a U. S.-ongm fish swnnmmg north mto Canod1un .,.'(1/ersfrom the foM'er 48. HCM cr due to widespread 8&lmon OOclines in the JCM·cr 48 those 

replaocm..nt roo are mud! (e\OI<.T in nlllllho than the fish Canada is losing to the Alaskan fk:d. Thus the Canadians an: demanding cutbacks in the 

Ahtskan dl to balance out their own losses. ThcCanadilftS are quilee~pablcofenfotmg these c:U.baduithroui!Ji mandatory transit fe.:s (already 

i~forashorttime luty..ar )o;-orevat pmboalboardJnpmthe @tl scu(asin~ta!Jicoa!il ·J· •Turbol War·· betw~C .. ada .. dtheE~ 

11nK.iju!ll fevo months 1go). Todlte the cld)·thing that has driven ulma1 reoo''«)' dfons in the lt)fl.1itr 48 is the threat or rtal#y ofESA listing Wdflfll•,... ES..t..,..wwuco-:roftlta~~m.-n ltd• ,.,.u lfO llf11Mof.4J.d• ~-.,.,-., full-·· Mdr c.-.,..,-.Win •iflll. Wereth.: ESA itself to disappe8r. this into:matimal probkm wou~ still f<lr'Oo! rhtlll:lowiJ$ of mud! of the salmon h•rvest 

WI Alasb with WI the no:xl few ye~rs. It would be reqund not b)· the l1ws of Congress but by the bws ofnltUre. 

9 
388 

lost recreational opportunities. The collapse of the salmon fishery is only a small part of this overall 

habitat loss problem. 

Nor is coasiJI/ habihd I05S 1M 011/y problem. Our entire inl1111d freshwater fiSh resource is also 

ill serious troll ilk. According to studies by the prestigious American Fisheries Society. roughly QJH:. 

third of 790 /mown ¥Jfdes Q/..(reshwa!u firh in !he ll S are in danger Qjextjuctjmr or qf s.pecjql 

~ In the case of a whole fiunily ofnonanadromous (i.e., resident) salmonids, more than 50% 

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% of all known fish species in the U.S., the number of 

species classifiable as endangered (7.2%), threatened (9.4%). of special concern (10.8%) or already 

extinct (3 .3%) totals 30 7% Qjth;Hmlire large family Qj fish specie<. Of the 18 states with greater 

than 10 imperiled fish species, 10 are located in the South and 5 in the West. The II 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)17 

This cOilnlry is in the mitbt of 1111 ecological disaster which is causing tremend011s economic 

losses thrt11lgh011t the natioll ill this 11nd m1111y other resource dependent industries. The large 

number of the nati011's fish 1111d wildlife which qualify for listing under the ESA is just the 

symptom of this overall 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 U.S. If this commitment is made, at least a doubling of anadromous fish and other near shore 

dependent marine fish 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 

$Ill billion) and more than 450,000 new jobs. 11 

Environmental regulations exist because after decades of neglect and pollution, policy makers 

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 

17 ~ Fnt..:ricsSocio.t)". 'Sblus of f~a.:r Fidk:soflb.:l nii..»Sl• : ~~ of an l~kdF una ·· f<islwrt-ts. \"ol. 19. 

:'\o. I (J•na~ . 1994). 

11

E-'il)IMI from .\lumt•• f itlwrrHohuotPrOI«tmfl · A ~p<H1 to''"' r:S( "Ji!.' U (ttrJtlw S~c t' Ut)" (C >HI Nt'rc.~( \LIM I. 1994). 

Clll(IUN ~..:d~ tM~,..forfilhcriciRCIOUfUCl.F ... Coa. Filho:ric5FouncbiKln.nd.Pctl',\.withe:o.tcmi,.:cihtioruo. Copy-'·ailabkfrom 

PCFFAupon~. 

10 
389 

with the loss of habitat." 

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 Only the ESA gives them that authority. 

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. 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 compoRents of the entire nation's 

fishing industry - goodbye! 

The fishing industry represents a major economic force 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 it is 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 recent study by the MlT 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 

1975-1 990) 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 oflisted 

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 assenion that the Endangered Species Act has had harmful effects on state 

economies. Protections offered to threatened animals and plants do not impose a measurable 

19 !>.:CMha.: in th.: nation is the lin!.. hd\o, ~ inland awir~Lal protcdion and fish produdioo more ob\ious than in tho: Gulf stato!s. 

""hac !\'atimal ~Iarine Fishales &r.ioe scia'ltiltS estimate that 98% oft he Grlf{ commercral stuJfood harvest comes from rmhore. wetlandJ 

J otpen.Jcnf /i.fh ond hel~fi1 . Louisiana'S> marshes on~ produce an ;,umul oomrncmal fioh .-ut shellf"tsh han..:$11 or 1.2 billi<JI'I pounds worth S144 

million in 1991. Gulf shrirr(l dearly head the list of tho: region's wetlands dcp«ldent species. Without strong wd.lands pr<:te.d.ioo this emcmel~· 

,·aluabl.: commercial fiShing industry resource would C"\"cntwolly no longer exist in those slate$. The shrirr(l induslry is learning to cope with TED's 

and ()(h._.,. d.....,·iws to minimi7..;: unwant.;d bycat<.tt probkn'IS. ,\far great~T threat to that indu~r)' oorno:s from .:stuary and wd.lands habitat 1055. The 

ESt\ atoo.1l"hidl (in the last resort)can bcuscdtohalt and rC\·ersctheseiOSS<.'S andprotoctthat indu.'!lry 

11 
390 

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 filet. 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 I 8.211 endangered species consultations by 

the Fish and Wildlife Service/National Marine Fisheries covering the period 1987-1991 the 

General Accounting Office found that only II % (2050) resulted in the issuance of formal 

biological opinions. The other 89% were handled informally -- that is to say the projects 

proceeded on schedule and without interference. Of the 2050 formal opinions issued a mere 

I 8 I - less than I 0% -- concluded that the proposed projects were likely to pose a threat to 

an endangered plant or animal. And most of these I 8 I projects were completed, albeit with 

some modification in design or construction. In short. more than 99"/o 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." "' 

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 Pacific Northwest 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. 

FOR COMMENTS ON SPECIFIC BILL LANGUAGE -- SEE ATTACHMENT A 

20 Stq!hcll M !l.kl~ .r(!l.lantl 1995 ). f.'"dtlfl/(¥1l•J Sp.tctt'J l .uhnf{S ""J St«l<' 1-.", ·<>n<>mlt' Pnfnrmunc:~. \ln....d\lllldt.f; ln•iluto: lll. 

T~·. Projecl aa F.n\"iroamGUU PolilK:s and. Pol . f~on atti<w taed frcm t 'S Oata'•l Aa:uunl~&OifJO:(I99l)EnJun~~reJ SfWCio!J 

~ct: T:rtwf """ ,\'NiffhvJ ofl,pl~_.,,"'l Ac:t1otrs (0,\U Rf.('D-92-1) I BR) 

12 
391 

STATEMENT OF THE 

PACIFIC COAST FEDERATION 

OF 

FISHERMEN'S ASSOCIATIONS 

TO THE 

HOUSE COMMITTEE ON RESOURCES 

by 

Glen H. Spain 

Northwest Regional Director 

Washington, DC 

September 20, 1995 

H.R. 2275- The Endangered Species Conservation 

and Management Act of 1995 

ATTACHMENT A- SUPPLEMENT TO WRITTEN STATEMENT 

SPECIFIC COMMENTS ON H.R. 2275 BY SECTION 

PCFFA is the largest trade association of commercial fishermen on the west coast, representing 

many thousands of fishing families coastwide. Commercial fishing is this nation's oldest industry The 

food production, the jobs, the health of coastal economies, the commerce and the exports it 

represents depends 011 the protection qfthi\' nation's hasjc bjo/qgical heritage_ Fishing contributes 
392 

Sill biUion •nnuaUy to Ibis tountry's ttonomy •nd provides jobs for 011e and a half milli011 

Americans. Wrthout protection of this nation's aquatic resources, most of those jobs will be gone. 

The fishing industry is highly regulated under the ESA, so we know first hand that there are areas 

where the ESA needs improvement. In spite of its problems, however, we believe the Endangered 

Species Act is instrumental in protecting the basic biological heritage which supports our coastal and 

inland fishing economies. Although the ESA clearly needs to be made more workable and certainly 

should also be far better funded, H.R. 2275 in its present form is far [oo radical an approach which 

would result in fv too ljttle protection at far too mycb taxpayer expense. Our natural environment 

is the ultimate source of this nation's wealth, its "natural capital," and it simply makes economic sense 

to protect it. Allowing whole chunks of our natural heritage to go extinct is nothing more than the 

deliberate wasting of satiety's irreplaceable "natural capital," and a form of economic suicide. 

While there are a number of procedural strearnlinings in H.R. 2275 that we could support in 

principle, the problem is that these gains are far outweighed by its radical ami totally rmneces<ary 

departure from currwtlaw. Among other provisions in this bill that are simply unacceptable are 

provisions that would do the following: 

Section 202: RLtkfores ''take" of a listed species specifically to overtrlm the recent US 

Supreme Court Sweethome decision and make it virfrlally impossible to protect species' 

habitat otr private lands. Species also cannot exist without habitat. Destroying an animal's 

habitat (i.e. , its source of food and shelter) is just as effective a death sentence as if it were 

shot outright. One of the main recommendations in the recent National Academy of Sciences 

report "Science and the ESA" was the protection of habitat. Without habitat protection 

extinction is just a m'er of time. 

As a recent GAO report points out, more than 90% of species now listed as threatened or 

endangered rely at least in part OlliKHr-federallands for survival. Fully 2/Jrds of the habitat 

used by Northwest salmon, for instance -and by far the most damaged habitat -- is on private 

lands. Salmon swim throughout their entire watershed -- they do not stop at national park 

boundaries. It thus makes no sense to be protecting their habitat only on federal lands while 

encouraging their destruction just downstream. Many species (including several valuable 

salmon runs) exist Qll/,y_ on nonfederallands. The requirement that Qll/,y_ federal lands could 

be used to protected listed species, coupled with elimination of private lands habitat 

protection, amounts to a death sentence for many of these species. 

Under the bill as written, critical habitat could only be designated on private lands by the 

consent of the landowner or where the landowner is compensated by the US Treasury as a 

~aking " Otherwise (Sec 60 I) all critical habitat would be pushed onto those federal lands 

eventually designated as "Federal Biological Diversity Reserves." Even then, however, under 

current laws (which this law specifically does not supersede) most of these federal lands 

would still have to be made available for such activities as logging and grazing-- activities 

which in many instances are a major contributing factor in the declines of these species to 

begin with. 

14 
393 

Section 501: Planning for extinction -Abandoning the ESA '·'central goal of recovery. 

The Act's recovery mandate would collapse in favor of various totally 'discretionary' 

conservation actions by the Secretary. mdudmg doing nothing at all. The process of both 

listing and conservation would no longer be driven by the best available science but by the 

strongest political lobby Conservation plans would be driven primarily by a cost vs. Benefits 

analysis, and any species with less known economic value than the cost of conservation would 

be allowed to go extinct. 

Critical habitat has been completely redefined not in terms of what is needed for the recovery 

of the species but rather (at 501(d)((7)(A)(l)) in terms of survival of the species for only 50 

years. ln other words. even the highest level of 'recovery' allowed (but no longer required) 

under the Act could still be a plan for the eventual extinction of the species -- so long as it 

was estimated to take more than SO years to accomplish 

Section 30 I (b): Changing the accepted ESA diftnition of ".<pedes" to exdude "distinct 

population segments. " No longer would the ESA under this new definition of species 

require protection of geographically distinct population segments. However. the National 

Academy of Sciences has specifically endorsed the protection of distinct subpopulations as 

absolutely necessary to preserve a species' biological health 

Under this new definition, only !fa species were in danger f?f extim:timl throughout tis entire 

range worldwide would it qual~fyfor pro/er.:Jion It would thus be OK to wipe out chinook 

salmon in the lower 48 (along with the entire industry they support) -- there are plenty in 

Alaska' However. under this definition it would also be OK to wipe them out in Alaska too--

there are plenty of chinook still in Siberia I Thus not only salmon but every inland fish species 

in the United States would eventually be wiped out watershed-by-watershed and stream-bystream (all of which are distinct population segments) until the last stream and the last 

specimens of the species remained somewhere-- but probably not in the United States 

Under this proposal this nation's aquatic ecosystems would look like Swiss cheese --except 

that each year the holes would get a little larger 

The end result would be the wholesale dismantling of this nation's $111 billion dollar 

fishing industry and the export or that industry (including the 1.5 million family wage 

jobs it supports) to other countries where fish and wildlife are better protected 

Sections 206 and 505: Creating a nation of zoos - counting hatchery and zoo animals 

a.s equivalent; using hatcheries as a substitute for wild fish. There is an extreme emphasis 

on zoo breeding and artificial hatchery breeding as the preferred method of conservation 

Captive breeding, however, is extremely expensive, and its effectiveness in restoring 

populations to the wild is questionable. This is why captive breeding programs are widely 

recognized by scientists (such as in the National Research Council report) to be an emergency 

last resort and not a substitute for conservation in the wild Section 505 requires the 

Secretary to make captive breeding the method of choice This would gradually tum this 

I 5 
394 

nation's wildlife into zoo specimens 

In Section 206, this provision is especially absurd when considering its application to salmon 

hatchery programs. Sectiou 206 W!!Ci(jcgl[y requires !hat hah:hezy fish be coullled "' 

equjvalelll to wj/d fish for fli!(JlOSfS qfpqpu/atiotl couu/s. It allows landowners to totally 

escape ESA protections by placing more domesticated hatchery fish (however inferior 

genericaDy) in streams than the number of wild fish they destroy. It also exempts downstream 

landowners from any ESA penalty should they later catch or destroy those hatchery fish once 

they are off the land of the one who introduced them. 

Under this version of the Act, no native fish species (whether anadromous or domestic inland 

species) would likely ever receive ESA protection again, however close they were pushed to 

extinction. The result over time would be that most wild fish populations in this country 

would eventually go extinct to be replaced with "fish zoo" hatcheries and "museum runs" 

which would have to be maintained perpetually at enormous taxpayer expense. 

The Americau Fjsherjer Soc;eiJ! estjmales !hat about one-third Qj all 790 /mown US fish 

species are in serjous dedine and fad11g extinction. In some states (notably California) as 

much as 2/Jrds of all their native fish species are in danger of extinction. States with 20 or 

more imperiled fish species include Alabama, Arizona, California, Georgia, Nevada, New 

Mexico, North Carolina, Oregon, Virginia, Tennessee and Texas. In addition to their purely 

biological values, many of these fish species are or can potentially become economically 

valuable. 

Under this bill, however, all efforts to restore the nation's declining fisheries would come to 

a grinding halt- thus extinguishing the majority of a Sill billion dollar component of this 

nation's basic economy. There are more fish species in North America than anywhere else 

on Earth. Inferior quality domesticated farm and hatchery fish would be a poor substitute for 

the loss of this nation's entire natural aquatic ecosystem. 

Sec. 101: R~11ins tit~ govt!tWment to JHlY l1111"-'tns 11ot to destroy p~~blic ns011rces. 

Mandatory compensation of landowners would be required by defining most ESA protection 

activities on private lands as ik.....fa&1Q ''takings, .. even when lhose adjons qre inlendecJto 

lk!troy puh/icJ1I"lllUUJ! andpub/ic /ntsl rerources. Fish and wildlife resources belong to the 

public as a whole, not to the owners of the land they may he on or swimming through at any 

particular moment. 

•• Sec. 302: Itulepmdmt peer ..mew is 11ot h'flly iltdqlnodmt- The proposed peer review 

process should be done by at least 3 reviewers (not merely 2 as in the bill) and the review 

panel must exclude those persons with a direct or indirect financial interest in the outcome, 

or who are representing, related to, retained by or employed by any person or entity with a 

direct or indirect financial interest in the outcome. As currently drafted only agency scientists 

are excluded - but not paid industry representatives or paid lobbyists. 

16 
395 

•• Sections dealing with notice and publication requirements: Far from eliminating 

federal bureaucracy, several sections would greatly increase this burden. In particular are the 

various requirements for meetings held in every affected county. For any species that ranges 

widely or is found in many states -- such as the bald eagle -- this means thousands of 

individual public hearings would bave to be held, and would cost millions more dollars 

-all at taxpayer expen~. And this is just the listing process before any recovery costs 

have betn incurred. 

PROBLEMS WITH THE ESA AND THEIR SOLUTIONS 

The Endangered Species Act is not a perfect law. As a regulated industry, we 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 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 believe the ESA needs improvement in a number of ways, including the following: 

(I) The ESA should promote spt!Ci1!s recovery, not mn-e 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 mu<'h more 

expei!Sive proposition than to keep the species well-distributed in self-reproducing populations in the 

first place, from which the species will perpetuate itself naturally and at no cost to humans 

Prevention is always cheaper than cure. 

HR. 2275 barely touches on proactive prevention of declines. While there is language allowing 

Habitat Conservation Plans for more than one species, this is still a species by species approach. 

Protection of entire ecosystems would prevent hundreds of species dependent upon those ecosystems 

from declining toward extinction. 

(2) There should be recovery plan deadlines -- Recovery plans do not exist for most listed 

species, even years later. Recovery plans should be mandatory and be required to be published within 

18 months. Regulatory uncertainty is in many instances the cause of more economic dislocation than 

the conservation measures themselves would be once implemented. At present there are no deadlines 

on adoptjon ofrecoyery plans, thus perpetuating that uncertainty. For an industry such as ours or the 

timber industry, this uncertainty makes it very difficult to develop long range business plans or to 

17 
396 

obtain financing. The law should therefore require the Secretary to prepare wjthjn 18 months of 

lWioi 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 law should also require the Secretary to ensure to the maximum extent practicable that the 

combined set of implementation plans will, when implemented. achieve recovery of the species within 

a reasonable time frame. The recovery plan should identify and prioritize actions that would have the 

greatest potential for achieving recovery oflisted species. 

Even though H.R 2275 ahandons "recovery" as the goal of the Act, it does contain "conservation 

plan" deadlines which are reasonable time frames. We consider this a major step in the right 

direction. Section 502 of H.R. 2275 also prioritizes the preparation of "conservation plans"to 

emphasize multi-species plans, areas were natural resource conflicts are exist or are likely to exist and 

species for which no plan yet exists. This Section 502 also emphasizes implementing conservation 

measures which have the least economic impact first, as well as voluntary cooperation and 

nonregulatory incentive-based effons. Again, except for the fact that "conservation" is not 

"recovery" these are all principles that, as a regulated industry, we strongly suppon. 

(3) Assuring cost eff«<ivt!nns 1111d minimi:ilfg c01tjlictt. witlr priwll~ l11ndownos -- Most of 

the conflicts between private landowners and the government with respect to species protection are 

more perceived than r~. Nevenheless, there is a need to minimize those conflicts to the extent 

poSSible as well as providing for conservation measures which achieve the 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 achi~ng 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 

to 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 effons 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 

identity ways of reducing costs of recovery without sacrificing species preservation or 

recovery goals. 

18 
397 

Landownen should be CIJCOUI'I8Il'lto provide.,... proteclioo through a variety of incentive 

and financing pnl8l1lllll, iai:Uiiag the fullowiog: 

(a) Establish a revolving bn fimd fur- udloi:U goyanment entities to encourage such 

entities to clcvelop regional, mulli-opec:ies Habat Conlavation PlaDs (HCP's). 

(b) Enable~ wilh ~ 8C1ivi1ies C0D1i1tent with Ill approved regional HCP to 

obtain expedited ..,...mls of thole IICiivilies. 

(C) Authorize the Sec:ra.y to - inlo coopcnllive IN"'gt m n agreements with private 

landownen, pruvidiag&aa:ill--.a-lbr~- above .... beyond those 

required by the ESA. Adivities to be fimded lllllla-tbil provilioa would be thole called for 

by an approved recowry pllll.. 

The Habitat Conlavation Plan (HCP) procedure is a good tool fur lllldowDen to restore 

some certainty iDio the ..-- a wdl a to provide fur ~ protection measures. 

Howewr, the wm.at HCP ..--is deeply flawed ad ildJdes too little public J101ice ad 

co~. FurtbcrmoR, HCP's .-be ••• ""'•• _..-wool< lit aou purpoteS with 

approved recowry diOrta elaewhere. The law llltould ..pre HCP's to be consistent with 

approved recowry .,._ ... pis. . 

To its aedit, the dnftiag-fur H.ll 227S ltbe incorpor'Pd- of thole concepti iD principle, 

although we may have 10111e prolllcml wilh dclailed imp!o m ....... procedures ad "cooservllion" 

standards. We aJpp011 tbole 111J11R*11e1 but ltbe UDe.......,. wilh the -..1 llllgulge uaed here. 

Bolh HCP's ad recowry .,._may ltbe to OCtiiiioollly be updllted ud revbed iD lisbt of new 

scientific informlltion or the raulla of plllllllllllihlrills H.ll 227S does 110tlllow fur •nwncltnents 

of an HCP in light of new dlla - iac:ludios dlla dill iadialle dill the HCP illelf is &iling. There 

should be a periodic review pr-. either ••·-·caly evay S yan or when triggered by new 

dllta. 

During thllt review proce11, cxillins recowry .,._lbould be kept iD fuD furce, but the Se-oc~"'J' 

should propoae modificaliol• to the pllll to coabm wilh - ......... : Tbeae propoaed 

modificalions should be widely.,....... a public--ldnpted iDio the recovery pi"" "~ · 

when they wiU promote ....-1 or .,_ pRJieCiioa _.. lilllllr reccMiy iD a more COlt eftective 

IIWIII«. 

(4)~""-MIIu,.,el• ' a Ja; n •-}lat......,......,.,,., tie uel /tlf' filii-..... ,_ lie,_,_.,- A ...... by.....-..,.,._:11 does 1101 geaenlly 

work. Mu1ti-tpeciea ..... lbr the ....... CIIdlllpred ..,.,.,._ .-1 to be develope<! '~ tbt 

se species which are part af IIICh _,.,-dDIIOI,_.., tlw .Iit* -.1 eJtliiJt:tbllo begin 

with. TheESA.-IItobeoomem".......-..,..,-m"artawel. Prot~ e "~~ :coc ~" '-' ~~ 

be wholaale, not recaiJ, ill order to be COlt elill:liw. 

19 
398 

(S) FIINiillffor ICi6tlific....,...,., 1111d ~ effom m0111d be ,_a, itnproved- The total 

funding for aD ESA research and recovery efforts amounts to approximately 50 cent• per !IS cjtizcn 

~ Given the level of problems the ESA needs to address, and given the potential economic 

rerum on this inveslmenl, the current levels of funding for species identification and recovery borders 

on the ridiculous. 50 cents per year is too little to invest in our biological future. 

(6) Altemlllive Dispute Rnol11tion f• prtJpD1y OHIIIDS - There are rare instances in which 

property owners were unfairly IR8Ied or in which government agencies made inappropriate decisions. 

This is inevitable in any large administrative process. However, there should be a speedy and 

dl'ective 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. There is also 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 out to include this mechanism as a 

"safety value" to prevent problems from escalating out of control. 

(7) All..,_ iltfontlllliott llbollt lite ailtma IUid rrutfe of d11utoed Of' mdiutfered sp«ies 

111011/d be IIWiil4bk to f11"15P«1lve ptudotuen of prtJpD1y from 11 celtlrllli:d dtllll 1011rce --

Information depositories lhou.ld be created (perhaps made available through the National Biological 

Service and administered through state agencies) so that ~ 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 purchuing. 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. 

Most land use conflicts result when landowners have invested substantial money and resources 

in a dewlopmenl: project and feel that they have no choice except to proceed in order to recoup their 

investmonl. If a prospective landowner know before close ofcacrow whether or not there might be 

conflicts ~ dewlopmenl: plans and fish and wildli1e protection obligations, he or she could plan 

accordingly, propose mitigation measures with acceptance a condition of close of escrow, and in 

general !Ue a raunber of proactive steps to minimize or eliminate any potential future conflicts. 

Biological impact review of devdopment plans by state fish and wildlife or local agencies is routinely 

done in many states as part of the permit process, and this additional data base would fit neatly into 

that process. 

Thank you for this opportunity to testifY. I ask you to remember that fishing is this nation's oldest 

industry u well u one of ita moat important recreations Protecting fish means protecting jobs, 

prOiecting food production, prOiecting commerce and protecting recreational opportunities. Without 

a folly fonded and operational F..sA, it WOII/d be comtMrciD/ and sport jishel'tMn who will find 

themselves endangered Where the fish go, so go the billions of dollars they produce and the jobs 

and communities they support. 

20 
399 

Stuart L Pimm 

Professor of Ecology 

Department of Ecology and Evolutionary Biology 

The University of Tennessee 

Knoxville, 'IN 37996 

Testimony to the U.S. House of Representatives' Committee on Resources 

Wednesday, September 20th 1995 
400 

I speak as a scientist who studies global patterns of biological diversity and 

extinction. My remarks are not the official opinion of any scientific body. 

Nonetheless, I'm confident that the majority of my colleagues will conclude that 

HR2275 is not scientifically sound, nor can it be considered a credible attempt to 

address the scientific problems of managing biological diversity and preventing 

extinction. 

It's unfortunate that none of the current scientific consensus on endangered 

species management has found its way into this bill. Tn May this year, The 

National Research Council of the National Academy of Sciences issued a report 

entitled Science and the Endangered Species Act in response to a congressional 

request. The Ecological Society of America published its deliberations at about 

the same time. And on August 31st, a distinguished team of scientists, headed 

by Professor Tom Eisner of Cornell and including Professors Ed Wilson (of 

Harvard) and Jane Lubchenco (president-elect of the American Association for 

the Advancement of Science), published their thoughtful views on the matter in 

the prestigious journal Science. 

Not one of their recommendations has been included in this bill, so it will not 

surprise you that I cannot present a list of the bill's scientific problems within my 

allotted time. Among my major concerns are these: 

1. The bill requires scientists to assess the ""biological significance"' of a species. 

Without further guidance, this is surely impossible. Were I to guess the bill's 

intent, I would include the criteria of the "key-stone" roles that species play 

in ecosystems, the early warning of systemic environmental decay, and the 

"umbrella" protection one protected species affords many (sometimes 

hundreds) of other species in its habitat. TI1ese are among the scientific 

justifications that complement the ethical concerns of millions of Americans 

for the fate of wolves, bald eagles, and grizzly bears in the lower 48 states. 

Completely inconsistently, this bill eliminates the protection for all such 

populations unless Congress decrees otherwise. 

2. The bill's denigration of computer modelling is extraordinary. Models 

provide insights regarding the fate of populations that would take decades to 

obtain empirically. Such predictions of the future are such an integral part of 

modem society. It's hard to imagine how we could manage without models 

of the nation's economy, the spread of HIV, and, of course, wll~ther ~orecasts. 

3. The bill's system of biological diversity reserves does not target areas of 

maximum diversity, nor does it provide for new reserves. Indeed, only a 

small portion of existing federal lands appear eligible for inclusion. Many 

wilderness areas that are eligible were established for reasons having 

nothing to do with biological diversity. The boundaries of some National 

Parks-such as Hawai'i Volcanoes -were drawn to exclude almost 

completely those areas where rare species are concentrated. Moreover, 
401 

federal lands are disproportionately located in the western states; in the east, 

we would be disenfranchised. 

4 The bill contradicts the conclusio~ of a National Academy report on the 

decline of sea turtles. Scientific evidence shows the need for certain 

regulations affecting the gear used by the shrimp fishery to reduce the severe 

problem of drowning of endangered sea turtles. Yet, section 20l(a) of the bill 

eliminates the authority for those requirements. 

5 The National Academy has yet to issue its report on the salmon in the Pacific 

Northwest. The scientific evidence, however, suggests that fish hatcheries 

have exacerbated the decline of wild salmon. In contrast to the evidence, this 

bill argues that hatcheries benefit declining salmon populations. 

6. As a member of several editorial boards and a reviewing editor for Science, I 

find the bill's ideas on peer review nearer a caricature than the real thing. It 

appears to demand unavailable information-such as the names of peer 

reviewers of published articles. It restricts the ability of the Secretary to 

evaluate and rank ~y order of importance the information he receives. In 

contrast, it presupposes that only peer-reviewed data are admissible. 

Scientists, by the very nature of our training. are capable of sorting wheat 

from chaff. Without credible, long-term (but not peer-reviewed) data, the 

National Research Council could not have made its recommendations about 

the management of the Hawaiian 'alala. Implementing those 

recommendations has led to one of. the most dramatic stories of how the 1973 

Act has saved species from the brink of extinction. 

Scientific experience suggests that.the same standards should apply to all 

petitions, whether they are filed to list or dclist a species. 

7. The bill's reliance on captive propagation is totally misplaced. Captive 

propagation is no substitute for restoring a species to the wild. · The medical 

equivalent is to rely on heart bypass surgery to address our nation's high 

incidence of heart disease. I know from considerable practical experience, 

that restoration is an extremely expensive, last-ditch effort that fails roughly 

90% of the time, and it rarely addresses the underlying problems. Our zoos 

and botanic gardens have the capacity to propagate only a tiny fraction of the 

endangered plant and animals. Even Noah could only protec! the planet's 

animals for a few weeks- and he had Divine help. · · · 

8. The major cause of extinction is, and will remain, the destruction of habitat. 

The 1973 Act affirms this. So did the Supreme Court in its decision on the 

case of Babbitt versus Sweet Home- a decision obviously applauded by 

those of us who wrote the Brief of Amici Curiae Scientists. This bill's 

redefinition of "harm" thus removes the m05t significant cause of extinction 

from the scope of the Act's prohibitions. 
_,.E E. GlENN 

-

402 

STATEMENT BY KEITH ROMIG 

INFORMATION OFFICER 

SPECIAL PROJECTS DEPARTMENT 

UNITED PAPERWORKERS INTERNATIONAL UNION JAMES H. DUNN 

BEFORE THE HOUSE RESOURCES COMMITTEE Secretary· Treasurer 

Wulaillpoa, D.C. 

Seplealber20, 1m 

On bebalf of the 250,000 members of the United Papcrworkers International Union. I 

toOUid like to thaat the cbainnan and membcn of the committee for convening this 

bomDa 011 the EDdqcm! Species Conservation and Management Act of 1995 (H.R. 

2275). "This legisJmon IUIIlborius and makes needed modifications to the Endangered 

Species Aet. 

Our uaiOD Slrollgly supportS the goals of the ESA. But we are extremely concerned about 

job losses and ecoaomic impacts resulting from the Act. In our view. the ESA has failed 

to consider these issues adequaJely. The law needs to be adjusted. 

Mally of our members have spent their lives working in and around America· s forests. 

Their livelihoods depend on a sound strategy for preserving the envtronment. Our un10n 

'-lona fougbl to fmd balanced solutions to protect our environment. to preserve JOh 

opportunities for American workers and to protect the economic stability of umber· 

dopendenl communities. 

We do 1101 believe these goals are in contlict. But we also know there ts a stark difference 

bel-= SOUDd environmemal protection and a rigid environmental policy that ignores 

economic realities. 

Ill all of the curm11 political posruring and media coverage over reathorization of the 

ESA. liUJc m.emiOD bas been paid to the working men and women who will be so 

clnmaically a1fec:tcd by reauthorizing legislation. Protecting species and protecting jobs 

sbould 1101 be J*1iJaD issues. ~ simply is too much ar stake. That is why we are 

pialed to-tbal H.R. 2275 iJ1corpora1es the Clinton administration's ten principles for 

ESA .-.Jaorizalioa. 

I - bae today becalle pulp IIIIi paperworkers throughout the nation have 't the heavy 

blow of • ~ Endaftaered Species Act. The problem is most dram • .. ~ally 

illllllnled in the ODJOing debole in the Pacific Northwest where communities are still 

redillc 

~ 

from the impKI of efforts to pro1ect the Northern Sponed Owl. ESA restrictions 

timlaer harvest activities on Stale and private lands. combined with 

uafavoablc judicial decisions IIIIi administralion edicts have resulted in closed mills and 

~11101ken. Since 1919, some 212 pulp facilities. sawmills. plywood mills and 

INTEIWATOW.. HEAOQI.JNlTEAS P 0 BOX 1475 • NASHVtLLE TENNESSEE 37202 • TELEPHONE •6lS 18J.4 8590 
403 

panel mills have closed in Oregon, Washington, and Nonhero California.' Almost 

20,000 men and women wbo workCd in those mills lost their jobs2 

Communities in the region have seen their tax bases erode as unemployment rises and 

social services are overilurdencd. We know, for example, that communities suffering 

from a mill closure expericnc:e a loss in normal commercial business activity due to the 

increased unemployment or lov.u income for displaced workers. We also know there is a 

loss in ihe assessed value of the closed mill as a tax base for basic local government 

services. And, in many communities within the Option Nine area-- regions operating 

under the administration's federal forest management plan -- loss of timber revenue 

ranges from 25to 50 percent offcdcral timber receipts. In some cases, this timber 

revenue bas made up 35 to 40 percent of the funds required for local governmental 

services in an individual county. 

I have heard from our members that reported cases of depression and alcoholism have 

increased in communities suffering a mill closure. But budget cuts. brought on by 

decreasing tax revenues and timber receipts, have reduced the number of publicly funded 

social service workers to help deal with these problems. 

We arc hopeful that the salvage provision passed by this body earlier this year will slow 

the job loss by providing some amount of timber for processing. But we still need a longterm solution to rectify this problem and prevent similar devastation from occurring 

throughout the nation. 

In Alaska, where the timber and pulp and paper industries are operating at the lowest 

level in years, efforts have been made to further reduce the timber base under the 

Endangered Species Act to protect two species which have not yet been listed as 

threatened or endangered, the Alexander Archipelago Wolf and the Queen Charlotte 

Goshawk. Already, more than 220 men and women, the majority of whom are UPIU 

members, lost their jobs in Wrangell when the facility closed its doors last year. 

Additionally, two sawmills operaled by Louisiana-Pacific --one in Ketchikan. the other 

on Annette Island- shut down because of a lack of fiber and chip supply. Unless 

Congress malkes the necessary changes to the ESA to achieve a balanced approach toward 

species protection, we will sec further job loss in the small communities of Southeast 

Alaska. 

Indeed, most of the communities hit hardest by the effects of the current ESA are small. 

rural towns. A loss of several bUDdrcd jobs, or even a few dozen, in these communities 

can be a disaster to the local economy. When a mill closes, the whole town suffers. 

Local businesses shut down. Social services are strained under increasing demands 

1 

.. Forest Produc:u ladu:suy Report oa MiU Closures. Opc:ntions ami Other Related lnfonnation, 

Man:h!Apriii99S." Poul F. Eltinger4 Associales IIIII Roben Flynn & Associates. pg. 2-1. 1 1bid. 

2 
404 

coupled with a shrinking tax base. In many of the Nonhwest communities. we've seen 

increases in reponed cases of depression, alcoholism and even suicide. 

Too often and for too long we have seen the livelihoods of men and women run headlong 

into inflexible legislation or unbalanced federal resource policy. We need to make 

changes to the ESA that avoid these mistakes and take the human element into 

consideration. 

The UPIU suppons the principles contained in H.R.2275 as a reasonable approach to 

ntaking the necessary adjustments to the ESA. In our view, the bill provides sound 

environmental protection while allowing for the consideration of the economic and social 

effects of species protection early in the listing process. It takes a proactive approach to 

species protection to increase populations and prevent species from being listed. This 

legislation provides strong incentives to protect species and provides for better 

management of public and private lands. H.R.2275 also requires better, peer reviewed 

scientific standards for listing petitions and streamlines the consultation process. 

We call on this committee and the full Congress to move quickly to pass legislation 

incorporating the basic principles contained in H.R. 2275. It's time to protect working 

people and communities along with wildlife. 

Thank you. 
405 

·= AMERICAN FARM BUREAU FEDERATIONs 225 TOUHY AVENUE o PARK RIDGE o ILLINOIS o 60068 o (312) 399-5700 o FAX (312) 399-5896 

600 MARYLAND AVENUE S. W. o SUITE BOO o WASHINGTON, D.C. o 20024 

(202) 484·3600 o FAX (202) 484-3604 

STATEMENT OF 

THE AMERICAN FARM BUREAU FEDERATION 

TO THE 

HOUSE RESOURCES COMMITTEE 

ON 

HoR.2275 

THE ENDANGERED SPECIES CONSERVATION AND MANAGEMENT ACT 

Presented by: 

Carl Loop 

Vice President, American Farm Bureau Federation 

President, Florida Farm Bureau 

September 20, 1995 
406 

STATEMENT BY 

THE AMERICAN FARM BUREAU FEDERATION 

TO THE 

HOUSE RESOURCES COMMITTEE 

ONH.R.2275 

THE ENDANGERED SPECIES CONSERVATION AND MANAGEMENT ACT 

Presented by: 

Carl Loop 

Vice President, American Farm Bureau Federation 

President, Florida Farm Bureau 

September 20, 1995 

Good morning. I am Carl Loop, President of the Florida Farm Bureau Federation and 

Vice President of the American Farm Bureau Federation, the nation's largest general farm 

organization. American Farm Bureau Federation has affiliate state members in all 50 states and 

Puerto Rico, representing the interests of more than 4.4 million member families. 

The reauthorization of the Endangered Species Act (ESA) is one of the most important 

issues facing farmers and ranchers this year. Farmers and ranchers have for a long time borne the 

brunt of species protection imposed by federal agencies. This Committee's Endangered Species 

Task Force learned first hand how the current Act is impacting rural America, as producer after 

producer described how the Act is adversely affecting them. I appreciate the opportunity to 

represent those people and all Farm Bureau members befo:e the full Committee today. 

It is time for a change. It is time to bring some common sense into how we balance 

species preservation with making productive use of our property and our resources. H.R. 2275 is 

a good start toward achieving that goal. 

This bill contains most of the principles that Farm Bureau believes are essential to a 

balanced and effective species protection program. 

The cornerstone for any balanced approach for species protection is the recognition and 

respect for the rights of property owners to use their private property in a productive manner. 

The current scheme of ESA regulation that dictates private land uses forces property owners to 

bear virtually the entire cost of feeding and sheltering listed species found on their property. 

Such a scheme is not only patently unfair, but is contrary to the Just Compensation Clause of the 

Fifth Amendment to the Constimtion. Farmers and ranchers suppon the concept of endangered 

species protection, but do not believe they should be forced to bear a heavily disproponionate 

share of the costs of the program. Since protection of endangered species is a program of public 

interest, the costs should be borne by the public as a whole. 
407 

H.R. 2275 recognizes and incorporates this fundamental concept. It is stated as a purpose 

of the Act, and is reiterated in various provisions throughout the bill. We heartily support the 

direction of the bill to respect private property rights and to balance the interests of species and 

the needs of people. Both will benefit from this approach. 

1. The Bill Provides Compensation For Use Or Diminishment Of Private Property. 

A major aspect of this balanced approach to species protection is section 101 which 

provides a comprehensive mechanism for compensating private landowners for lost use or value 

in their property resulting from actions to protect endangered and threatened species. This 

section is an explicit recognition of the mandates of the Fifth Amendment that the costs of species 

protection should properly be borne by society as a whole. The procedures for claiming 

compensation set forth in the bill are fair, flexible and straightforward. The landowner properly 

has the burden of raising the possibility of a claim for compensation. The bill provides that the 

value of compensation is a matter of negotiation between the landowner and the government. 

At the same time, it should be noted that this provision does not limit in any way the scope 

of actions that can be taken to protect listed species. The agencies would be free to take 

appropriate actions for the protection of listed species, but the bill would require that agencies 

taking actions that diminish the value of private property must compensate the landowner for the 

loss in value. This requirement will result in finding more creative and effective ways to protect 

listed species on private property, and it will help to bring landowners in as necessary partners in 

protecting species found on their land 

AFBF strongly supports the approach taken in section 101 to provide a procedure for 

compensating property owners when the government deems their land is required for protection 

of listed species. It is a necessary element that must be included in any ESA reauthorization bill 

that Farm Bureau will support. H.R. 2275 is the only bill to include this vital provision. 

We have two concernS with the section. 

First, the 20 percent floor before the need for compensation is triggered is a concern to us. 

As written, this section in effect requires farmers and ranchers to donate up to 20 percent of their 

property to the government for species protection. On top of already exorbitant taxes and other 

regulatory burdens, this added "regulatory tax" is too much for our members to bear. It also still 

represents a disproportionate share of the costs of endangered species protection, even though it 

is a marked improvement over the current ESA implementation. The Fifth Amendment has no 

floor for when compensation is required for a taking of private property. The ESA should not 

have such a floor either. 

Secondly, the restriction that payments under the bill are limited by annual agency 

appropriations may result in landowners who are entitled to compensation under the section not 

2 
408 

being able to actually receive their compensation until much later, if at all. The liable agency 

should not be in control of the funds to be paid out, and landowners should have assurances that 

any compensation awarded hereunder will be paid promptly in full. 

2. The Bill Protects Private Persons From Being Prosecuted For Using Their 

Property In A Way That Might Modify Species Habitat. 

The recognition and respect for private propeny rights is also evident in section 202, 

which removes modification of habitat from the list of prohibited activities that could give rise to 

civil or criminal penalties under the Endangered Species Act. This section accomplishes this by 

re·defining "harm" to a species to mean "direct action against" the species. 

Adoption of this simple amendment will go a long way toward removing most of the 

problems and concerns that private landowners have with the way that the Act is implemented. 

The current prohibition against habitat modification, narrowly drawn but broadly applied, 

represents the ultimate control over private land use by the federal government. 

In addition, adoption of this amendment will not or should not compromise any of the 

purposes of the original Act. The purpose of section 9 was to prevent harm to species, not to 

control land use. Current application of the "harm" definition has all but removed any inclination 

of the govemmeQt to designate critical habitat or to provide incentives for protection of species. 

Imposition of blanket prohibitions against habitat modification also provides a disincentive to 

adopt an active management program that might benefit the species. The current application of 

section 9 fosters a program of command and control regulation and not of incentives. 

We believe this amendment will benefit both the species and private landowners. 

Removing the prohibition against use of private propeny will also have an effect on other 

sections of the bill. For example, section 203 dealing with private consultations under the Act 

(similar to federal consultations under section 7) will largely be obviated by the removal of the 

prohibition against modification of propeny as an actionable offense. 

3. The Bill Contains A Number Of Other Important Provisions That Protect 

Private Property Without Compromising Species Protection. 

The two provisions discussed above are perhaps the most often mentioned examples of 

private propeny protection in the bill. There are, however, other provisions that relate to 

propeny that Farm Bureau strongly supports. 

Section 105 preserves the right of the states to allocate water within their boundaries. It 

also provides that the ESA does not allow any federal agency or agent to impose conditions on or 

impair the right to use water so allocated under state law, or create a limitation on the exercise of 

3 
409 

existing water rights. 

The need for this provision is evident in the fact that control of water is becoming the 

focal point of conflicts under the Act. As particular runs of fish in individual rivers are becoming 

recognized as separate "species" and thus endangered, the potential looms that listing all of these 

species will wrest control of water from the states to federal ESA regulators. Section 105 

resolves this issue by retaining authority with the states. 

This section is particularly important for western states, where water is a scarce 

commodity. However, it is also important for eastern states to retain full control over the use of 

their water within the state, as regulation of water resources becomes more prevalent throughout 

the country. 

Section 206, also dealing with aquatic habitats, provides a degree of protection to private 

landowners. Aquatic habitat presents special problems for private landowners, because impacts 

from activities can be carried many miles downstream. In addition, water condition is an 

accumulation of many individual activities within a watershed, as well as impacts from natural 

causes (nitrogen from rainwater or organic matter and acid rain are a few of these impacts). 

The bill provides that no restrictions or limitations can be placed on private activities 

within an aquatic habitat area unless those activities can be detertnined to be causing adverse 

impacts. This protects a landowner from being regulated for impacts that are caused by others. 

4. Tbe Bill Provides Some IDcentives To Landowners To VoiWJtarily Protect Listed 

Species And Habitat On Private Property. 

Section 102 of the bill requires the federal government to cooperate to "the maximum 

extent practicable" with states and private landowners in the protection of listed species. The bill 

authorizes the Secretary to enter into Cooperative Management Agreements (CMA) with private 

landowners for the management of species. These agreements would be voluntary with the 

landowners, and would not obligate them to restrict activity on their property without their 

written consent The CMA would provide a "safe harbor'' against any funher restrictions being 

imposed due to additional listing of species on the property, and lawful activities that comply with 

the terms of an agreement are exempt from section 7 consultation and section 9 taking provisions. 

The bill augments these agreements through a series of habitat conservation grants and technical 

assistance grants. · 

This bill provides a necessary element that is sorely missing from the cWTCnt Act -

incentives to private landowners and ocher non-federal entities to manage species found on their 

property. Such incentives are particularly important in light of the fact that over 78 percent of all 

listed species occupy private property, and for 34 percent of all listed species private property is 

their exclusive habitat Thus, cooperation of private landowners is not only important but 

necessary for the Act to worlt.. Experience bas shown that people are more likely to respond to 

4 
410 

incentives than to conunand and control regulation. Fanners, ranchers and other propeny owners 

are no exceptions. The American Farm Bureau Federation has been a strong proponent of 

providing incentives to private landowners to assist in the management and protection of listed 

species. 

The Cooperative Management Plan provides a good stan toward changing the direction of 

species protection from conunand and control to a pannership with willing landowners. It 

provides landowners with a degree of cenainty that they will not be subject to consultation under 

section 7 or liability under section 9 for actions taken in accordance with the CMA. It also might 

serve as a substitute for the Habitat Conservation Planning procedure that is now too costly and 

time consuming for farmers and ranchers to use. If it can serve as a "poor man's HCP," the 

Cooperative Management Plan will serve an imponant function. 

But this section only provides one type of incentive. We submit that the bill should take 

the next step and provide a wider array of incentives to encourage as many landowners as possible 

to assist in managing species found on their propeny. We are convinced that the success of 

species protection depends on landowner cooperation. 

Fann Bureau has proposed a Critical Habitat Reserve Program as a means of providing 

such incentives. While this program is not currently incorporated in H.R. 2275, we will address 

this issue in more detail later in our statement. 

5. The Bill Provides A Balanced Approach To Allow Redress Of Violations Of the 

Act. 

The bill makes a number of imponant amendments that would allow all affected parties to 

challenge actions taken pursuant to the Endangered Species Act, while at the same time 

protecting private parties from judicial harassment by other private interests. Farm Bureau 

strongly endorses all of these changes. 

First, the bill would expressly recognize the right of fanners, ranchers and others who are, 

or might be, adversely impacted by a listing of a species or other agency action to protect their 

propeny or economic interests by challenging the action in coun. This provision becomes 

extremely imponant because the federal Ninth Circuit Coun of Appeals, the nation's largest 

federal judicial circuit in terms of area, has recently held that people cannot sue to protect their 

economic or propeny interests from arbitrary or capricious government actions under the ESA. 

This was succinctly stated in the recent case of Bennerr v. Plenarc, No. 94-35008, (9th Cir. Aug. 

24, 1995): 

''This case requires us to determine whether plaintiffs who assen no interest in preserving 

endangered species may sue the government for violating the procedures established in the 

5 
411 

Endangered Species Act. We conclude that they may not." 

By removing the capability of landowners and others adversely impacted by ESA decisions to 

challenge those decisions, the N"mth Circuit has left people at the mercy of federal agencies to do 

whatever they want in the name of species protection. While those adversely impacted by ESA 

decisions are shut out of court by the ruling, those interests favoring increased species protection 

are free to advance their interests. The bill levels the playing field by .giving both sides the 

opportunity to protect their interests. 

The bill also expressly recognizes the rights of people adversely impacted by species 

decisions to participate in cases brought against federal agencies. The real parties of interest in 

such cases, farmers and ranchers, are often not named as parties in the case, and the defendant 

government often settles such suits in a manner that is adverse to the private interests that are 

harmed. This provision allows such private parties to protect their rights by participating in these 

cases. 

The citizen suit provision of the ESA has also been used as a means to effect land use 

control of private property through the courts by thiid party private interest groups. Such groups 

use the courts to sue private landowners to complain of private activity on private lands that they 

claim violates the Act, thus sidestepping and evading enforcement by responsible federal agencies 

by seeking backdoor enforcement from the courts. Landowners are often forced to spend 

substantial amounts of time and money fighting such suits. 1be bill corrects this problem by 

providing that citizen suits may only be brought against the United States or its agencies for ESA 

violations. Any violations by private parties will be redressed by the federal agency authorities 

charged by Congress with enforcing the Act. 

The bill returns a fairness in the enforcement of the Act and accountability of the federal 

government that had been taken away by some courts. Farm Bureau supports these amendments. 

6. The Bill Simplifies Procedures and Provides More Certainty For Private 

Activities. 

Another aspect of the bill that we support are those provisions that give private citizens 

some degree of certainty that activities they might undertake will not nm afoul of the Act. This is 

especially true for those landowners who enter into Cooperative Management Agreements or 

Habitat Conservation Plans. Another section of the bill provides for a system of nationwide 

"general permits" that allow activities that have minimal or low impacts on listed species to take 

place without consultation under section 7 or the threat of prosecution under section 9. The 

permit provision is patterned after a similar provision in the Oean Water Act that has been 

successful in reducing bureaucratic red tape. 

We believe that these procedures will have similar successes with regard to endangered 

6 
412 

species that they have enjoyed with regard to clean water. Too much time and money is spent by 

agency personnel in informal or formal consultation or in investigating activities that have minimal 

or no effect on listed species. Such agency time and money is especially wasted in cases where 

activities are part of an approved Cooperative Management Plan or Habitat Conservation Plan. 

The same is true for the person engaging in the activity. Farmers and ranchers often spend 

significant time and money to gain approval for activities that might be covered under a general 

permit, or that might be already approved under a CMP or a HCP. But the biggest advantage for 

farmers and ranchers and other private parties is the certainty that they gain that such activities 

will not violate the Act. 

7. The Bill Would Allow Private Parties In Interest To Participate In Consultation. 

Section 7 requires consultation between the Fish & Wildlife Service and any federal 

agency for any action authorized, funded or carried out by that agency. In many cases, the 

involvement of the federal agency is minimal, such as providing funding or funding guarantees, or 

issuing permits under various programs. In all of these types of cases, the only party that is really 

affected is the non-federal party who is receiving the funding or the permit. Yet in most cases, 

these private parties have no voice in the consultation process. 

The bill provides that the non-federal party shall be entitled to participate in the 

consultation process along with the federal agency. This will provide a number of benefits. The 

most obvious benefit is that it will give private parties an opponunity to provide input in the 

consultation process that is deciding the fate of their projects. Secondly, it facilitates the 

consultation process by having the private parties available to answer questions about the project 

that might arise. Finally, private party participation provides an opponunity to develop workable 

"reasonable and prudent" alternatives in those cases where the original project might jeopardize 

the existence of a species. 

We suppon this provision as a means of improving the consultation process. 

8. The Bill Provides For Peer Review Of ESA Decisions. 

While the Act contemplates that decisions involving the listing, de-listing, or likely 

jeopardy to species are to be made on the basis of sound science, in practice that is not always 

true. The current Act does not contain any safeguards to ensure that decisions are scientifically 

based, and this often leads to decisons that adversely impact landowners while serving no benefit 

to the species. Thus, one of the major priorities of the American Farm Bureau Federation in the 

reauthorization of the Act is to ensure that adequate safeguards against sloppy science are built 

into the Act to provide some accountability from agencies. 

Section 302 of the bill provides for scientific peer review of most endangered species 
413 

decisions before they become final. Peer review is one such safeguard against sloppy science that 

ensures that scientific evidence is sufficient to stand up to scrutiny by scientific colleagues. 

In order to be truly effective, peer review must present an unbiased review by qualified 

experts selected in a random or impartial manner. Section 302 of the bill largely accomplishes this 

objective. In addition, an effective review panel will not only look at adequacy of scientific 

evidence, but it will also review the scientific methodology upon which conclusions are based. 

The bill requires this review as part of the peer review process. 

The bill provides impartiality of experts by disqualifying government contractors and those 

who have participated in the listing decision. Whether or not such people might actually be 

biased, this section removes any appearance of possible bias, without sacrificing any expertise. 

We have two suggestions for improvement of this section. First, peer review should be 

extended to review proposed listings to determine whether there is even adequate scientific 

evidence to warrant proposing a species for listing. Review at this early stage could save the 

agency significant time and money by stopping listing proposals that have little or no scientific 

support This early review would also prevent the use of the proposal stage to obtain a de facto 

listing during the period the listing is open. 

Secondly, the peer review panels should be exempt from the provisions of the Federal 

Advisory Committee Act (FACA). Such panels have been used in the past (Alabama sturgeon, 

northern spotted owl, 5 Idaho snails, to name but a few) and courts have held such panels come 

within the provisions of FA CA. To avoid burdensome compliance procedures these panels need 

to be exempt from FACA in order to be of any impact 

9. The Bill Recognizes And Reaffirms The Importance Of An Agency's Primary 

Mission. 

Original Congre~sionallanguage stating that the protection of species is to be accorded 

"the highest of priorities," together with Court decisions that have reiterated that statement (e.g., 

Tennessee Valley Authority v. Hill), have elevated the status of the Endangered Species Act and 

its requirements above all other laws, including the authorizing statutes of federal agencies. Thus, 

these agencies are hamstrung in the performance of their primary missions by having to comply 

with the Endangered Species Act, and their work at their primary mission can be, and has been, 

superseded by a species listing. For example, livestock pemittees on national forests in Oregon 

and Idaho were shocked to find that their grazing activities as well as all other multiple uses on 

the national forests had been stopped because a court found that the Forest Service had not 

consulted with the appropriate federal agency with regard to certain listed species. 

The net effect is that FWS and/or the National Marine Fisheries Service (NMFS) has as 

much or even more control over federal activities than the responsible agency. That is because 

these agencies can change or stop the activities of responsible agencies in the name of species 

8 

20-707 95 -14 
414 

protection. 

Section 401 of the bill corrects this flaw to some extent. It does not re-establish the 

primacy of the agency mission, but it also does not continue the primacy of the Endangered 

Species Act. Where the agency mission and the ESA can C(}-Cxist, the bill tells them to co-exist. 

Where there is an irreconcilable conflict, however, the bill authorizes the President (head of the 

Executive Branch) to resolve the conflict in the best interest of the public. 

We believe this is a good approach. It neither compromises the mission offederal 

agencies (as was done in the current Jaw) nor protection of species. Both are equally important 

according to the bill. Rather it leaves any final decision to the President, an elected official who is 

the ultimate head of the federal bureaucracy. 

10. The Bill Distinguishes Between Endangered And Threatened Species. 

While the Endangered Species Act obviously contemplates a difference between species 

listed as "endangered" and those listed as ''threatened," in actual practice there is very little if any 

difference between these categories as to the impacts of the listing on private activities. That is 

because the "taking" prohibitions of section 9 which apply only to endangered species are 

routinely applied equally to threatened species as well. 

Section 507 of the bill m:ognizes the distinction between categories and attempts to make 

the difference one of more than name ooly. It provides that any rule listing a species as 

"threatened" must also promulgate rules fO£ the conservation of the species, including what 

activities constitute a "taking" of such species. The bill also provides that any such restriction 

applied in the case of threatened species cannot be as restrictive as prohibitions applied to 

endangered species. 

Farm Bureau supports this amendment. 

11. Tbe Bill Provides A Framework For Petitions To De-List Species. 

Section 307 of the bill provides a mechanism and framework for Petitions to De-List 

Species. While the cwrent Jaw mentions petitions to de-list, it is only in passing to say that the 

procedures are the same as for petitions to list. As a result, few people are aware of the process 

for seeking to de-list species. 

The process and practice for de-listing species has been largely undefined, with the result 

that bureaucrats have acted as they please. When species have attained or exceeded recovery 

goals as stated in recovery plans, the agency revises the recovery goals upward. The Northern 

Continental Divide and Yellowstone populations of grizzly bears are prime examples of species 

that should have been de-listed years ago because they satisfied recovery goals. 

9 
415 

Modern scientific advances in DNA testing and other techniques have also called into 

question assumptions regarding listed species that were not known at the time they were listed. 

This may result in the de-listing of cenain species because they should not have been listed in the 

first place. 

A process for de-listing species is therefore a timely addition to the Act The criteria set 

forth in section 307 for de-listing species appears to cover all relevant situations where de-listing 

would be appropriate. Our only suggestion for this section would be to enumerate some 

situations where the original listing might have been in error (more numbers and habitats than 

previously known, revised taxonomic criteria, etc.). We would also add another criterion to the 

effect that de-listing is appropriate for species that have been hybridized to the point where they 

are no longer the same species that was listed. 

12. The Revisions To The Listing Process Can Be Further Improved. 

Title III amending the listing process represents a substantial improvement over current 

law. However, of all of the parts of the bill, it is in our view the one that could stand 

improvement the most 

Farm Bureau has identified several principles that must be incorporated into the listing 

process in order for it to be adequate. Some of those principles include: 

Decisions under the Act must be based on sound, verifiable scientific evidence endorsed by 

peerreview. 

Social and economic factors must be considered. 

The listing of subspecies and distinct populations should be limited to only those situations 

where such listing is necessary for the survival of the species as a whole. 

With the exception of peer review, these principles are not incorporated in H.R. 2275. 

A. The bill retains the current scientific "standard." 

An important aspect for farmers and ranchers in the reauthorization of the Act is to ensure 

that decisions are made on the basis of sound science. This entails a minimum threshold of 

scientific evidence that the government must meet in order for a species to be listed. As it now 

stands, the burden of proof is on private entities to prove that proposed species should not be 

listed. Yet the Act specifies that the government must make a scientific determination that the 

species should be listed. It is that determination which places the burden on the government, and 

that burden must be supponed by sound science. 

10 
416 

The current scientific standard for decisions is "the best scientific and commercial data 

available." Such a "standard" is really no standard, because it would permit listing on the basis of 

a single master's thesis, if that is the only, or "best" data available. 

While the bill seeks to protect against abuses of science in the decision-making process by 

such mechanisms as peer review panels, it does not change the current "standard." That will only 

perpetuate the problem of decisions being made on less than a verifiable scientific basis. 

The government has the initial bunic:n of proof in ESA cases because it must make: a 

determination in all cases, whether it be for listing, critical habitat, or jeopardy. The Act needs to 

set a minimum scientific standarG that must be met for decisions to be scientifically valid. It must 

contain a requirement that determinations must be made on the basis of sound, credible, verifiable 

scientific data necessary to support a decision. Without such a provision, there is always the 

possibility of scientific insufficiency. 

B. The bill's provision relating to identifying missing data and requiring it to be 

provided is inadequate and represents an unacceptable approach. 

The bill requires that all data nc:cc:ssary for listing be identified, and if not provided at the 

time: of listing, it must be subsequently provided and subject to notice: and public comment. 

However, the bill allows the: species to be listed in the interim. 

This is not a good approach. It not only eviscerates any principle that listings be made on 

the: basis of sound science:, but it allows listings on admittedly insufficient science without public 

notice: and comment. The: bill makes no provision for consc:quencc:s if promised data is not 

provided on time. Yet the spccic:s remains listed. Withoui any sanctions for not meeting 

deadlines, the section is virtually meaningless, and actually worsens the listing process. 

We suggest that this provision be deleted. 

C. The bill makes no provision for consideration of economic or social 

considerations in ESA decisions. 

A principal Farm Bureau tenet for ESA reauthorization is that social and economic 

consideration must be given in ESA decisions. The: bill does not accomplish this. We: would like: 

to suggest a proposal that will accomplish this while at the same time keeping the listing process 

purely scientific. 

Since: it is not the listing of species per se that causes social and economic consequences, 

but rather the manageme111 of species, we suggest that listing proposals should be accompanied 

by a separate draft management plan for each species. 1be draft management plan would be 

separately noticed in the Federal Register, but the comment period would track the listing 

11 
417 

proposal. The listing proposal would be based on sound science only, while the management plan 

would consider social and economic factors. In this way all relevant factors would be considered 

in their appropriate places. A final management plan would be published at the time of any final 

listing of the species. 

The species would benefit from this procedure as well, because it would have a 

management plan in place at the time of listing. 

The management plan, critical habitat designation (which we submit should be mandatory 

and not merely discretionary as in the bill) and the recovery plan would comprise a species 

conservation plan. This conservation plan would thus have all the relevant and necessary 

elements for species management and recovery. 

We urge the committee to adopt such an approach that will benefit landowner and species 

alike. We would be willing to work with the committee on such a proposal. 

D. The listing of subspecies and distinct populations needs to be limited. 

Listings should be made on the basis of species alone. Subspecies should only be listed if 

listing is necessary to save the species as a whole. All too often, taxonomists can make 

subspecific distinctions where in reality there is little or no difference between two populations. 

In other cases, they ignore recognized subspecies distinctions in order to base decisions on a 

species level (e.g., introduction of Canadian wolves in the west). In order to avoid confusion and 

the possibility of scientific manipulation, the Act must clearly prohibit subspecific listings unless 

listing is required to save the species. 

Listings of distinct populations invite even more abuse. Species numbers and trends might 

be plentiful in many parts of its range, but nevertheless the species could be listed in a specific 

area because it either once occupied the area and no longer does, or the area is the outer fringe of 

the species' range. Such listings have no basis in fact or in science. 

The bill seeks to limit such listings to "distinct populations of national significance." 

That is a step in the right direction, but does not go far enough. 

13. lncentives Provided in The Bill Are Not Adequate. 

AFBF has long advocated a system of landowner incentives as a necessary part of 

changing the direction of the Act from a negative-based regulation to a positive-based incentive. 

People will be more willing to recognize and accept species on their land if they are given positive 

incentives to protect and manage such species, rather than being faced with criminal or civil 

penalties for doing something wrong. 

12 
418 

H.R. 2284 attempts to provide some positive incentives along the lines of our Critical 

Habitat Reserve Program that Farm Bureau has proposed. We would like to address a few 

comments on the approach taken in that bill, even though it is not specifically before the 

committee. 

We like the mechanics of the proposed program in terms of participation, incentives, 

duration, etc. We have a few concerns with some other aspects of the proposal. 

First, the program should be under the Department of Interior, and not the Department of 

Agriculture. Interior has jurisdiction over endangered species, and overlapping jurisdiction as 

provided in the bill only creates problems and confusion resulting in delays. Since Interior must 

ultimately approve any actions taken by USDA, the bill merely adds another step to the process. 

Second, the program should be limited as to who or what type of habitat will qualify. We 

have suggested that the program be limited to critical habitat in order to cover only the habitat 

that is necessary for the species. The bill makes no such limitations, and would even apply to 

candidate species habitaL Since the program will not have unlimited funding, it is very important 

that it be effective in protecting the most important habitaL That is why we chose critical habitat 

as a limiting factor. 

Third, the bill must address the question of what happens at the end of a contract period. 

The bill should specifically allow the landowner to terminate a contract at the end of the period, 

and to usc his property for other purposes without fear of civil or criminal penalties .. 

CONCLUSION 

H.R. 2275 contains many of the principles that Farm Bureau believes should be part of 

ESA reauthorization. The sponsors and the committee have worked hard to craft a bill that will 

work for all, and we commend you for your efforts. It is a very good starting point for the 

debate on ESA reauthorization. We have discussed some additional amendments that will make 

the bill even more fair to landowners and beneficial to species, and we sincerely hope that the 

committee will take these suggestions into consideration. 

13 
419 

STATEMENT OF THE REV. JOHN D. PAARLBERG 

MINISTER FOR SOCIAL WITNESS AND WORSHIP 

THE REFORMED CHURCH IN AMERICA 

Before the 

COMMITTEE ON RESOURCES 

U.S. HOUSE OF REPRESENTATIVES 

Concerning 

H. R. 2275 

THE ENDANGERED SPECIES CONSERVATION AND MANAGEMENT ACT 

SEPTEMBER 20, 1995 

I want to thank the committee for the opportunity to speak to this issue. I am especially grateful 

that you have made room for the voice of the religious community. While we do not all share 

the same theological convictions, I understand my presence here as a recognition by the 

committee that the issue before you is not merely a matter of politics and economics but that it 

touches on the very deepest of human values; indeed that it has to do with the very nature of 

what it means to be human--in biblical terms, what it means for us to be creatures among other 

creatures and yet creatures created in the image and likeness of God. 

I am an ordained minister in the Reformed Church in America, one of the oldest Protestant 

denominations on this continent, tracing its ministry in this country to 1628. As the minister 

for social witness and worship for the Reformed Church I work with fellow Christians in both 

the National Council of Churches of Christ Eco-Justice Working Group and the Evangelical 

Environmental Network. Each of those groups is a part of the broad interfaith coalition known 

as the National Religious Partnership for the Environment representing churches and synagogues 

with membership of over 100 million people. 

All our faith traditions recognize and celebrate creation as the gift of a loving Creator. "0 Lord, 

how manifold are your works! " sings the psalmist, "In wisdom you have made them all; the 

earth is full of your creatures." (Psalm 104:24) For the psalmist, the astonishing variety of life 

on earth was a cause for wonder, praise, and thanksgiving. Each creature, from the wild goats 

of the high mountains (v. 18) to the creeping things in the depths of the sea (v. 26), is seen as 

an indication of the power, wisdom, and continuing care of God. Lutheran theologian Joseph 

Sittler wrote, "I have never been able to entertain a God-idea which was not integrally related 

to the fact of chipmunks, squirrels, hippopotamuses, galaxies, and light-years." 

Moreover the Biblical tradition affirms that humankind occupies a special place in creation. Of 

all the creatures only humankind is created in the image of God (Genesis 1 :26-27), made a little 

lower than angels (Psalm 8), and given dominion over the other creatures (Genesis 1:26, 28). 
420 

Often these texts have been interpreted in such a way that the rest of creation is viewed simply 

as "resources" for human use, or worse, they are used as biblical warrant for the abuse and 

exploitation of creation. Old Testament scholar, Walter Brueggemann, offers a corrective to that 

interpretation of dominion: 

The dominion here mandated is with reference to the animals. The dominance 

is that of a shepherd who cares for, tends, and feeds the animals. Or, if 

transferred to the political arena, the image is that of a shepherd king (cf. Ezekiel 

24). Thus the task of "dominion" does not have to do with exploitation and 

abuse. It has to do with securing the well-being of every other creature and 

bringing the promise of each to full fruition.... Moreover, a Christian 

understanding of dominion must be discerned in the way of Jesus of Nazareth (cf. 

Mark 10:43-44). The one who rules is the one who serves. Lordship means 

servanthood. It is the task of the shepherd not to control, but to lay down his life 

for the sheep (John 10:11). The human person is ordained over the remainder of 

creation, but for its profit, well-being, and enhancement. The role of the human 

person is to see to it that the creation becomes fully the creation willed by God. 

--Walter Brueggemann, Genesis (Atlanta: John Knox Press, 1982), pp. 32-33. 

An example of humankind's dominion over creation is the biblical writer's assertion that "God 

took the man and put him in the garden of Eden to till it and to keep it" (Gen. 2: 15). The 

verse is wonderfully ambiguous. Was the garden made for man or was man made for the 

garden? The human person needs a place to live, but the garden needs a keeper. The Hebrew 

word for keep, shanuzr, is the same word used in the Aaronic blessing "The Lord bless you and 

keep you" (Numbers 6:24). The word ahvad, translated here as "till, • is more often translated 

"serve" as in Deuteronomy 11 :13: "loving the Lord your God, and serving him with all your 

heart and with all your soul. • The human person is charged to keep the garden the way the 

Lord keeps us, and to be its servant, guardian and protector. 

The Endangered Species Act of 1973, although far from perfect, has been one important way 

we as a society and as a nation have sought to exercise our God-given responsibility to serve as 

guardians and protectors of God's creation. The proposed bill seems to me to abdicate that 

responsibility in several significant ways. 

1) The protection and preservation of species' habitat is seriously jeopardized. The fact 

that under the proposed bill the destruction of habitat essential to a species is no longer 

considered "harm" to that species makes neither theological nor scientific sense. We 

cannot separate a species from its habitat. The Psalm from which I quoted earlier (Psalm 

104) is as much a celebration of the varieties of habitat in God's creation (mountains, 

valleys, springs, streams, grassland, forest, oceans) as it is of the creatures who occupy 

those habitats. The principle cause of species extinction world wide is habitat loss. The 

report of the National Academy of Sciences ("Science and the ESA") named habitat 

protection as one of the most critical needs in protecting endangered species. 

2) The bill appears to abandon the long-standing recovery goal for all listed species. By 

choosing a "conservation objective" for each species, the Secretary of the Interior would 

no longer be required to attempt to recover endangered species. It is inappropriate and 
421 

unwise to assume that any one individual or government agency has the authority to 

decide which of God's unique, unrepeatable creations should be allowed to become 

extinct. 

3) The bill also has several provisions that compensate property owners if they are asked 

to take or modify actions that will impact endangered species. Care for God's creation 

is such a fundamental human responsibility that it should not, in most cases, require 

compensation by the federal government. Moreover these provisions in the bill seem to 

imply that private property is an absolute right. But the right to own property does not 

include the right to do anything I choose with my property or to the creatures living 

there. The right to own property must always be tempered by our responsibility for the 

common good and our responsibility before God who alone is the absolute owner of all 

things. 

God has woven creation together like a wonderfully beautiful and marvelously intricate fabric. 

Human activity, and oftentimes human greed, are pulling the threads out of that fabric one by 

one. As many as 75 to 100 species are becoming extinct each day . If that trend continues it will 

only be a matter of time before the entire fabric unravels and the eco-system collapses around 

us. The prophet Isaiah's warning against greed is a warning we would do well to heed in our 

own time: "Ah, you who join house to house and field to field, until there is room for no one 

but you, and you are left alone in the land!" (Isaiah 5:8) But if we alone are left in the land 

then we will not long survive either. 

Creation does not belong to us; creation belongs to God. We are not the lords of creation, we 

are but under-lords. Speaking out of my own Christian conviction, there is only one Lord of 

creation, and that Lord is Jesus Christ, in whom, through whom, and for whom all things in 

heaven and on earth were created (Colossians 1: 15-20.) 

If the Endangered Species Act needs to be fixed, then by all means fix it; but don't undo it. The 

proposed bill, ifenacted as it is written, would cause serious, and perhaps irreparable, damage 

to God's creation; it abdicates our responsibility of careful and loving dominion over God's 

creation; and, from a theological perspective, most serious of all--it assumes a power and an 

authority for humanity that rightfully belongs to God alone. 

I hope and I pray that as you consider this legislation you will consider ways that it might help 

us as a people, and as a nation, become not the usurpers of God's power, but the instruments 

of God's tender love and care for all that God has made. 
422 

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423 

CONGRESSIONAL TESTIMONY 

CONCERNING THE ENDANGERED SPECIES ACT OF I 973 AS AMENDED 

AND ITS RAMIFICATIONS 

PROVIDED TO THE 

RESOURCES COMMITTEE 

HOUSE OF REPRESENTATIVES 

SEPTEMBER 21, 1995 

MAYO A. HADDEN III 

VICE PRESIDENT, MILITARY AFFAIRS 

COLUMBUS CHAMBER OF COMMERCE 

COLUMBUS, GEORGIA 
424 

THANK YOU FOR ALLOWING ME TO APPEAR HERE TODAY. I WOULD LIKE TO 

TELL YOU ABOUT MYSELF, MY COMMUNITY, HOW \VE ARE INVOLVED IN A PROJECT 

INVOLVING THE ENDANGERED SPECIES ACT AND STRUGGLING WITH THE 

NATIONAL ENVIRONMENTAL POLICY ACT, AND CONCLUDE WITH HOW THE 

ENDANGERED SPECIES ACT IS SEVERL Y IMPACTING ON DEPARTMENT OF DEFENSE. 

IN 1993, I RETIRED FROM THE US ARMY AFTER SERVING ALMOST 31 YEARS. I 

SERVED IN THE INFANTRY AND SPECIAL FORCES. THE MAJORITY OF MY 

EXPERIENCE WAS IN OPERATIONS, PLANS, AND TRAINING. MY LAST FOUR AND A 

HALF YEARS IN THE ARMY I WAS THE INSPECTOR GENERAL AT FORT BENNING, 

GEORGIA. 

FORT BENNING, LOCATED IN WEST CENTRAL GEORGIA, AND EAST CENTRAL 

ALABAMA, CONSISTS OF APPROXIMATELY 182,000 ACRES, ABOUT 254 SQUARE 

MILES. IT IS THE SECOND LARGEST TRAINING AND DOCTRINE COMMAND 

INSTALLATION. ITS PRIMARY PURPOSE AND MISSION IS TO TRAIN THE 

INFANTRYMEN FOR OUR ARMY. 

TWO YEARS AGO I WENT TO WORK FOR THE COLUMBUS GEORGIA CHAMBER 

OF COMMERCE. COLUMBUS HAS A POPULATION OF ABOUT 178,000. MY PRIMARY 

GOAL HAS BEEN TO PERFORM AS THE PROJECT MANAGER FOR A LAND EXCHANGE 

BETWEEN COLUMBUS, GEORGIA, AND FORT BENNING, A DOD INSTALLATION. IN 

1988, THE LEADERSHIP OF THE COMMUNITY AND FORT BENNING, TOGETHER 

2 
425 

STUDIED A DILEMMA FACED BY COLUMBUS, WHICH WAS A SHORTAGE OF LAND TO 

!VlEET CRlTICAL NEEDS. ABOUT 20 PERCENT OF THE COUNTY IS CONTAINED \\ lTHIN 

THE FORT BENNING MILITARY INSTALLATION. THEY AGREED IN PRINCIPLE TO A 

LAND EXCHANGE. THE PURPOSES WHICH DROVE THE CONCEPT WERE THE NEED 

FOR LAND FOR FUTURE ECONOMIC DEVELOPMENT, THE ABILITY TO MEET THE 

NEEDS OF EXISTING INDUSTRlES AND TO BE ABLE TO RECRUIT OTHER INDUSTRlES 

IN ORDER TO CREATE JOBS FOR OUR CITIZENS, TO PROVIDE LAND FOR A LANDFILL 

NEAR THE EXISTING LANDFILL, AND TO PROVIDE LAND FOR A REGIONAL PARK. 

THE COMMUNITIES LANDFILL WAS EXPECTED TO LAST FOUR TO FIVE YEARS AND 

IT WAS FELT IT WOULD TAKE 1-2 YEARS TO COMPLETE THE EXCHANGE. 

IN THE CONCEPT THEY AGREED THE CITY WAS TO ACQUIRE APPROXIMATELY 

3,200 ACRES WITH EQUAL OR BETTER TRAINING VALUE AND GIVE IT TO FORT 

BENNING, IN EXCHANGE FOR APPROXIMATELY 3,100 ACRES OF LAND ADJACENT TO 

COLUMBUS (SEE LOCATIONS ON MAP ENCLOSURE 1). THIS LAND IS ADJACENT TO 

RAIL LINES AND A 4 LANE INTERCITY HIGHWAY SYSTEM. THE 3,100 ACRES 

REPRESENTS ABOUT 1.6 PERCENT OF THE INSTALLATION. IT IS ADJACENT TO THE 

CURRENT CITY/ COUNTY LANDFILL, A PRISON, AND A REGIONAL MENTAL HEALTH 

COMPLEX. THESE REPRESENT CERTAIN TRAINING CONSTRAINTS TO THE ADJACENT 

PORTION OF THE INSTALLATION. THE 3,200 ACRES THE CITY IS ACQUIRlNG TO GIVE 

TO FORT BENNING HAS NO ADJOINING LAND USE IMPACTS OR CONSTRAINTS. 

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THIS EXCHANGE WAS PRESENTED TO THE CONGRESS, IN 1990. AS PART OF 

THE DEFENSE APPROPRIATIONS ACT AND IS PART OF PUBLIC LAW 101-510. 

NOVEMBER 5, I 990. TilE CITY OF COLUMBUS AGREED TO PROVIDE THE LAND 

REQUIRED FOR THE EXCHANGE, TO PAY ANY DIFFERENCE IN FAIR MARKET VALUE, 

AND TO ACCOMPLISH ALL OTHER ACTIONS REQUIRED BY THE SECRETARY OF THE 

ARMY. THE PROJECT AND ALL OF THE ACTIONS BEING ACCOMPLISHED ARE BEING 

WORKED THROUGH FORT BENNING, AND TilE ARMY CORPS OF ENGINEERS, 

ESPECIALLY THE SAVANNAH DISTRICT. IT TOOK COLUMBUS, WORKING Willi THE 

CORPS OF ENGINEERS, FROM 1990-I992 TO DETERMINE WHAT ACTIONS NEEDED TO 

BE ACCOMPLISHED, BECAUSE OF THE RAMIFICATIONS OF TilE NATIONAL 

ENVIRONMENTAL POLICY ACT, THE NUMBER OF FEDERAL AND STATE MANDATED 

REQUIREMENTS, AND NUMBER OF AGENCIES INVOLVED. AN ENVIRONMENTAL 

ASSESSMENT WAS TO BE THE BASIS, UNDER THE NATIONAL ENVIRONMENTAL 

POLICY ACT, TO DETERMINE WHETHER THE EXCHANGE MAKES SENSE FROM AN 

ENVIRONMENTAL PERSPECTIVE, EVEN TIIOUGH IT IS APPROVED IN A FEDERAL 

LAW. IT TOOK COLUMBUS ONE YEAR, 1993, ONCE IT HAD A FAIRLY GOOD IDEA 

WHAT WAS REQUIRED, TO DRAFT A REQUEST FOR PROPOSAL (RFP) FOR TilE 

REQUIRED ENVIRONMENTAL STUDIES, HAVE THE RESPECTIVE PORTIONS OF THE 

RFP REVIEWED BY THE APPROPRIATE FEDERAL AND STATE AGENCIES, AND SENT 

TO PROSPECTIVE ENVIRONMENTAL CONTRACTORS FOR PREPARATION OF A BID. 

TillS WAS TO PRODUCE THE REQUIRED ENVIRONMENTAL ASSESSMENT. THE CORPS 

OF ENGINEERS FELT THAT AN ENVIRONMENTAL ASSESSMENT WAS THE 

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427 

APPROPRIATE LEVEL OF DOCUMENTATION. A FIRM SPECIALIZING IN THE REDCOCKADED WOODPECKER (RCW) WAS ALREADY UNDER CONTRACT TO DEVELOP 

STUDIES OF THE RCW ON THE TRACT, FOR $180,000. THE LOW BID FOR THE 

REMAINDER OF THE EA DOCUMENTATION WAS APPROXIMATELY $400,000. 

IN I993, THE CITY OF COLUMBUS, BASED ON DISCUSSIONS WITH 

REPRESENTATIVES OF THE CORPS OF ENGINEERS, APPROVED THE EXPENDITURE OF 

$!,000,000 TO COMPLETE THE ENVIRONMENTAL STUDIES, ANALYSES, SURVEYS, AND 

OTHER WORK TO COMPLETE THE EXCHANGE. THEY ALSO APPROVED $4,000,000 FOR 

THE ACQUISITION OF THE PROPERTY ALONG THE SOUTHERN BOUNDARY OF FORT 

BENNING WHICH IS REQUIRED FOR THE EXCHANGE. THE FORMAL MEMORANDUM 

OF AGREEMENT (MOA) BETWEEN THE ARMY AND THE CITY OF COLUMBUS 

REQUIRED THE CITY TO OBTAIN A LEGALLY BINDING PURCHASE AGREEMENT ON 

THIS PROPERTY WITHIN 90 DAYS OF THE SIGNING OF THE MOA. THE LAND WAS 

OWNED BY MEAD COATED BOARD CORPORATION. THEY REQUESTED THAT THE 

CITY PROVIDE THEM WITH A TWO YEAR PERIOD IN WHICH TO OBTAIN 

REPLACEMENT LAND, WHICH IS CURRENTLY INVOLVING THE CITY IN MULTIPLE 

PARTY LAND ACQUISITION/ EXCHANGES IN ORDER TO ACQUIRE THE LAND FOR THE 

FUTURE LAND EXCHANGE WITH THE ARMY. MEAD CORPORATION WANTED THE 

ACQUISITION PROCESS TO BEGIN AT THAT TIME, AND ASKED FOR 24 MONTHS TO 

COMPLETE THE PROCESS. THE MOA ALSO REQUIRED A TIMBER HARVESTING 

CESSA TIONIMANAGEMENT PLAN TO PERMIT ALL ENVIRONMENTAL STUDIES TO BE 

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CONCLUDED WITH MINI~IAL CHANGES TO THE ENVIRONMENT. AS OF TODAY, THE 

CITY OWNS 1,118 ACRES OF THE MEAD PROPERTY AND IS PREPARING TO CLOSE ON 

A SECOND ACQUISITION FOR AN ADDITIONAL 77 ACRES. THERE IS A THIRD OPTION 

BEING NEGOTIATED WlflCH COULD PLACE THE REMAINDER OF THE LAND UNDER 

CITY OWNERSHIP IN THE NEAR FUTURE. THE CITY WILL OWN THE REMAINDER NO 

LATER THAN MARCH I5, I996, BASED ON THE ACQUISITION AGREEMENT WHICH IS 

IN EFFECT WITH MEAD. 

THE CITY OF COLUMBUS HIRED AN ENVIRONMENTAL ENGINEERING FIRM TO 

COMPLETE ALL OF Tiffi STUDIES, SURVEYS, ANALYSIS, PLANS AND OTHER 

DOCUMENTATION REQUIRED. WORKSTARTEDINNOVEMBER I993. MID I994, THE 

ARMY REQUESTED Tiffi LEVEL OF DOCUMENTATION BE MODIFIED AND UPGRADED 

TO PRODUCE AN ENVIRONMENTAL IMPACT STUDY (EIS). THIS COST THE 

COMMUNITY AN ADDITIONAL $400,000+. BECAUSE OF THE EXCESSIVE TIME THE 

PROJECT WAS TAKING, AND CRITICAL NEED FOR THE LAND FOR LANDFILL, A 

SEPARATE SUPPLEMENTAL AGREEMENT WAS CREATED BY THE CORPS OF 

ENGINEERS, WlflCH ENABLES AN EXCHANGE FOR THE LANDFILL NEED TO BE 

ACCOMPLISHED WHILE Tiffi REMAINDER OF Tiffi STUDIES ARE ONGOING. WE ARE 

CURRENTLY PLANNING ON EXCHANGING APPROXIMATELY 380 ACRES SOUTH OF 

FORT BENNING TO Tiffi ARMY FOR 350 ACRES COMPRISING THE BEST 

ENVIRONMENTAL LOCATION ON Tiffi 3,100 ACRE TRACT ON FORT BENNING. WE 

HAD TO COMPLETE A SEPARATE ENVIRONMENTAL ASSESSMENT (EA) FOR THE 

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429 

LANDFILL ACTION. THIS SEPARATE EA HAS COST THE CITY OVER $110,000. 

THE CURRENT STATUS OF THE DOCUMENTATION, AND THE APPROXIMATE 

COST OF EACH SECTION FOLLOWS: 

LANDFILL ENVIRONMENTAL ASSESSMENT CEA) 

ENVIRONMENTAL ASSESSMENT BASIC DOCUMENT: 

APPROVED BY THE CORPS OF ENGINEERS 

BIOLOGICAL ASSESSMENT 

$111 ,000 

$67,000 

$30,000 

APPROVED BY THE DEPARTMENT OF INTERIOR, FISH & WILDLIFE 

SERVICE 

CULTURAL RESOURCES SURVEY $4,000 

APPROVED BY THE GEORGIA DEPARTMENT OF NATURAL 

RESOURCES, STATE HISTORIC PRESERVATION OFFICE 

WETLAND SURVEY $10,000 

APPROVED BY THE CORPS OF ENGINEERS 

WE ARE AWAITING ISSUANCE OF THE FINDING OF NO SIGNIFICANT 

IMPACT WHICH IS DUE WITHIN 30-60 DAYS FROM THE ARMY. 

(THE ENVIRONMENTAL ASSESSMENT OF THE 350 ACRES TOOK 

APPROXIMATELY 15 MONTHS TO COMPLETE.) 

2 DRAFT ENVIRONMENTAL IMPACT STUDY CDE!S) 

VOLUME 1: BASIC DEIS 

$1 349 000 

$585,000 

BEING REVIEWED BY FORT BENNING AND THE CORPS OF 

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430 

ENGINEERS 

VOLUME II: WETLAND SURVEYS 

APPROVED BY THE CORPS OF ENGINEERS 

VOLUME lll: BIOLOGICAL ASSESSMENT (BA) 

(5 SUB VOLUMES) 

$99,000 

$450,000+ 

THESE REFLECT I 2 MONTHS OF FIELD OBSERVATIONS 

VOLUME A: FORT BENNING PROPERTY BA 

VOLUME B: MEAD PROPERTY BA 

VOLUME C: COMPARISON OF THE TWO TRACTS 

VOLUME D: PROPOSED RESOURCE MANAGEMENT PLAN FOR THE 

CITY TO USE FOR THE CURRENT FORT BENNING LAND 

VOLUME E: PROPOSED RESOURCE MANAGEMENT PLAN FOR THE 

ARMY TO USE FOR THE MEAD PROPERTY WHICH IT WILL RECEIVE 

(THESE VOLUMES ARE BEING REVIEWED BY THE ARMY PENDING 

SUBMISSION TO THE FISH & WILDLIFE SERVICE FOR APPROVAL) 

VOLUME IV: CULTURAL RESOURCES SURVEY (3 VOLUMES) $200,000+ 

APPROVED BY THE GEORGIA DEPARTMENT OF NATURAL 

RESOURCES, STATE HISTORIC PRESERVATION OFFICE 

VOLUME V: PRELIMINARY ASSESSMENT SCREENING 

APPROVED BY THE CORPS OF ENGINEERS 

$15,000 

COVERS AN APPROXIMATE RANGE OF 45 DIFFERENT 

ENVIRONMENTAL ISSUE AREAS SUCH AS, CLEAN AIR, CLEAN 

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431 

WATER, ILLEGAL DUMPING, ETC. 

TillS HAS PROVEN TO BE AN EXTREMELY EXPENSIVE AND LENGTHY PROCESS 

FOR OUR COMMUNITY. IT IS ESTIMATED THAT IT COULD TAKE AN ADDITIONAL 

FIVE TO SIX MONTHS, WITHOUT ANY PROBLEMS, TO BE ABLE TO REACH A 

DECISION. THE CITY JUST APPROVED AN ADDITIONAL $200,000 TO THE 

CONTRACTORS TO KEEP THE PROCESS ON TRACK. WHAT WE FOUND IN ALL OF TillS 

DOCUMENTATION CAN BE SUMMARIZED AS FOLLOWS. IN THE AREA OF 

WETLANDS, WE BASICALLY VERIFIED WHAT IS SHOWN ON THE NATIONAL 

WETLAND INVENTORY MAPS. IN THE CULTURAL RESOURCES SURVEY WE FOUND, 

OR VERIFIED, 10-14EARL Y AMERICAN ARTIFACT LOCATIONS ONEACHTRACTTHAT 

ARE WORTHY OF SOME PROTECTION. IN THE AREA OF THREATENED AND 

ENDANGERED SPECIES WE VERIFIED THAT THERE IS ONE ACTIVE CLUSTER OF REDCOCKADED WOODPECKERS ON THE FORT BENNING TRACT, CONSISTING OF A 

GROUP OF RCW'S OCCUPYING A NUMBER OF SEVEN TREES WITH CAVITIES, AND 

SOME OF THE PROPERTY CONTAINS FORAGING AREA FOR SEVERAL RCW CLUSTERS 

ON ADJOINING FORT BENNING PROPERTY. 

INITIALLY THE CITY HOPED TO BE ABLE TO DEVELOP, FOR ECONOMIC 

DEVELOPMENT, SLIGHlLY OVER 2,100 ACRES OF THE TOTAL 3,100 ACRE FORT 

BENNING TRACT. THE REMAINDER WAS IDENTIFIED FOR LANDFILL, PARKS, AND 

WETLANDS. AS A RESULT OF THE BIOLOGICAL ASSESSMENTS THAT AMOUNT OF 

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432 

POTENTIAL ACREAGE HAS BEEN REDUCED. BECAUSE OF THE ENDANGERED 

SPECIES ACT, AND THE FACT THAT FORT BENNING RECEIVED A JEOPARDY 

BIOLOGICAL OPINION FROM THE FISH & WILDLIFE SERVICE IN 1994, BASED ON THE 

RCW POPULATION ON THE INSTALLATION, MUCH OF THE BIOLOGICAL ASSESSMENT 

HAD TO BE REVISED. THE REVISIONS NOW CONSIDER THE PRESENT MAXIMUM RCW 

HABITAT IN THE STUDIES, AND IT ALSO CONSIDERS THE MAXIMUM FUTURE 

POTENTIAL RCW HABITAT FOR THE SAME TRACTS. RECOMMENDATIONS ARE 

BASED ON THE PROJECTIONS OF THE MAXIMUM FUTURE POTENTIAL RCW HABITAT 

ASSESSMENT. IT SHOULD BE NOTED THAT THESE CALCULATIONS ARE BASED ON 

A PROJECTION OF APPROXIMATELY 50 YEARS. HOWEVER, IT TOTALLY 

DISREGARDS THE ECONOMIC IMPACT OF ACHIEVING THE MAXIMUM FUTURE 

POTENTIAL. IT ASSESSES THE TRACTS ASSUMING THE SIGNIFICANT REPLANTING 

OF LONG LEAF PINE ON BOTH TRACTS, REPLACING LOBLOLLY AND OTHER TYPES 

OF PINE, AND CONSIDERS SLOPE OF THE GROUND AND SOIL TYPES. BASED ON ALL 

OF THE ABOVE, AND THE RECOMMENDATIONS OF THE BIOLOGISTS WORKING ON 

THE PROJECT, THE CITY OF COLUMBUS HAS DEVELOPED IN ITS LAND USE PLANS 

AN AREA OF APPROXIMATELY 725 ACRES WHICH ARE PROPOSED TO BE SET ASIDE 

AS A HABITAT CONSERVATION AREA (HCA). THIS LEAVES APPROXIMATELY I ,400+ 

ACRES FOR ECONOMIC DEVELOPMENT (SEE MAP ENCLOSURE 2). THE RESULT IS 

THAT THE EXCHANGE PROVIDES 3,200 ACRES TO THE ARMY WITHOUT 

CONSTRAINTS, AND THE CITY RECEIVES 3,100 ACRES WITH SIGNIFICANT 

CONSTRAINTS. HOWEVER, THE NEED FOR THE LAND IS MORE CRITICAL TODAY 

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433 

THAN IT WAS WHEN THE CONCEPT ORIGINATED IN 1988, AND THE CITY OF 

COLUMBUS IS COMMITIED TO BRINGING THE LAND EXCHANGE TO A SUCCESSFUL 

CONCLUSION, EVEN THOUGH THE COST CONTINUES TO RISE. SINCE SEPTEMBER, 

I995, THE CITY HAS COMMITIED OVER $I,500,000 TO THE STUDIES, ANALYSES, 

GOVERNMENT EXPENSE REIMBURSEMENT TO THE CORPS OF ENGINEERS ($1 00,000), 

AND OTHER MINOR EXPENSES. THIS IS A CLASSIC EXAMPLE OF THE COST OF 

COMPLIANCE WITH THE NATIONAL ENVIRONMENTAL POLICY ACT ON A 

COMMUNITY WORKING TO CREATE AN ENVIRONMENT FOR JOB CREATION AND JOB 

RETENTION. 

AS A RESULT OF ALL OF THE WORK ON THE ENVIRONMENTAL STUDIES IT 

BECAME APPARENT THAT OUR MILITARY INSTALLATIONS ARE FACED WITH A REAL 

DILEMMA THEYWERECREATEDBYOURNATIONFOR THE STATIONING, TRAINING, 

AND MAINTENANCE OF OUR ARMED FORCES AND THEIR READINESS. IN MANY 

CASES THE ACTUAL AMOUNTS OF ACREAGE ARE INADEQUATE AS A RESULT OF 

NEW WEAPON SYSTEMS, LONGER RANGE WEAPON SYSTEMS, FASTER MECHANIZED 

INFANTRY, ARMOR, AND SUPPORTING VEHICLES, AND THE GREAT STRIDES OUR 

ARMED FORCES HAVE MADE IN IMPROVING BATTLEFIELD TACTICS. THESE 

ENVIRONMENTAL STUDIES IDENTIFIED THAT IN THE MIDDLE OF CRITICAL 

TRAINING AREAS THE INSTALLATIONS ARE REQUIRED TO INSURE THAT THEY 

AVOID ANY DAMAGE TO LOCATIONS THAT CONTAIN PLANTS, BIRDS, AND ANIMALS 

THAT ARE ON THE THREATENED AND ENDANGERED SPECIES LIST, AREAS THAT 

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434 

PROVIDE FORAGING AND HABITAT FOR TilES E. AS \V'ELL AS SITES CONTAINING OLD 

ARTIFACTS. SOME OF THE INSTALLATIONS AFFECTED INCLUDE: FORT BENNING. 

GEORGIA; FORT STEWART, GEORGIA; FORT BRAGG, NORTH CAROLINA; FORT 

JACKSON, SOUTH CAROLINA; CAMP LEJUNE, NORTH CAROLINA; FORT POLK, 

LOUISIANA; CAMP BLANDING, FLORIDA; FORT GORDON, GEORGIA; AND EGLIN 

A.F.B., FORT WALTON, FLORIDA. EVERY BASE AND INSTALLATION IN OUR NATION 

IS AFFECTED IN SOME WAY. 

TO ILLUSTRATE THIS POINT I WILL ONLY CITE THE RCW. IT IS ONE THAT 

CAUSES THE MOST CONTROVERSY IN THE SOUTHEAST UNITED STATES. A MALE 

FEMALE PAIR OF RCW'S OCCUPY A NEST AND HAVE IN THEIR CLUSTER A NUMBER 

OF OTHER MALES. AT FORT BENNING A TYPICAL CLUSTER NEEDS AN AVERAGE OF 

250 ACRES OF LAND CONTAINING THE RIGHT DENSITY OF PINE THAT IS PROPERLY 

MANAGED. THE FISH & WILDLIFE SERVICE RECENTLY CONCLUDED A LENGTHY 

PROCESS WORKING WITH FORT BENNING, NATURAL RESOURCES PERSONNEL, TO 

HELP THEM DETERMINE A FUTURE GOAL FOR THE TOTAL NUMBER OF THESE 

CLUSTERS FORT BENNING NEEDS. FORT BENNING CURRENTLY HAS 

APPROXIMATELY 180+ ACTIVE RCW CLUSTERS. THE INSTALLATION HAS 

DEVELOPED THE REQUIRED PLANS TO PUT 45,000 ACRES INTO V ARlO US STAGES OF 

RCW MANAGEMENT. THEIR NEW GOAL IS TO BUILD THEIR POPULATION TO 360 

RCW CLUSTERS. THIS WILL PLACE 90,000 ACRES OF THE INSTALLATION INTO 

VARIOUS STAGES OF RCW MANAGEMENT. THIS IS THE MAXIMUM AMOUNT OF 

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. 435 

FUTURE POTENTIAL HABITAT AVAILABLE ON THE INSTALLATION. THE 

INSTALLATION IS REQUIRED TO DEVELOP AND IMPLEMENT A LONG LEAF PINE 

TREE PLANTING AND MAINTENANCE PROGRAM INTO THE LONG RANGE FUTURE TO 

ACHIEVE THIS GOAL. THE COST IS NOT CONSIDERED A RELEVANT FACTOR. 

HOWEVER, THE BULK OF THE MONEY WILL COME FROM THE INSTALLATIONS 

OPERATIONS AND MAINTENANCE ACCOUNTS, WHICH SERIOUSLY DEGRADES THE 

LIMITED FUNDS AVAILABLE FOR TRAINING, OPERATIONS AND MAINTENANCE. IF 

ANY SOLDIER VIOLATES THE GUIDELINES PERTAINING TO THE PROTECTION OF 

THREATENED AND ENDANGERED SPECIES, THE SOLDIER AND HIS CHAIN OF 

COMMAND IS SUBJECT TO LITIGATION ACTION, AND THE INSTALLATION TO 

CENSURE. AS WE SAID INITIALLY, FORT BENNING CONSISTS OF APPROXIMATELY 

182,000 ACRES. IF YOU REMOVE FROM THE INSTALLATIONS NATURAL RESOURCES 

LAND MANAGEMENT PLAN, LAND AREAS NOT AVAILABLE TO SUPPORT THESE 

SPECIES, REMOVE IMPACT AREAS, BARRACKS AREAS, CANTONMENT AREAS, 

AIRFIELDS, MAJOR ROADS, AND SOME OTHER AREAS SUCH AS UNSUITABLE LAND 

ADJOINING THE RIVER, THE NET IMPACT IS THAT IS THAT THE INSTALLATION WILL 

EVENTUALLY HAVE OVER AN ESTIMATED 70 PERCENT OF ITS PRIME TRAINING 

LAND BEING USED SIMULTANEOUSLY FOR TRAINING AND RCW MANAGEMENT. AS 

BIOLOGISTS LEARN MORE ABOUT THE SPECIES THEY HAVE BEEN WRITING MORE 

STRINGENT PROTECTION GUIDELINES. THIS IS AN ONGOING PROCESS. 

IN ACCORDANCE WITH THE ENDANGERED SPECIES ACT, THE FISH & 

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436 

WILDLIFE SERVICE, UNDER THE DIRECTION OF THE SECRETARY OF THE INTERIOR. 

IS ASSIGNED WITH THE POWERS TO IMPLEMENT PLANS FOR PROTECTION AND 

CONSERVATION OF SPECIES LISTED AS BEING IN JEOPARDY. THERE IS CURRENTLY 

NO APPEAL AUTHORITY FOR THE MILITARY OTHER THAN THE FISH & WILDLIFE 

SERVICE. AS MENTIONED, THE MANAGEMENT GUIDELINES FOR THE RCW CAN BE 

REVISED AS ADDITIONAL INFORMATION IS GATHERED BY BIOLOGISTS. THE 

CURRENT ARMY GUIDELINES ARE CONTAINED IN A MANUAL PUBLISHED BY THE 

U.S. ARMY CERL " MANAGEMENT GUIDELINES FOR THE RED-COCKADED 

WOODPECKER ON ARMY INSTALLATIONS." BIOLOGISTS WHO DO WORK FOR THE 

FISH & WILDLIFE SERVICE WERE SOME OF THE KEY DRAFTERS OF THIS MANUAL. 

UNDER THE ESA, SECTION 7, EVERY FEDERAL AGENCY MUST INSURE THAT EVERY 

ACTION AUTHORIZED, FUNDED, OR CARRIED OUT IS NOT LIKELY TO JEOPARDIZE 

THE CONTINUED EXISTENCE OF THREATENED OR ENDANGERED SPECIES. ADVERSE 

ACTION INCLUDES TAKING. TAKING IS FULLY DISCUSSED IN SECTION 9. IF THE 

FISH & WILDLIFE SERVICE RECOMMENDATIONS MADE TO PROTECT RCW COLONIES 

ARE NOT FOLLOWED (COST IS NOT AN ACCEPT ABLE RESPONSE) AND A COLONY IS 

ABANDONED FOLLOWING HABIT AT ALTERATION, THERE IS STRONG EVIDENCE OF 

A TAKING. THIS BRINGS WITH IT CENSURE, AND THE POSSIBILITY OF LITIGATION. 

THERE IS NO PROVISION FOR THE DEMAND PLACED ON THE LAND DURING INTENSE 

TRAIN UP PERIODS, MAJOR FIELD EXERCISES, TRAINING OR READINESS ACTIVITIES. 

THERE IS NO PROVISION FOR WARTIME OR PRE-WARTIME PREPARATIONS. 

SOLDIERS AND COMMANDERS REMAIN SUBJECT TO CENSURE AND LITIGATION. 

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437 

TODAY MANY INSTALLATIONS HAVE IMPLEMENTED SIGNIFICANT CHAt'IGES 

TO THE WAY MEMBERS OF THE ARMED FORCES TRAIN AS A RESULT OF THE RCW 

AND OTHER SPECIES GUIDELINES THAT HAVE BEEN DEVELOPED AND 

IMPLEMENTED. THESE WERE STARTED IN THE 1980'S AND ARE BECOMING 

PROGRESSIVELY MORE STRINGENT. THE FOLLOWING ARE EXAMPLES OF MILITARY 

TRAINING GUIDELINES WHICH HAVE BEEN DESIGNED AND IMPLEMENTED TO 

PROTECT THE EXISTING AND FUTURE HABITAT FOR A COUPLE OF PROTECTED 

SPECIES, LARGELY THE RCW: 

TRAINING NEAR A RCW CLUSTER WILL BE LIMITED TO DISMOUNTED (NO 

VEffiCLES) TRAINING OF A TRANSIENT NATURE 

THERE WILL BE NO FIXED TRAINING (BIVOUACS, FIGHTING POSITIONS, 

ETC) IN THE VICINITY OF A RCW CLUSTER 

TRACKED VEffiCLES CAN MOVE ONLY ON DESIGNATED CLEARED AND 

MAINTAINED ROADS 

TRACKED AND WHEELED VEffiCLES CAN CROSS STREAMS ONLY AT 

APPROVED OR MARKED STEAM CROSSINGS 

IN THE RCW HABITAT RESTORATION AREA THERE WILL BE NO DIGGING, 

OR CUTTING OF VEGETATION, EXCEPT HARDWOODS FOR 

CAMOUFLAGE 

IN THE RCW HABITAT RESTORATION AREAS THERE WILL BE NO USE OF 

SIMULATORS, CS GAS, OBSCURANT SMOKE, SIGNAL FLARES, 

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438 

PYROTECHNICS, OR INCENDIARY DEVICES 

HOVERING ROTARY WING AIRCRAFT OVER RCW CLUSTERS IS PROHIBITED 

DURING THE NESTING SEASON MARCH THROUGH JULY (5 

MONTHS)(DIFFERENT FOR OTHER LOCATIONS) 

HOVERING ROTARY WING· AIRCRAFT OVER THE BALD EAGLE PRIMARY 

AND SECONDARY EXCLUSION ZONES IS PROHIBITED DURING THE 

NESTING SEASON FEBRUARY THROUGH MAY ( 4 MONTHS) 

NO TRAINING WITHIN 100 FEET OF THE INCISED GROOVEBUR (A PLANT) 

OTHER IDENTIFIED PLANTS ARE TREATED THE SAME 

BIVOUACS AND BATTALION LEVEL AND BELOW COMMAND POSTS ARE 

ALLOWED IN THE RCW HABITAT RESTORATION AREAS THAT ARE 

OVER 10 YEARS IN AGE; FIXED ACTIVITIES CANNOT BE WITHIN 200 

FEET OF CAVITIES OR OF MORE THAN I 8 HOURS DURATION 

NO BIVOUACS ARE ALLOWED IN PLANTED PINE AREA THAT ARE UNDER 10 

YEARS OF AGE 

WHEELED VEHICLES ARE PERMITTED TO TRAVEL AND REMAIN IN 

CLUSTERS AS LONG AS SOIL EROSION LEVELS REMAIN WITHIN 

TOLERANCE LIMITS FOR A GIVEN SOIL SERIES AND RUTTING IS NOT 

GREATER THAN 6 INCHES (WEATHER DEPENDENT TRAINING) 

BIVOUACS AND BATTALION LEVEL AND BELOW COMMAND POSTS WITH 

FIXED ACTIVITIES ARE ALLOWED IN NON-MANAGED PINE FORESTS 

AND HARDWOOD AREAS, PROVIDED THAT EROSION IS LIMITED OR 

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439 

PROHIBITED 

VEHICULAR TRAFFIC CAN OCCUR ON ANY ROADWAY APPROVED BY A 

FORESTER, BIOLOGIST, ENGINEER, OR SOIL SCIENTIST WORKING ON 

SITE, PROVIDED THAT EROSION DOES NOT EXCEED TOLERANCE 

LEVELS 

HERE IS THE REAL EFFECT. WE ARE RAPIDLY TYING THE HANDS OF ALL 

MILITARY COMMANDERS AS THEY ATTEMPT TO CONDUCT TRAINING AND 

MAINTAIN THE READINESS OF THEIR ASSIGNED FORCES IN ACCORDANCE WITH THE 

GUIDANCE FROM THE COMMANDER IN CHIEF AND THE CONGRESS. THE 

DEPARTMENT OF DEFENSE HAS LOST MUCH OF ITS CONTROL OVER THE LAND 

INTRUSTED TO IT, TO ACCOMPLISH THE MISSIONS ASSIGNED. THE DEPARTMENT 

OF INTERIOR IS DETERMINING EXTERNAL CONSTRAINTS UNDER WHICH THE 

DEPARTMENT OF DEFENSE MUST DEVELOP METHODS TO FUND ENVIRONMENTAL 

COSTS AND CONDUCT TRAINING IN WAR FIGHTING SKILLS WITHOUT VIOLATING 

ENVIRONMENTAL GUIDELINES. 

RECOMMENDATION: WE RECOMMEND THAT THE DEPARTMENT OF DEFENSE, 

A CABINET LEVEL DEPARTMENT, WHICH KNOWS THE MISSIONS IT IS ASSIGNED BY 

THE COMMANDER IN CHIEF, BE GRANTED AUTHORITY TO APPROVE REQUESTS 

FROM INSTALLATION COMMANDERS WHO ARE UNABLE TO PROPERLY, 

EFFECTIVELY, OR ECONOMICALLY, TRAIN ITS FORCES, MAINTAIN READINESS, OR 

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440 

SUPPORT MOBILIZATION, TO WAIVE ASPECTS OF THE ESA RELATED GUIDELINES 

NECESSARY FOR MISSION ACCOMPLISHMENT. ALSO REQUEST YOU CONSIDER 

SOME OPTION FOR A DOD INSTALLATION TO EXTEND OUT COMPLIANCE WHEN 

SUFFICIENT FUNDS ARE NOT AVAILABLE IN THE BUDGET. OTHERWISE THEY ARE 

HELD ACCOUNTABLE FOR IMPOSSIBLE DECISIONS. THESE ACTIONS DO NOT 

WEAKEN THE ESA, BUT THEY DO PERMIT THE DOD THE OPPORTUNITY TO CONTROL 

THEIR OWN DESTINY. IF ALL LANDS, PUBLIC AND PRIVATE, WERE EQUALLY 

ADMINISTERED UNDER THE ESA, THEN THOSE LANDS SET ASIDE FOR DOD WOULD 

NOT BE SEEN AS THE LAST CRITICAL ENVIRONMENTAL DOMAINS FOR SPECIES 

THAT ARE DECLINING. 

AGAIN, THANK YOU FOR THIS OPPORTUNITY. IF EVER WE NEEDED 

ASSISTANCE AND A COMMON SENSE APPROACH IT IS NOW, AND IF NOTHING ELSE 

WE HAVE BEEN ABLE TO SHOW YOU APART OF THE COST IN REAL DOLLARS WHICH 

HAVE RESULTED FROM THE METHOD OF IMPLEMENTATION OF THESE MANDATES. 

BOTH ON A SMALL COMMUNITY, AND ON THE DEPARTMENT OF DEFENSE. 

18 




445 

INTRODUCTION 

I would like to thank the Committee for this opportunity to express the views of 

Safari Club International (SCI) for the record of this hearing. We are in support of 

H.R. 2275, the Young-Pombo bill, and I would like to speak directly to those 

aspects of the bill that reverse the negative effect of the Endangered Species Act 

(ESA) on foreign species of wildlife. 

OUR DIRECT EXPERIENCE 

For more than twenty years I have personally visited many of the countries in Africa 

which are affected by the ESA, or to be more specific, by the way in which the ESA 

is currently administered. I have seen villages deep in the jungles of Ethiopia where 

it is unusual for men to live past 30 years and where $20 is more than most people 

see in a year. I have seen the terrible impacts of chronic poverty in the remote areas 

of Tanzania. I have also seen what it means to these people to have a foreigner in 

their midst who is willing to pay them salaries for assisting him on his quest for big 

game. To them, hunting is an ancient and honored practice and they understand it 

implicitly. The fact that a foreigner will engage in the hunt and at the same utilize 

the wildlife in the vicinity of their village in a way that brings them wealth is 

astounding and wonderful. When a hunt is successful, they celebrate with the 

hunter in the traditional manner and their joy is real and multifold. 

I have also seen and heard from the mouths of the people living in these remote 

areas how the visits by foreign hunters and the money that is brought into their 

villages on a regular basis by the safari operators causes them to resist the poachers 

who prowl their hunting grounds. They talk enthusiastically about the importance 

of keeping the wildlife and of having the tourist hunters return year after year. 

Unfortunately, I have also had one more personal experience. For more than five 

years, as chairman of some of the key committees of SCI, as trial counsel to SCI, 

and now as its president, I have seen our own government deny and fiustrate the 

aims and goals of these people. Our government has acted in ignorance and with 

arrogance. I have had government administrators and attorneys tell me to my face 

that they had to take restrictive and negative actions because they were afraid of 

20-707 95-15 
446 

being sued by fanatic protectionist organizations if they approved the importation of 

hunting trophies. I have seen these same officials develop a secret set of 

"guidelines" which were unfounded, ill-conceived, unmeetable and unnecessary, 

and then impose these guidelines to deny the benefits of what the Africans call 

"tourist safari hunting." I know these officials after having worked with them for so 

many years. They are not personally arrogant, but the actions they have taken or 

condoned without proper scientific information and without the courtesy of 

consulting with their professional peers in the countries they are affecting have been 

arrogant. I have attached to my statement letters from wildlife conservation officials 

of Ethiopia pleading with our government to authorize the importation of a few 

trophies a year because the income was critical to the continuation of their wildlife 

conservation programs. Our government flatly denied the permit applications. A 

short while later, the entire game program of Ethiopia came to a halt and with it, the 

operations of safari operators which were the only thing standing between the 

elephants of that country and the poachers. 

I have also attached to my statement a permit application which I filed in December, 

1992, as a test case to allow the importation of the horn of a de-horned and stillliving black rhinoceros from Zimbabwe. To this day, our government has not yet 

acted on the permit. The result? For lack of funds, the Zimbabwean program to dehorn black rhinos to make them less attractive to poachers has failed and the 

population of black rhinos has plummeted to the edge of extinction. There are 

niggling arguments that the poachers might have killed the rhinos anyway, but the 

experiment never had a chance to work because our government was afraid that it 

would get sued by protectionist organizations - organizations which spend their 

"charitable" dollars to criticize and sue but which do not put a penny into research 

or other conservation efforts. 

I will detail, in narrative and in attachments, these and many other instances in 

which our government has consistently acted contrary to the spirit and the letter of 

the ESA. Despite the mandate of a Federal Court (in Connor v Andrus, 453 F. 

Supp. 1037, (1978) W.D.Texas) the Department of the Interior does not take 

seriously its duty to conserve wildlife when the species occur outside the United 

States. Instead, they have allowed the welfare of this wildlife, and the welfare of the 

people who share their lands and lives with it, to become a political pawn in an 

awful game of"biopolitics." A former special assistant to the Director of the U.S. 

2 
447 

Fish and Wildlife Service saw this for himself and wrote about it in an article called 

Eco-Imperialjsm. I have attached a copy. 

THE NATURE AND WORK OF SCI 

SCI is an international conservation organization representing more than one 

million conservationists who are sportsmen and women. We are headquartered in 

Tucson, Arizona, where we operate a state-of-the-art wildlife and natural history 

museum. While the bulk of our membership is in the United States, where we have 

more than 145 chapters in 43 states, we also have chapters and members in more 

than 25 countries around the world. 

We are a charitable organization and our major activities are education of the public 

about wildlife and about the role of sportsmen and women in conserving it, 

conservation, and protection of the right to hunt. Each of our chapters is required to 

raise funds and to carry out at least one conservation project every year. We have 

more than 500 ongoing conservation projects. These projects are usually done in 

cooperation with the wildlife officials of the state or country where the chapter is 

located. In addition, we carry out many conservation activities through our 

international staff. I have attached our most recent report which details how we 

spend or direct the spending of more than $2.5 million per year on conservation 

activities. Between our direct expenditures from our headquarters and the money 

spent on conservation by our members and our chapters, we contribute $27 million 

annually to wildlife and habitat conservation. 

Conservation education is also a principle activity of SCI. I have already mentioned 

our museum, which hosts 126,000 school children and other visitors per year. In 

addition, we own and operate the American Wilderness Leadership School in the 

Bridger-Teton National Forest in Wyoming. Each year, we educate hundreds of 

elementary and secondary level teachers and resource people in wildlife ecology 

and conservation. In this way, tens of thousands of urban students gain a scientific 

understanding of the natural world and of wildlife conservation. 

3 
We also engage in community services. Through our Sportsmen Against Hunger 

program, we donate 155 tons of game meat annually to feed the poor and the 

homeless. Our chapters also operate "sensory safaris," in which sight-impaired 

youngsters and adults get their first, and often only "look" at wildlife. They are 

given guided tours in which they touch and sense wildlife mounts, while hearing 

about the kind of habitats in which these. animals are found. We also provide school 

textbooks to rural communities which are part of Zimbabwe's CAMPFIRE program 

through our Books for Africa program, run by the SCI Sables (an SCI constituent 

organization of sportswomen). 

HOW DOES THE ESA AFFECT FOREIGN 

SPECIES? 

The purpose of the Endangered Species Act is to "provide a means whereby the 

ecosystems upon which endangered species ... may be conserved, [and] to provide a 

program for the conservation of such endangered species ... ". (ESA, §2(b)) 

Essentially, the ESA does this by listing species as endangered (or threatened), by 

prohibiting certain uses of listed species unless authorized by permit, by listing the 

critical habitats of listed species, by developing recovery plans for listed species, 

and by controlling federal actions and permits for use of critical habitats (and 

thereby controlling much private use of such lands and waters). 

The Endangered Species Bulletin published by the U.S. Fish and Wildlife Service 

states that there were 338 mammals listed under the Endangered Species Act (ESA) 

as of March I, 1995. Of those, 277,or82%, are foreign species. According to the 

U.S. Fish and Wildlife Service's Office of Endangered Species in Washington, no 

recovery planning is done under the ESA for foreign species, because they have no 

implementation authority in foreign countries. Thus, for 82% of all mammal 

species listed as endangered or threatened under the ESA, the provisions of the Act 

dealing with critical habitat, recovery planning and control of federal activities and 

permits for use of critical habitats has no effect at all. The only provision of the 

ESA that comes into play is the prohibition on importation oflisted species. 

4 
449 

In other words, the only impact that the ESA has on foreign species is the negative 

control of preventing importation. With a few exceptions, the application of that 

prohibition is complete except as permits may be issued for importation. 

WHAT IS WRONG WITH THIS? 

For more than 60 years the role of sportsmen as conservationists and the acceptance 

of wildlife use have been recognized and utilized in the U.S. as our major source of 

conservation funding. The excise taxes levied by the Pittman-Robertson/DingeiiJohnson!Wallop-Breaux Acts have redistributed sportsmen's money to the states for 

conservation. The result has been an amazing tum-around in species' declines and 

the replenishment of animals such as the beaver, elk, wild turkey and white-tailed 

deer. But since the advent of endangered species protection in the late 1960's, the 

prevailing doctrine when it comes to foreign species was that "protection" of a 

species by completely prohibiting its use was always a good policy. Preventing 

access to markets, through such means as import prohibitions, has been a standard 

part of all schemes for wildlife conservation. 

Recently, loud protests to this negative, protectionist ideology have been heard from 

Africa and Asia. The countries of those regions are faced with quickly-expanding 

human populations who must get some benefit from their land if they are to survive. 

The governments of these countries realized that their people will use their land to 

grow crops or graze cattle if their is no value to them in having wildlife. But if the 

wildlife proves to be valuable, it has been shown that people will maintain the 

habitats and protect the wildlife. 

In many parts of Africa, you can find villagers in rural communities whose children 

were killed by marauding elephants. You can also hear tales of crops, which 

represented an entire year's income, destroyed overnight by wild animals or find he 

the spoor of leopards right inside village compounds. This is the reality that rural 

Africans live with every day. To them, wildlife is not some cute and cuddly thing 

that can be used for fundraising purposes by some protectionist group in New York 

or Washington. It is a harsh reality that can kill you and your children and destroy 

your livelihood. 

5 
450 

Since the value of wildlife is often dependent on international transactions, bans on 

importation of wildlife can have a devastating effect on the conservation of the 

species. Thus, the very prohibitions imposed to protect wildlife may very well act 

in the opposite manner. 

Continued United States insistence on the use of import bans resulted in the filing of 

a formal diplomatic protest in April, 1995, by four African nations (Namibia, 

Zimbabwe, Botswana and Malawi). A copy of that protest is attached. They said 

that in their countries strict prohibitions on use did not work for conservation. "In 

our countries," they said, "inhabitants of our rural communities and large mammals 

compete for the use of the land." They asked the United States to recognize that 

uses of wildlife, such as restricted trophy hunting, were beneficial to the people and 

to the wildlife, and provided revenues for conservation. 

mE ROLE OF TOURIST SAFARI HUNTING 

The members of SCI represent an important economic resource to the countries of 

Africa. At the same time, we are a force for conservation of the great mammals of 

Africa and all of the lands that they inhabitat. The point is really very simple. Big 

game hunters, who come primarily from the United States, pay significant 

premiums for the privilege of hunting the many species to be found in Africa. This 

input of foreign exchange is earned at a very low cost in infrastructure development, 

because hunte:-s are willing to take to the field without the extensive development of 

running water, electricity and resort hotel facilities. It is practical and effective in 

remote locations where nothing else is. It also converts species from varmints to 

game animals, which is a status that aids their restoration. 

The ecological and biological costs of tourist safari hunting are also very low. It 

takes far less hunters than it does tourists to bring in the same amount of dollars, so 

the impact on the environment is much less. On the biological side, hunting is 

highly regulated, very few animals are taken, and the animals taken, being males, 

represent a genetic surplus. So it is quite possible to continue hunting of virtually 

all species without reducing the overall populations of animals. In fact in some 

cases, eliminating the aggressive old male animals from the population often 

6 
451 

stimulates the growth of populations by letting more fertile younger males 

participate in the breeding. 

The result of tourist safari hunting is the provisions of significant economic gains 

without a reduction in the biological capital. 

One of our concerns, in fact, is that the rationale of the U.S. court cases that have 

effectively denied the use of hunting as a conservation tool for species such as the 

wolf and the grizzly bear may be applied to foreign species as well. We are now 

seeing pressure on the Administration from protectionist organizations to apply 

those decisions to the importation of hunting trophies of threatened species. Thus 

the ESA has become an unintended tool for undoing the policies and doctrine of 

wildlife use that worked so well for conservation in the U.S., and this blight is about 

to be visited even more broadly on the conservation programs of foreign nations. 

THERE IS A BEITER WAY 

A few days ago, Secretary of the Interior Babbitt told this very panel that the states 

should be given a much larger role in deciding how to protect endangered species 

and preserve their habitats. He suggested that they be asked to review the scientific 

information used for proposing listings and should be given responsibility for 

developing species recovery plans and for issuing conservation permits. If this is 

appropriate for the states, is it not even more appropriate for foreign nations? 

Unlike the states, the foreign nations receive no taxpayers dollars for endangered 

species conservation. There are no federally-funded programs for habitat protection 

or for recovery planning. So when the United States lists a foreign species under the 

ESA it may impose a burden, but it does nothing at all to provide the means to deal 

with that burden. It is the foreign nations that are expected to carry the burden. In 

that case, they should certainly have the primary role in determining how such 

species are best conserved. 

7 
452 

In fact, such a policy was enunciated many years ago by the Assistant Secretary of 

the Interior for Fish, Wildlife and Parks, but has been ignored by the U.S. Fish and 

Wildlife Service. At Congressional oversight hearings in October, 1982, the 

Assistant Secretary stated the policy of the Department of the Interior in regard to 

species listed under both CllES and the Act. He said that when the species 

occurred outside of the United States, the Department would be guided by the 

actions and determinations of the Parties to CllES in regard to that species. 

In the case of foreign nations and the species which reside there, it is much more 

likely that those nations will have the best available information in regard to those 

species. They also have the responsibility for conserving their own wildlife and for 

meeting the needs of their own people. Even in our own country we learned a long 

time ago that wildlife conservation is not simply a matter of oratory and filing a few 

lawsuits by extremist organizations. We developed the brilliant mechanism of the 

Pittman-Robertson/Dingeii-Johnson/Wallop-Breaux funds to assure that wildlife 

conservation was paid for by the citizens who cared about it most (the sportsmen 

and women), and that the money went to the state fish and game agencies, where it 

could do the most good. We operated on the principles of recognizing the benefits 

of wildlife to people and deriving the value from it for conservation long before that 

concept was called by the current term of"sustainable use." 

We propose to you that Secretary Babbitt's principles be adopted for foreign species 

as well as for domestic species. 

THE ROLE OF CITES 

In the case of foreign species, there is an additional element that acts for the 

conservation of wildlife - the Convention on International Trade in Endangered 

Species of Wild Fauna and FIOI1l (CITI>S). CITES (pronoWlced "sight-eez") is a 

treaty that came into effect in 1975 and now has 128 nations party to iL It is the 

largest and most comprdlensive wildlife conservation treaty in the world. 

The United States was a major supporter of the development of CITES. Pursuant to 

the Endangered Species Conservation Act of 1969, the U.S. hosted the international 

conference in 1973 at which CllES was negotiated and signed. The current 

8 
453 

Endangered Species Act contains the provisions of law which implement CITES for 

the U.S. 

The CITES parties meet approximately every two years and, by agreement, list 

species for which the regulation of international trade would assist in their 

conservation. Species which are currently in danger of extinction go on Appendix I 

and species which are threatened with endangerment go on Appendix II. There is 

also an Appendix III which allows any country to unilaterally list a species in its 

country for which international trade should be regulated for conservation purposes. 

The basic trade regulation mechanisms of CITES are set forth clearly in the treaty. 

If a species is on Appendix I, it may not be traded for commercial purposes. Noncommercial shipments, such as personal effects, scientific specimens and hunting 

trophies, may be traded, but permits are required from both the exporting country 

and the importing country. Specific findings must be made before the permits are 

issued. These findings are to be made by conservation authorities designated for 

these purposes. 

The exporting country must find that the shipment will not be to the detriment of the 

survival of the species. The importing country must find that the purpose to which 

the specimen will be put will not be detrimental to the survival of the species. If the 

specimens are live, then there are further requirements. 

If a species is on Appendix II, then only an export permit is required. The same 

kind of"non-detriment" is to be made before the exporting country issues its permit. 

The importing counties do their part by assuring that listed species do not come into 

their countries without the proper export documents. 

The CITES parties also discuss other issues regarding the implementation of the 

Convention. They are authorized to issue recommendations to improve the 

effectiveness of the Convention. Any country may take "stricter domestic 

measures" regarding trade in a listed species. 

It is interesting to analyze the mammal species listed under the ESA in comparison 

to the listing of the same species under CITES. We reviewed the 87 foreign large 

mammal species listed under the ESA as either endangered or threatened. The 

9 
454 

listings match in less than half the cases (in other words, only 42 out of87 times is a 

species on CITES Appendix I and Endangered under the ESA, or is on CITES 

Appendix II and Threatened under the ESA). 

A species listed on Appendix I cannot be traded for commercial purposes, but some 

limited use can be allowed in the form of hunting trophies or other non-commercial 

uses, provided it is legal in the country of origin and the requisite CITES findings 

are made and permits issued. But if the same species is listed as Endangered, then 

the allowable uses are, at least under current U.S. policy, much more limited. So 

there is a serious consequence from this mis-match in listings. 

In addition, the CITES countries, which have better access to information and which 

allow discussion of issues between the country in which the wildlife occurs and 

other countries, allow more uses of wildlife than the United States does. For 

example, after reviewing the scientific information about the conservation of 

cheetah, an Appendix I species, the CITES parties agreed that a limited amount of 

export of hunting trophies would generate funds that would benefit cheetah 

conservation. A record of their discussions is attached. The parties authorized an 

export quota from Namibia, Botswana and Zimbabwe. 

But the cheetah is listed under the ESA as endangered. So despite the decision of 

the CITES parties, the U.S. refused to issue permits for cheetah trophy imports, 

arguing that the "enhancement" standard of Section I 0 of the ESA had not been 

met. I have attached a copy of a letter in which they state this. I have also been told 

personally, by U.S. officials, that it was their policy that there is never a case in 

which the hunting of a wild (non-ranched) specimen of an endangered species could 

enhance the survival of the species. Thus the U.S. has set itself up as the ultimate 

authority on the conservation of cheetahs, in opposition to knowledge and proven 

practice in three African countries and in opposition to the collective judgment of 

the CITES parties. 

The situation so angered the country of Namibia that it introduced a resolution at the 

last CITES meeting (in Fort Lauderdale last November) calling on all countries to 

honor export quotas set by CITES. The resolution was adopted unanimously. I 

have attached a copy of the proposal, which includes an eloquent statement by 

Namibia about how some countries (read "U.S.") were abusing their power to close 

10 
455 

their borders to imports that benefited conservation. I have also attached a copy of 

the final resolution. 

The amazing thing is that despite this resolution, the U.S. is still not issuing cheetah 

import permits. I know, because I filed an application for one myself, as a test case. 

OTHER EXAMPLES OF PROBLEMS 

Presented below in outline form is a summary of examples of other specific 

problems that we at SCI are directly familiar with. We have voluminous 

documentation to back up each of these instances and would be glad to provide it 

for the Committee. 

- Nile crocodile: Species downlisted by CITES in many countries but the 

U.S. has been extremely delinquent in changing U.S. rules to allow 

importation. 

- Black-faced Impala in Namibia: Species taken on game ranches where 

income from hunting provides incentives to maintain wildlife habitat, but 

because there are wild populations in Angola, the U.S. will not authorizing 

importation. 

- Leopard in Mozambique: Despite CITES-approv.:d quotas for exports, 

U.S. will not allow importation. 

- Elephant -- Ethiopia: U.S. refused to permit importation of hunting 

trophies, insisting on expensive and unnecessary studies and development of 

programs to meet ESA "enhancement"standard by this desperately poor 

country without providing (or assisting in acquiring) the funds to do the work. 

- Elephant -- Cameroon: After initial approval of two permits, the U.S. has 

suspended the approval of imports pending the development of programs to 

show "enhancement" of the survival of the species. 

II 
456 

- Elephant - Tanzania: For several years the U.S. denied approval for 

importation of hunting trophies despite the importance of that program in 

providing funds for the country's wildlife conservation program. 

- Argali - China: The U.S. ignored a plea from the Chinese wildlife 

authorities to support a limited hunting program that was the main source of 

funding for provincial wildlife management; the argali was listed as 

endangered on a "precautionary" basis, importations ceased and the hunting 

program collapsed. 

- Hunting in CIS: U.S. officials cabled to a former Soviet country suggesting 

that species were endangered and hunting programs be closed; the actions 

appeared to be ideologically motivated. 

(Attachments to statement were placed in the hearing r ecord 

files o f the Committee .) 

12 
llou§ton 

Safari 

Club 

457 

Officers 

Ray Sa.l ey Rick Callison 

Ff!'St3ttfll VictPreslfUflf 

;;;oger rtoltand Tony Houseman 

FrttSIQttnfl£18c/ V.ee PtnitMIIII 

Directors 

F;;ecke Baumann Gerald Simpson 

Oenn1s Cain Brian Skeels 

Thomas E. Cain Jr. Jerome H. Smith 

STAT'!:~ENT OF HOUSTON SAFARI CLUB 

IN FAVOR OF REFORM OF THE FOREIGN ASPECTS 

OF THE ESA 

Jerry M. Henderson 

Ray G. Peny 

Sttclfll~ ry TteiiSurttr 

Mark Van Ness 

Ron Willenborg 

The Endangered species Act needs to be amended and incentives 

built into it. To this point in time, it has been a disincentive. It 

ob s tructs range nations' c hoice of conservation programs . Tourist 

hunting is a conservation measure of choice that generates revenue, 

gives the wildlife legitimate value in remote locations outside of 

protected areas, while it is low in risk and volume. Tourist hunting 

is a very important conservation tool that we deprive the range nations of when we list their species and interfere with trophy imports. 

A few examples of many may demonstrate the problems. Agency 

personnel in the u .s. Fish and Wildlife Service shut down the importation of elephant trophies taken by tourist hunters in Tanzania that 

were taken on a CITES quota. The quota was only 50 elephants a year, 

out of a population of<over 50,000 elephants. Nevertheless, the 

agency personnel stopped the importation of those trophies. Those 

hunts were generating approximately $60,000.00 ($60,000 X 50). In the 

two years it was closed, ~. trophy imports were not allowed, the 

country lost $6 million dollars, 1990 and 1991. Countries with very 

stable elephant populations, like the Republic of south Africa and 

Namibia, suffered identical losses at the the same time. 

Nile crocodile in the African countries have been downlisted on 

CITES. There has been a quota set, but the USF&WS has taken years to permit simple trophy imports. 

The cheetah is another example. The cheetah has never been 

thought to be endangered in Namibia, and at the 8th conference of the 

parties of CITES, the world conservation community agreed upon a quota 

for the cheetah, because it would give it regulated value. Everyone 

was in agreement that thousands of cheetah had been shot on private 

land because it was a varmint, and that it would be much better served 

to be treated as a game animal and given value as such, much like the 

leopard had been done a decade before. That effort has been frustrated because the US.F&WS has not permitted the impor\:ation of a single 

cheetah in three and one-half years. 

4710 Beualre Boulevard, Suite 110 • Beualre, Texas 77401 • Telephone 713 /666-7171 
458 

Page 2 

Another examole is the leopard. Leopards were shot as 

varmints until the sport hunting community was able to Fersuade 

(thru a law suit) the U.S. authorities to downlist it to 11 threatened" to allow the importation of trophies, and nmN· it has 

come back perhaps as many as a million in Africa. A leopard is 

much more valuable as a conservation tool than might be understood. 

It is more than a $2,500 license. It is a minimum of :ourteen 

days, and each bait has to be paid for, '•lhich can be $10,000-15,000 

of animals that would otherwise be surplus. It is a very i~portant 

backbone, or core, species, to the safari industry. It is one of 

the "Big Five". It has never been threatened by tourist hunting, 

and no one has ever represented that it was. 

Unfortunately, the USF&WS, despite years of effort by the 

hunting community, still will not allow the importation of leopards 

from Mozambique, although leopards are within the CITES quota 

created by the world conservation community. Mozambique, as a 

consequence, cannot be competitive with surrounding countries. 

That is, it can't have a safari industry, and all the benefits that 

go with a safari industry. Tourist safari hunting is. a special, 

exceptional category of sustainable use. It is a fundamental tool 

of these range nations and there is little else available to 

replace it. We must stop interfering with the use of fundamental 

basic conservation tools. _ 

These are just a few examples of why the Endangered Species 

Act has caused range nations tens of millions of dollars in loss of 

revenue as well as burdened them with additional costs. 

The Houston Safari Club is an independent organization of 

sportsmen who since its inception in 1972 has been involved in the 

conservation of wildlife and the 'protection of hunters' rights. 

More than a million dollars has been funded by the Houston Safari 

Club on projects worldwide. We a~ thankful for this opportunity 

to express our views and remain at your service if you desire more 

information. 

For the Organizati~n 
459 

DALLAS SAFARI CLUB 

July 14, 1995 

STATEMENT OF THE DALLAS SAFARI CLUB 

IN FAVOR OF REFORM OF THE FOREIGN ASPECTS 

OF THE FEDERAL ENDANGERED SPECIES ACT 

The Dallas Safari Club and its affiliates, have been long tenn supporters of wildlife 

conservation efforts for nearly 20 years. We have enjoyed a fine tradition of providing 

hundreds of thousands of dollars in grant funding to many worthwhile conservation efforts 

and outdoor educational programs. This organization has been a staunch supporter of the 

efforts made by State and Federal Officers in their endeavor to protect our natural resources. 

however, we are concerned over the frequent misapplication of the current Federal 

Endangered Species Act legislation. It is because of these concerns that we feel the need to 

refonn the Federal Endangered Species Act, primarily the foreign aspects of such. 

The United States should promote international applications of the "Sustainable Use" concept 

for wildlife management around the world. Many developing nations must be allowed to 

realize the value of the sustainable use of their wildlife as a renewable resource. We must 

make a commitment to allow the exporting countries to realize this value of their wildlife, 

as a preferred conservation mechanism. 

Restricted quota based sport hunting not only provides an economic incentive for the local 

peoples directly involved, it also provides much needed income for the range state 

governments to finance ongoing conservation programs. These restricted tourist hunting 

quotas established by the Convention on International Trade in Endangered Species of Fauna 

and Aora, (CITES), of which our country is an active participant, should be accepted as the 

scientific standard in allowing importation. Certain species. for which there already exist 

CITES export quotas, are being denied import pennits by o~r Fish & Wildlife Service under 

the current legislation. The grounds for denial usually arise from demands for often 

un-meetable studies and standards to be established by the ~ requesting an 

importation permit prior to entry. Many of these species were legally harvested in countries 

where the species remains numerous and sport hunting quotas have been scientifically 

established through their CITES participation. Allowing the importing country to question the 

scientific authority over matters concerning the potential detriment of hunting and trophy 

export. severely limits the exporting country from developing sound wildlife management as a 

renewable resource, and only undennines any serious efforts to preserve the very species most 

at risk. 

8390L&IFreeway,Suitel08-DalltUJ, TX74240-6414 • 2141980-9800 • FAX2141980-9924 
460 

DSC STATEMENT IN FAVOR OF ESA REFORM 

PAGE 2 

The Dallas Safari Club respeclfully requests that Congress amend the Federal Endangered 

Species Act to call for the legal importation of species for which quotas have been established 

by the CITES Conference of the Parties. These various quota mechanisms developed by the 

124 member countries represent the most effective means of achieving conservation of the 

species in their home ranges. 

We appreciate this opportunity to address this most important matter, and look forward to the 

refocusing of our policies. through proper and necessary reform of the Federal Endangered 

Species Act, into a more reasonable posture. which not only recognizes the authorities in 

which that control should rest. but also truly advances world-wide wildlife conservation 

efforts. 
461 

STATEMENT ON BEHALF OF THE SIERRA CLUB 

Submitted to the 

COMMITTEE ON RESOURCES 

UNITED STATES HOUSE OF REPRESENTATIVES 

October 5, 1995 

concerning 

THE ENDANGERED SPECIES CONSERVATION 

AND 

MANAGEMENT ACT OF 1995 (H.R. 2275) 

PREPARED BY JOHN LEARY & LAURIE MACDONALD 
462 

On behalf of its one-half million members, the Sierra Club 

appreciates this opportunity to submit written testimony for the 

record of this hearing. The Sierra Club vigorously supports a 

strong and vibrant federal Endangered Species Act and related laws 

that protect and conserve imperiled wildlife, plants and natural 

ecosystems. This Statement addresses the Sierra Club's views on 

reauthorization of the Endangered Species Act and, in particular, 

H.R. 2275, the "Endangered Species Conservation and Management Act 

of 1995." 

First, this statement discusses the importance of the 

Endangered Species Act in confronting our challenge to preserve 

biological diversity, a critical component of our nation's natural 

heritage. Next , it reviews the Endangered Species Act's record of 

success, followed by a summary of some of the disturbingly 

irresponsible provisions contained in H.R. 2275. Finally, this 

statement concludes by suggesting some responsible and constructive 

measures which could increase the effectiveness of the current law. 

THE CHALLENGE FOR THE ENDANGERED SPECIES ACT 

After 25 years of commitment to environmental protection, new 

or reemerging crises are arising a~ the future of our nations's 

environmental laws are debated. Some of the mistakes ma~e today 

may be corrected in decades to come, but the loss of species to 

extinction·is absolutely irreversible. Right now, we humans are 

fortunate to share the earth with a variety of living organisms, 

PAGE 1 
463 

estimated between 10 million to 100 million species. With the 

demise of each species, we lose a part of the Earth's biological 

diversity. The loss of biological diversity represents not only a 

moral and ethical tragedy of unprecedented proportions involving 

natural systems which evolved over millions of years, it 

constitutes the loss of a priceless resource largely untapped and 

little understood by humankind, yet integral to our very survival. 

House speaker Newt Gingrich has recognized that "[d) iversity of 

life is critical to our planet's survival." 

Yet, we are faced with the greatest rate of species extinction 

since the disappearance of the dinosaurs. The recent study by the 

National Academy of Sciences' National Research Council (hereafter, 

NRC Report) reported to Congress that "species extinctions have 

occurred since life has been on earth, but human activities are 

causing the loss of biological diversity at an accelerating rate. 

The current rate of extinctions is among the highest in the entire 

fossil record, and many scientists consider it to have reached 

crisis proportions." By the year 2020, scientists estimate we may 

have lost as much as 20t ·of the world's biological diversity.\ 

Thus, to paraphrase the comments of renowned biologist Norman 

Myers, the exceptional challenge confronting this generation of 

humans is to stem the rising tide of species extinctions. No 

generation in the future will ever face a similar challenge. If we 

fail to come to grips with the task, the damage will have been done 

PAGE 2 
464 

and there will be no second try. If we get on with the job, 

generations of the future will look back upon us as champions of 

the human condition. That is the spirit that must prevail during 

the current debate over reauthorization of the Endangered Species 

Act. We must embrace this historic challenge . 

A RECORD OF SUCCESS FOR THE ENDANGERED SPECIES ACT 

By passing the Endangered Species Act in 1973 , congress 

declared that this "irreplaceable loss to esthetics, science, 

ecology and natural heritage" must be reversed. As a result of 

that historic decision to stem the tide of accelerating loss of 

biological diversity, the Endangered Species Act has amassed a 

remarkable success record . Examples of species rescued from the 

brink of extinction exist in every state of the nation. Notable 

examples include the gray whale off the Pacific coast; the Atlantic 

coast, Florida and Alabama populations of the brown pelican; the 

black-footed ferret in Wyoming, Montana and South Dakota; · the 

Peter's Mountain mallow, a plant found only at one spot on earth in 

southwest Virginia; the greenback cutthroat trout in 15 Rocky 

Mounta~n states; and the American bald eagle, our nation's symbol, 

has increased dramatically in 40 states and has been removed from 

the list of endangered species. 

In addition to the intrinsic val~es possessed by all living 

organisms and their natural ecosystems which cannot be measured in 

human economic or utilitarian terms, some vanishing species and 

PAGE 3 
465 

their habitat can be of untold value to hUIIIans. The Pacific Yew of 

the Northwest's endangered ancient forests and certain soft corals 

near Hawaii supply promising treatments for cancer. Skin compounds 

of vanishing frogs are potent antibiotics. The rosy periwinkle 

provides a drug effective against leukemia. Half of all drug 

prescriptions written in the United States contain a drug of 

natural origin. Even common drugs such as aspirin and digitalis 

are derived from natural sources. The role of the Endangered 

Species Act in saving these species or others that. may in the 

future provide important medicines should not be underestimated. 

Perhaps most importantly, the Endangered Species Act has 

served as an early warning when something is amiss in the 

ecological systems that wildlife as well as hUIIIans depend upon. 

The consequence of ignoring the Endangered Species Act's function 

as the proverbial "canary in the coal mine" can be economically 

devastating. Habitat loss is imperiling nUJIIerous fish species, a 

crucial food source and mainstay of many regional economies. In 

the Pacific Northwest, commercial and sport fisheries for salmon, 

steelhead and trout provide 60,000 jobs and contribute 

approximately $1 billion in personal income to the region. 

Already, however, more than 100 native runs of salmon and ateelhead 

have been lost and hundreds more are at risk. Their loss is not 

the loss of an amenity, but rather a sign of the ailing health of 

the natural system on which people's physical, cultural and 

economic life depends. 

PAGE 4 
466 

The record of the Endangered Species Act clearly shows that 

the law originally enacted by Congress, and subsequently amended, 

established a simple, successful formula: the law recognizes the 

array of reasons for conserving biological diversity and protects 

species and their habitat; species are listed according to purely 

biological evidence; in attempting to reach the science-based goal 

of recovery, the law goes to lengths to balance the means used with 

immediate human needs; and, in cases of uncertainty, it gives the 

benefit of the doubt, in a reasonable measure, to the species 

clinging to survival. The successes, though substantial, were 

achieved despite underfunding, understaffing, and undermining of 

the .Act. Imagine the improvements in species recovery if such 

obstacles had not been placed in the way. While there is room for 

improvements, this should be accomplished by rational fine-tuning, 

not a whole-sale trashing of a tested and valid formula. 

H.R. 2275 WOULD DISMANTLE THE ENDANGERED SPECIES ACT 

H.R. 2275 dismisses a reasoned approach, and, based on a 

warped set of priorities, systematically dismantles the existing 

law. Throughout, H.R. 2275 is afflicted with new provisions ·that 

place politics over science, replace habitat protections with 

increased risk of extinction, jeopardize foreign species instead of 

shouldering responsibilities internationally, create gridlock 

instead of effective incentives, and favor special economic 

interests ·and foreign lobbyists over future generations. 

H.R. 2275, if enacted, would do nothing less than abort over twenty 

PAGE 5 
467 

years of progress made under the Endangered Species Act. The 

discussion below is far short of an exhaustive list of the flaws to 

be found in this overreaching proposal, but effort is made to touch 

on the most egregious problem areas. 

The Stated Purposes of the Act 

The statement of findings, purposes and policy set forth in 

the original Endangered Species Act reflect an enlightened 

understanding of the value of protecting our natural ecosystems and 

the many benefits conferred by preserving biological diversity. 

H.R. 2275, on the other hand, starts off by effectively 

repealing the original intent of the Act. Playing to the anecdotal 

and emotional fever fueling the current controversy over endangered 

species protection, the bill would deny the scientific fact that 

untempered development -- characterized by habitat destruction --

is a cause of species extinction. Instead, this ecological crisis 

is blamed on "inadequate conservation practices and natural 

processes." 

The bill further denies that the consideration of economic 

impacts and property use are already built into the current law. 

Instead, it rewrites the· findings, purposes and policy such that it 

illogically skews the focus of the Endangered Species Act away from 

the very challenge it is intended to .confront. 

PAGE 6 
468 

The Listing Process 

The biologically-based determination to list an imperiled 

species as "endangered" or "threatened" is the key element which 

triggers the Endangered Species Act's umbrella of protections. 

Title III of H.R. 2275 forces upon the listing process burdensome 

substantive and procedural hurdles. At the same time, it severely 

restricts our ability to protect species through emergency 

listings. The potential for gridlock is raised further by new 

enormously broad and expensive notice and · consultation 

requirements, which could cost the federal treasury exorbitant 

amounts in postage alone. Regardless of whether there is any 

scientific dispute, the bill mandates new peer review requirements 

for any listing, critical habitat designation or revision, or 

jeopardy determination. This new peer review process also creates 

great potential for financial conflicts of interest. 

The Definition of "Species" 

H.R. 2275 finds other ways to make it difficult for species in 

danger to be listed. For instance, the bill ignores, in fact 

repudiates, sound science by discontinuing protections for disuinct 

populations -- species that are not endangered throughout their 

entire world range. The National Academy of Sciences, through its 

NRC Report to Congress, emphasi~ed the biological importance of 

protecting such "distinct populations." 

Instead, H.R. 2275 requires a special act of congress 

PAGE 7 
469 

desiqnatinq such species populations tQ be of "national 

siqnificance," a politically-charqed term the bill leaves 

undefined. Imaqine the fate of some of our most imperiled species 

if H.R. 2275 had been part of the oriqinal Endanqered Species Act. 

While Conqress miqht have been easily persuaded to make such a 

special desiqnation for the bald eaqle, the fate of imperiled 

population of the qrizzly bear, qray wolf, or Pacific Northwest 

salmon runs would have been far less certain. But these species 

populations are not safe under this bill even now. H.R. 2275 

reaches back retroactively and requires automatic delistinq of all 

currently 1isted distinct populations, unless Conqress intervenes. 

Tbe Recoverv Goal 

Since its inception, .the ultimate qoal of the Endanqered 

Species Act has been "recovery," or the restoration of listed 

species to population levels at which they are no lonqer in danqer 

of extinction and in need of the Act's protections. H.R. 2275's 

abandonaent of this critical element of the Act's effectiveness is 

profoundly objectionable. 

Title V of the bi~l installs a complex bureaucratic process by 

which the secretary of the Interior is required to select a 

"conservation objective" for each listed species. In 'the end, this 

bill qives the Secretary the authority to arbitrarily reject 

recovery as the qoal and choose a lower "conservation objective," 

even one that does nothinq but prohibit the direct killinq of 

PAGE 8 
470 

individual specimens of the listed species. Because intentional 

killing is rarely the main threat to endangered or threatened 

species (habitat destruction is the primary threat for most listed 

species), this provision would allow the secretary to play God, 

empowering the Secretary with the discretion to allow a species to 

go extinct. 

H. R. 2275 requires the Secretary to "recognize to the maximum 

extent practicable" captive breeding as a means of protecting and 

conserving listed species. This emphasis on captive breeding 

ignores the NRC Report which concludes that captive breeding is not 

a substitute for conservation measures which address the threats to 

species in the wild (e.g. habitat destruction). Moreover, a 

recovery focus on captive breeding facilities is antithical to our 

nation's proud heritage of protecting our wild and natural systems 

(e.g., our National Parks, Wilderness areas, and Wild ' Scenic 

Rivers). Captive breeding should be a last resort and supplement _ 

to maintaining wild populations. 

Habitat Protection 

Species and their habitats are inextricably linked; they are 

but elements of a single ecological syst-. The Endangered Species 

Act encapsulates part of this wisdom in its explicit statement of 

purpose "to conserve the ecosystems upon which threatened · and 

endangered species depend." In fact, since the first federal 

endangered species legislation, Congress has recognized the role of 

PAGE 9 
471 

conserving habitat. over time, the legislative focus has evolved 

from regulating primarily the harvest and trade in species to 

greater emphasis on habitat. As the NRC Report explains, "[a]s our 

experience with endangerment and recovery has increased, habitat 

has become the central ingredient, and the ESA, in emphasizing 

habitat, reflects the current understanding of the crucial role 

habitat plays for species." In short, there is no scientific 

question that habitat protection is essential to conserving and 

recovering endangered and threatened species. 

Nevertheless, at every turn, H.R. 2275 rashly eviscerates the 

exis~ing law's protections of habitat. Most notably, in Title II 

the bill defines prohibited "harm" as only direct actions that 

actually kill or injure an individual member of a listed species. 

This definitional change overturns the U.S. Supreme Court's recent 

sweet Home decision, thus lifting any restriction~ against habitat 

modification or any other indirect action affecting listed species. 

As a consequence of the redefinition of "harm," most of the 

Endangered Species Act's ability to protect habitat, particularly 

on non-federal lands would be lost. Unfortunately, the biological 

and physical requirements of endangered or threatened species do 

not vary according to the ownership of the habitats they occupy. 

In fact, fifty percent of occurrences of ·listed species are on 

private lands. 

PAGE 10 
472 

H.R. 2275 continues its attack on habitat protection by its 

redefinition of "critical habitat." Currently, the Endangered 

Species Act presumes that critical habitat by definition should be 

designated as such, unless it will not promote the conservation of 

the species. Title V of H.R. 2275 reverses this presumption. Nonfederal lands must be excluded as well, unless the owner gives 

written permission or is compensated. Moreover, the bill's concept 

of "critical habitat," limited to the geographic area found to be 

occupied by a species at the time of listing, flies in the face of 

a .ll scientific evidence. 

Unsatisfied with the elimination of habitat protections on 

non-federal lands, H.R. 2275 proceeds to undermine protections on 

publicly owned lands as well. Under Title VI, the bill calls for 

the creation of the deceptively named "National Biological 

Diversity Reserve," which pays lip-service to the need to protect 

our biological diversity, but in actuality seriously reduces our 

ability to do so. Of all our public lands, the "Reserve" would be 

made up only of certain units within our National Parks, Wildlife 

Refuges, Wilderness Areas, and Wild and Scenic Rivers, but 1then 

only if management for biological diversity does not interfere with 

other activities which occur on them (e.g., hunting, fishing, 

grazing or mining). All other public lands (e.g., National. Forests 

and BLM lands) would be used to protect biological diversity only 

if the Secretary makes a finding that the biological diversity to 

be protected is not substantially protected on any unit of the 

PAGE 11 
473 

Reserve. 

Federal Agencies' puties to Conserye and C9nsult 

The Endangered Species Act currently mandates two. important 

duties for all ·federal agencies with respect to endangered and 

threatened species. First, all federal agencies must utilize their 

authorities to promote listed species "conservation" -- defined to 

mean "use of all methods and procedures which are necessary" to 

bring any listed species to the point the Act's protections are no 

longer necessary. 

the Secretary to 

Second, all federal agencies must consult with 

ensure that no ·agency action is likely to 

jeopardize the continued existence of any listed species or destroy 

or adversely modify designated critical habitat. 

Under Titles IV and V, H.R. 2275 turns these statutory 

mandates on their head. The bill limits the responsibility of 

federal agencies to utilize their authorities in furtherance of the 

Act's conservation purpose to those programs that are consistent 

with the agencies' ."primary missions." Federal agencies would have 

no affiraative mandate other than to show that their activitieet are 

consistent with an applicable species conservation plan or 

objective. 

Likewise, 'the bill does several things to render the agency 

consultation mandate virtually meaningless; It makes the decision 

to consult discretionary at the option of the agency proposing the 

PAGE 12 
474 

action. Exemptions are created if the proposed action is found to 

be consistent with a species conservation plan or objective, also 

a determination made by the acting agency rather than the 

Secretary. Destruction or adverse modifications to critical 

habitat would not trigger consultation unless such impact would 

jeopardize the continued existence of the species, which the bill 

defines as an action that "significantly diminishes the likelihood 

of survival of the species by significantly reducing the numbers 

or distribution of the entire species." This means the cumulative 

impacts of habitat destruction on the potential for species 

recovery overall or on particular populations could not be 

considered in determining jeopardy. Finally, even if an agency 

does choose to consult, severe time constraints are imposed, and if 

the deadline is not met, then by default the acting agency's duty 

to consult is deemed satisfied. 

Prohibited Acts 

In addition to defining "harm" so that habitat destruction 

would no longer be a violation (as discussed above), Title II of 

H.R. 2~75 sets out to create other broad exemptions to the cunrent 

Act's prohibitions and to debilitate its effective enforcement. 

For instance, 

appeasing the oil 

one proposed exemption, clearly 

industry, shrimpers and other 

aimed at 

big-money 

interests, effectively eliminates protections for endangered and 

threatened marine species other than fish in U.S. waters (e.g . , 

PAGE 13 
475 

whales, sea turtles, seals, sea lions, manatees, sea otters, and 

seabirds). 

The bill makes it exceedingly difficult for private citizens 

to enforce the Endangered Species Act through legal action in the 

courts. It narrows the range of cases for which citizen suits 

would be permitted, adds other substantive and procedural hurdles, 

and eliminates the award of attorney and expert witness fees, 

regardless of how meritorious the suit. 

International Responsibilities 

The Endangered Species Act does not work to protect just 

species indigenous to the United States. Teamed with the 1973 

Convention on International Trade in Endangered Species of Wild 

Fauna and Flora (CITES), the Endangered Species Act is also crucial 

in preserving dwindling species populations throughout the world. 

CITES places international controls on importation, exportation and 

international commerce of imperiled species, and attempts to reduce 

the worldwide demand for such items. CITES has been instrumental 

in enabling the U.S. government .and judicial system to join the 

fight in saving endangered wildlife and plants around the world. 

H.R. 2275 is an affront to our nation's program of 

responsibility for the effect our actions have on imperiled species 

around the world. The bill abounds with restrictions on the 

ability of the u.s. to implement and enforce the CITES treaty. In 

PAGE 14 
476 

short, this bill gives foreign governments veto power over u.s. 

actions to protect foreign endangered and threatened species, eases 

the importation of foreign species by trophy hunters and exotic 

animal breeders, and even forces the u.s. to ignore its obligations 

under CITES and to actually violate the treaty. As if that were 

not enough, the bill sets up a bureaucratic nightmare that wraps 

u.s. enforcement efforts in costly red tape. 

Just a few examples illustrate the scope of the obstacles put 

up by H.R. 2275. Under Title II, the bill requires that for every 

rule proposed, the federal government must show that compliance 

with_the proposed rule is "reasonably within the means of the 

..• range nation concerned." Thus, if a low-income, developing 

nation allowed exports to the United States of a species listed 

under CITES, the u.s. could not refuse its import -- just because 

the foreign country could not afford the scientific studies 

necessary to make the proper detriment finding required under 

CITES. 

Another change would force the United States to grant import 

permits of foreign species, with no limitations on quantities, for 

purposes such as trophy hunting, unless the United States can prove 

that the detriment resulting from the taking outweighs the benefit 

derived. The United states would be required to publish for 

comment by· the public and each affected foreign country (translated 

into the language of those countries) any regulation denying such 

PAGE 15 
477 

an import permit. In effect, the burden of proof is reversed 

giving the trophy hunter the benefit of the doubt, instead of the 

endangered or threatened .species. 

Incidental Take Permits 

Another deeply troublesome alteration made by H.R. 2275 

concerns incidental take permi~ing requirements. The Endangered 

Species Act now provides that a permi~ to "take" a listed species 

may be issued only if such taking is "incidental" to an otherwise 

lawful activity, and if the applicant submits a habitat 

conservation plan that meets all specified statutory and regulatory 

requirements. The habitat conservation planning process currently 

in vogue, however, is prone to controversy; habitat conservation 

plans constitute a compromise, and as such may not provide the best 

plan for protection and recovery of endangered and threatened 

species. 

Unfortunately, H.R. 2275 just undermines the already imperfect 

habitat conservation planning process and even further relaxes the 

standards for issuing incidental take permits without doing 

anythinq to ensure the lonq-term sustainability of species habitat. 

Under Title II of the bill, new "species conservation plans" 

require only that the· applicant take those steps that can 

reasonably and economically be taken to minimize the impacts on the 

species. 

PAGE 16 

20-707 95-16 
478 

Similarly, Title I of H.R. 2275 introduces "cooperative 

management agreements" for States, local entities· or non-federal 

persons that fall far short of providing the needed level of 

habitat protections, especially in that no protection can be 

afforded on private lands without the consent of the owner. Yet, 

the bill suspends the take prohibition for areas covered by such a 

cooperative management agreement. 

compensation Proqraa 

The .sierra Club heartily supports private property rights, a 

concept guaranteed by the u.s. Constitution. But under the guise 

of guarding property, the "takings compensation" provisions in H.R. 

2275 hide another agenda: to dismantle and roll back another 

environmental law which soae find undesirable. The broadly drawn 

provisions in Title I of this bill are irrevocably flawed. 

Generally, these provisions subvert the appropriations process and 

threaten budgetary liaits; invoke illusory diminution of value 

percentages, open the door to payaent for phantom losses, and 

generate a bureaucratic tangle that only big coapanies and their 

lawyers will be able to navigate . In short, H.R. 2275 would \cost 

taxpayers millions of dollars worth of red-tape and compensation 

for supposed tak-ings even where not constitutionally required. 

RECOMMENDATIONS FOR TRUE REFORM 

H.R. 2275 is not responsible refora of the Endangered Species 

Act. The bill is not grounded in sound science, it does not 

PAGE 17 
479 

promote responsible conservation policy, nor does it improve 

implementation of the Act with respect to effective reduction of 

short-term "socioeconomic" impacts. If enacted, it would be a 

lose-lose result for the American people. 

That is not to say that the Endangered Species Act should not 

be improved. Indeed, the Act, and how it is implemented, needs 

improvement . in several areas. Responsible reform is needed to 

improve the law's ability to achieve its intended purpose, both by 

removing factors that prevent full and proper implementation, and 

by adding greater incentives for conserving species and their 

habitats. 

For the Endangered Species Act to ge more effective, the 

Sierra Club advocates that the following measures be adopted: 

* Ecosystem Protection: the Endangered Species Act should 

pursue a proactive, ecosystem approach to species and habitat 

conservation. Existing proactive mandates, such as section 5 of 

the Act, should be fully implemented. Further express authority 

sho~ld be given to protect endangered ecosystems. Proaotive 

conservation of viable ecosystems and multispecies protection 

programs promote recovery of listed species, as well as prevent 

declines of candidate and other. species, including vertebrates, 

invertebrates, and plants. Properly implemented, an ecosystem 

approach can also reduce uncertainty and thus reduce economic 

disruption. 

PAGE 18 
480 

* Preyention: the Endangered Species Act should expressly 

authorize proqraas aiaed at preventing species from ever declining 

to the point where they need to be listed under the Act. such a 

preventive approach would be economically cost effective and 

biologically sound, and designed to minimize intrusions on, and 

costs to, private landowners. A preventative program should focus 

on key ecosystems and aultispecies protections. 

* Becovery: the Endangered Species Act should set out 

specific timelines for completion of recovery plans,· and require 

that the recovery plans (i) establish recovery targets based on the 

best available science, (ii) identify specific actions needed to 

achieve recovery, and (iii) contain deadlines for carrying out the 

recovery actions. 

* Habitat conservation Plans: The sierra Club supports 

Habitat Conservation Plans that will prevent species extinctions; 

provide long-term habitat protection of adequate size and quality 

to maintain the biological diversity of the area; and provide 

adequate funding and other resources to maintain, enhance, 

restore/rehabilitate, and aonitor the habitat over time. Habitat 

Conservation Plans should be based on sufficient scientifically 

valid biological infor.ation; for this reason, recovery plans 

should be in place before a habitat conservation plan can be 

approved. Habitat aonitorinq should be required by federal and 

state agencies to ensure that the purposes of the Habitat 

Conservation Plan are being carried out on an onqoinq basis. 

Enforcement and severe sanctions should be maintained to prevent 

PAGE 19 
481 

degradation of the habitat area in violation of Habitat 

conservation Plan goals. 

* Plant Protections: the Endangered Species Act should 

extend protections for endangered and threatened plant species 

beyond federal lands. 

* Technical and Informational Assistance: the Endangered 

Species Act should direct the u.s. Fish and Wildlife Service to 

establish programs to provide greater information, advice and 

technical assistance to private landowners attempting to comply 

with the Act. 

* Incentives: the Endangered Species Act should minimize the 

disincentives and create greater positive incentives to promote 

species and habitat conservation, especially for smaller 

landowners. such programs should embrace the elimination of 

government programs that serve as disincentives to conservation and 

actually promote the further degradation or loss of habitat for 

endanger~d and threatened species. Examples include below cost 

timber sales and subsidized grazing fees on public lands that may 

be better suited for other uses such as conservation areas for 

listed species habitat. 

Positive incentives should be offered as well, including tax 

credits to landowners for habitat maintenance or improvement on a 

long-term basis. such tax credit programs should establish 

standards to set priorities for which lands qualify. Lands that 

provide for the conservation of multiple species or natural 

communities should be given higher priority than land that provides 

PAGE 20 
482 

limited habitat for a single listed species, for example. 

* peadlines: deadlines need to be established for recovery 

planning, designation of critical habitat along with interim 

protections, and for the developaent of a conservation program as 

called for in Section 5 of the Act. 

* Adequate fundina: perhaps most importantly, adequate 

funding is needed for proper and full implementation of the Act, 

including listing and prelisting activities, recovery programs, 

assistance to states, habitat acquisition, and technical assistance 

to landowners. 

CONCLUSION 

The Endangered Species Act is but one of a number of important 

national laws that aandate the conservation of our natural heritage 

and strategic resources. It does not and cannot work alone to save 

America's wildlife, but it is the strong and final word regarding 

our decision to preserve the riches of the nation's biological 

diversity. 

H.R. 2275 is an irresponsible and extreme departure from ,this 

nation's coaaitaent to conserve and recover endangered and 

threatened species. The Sierra Club urges this Committee and the 

House to oppose this aeasure, which in effect repeals the 

fundamental protections afforded by the Endangered Species Act. 

Rather, the lessons learned about science, politics, and economics, 

and the interplay aaonq thea, since the original Act was enacted 

PAGE 21 
483 

should be applied in fine-tuning and reauthorizing a strong 

Endangered Species Act. 

PAGE 22 
484 

WWF 

~~ 

STATEMENT OFGINETTE REMLEY 

Director of International Wildlife Policy 

WORLD WILDLIFE FUND 

For the Record 

House Committee on Resources 

on 

THE ENDANGERED SPECIES ACI', THE CONVENTION ON INTERNATIONAL 

TRADE IN ENDANGERED SPECIES (CITES), and H.R. 2275, THE ENDANGERED 

SPECIES CONSERVATION AND MANAGEMENT ACT OF 1995 

September 20, 1995 

Mr. Chairman, I appreciate the opportunity to submit this statement on behalf of World 

Wildlife Fund. WWF is the largest private conservation organization working internationally to 

protect wildlife and wildlife habitats. We are CUTrently supporting conservation efforts in more 

than 70 countries. WWF has also worked extensively with the Convention on International Trade 

in Endangered Species (CITES) since the treaty's inception, and provides both technical and 

financial support to member nations and their CITES programs. 

Questions over the Endangered Species Act and its relationship to CITES and 

international commerce in threatened species currently loom large. I would like to briefly 

summarize the key issues as WWF sees them. 

First, we appreciate the opportunity to hear some of the concerns voiced. by other nations 

over the Endangered Species Act and U.S. implementation of CITES. WWF recognizes that 

':amibia, Zimbabwe, and South Africa in particular bave been pioneers in wildlife management 

and conservation, relying in part on wildlife use to provide important income in rural areas, 

particularly through controlled sport hunting. We recognize the value of these programs and 

bave actively supported them. In looking at the complex problems of the international wildlife 

trade, if all we had to worry about was resolving the issues in southern Africa, our task would be 

relatively easy. WWF appreciates the need to make sure that effective conservation programs are 

not undermined by excessive U.S. regulation. 

But the international wildlife trade, and all of its associated problems and threats to 

species, is much broader than just southern Africa. In addressing the concerns of these particular 

countries, we must not undermine the important conservation benefits the Endangered Species 

Act provides for endangered and threateoed species in other parts of the world. 

World Wildlife Fwod 

1250 Twcrity-Founh St., NW Washington, DC 20037-1175 USA 

Tet {202) 293-4800 Telex, 64505 PANDA FAX, (202) 293 -9211 

lncorporatmg Tbt COII<tnrdtiow Fotn~Jatiow . A.ffo1iattd witb Wor!J Widt FunJforNaturt. 

® recyded pAper 
485 

The robUst market forces of our vast economy here in the United States, the largest 

wildlife market in the world, have wreaked havoc for maily foreign speeies through uncontrolled 

trade in the recent past, from large m.aminais to exotic birds to reptiles and other wildlife forms 

with comme~cial value. We know how the wildlife trade works. It often occurs in sudden 

cycles, trends can change very quickly, and species that are naturally rare or vulnerable to 

overexploicition can experience rapid deniise. Many countries in Latin America, Asia, and parts 

of Africa have enacted very strict wildlife export laws as a result of these trade threats, many the 

result of U.S. demand. 

The ESA's broad enforcement authority and coliiiDiirce restrictions have in fact helped 

many of these cOuntries enforce their own wildlife protection laws by providing an important 

safeguard against illegal and detrimental trade. The ESA helps provide the teeth needed to make 

CITES work. 

The law enforcement record of the Fish and Wildlife Service shows ample evidence of the 

benefits to foreign countries <1f ESA actions affecting species that slip through their own 

protection barriers. Recently, after a IS-month investigation, enforcement agents in New York 

apprehended an individual for transporting and selling illegally imported skins from critically 

endangered snow leopatd, in violation of the ESA. Although the species is also covered by the 

strictest protection of CITES and is .prohibited from export in all of its native Asian countries, it 

was the interstate commerce restrictions of the ESA that allowed for this smuggling ring to be 

c~oken up. . 

The Endangered Species Act provides for trade control nieasures that go beyond CITES, 

but ~ is explicitly allowed for in the Convention. It is in fact the normal praetice of most 

trading countries, including other major markets like many· European Union nations. A number 

of countries have.gone well beyond the mandate of CITES by prohibiting most wildlife imports 

and exportS:. The U.S. has, in our view, struck an appropriate balance. The El'ldangered Species 

Act is strong, but it'is al8p flexible . 

.I should also point out that the vast majority ·of the more than $1 billion wildlife trade in 

the United Stites is. not subjec~ to specific restrictions of either the ESA or CITES; the trade as a 

whole is largely linregulated. Only a very small pOrtiOn of the commerce- less than 5% -

involves species listed by the ESA. • 

The concerns that have recently arisen about the ESA' s international provisions relate, in 

our view. to administrative mauers associated with just a llandful of species, specifically the 

AfricaD elephant, the Nile crocodile; and perhaps one or two others - principally species 

important. in sport hunting. Some have argued that the ESA has unduly restricted traqe in these 

species. ·But let's look at the faj:ts. U.S. rules are less strict than those of many other countries 

for import of species listed under Appendix I of CITES, the treaty's strictest protection. For 

'-';;ample, we currently issue import pelnuts for more elephant and leopard hunting trophies than 

any other nation in the world. UDder special ESA allowances, at least 200 elephant trophies 

were legally imported in the last two years frOm at least eight African countries, primarily 

Zimbabwe. ·A sjmilar ESA rule for leopard has allowed at least 600 leopard tr<iphies to be 

imported in .the last two years. · 

2 
These special rules demomtrate lbe EDdangered Species Act's flexibility. They allow the 

import of certain threatened species wbcn such trade serves conservation purposes, while at the 

same time maintaining safeguards against delrimenlal trade. It is important to remember that 

wildlife trade control capabilities vary eoormously among COIIIltries, and these differences are not 

always addressed through the CITES process. There is little question that mosl southern African 

countries have effective programs. But I can tell you that the situation is very different in west 

and central Africa, for example, according to CITES reviews and infractions reports. 

· In sum, we believe that the EDdangered Species Act is appropriately flexible to implement 

the requirements of CITES as well as to provide for additional trade measures where they are 

needed. There is, in our view, no need to change the Act. 

At the same time, implemenlation of the EDdangered Species Act and its CITES 

measures, including its accommodalion of the cooservation needs and some foreign countries and 

species, could lind should be improved. This goal could be partly achieved in two ways. First, 

we recommend that the U.S. govermnent mate harmonizing the CITES and ESA lists a priority, 

w follow more closely the international standards set by the convention. Second, we recotnJnend 

that the U.S. incorporate broad and regular coosultations with fo#:ign countries as an over- ' 

arching policy for all activities affecting foreign species under out laws. This will ensure a better 

understanding of the specific conservation needs of other countries, especially where their success 

may partly depend on access to U.S. martecs. Neither of these actions require any changes in 

the Endangered Species Act itself, and neither would or should in any way diminish the United 

States' ability to take stricter measures wbcn cooservation calls for it. They may require an 

adjustment of priorities at the FISh and Wildlife Service because of tight budgets and staffing, but 

we strongly urge them to be addressed. 

These changes in implemenlation would substantially improve species conservation at 

home and abroad by strengthening partnerships between the U.S. and the range states. The 

Endangered Species COJiservation and Management Act of 1995 (H.R. 2275), in contrast, would 

virmally abandon this country's traditiooalleadership role in international species conse!Vation. 

The international illegal wildlife trade is valued at more than $3 billion - and that is 

conservative. The United Stw:s must mainlain lbe awhority to act under its own laws to protect 

imperiled wildlife fr6m the ravages of 1IIICOIIIrollal and illegal trade. This is equally true for 

species outside the protective umbrella of CITES, and those for which CITES protection is not 

enough, like the critically endangered tiger. H.R. · 2275 would underniine that authority. 

For example, H.R. 2275 provides that probibitioos on the importation of thr~ned 

species shall not apply to hunting trophies so loog as lbey are taken in-accordance with the laws 

of the exporting couniry~ This provision would prevemlbe Secretary of the Interior from 

curbing imports of threatened species no DJalier wbat bis concerns aboUt the impact of hunting on 

the welfare of those species. It assumes that because a couniry has a law regulating the take and 

trade of a species, that such a law is wdl enfol'ced and that such activities pose no harm to the 

species in question. One has only to loot at the last 20 years of illegal wildlife trade and CITES 

infractions to appreciate that re1iantc oo foreign laws is not enohgh to protect species at risk; our 

own law must be strong as well. 

3 
487 

H.R. 2275 would also.limit the time that the U.S. Fish and Wildlife Service lW to 

identify specimens seized as suspected contraband to 30 days. In a recent case, FWS . 

successfully prOsecuted a smuggler atte¢.pting to !)ring 58 endangered species boDeS .into this 

country. It took .the Service six weeks to identify the. bones as Siberian tiger. IfH.R 2275 had · 

been ·law at the time, FWS would have been forced to return to the smuggler his illeg;ll cargo, 

and send him on his way. 

H.R. 2275 would abdicate the leadership role of the U.S. by requiring the written .consent 

of all relevl!IIt foreign governments before placing a foreign species on the endangered or 

threatened. species list, or promulgating a regulation for the protection of a threatened species . . 

Only l!I1 order from the President could override. the veto of a foreign government. Imagine if a · 

species such as the tiger suddenly became. endangered today, and the Secretary had to urgently 

confront the issue. To list this critk:ally endangered l!I1imal under .H.R. '!.275 would require the 

permission of Russia, Chiria, lndoDCSia, Vietnam, Laos, Cambodia, ·Burma, Thailand, India, Nepal, Bhutl!II; and Bangladesh. If the Secretary proposed to downlist or uplist the argali sheep, 

he would be fequired to seek the consent of Chins, Russia, Afghanistan, India, Kazakhstl!II, 

Kyrgystl!II, Mongolia, Nepal, Pakistl!II, Tajikistl!II, and Uzbekistl!II. As· mentioned above, 

changes in wildlife trade patterns often occur rapidly as a result of shifting market forces, and it 

is imperative ·that the United States not have to wait for permission. to make common sense 

listings of endangered species under U.S. law. · · 

Finally, H.R. 2275 creates a "rebuttable presumption• .that sport hunting allowed by the 

laws of the range state is beneficial to the conservation of the species. Thus, if a range state 

allowed hunting of critically endangered tigers, the ESA would no longer provide a flat · 

prohibition on the importation of tiger trophies. Rather, the Secretary would be required to 

promulgate a special regulation, rebutting 'the pi'esumption, and submit the regulation for 

comment to the range states. While sport hunting can be a form of wildlife use that provides 

"'!Crall conservation benefits to species, the ability of countries to manage such programs 

effectively varies enormously. Again, while we believe strongly in the need to consult with 

range states on listing and conservatiOn issues, federal law should not unnecessarily tie the 

Secretary's hands as this bill would do. · 

· WWF is committed to working with the range states, Congress, and the Administration to 

ensure that this ·country's conservation efforts do not infringe on the sovereignty, eco110mic 

·opportunities, or conservation efforts of foreign nations. This can be ~lished. however, by 

meaSures that do not baCk away from our nation's commitinent in global' species conservation. 

Thank you for allowing us to share our views. 

4 
488 

CONSEIL INTE&NATION.AL DE LA CP...ASSE 

ET DE L.A. CONSERVATION DU GIBlER 

a 

COMMISSIO!'I • .DU Gllllllt UOPJCU. 

ro WJ10M IT MAY CONCEIIN 

Sabjeet: 1'lllpla: otiM l!S E.wd•"'ll"ftd Species aep1at1c111 dae to impon I'!Strk:dcma or 

.._...II'Opllia lepb o~Di~Jed abr«<d by A-n:.n sporumea 

Il is approp1iate tO recall oo 1ilis occuioD. a Dllllllba- of i!IIJ)CliUDt f&cts : Americaa. big game 

tamun a.b up appaaxiuw.:ly SC% of all hualiDg tr)t!nats worldwide md tiW ba!WISliDg of 

llumizls tt'Ophic$ is nqpisjble ia qumtity (a &action uf 1 "•) of any species. 

The « 1ndc-. o£ JepD.y-obtaiaai lludiag tropbies bas, si'lce the Vf!11Y 2nd Clltlfe:n:ncc of the 

Pani01 o£ CITES in 1979, '-~ (Ra. Ccm£ 2.11) u a DDil-COIDI1I8IC aaivity to 

be anthori-' by the P.ties. This Jlesolutioa was l'lliDfan:al by COP 4 in 1913 (Res. Caaf. 

4.13). repnliag paniQallrly IMpa'd 1l'llpi!B 111111 n:aJIIfinned by foiJowins COPs (lla. Coaf 

S.l3, CCIII! 6.9, COIIf.7.7, Ccmf. 8.10}. Similatty, a bullciag tmpby quota were ll:lributed by 

tbe Parties for other Appclldix I specia, IUCh u the cbeeCalo, u 'Mill as for tbe :Nile c:ncadle. 

The 9dt Cooti:R:alle of !he~ wbidl met in Fan I..wk:nfale. Florida, in November 1994, 

tbe Paniea -.lied~ Doc. 9.50. 9.51 mod eo.. 9 .21 by the Gowmmeat of Namibia 

wllich maRCid on 'the fact that ubilrary import ba of leplly-<lbtaiaed lnmliDa troplia 

c:oastituted in filet a vioJaliaa o£badl1ho 1at and the spirit of the Couvmtioc.. It was streaed 

tbat these import bias- usually ialpc8d oo the basis of skctcby ICientific; daa aad witbout 

tho recopized procedure af ~hti!Wl wit1a tbe'COW!triel af oriPL 

The Coalicnacc, 'VIbidl wu &eJIIU ..... 117 Sate Paniea 111111. 7 Don-Partiea, adopted the 

propoala ofNamibi& wlddl iD 1aa RJqDeSB the Scicmillc Alltbority of the im:portiDg c:.oun11y 

to !lllnlly c;hedr;: wilh the Sciaaific 'Authoril.y af the caaat&y of oriain that the t&upby ...... 

oblaiMd lliplly in :that c:o.tty. An ._.... ,. wu iuaucb:ed aDd adopted ltatmg chat the 

cmly ~ toi 1bis rule eould be made wileD sci.sific or m:anagcmeot data eKilted, 

cilmouatia1iDg tha lbe .dec:Uioa. of the IXJIIIIUy of origin abould in filet be challcnpi. 

ll wu --.1 by ~ CICIIIIIII:IB during tbe dia?suionc iD. Fort l..llJderdale that the 

lllliusti6ed iaterpuitariilil of ArtK:lc XIV of the COCLVelllioD, wbic.'l in panicular has beat 

repeatedly i&wulad by t.b11 L "S CITES Scienlific: Aulharity, bad 11 c:orrtpra.u.d 1M 

~,_.,...afR-. SM~W ... 

This rulil.y has lieela IIRID8lY ~ by lUCN (Tho World Comcn-ation Union). 

1RAFFIC aDCI 'WWF in lbcir' JmmllJ1995 Rqxlit emillcd : « F_, p:ars 11/ta til: CITES 

"-: m.,.l ~ of .... ~ IPIIIior ..Jl lltJdplla » which « concludu that tJ. 
489 

i111D71tllional ivory trrzrk ban has not halted the iilkgai ojftiJU of elephants. ·1M co11linuld 

loss of elephclnts appean to be the restlit of= mabi/iry on tire pan of """8" suw.J w pr«ea 

t1rttm "'· In filet, thiS repon gives dramatic cvidenoe of the e:&ct of the ivory trade ban oa antipoaching budgets in the elephant's n111g1: SlateS : 

"nnce 198&, b.ts for law enforce""nt tU:ti~#ie.r rn Z"llltbabwc's .wl/dlift ~ClOT 

htne decli11ed by almost 906 m rrol terms " · 

In Tuz:aaia. 11 for the prott:t;ted areas included in CNr tmalysis. b~ hDd 

declinaJ by 9i% since the barr came into ejftcr ... With the dedil'JB in avai/Dbk 

jrtndl,g, iJ/eguJ killing iras begun to incrrase sina! 1992 ». 

(( z.-llia•lras ~rlenced a 96~ erosion in its btodgn jol' caphDJ apmditrtre in the 

wildlife sector "· 

All of me above information confum the two o!Mous fsctalllat poaching C1D only be cbecked 

by anti-poaching e!J'ons and that these efforu cost IIXXI8Y wbich, in reality, caD only be 

produced by wise ue of 1he wildlife resoun:es. lntemdiooal aid which had been pro!Wed to 

Affican elepham raose surea did nOt li!Aterialize in any signifitADt way and, in any cue, CIUl 

~be COIISiliemi by danors as an cngoing long tam ii.IWICing of recurrmt law enfCJrCSJBJt 

costa. 

'lbe value of wikllife md the contribution by sponSJI!Cil to consemni.on fimding are indeed 

wdl known by the: US FLS.h a.ad Wildi.& Service and by the hnc:n:anioa.al Association of Fiah 

aud Wildlife Agcuaies. It is all the more siloclciag to sec th.u same US F&:WS apply arbitrary 

import restrictions 10D tnJphies originating in developing coumries who desperately need the 

income in order to cany out their brave campaigns to c:amervc wildlif'e. 

CllES furtltermcn recognized at ~ mcc:ting in Kyoto tb: contribution that trade can IJlllb 

towards conservaticm of eDdange:reC :;peQes. 

It is for this reason that tho lntemationaJ COUDcil for Game and Wildlif'e Coaservation (CIC) 

valid 11t its 42nd Gemnl Assanbly, ll!llleling in Monaco, April 4 to 7, 199S, the two attacbed 

~-

It is our &inca-est wish that, in its c:urtat reform of tbe Endangered Species legislation, the 

Ulliled States wiD 'fW!y take into acc:oum the benefits of legal uopby lwDr:ina and tnde in 

wildlife produCtS cowanls the ~on of wilcl species and its habitats. thcn:by e:nsuriDg the 

twO great goals identified by the World Summit in Rio (1992), wbic:b an~ the conservation of 

biodiversity in ~"'-ida SUS!ainable development. 

19107~ 
n~ n 1!1~ !fl ~~~ nt;

11

t! u IU Jtn n

f J U .IJ J ~ ~!I lf § It ~J: t I II r ~ .. a J 

.J ~ ~ .I · If ~ W Jli A. o H a. I t · '9 J ~ r n- 

'B i l iii a ffl If i ·t tt Ji tt li a a· ~ ~ H H t Jl. 

I a ,. i:t ' " ·: ~ f: . rrr.r . s It ·: ' ·f I 

8] , It lrl· H H ·r.~,[ hli9 I r !ri 

It l r r'll r lr 1(11 ~· g t ~ J •. t R, f J M 

I r I f A n .u· : Jl Iii' et ..:t b t:J " . t q.l ~ 

(I . .. ll ~ 8 ~ . r' 8 .j' c ir 9 'li 

II'. n: ' It B §' ;: I ' . 1: i:r " u· a p 

Ji [ ~ ~~ J' lflf.J ~ lo~ i Jw ~~-- 

g ]· I t ' II .!: i 0 g. . .. 2, 

,• 'Boll' ·'l 2, ' ,fl • .. ~ ~ II . If ft 

d a ~t~ n l·· i11U r~~ ( ~1 Hu 

-~~ ~~ u,~. ~! tt ~tru 1J1 i u IU 

If If I u . ~ a· a 1-t ' ft. J I J ~· Ill 

. ~D " a~ ,~ 1· .hi J 1 lJI 

~~ l Ill i~ ~I {Jli I ., I·~ 

ii 1 :~, ~r ~! rt~ ~ Is sla. 
491 

CONSEIL L."iiTlli'1 A TION..!L DE L~ CHASSE 

GT/aJ 

ET DE Tj A CONSERVATION DU GI:aiER ~"TD,."C,t fl':l r"' IU Cotr.\'Ct%. ~ c;.ucl 

.._~.-:'&.:::L:P t; ~'t'6~ 

42Dii GE..."''ERAL ASSEMBLY OF THE C. I. C. 

MONACO- APRIL 4thnth, 1995 

RECOMMENDATION 

RE.MINJ)ING that, :::. some Southern Africa."! coumries, over-aixmciall;: ei~t populatio111 IlaJil be culled in c:nicr to msure the 1cng-tenn cooscvm:ioo oC Naticmal Pub IIDd oC lblir 

biodMnity, 

RECOGNIZING bcwever the sovereign rig.lu of 110me ra11p lWei to c:ominue to bm cxpcxt 

of elepbam proclucls 

RgtAJ.I.JNG that, at thar 7th Cooferenc:c in 1989, a oajorily of Stata Parties to CITES 

decided to .impose · a ~ ball on imemaliocal ttadc in .n Afiic:an clephallt products, 

arguiDs that tbe c!csil:g of legi.timate trade would autonwicaDy result in btiogjns illepl tr3de 

to & batt. 

INFORMED or the findings of the World Conservuian '(;Ilion,! Aftic:an Elepham Specialilt 

Group, publiabed ill JamJ&ry 1995 by IUCN, Trafiic aud WWF, v;llich l:miCiu&le that, ldblr fiva 

yean' ban, elephant ~ and iD.tpl ivory trade collliDue as Wore, ~ th8 

&IIKy cf the lr'gllZDCZil. 

~ thBt, accctdina to the above report, the predictable sbort1la1l in RMIIIUe oC 

CollleMiioa DepaitDems. resultiag from the impossibility to sdl gonrWDiiilt-owued c:lc:pb.ut 

ivory llld skills. has lwl the pervcnc effect to force importaat ~cUona in rqc States' lllllipoadiaa budacts (ty ~.4 iD me cuo ofZilnbabwe), 

lbelDnnu~doul C,OUci for Guae aJUl WUdllte c-rvadoa. 

at die ta..,.moa of tile Tropical Game Co-iHiaa. 

Jl!lTD.A'I'ES thc:l ~ mado by the 1ut ~ Aacmbly of CIC ...-iag iD 

CapeiOMl in March 1994 to tbe criES Panics, Sct::=lriat ZDd Slanding Caamlinee. 

HmHLIGHIS oc.ee ~pin the crilical importanCe of~ ~ lcaa1 uadc: ill 

wildlife produ.cts in order to p&y for reeurnmt costs of ami-poachizls and other laeailscaawllld wildli.fB mampmea1 activitiea in tropicalc:oualzies. 

'REl",()QNJZES me nee-my to aJIIIII8IIIIde loc:ai pecpJ. f« the """ of C01111e1ViDa III!UI'Il 

lllbitab mel the ~ of wildln oa their land by lcltias them bc:DcDt &om the nde iD 1llis 

pmdu.:t& 

WELCOMES the Dfk awie by the Ullired Nmcms Eathocmatt ProiiiUil to fiDd _,. to 

•iiillbcHizll comroii.O leaal uac1e in AD:m clepllaat produca ~ fi'om I'ID80 .- .,.... eleplualls ue lDDIIpd ...u.iDibly 111111 wlu:R unworked dcpbct produc;t ilm:mori.ee 

~fR!m:ova-nzncm ~ 
492 

Qlnugrrssinnal ~.pnrtsmru's 111nuttbatinu 

STATEMENT OF THE CONGRESSIONAL SPORTSMEN'S FOUNDATION 

FAVORING REVISION OF THE FOREIGN ASPECTS OF THE 

ENDANGERED SPECIES ACT 

House Committee on Resources 

September 20, 1995 

The Congressional Sportsmen's Foundation appreciates the 

opportunity to express its views regarding the effect of the 

Endangered Species Act on conservation efforts of foreign nations. 

We support selective harvesting of wildlife as a sound management 

practice and as an important revenue source for management needs. 

In fact, the Pittman-Robertson Act, supported with revenue from 

hunters, has been the cornerstone of healthy and abundant 

populations of game species throughout the country since 1937. 

Legal hunting and the revenue produced from it have kept many game 

species Qif the Endangered Species threatened and endangered 

lists. It has been a wise and profitable investment b¥ the 

hunting community to conserve our valuable game species and 

criti cal habitat. The Endangered Species Act should en·courage 

this type of conservation both at home and abroad . 

For developing countries to lift their citizens out of poverty 

while maintaining na~ive wildlife species, well-regulated and 

profitable tourist hunting programs are of the utmost importance . The Endangered Species Act, however, limits the ability of the u.s. Fish & Wildlife Service to issue permits for the importation 

of trophies taken in many range nations. Such limitations 

discourage American tourist hunter participation in authorized 

hunts, which results in reduced revenues for range nation 

conservation efforts. Deprived of the ability to encourage their 

countrymen to protect their valuable indigenous species for strong 

economic gains, range nations cannot hope to stop poaching for 

either subsistence living or, more devastatingly, for the world 

black market. It is precisely this manacle that has caused 

dramatic declines of previously unthreatened species in countries 

of the African continent. 

1730 K Street, NW. Suite 1300, Washington, DC 20006 

Telephone (202)785-9153 Fax (202)785-9155 
493 

Developing countries, which are home to thousands of the world's 

wild species. need to have as many options as possible for 

improving the condition of their human populations while 

implementing prudent conservation measures to ensure the survival 

of their wildlife and habitat treasures. Where governments are able to encourage conservation by returning a portion of tourist 

hunting dollars to local villages, these governments have been 

able to halt poaching. When village elders understand that their 

communities can reap the rewards of better medical care and better 

education for their children when they protect their resources and 

regulate their harvest, they are able to involve their people in 

conservation efforts. Economic incentives do work. In many cases in range nations they are the~ effective conservation tool. 

We have had a number of years to understand the good and bad 

effects of the Endangered Species Act. The good provisions must 

be retained and strengthened. On the other hand. those provisions 

that have had a detrimental effect on our efforts at wildlife 

conservation need to be re-examined and replaced . Permitting the 

importation of animals harvested abroad by American tourist 

hunters will allow range nations to create incentives for wildlife 

conservation that will. work. 

If the Endangered Species Act cannot be amended to require our government agents to recognize the unique circumstances of range 

nations and their needs with regard to conservation measures, 

perhaps it should be amended to remove the foreign aspects and 

place them squarely within the realm of the Convention bn 

International Trade in Endangered Species of Wild Fauna and Flora 

(CITES) where regulated trade in wildlife is recognized as key to 

thriving populations of the world's wild species. 

Sharon Borg Wall, Chai rson Congressional Sportsmen's Foundation 
t I ~ef . i4. 

·->.·. .. 

_~--/ ~ 

~c.MN,. 

July --10, 1995 

494 

Oame ConservaUon IntemaUona/ 

P.O. Box 17444 

5an Antonio, Texas 7821 7 U.S.A. 

210/824-7!509 

/"ax: 21 0!829-1 3!5!5 

Mr. John J. Jackson,lll 

One Lakeway Center, Suite 1380 

3900 N. Causeway Blvd. 

Metairie, LA 70002 

STATEMENT OF GAME COIN 

IN FAVOR OF REFORM OF JHE FOREIGN ASPECTS 

OF THE E$A 

Game Conservation International has supported wildlife conservation and 

protection of threatened species since its founding nearly 30 years ago. 

Our efforts include funding of nearly S 1 million toward translocation of 

endangered African black rhinos, anti-poaching initiatives in Africa and 

North America and support of the Siberian Tiger Preserve research and 

protection programs in Russia. 

GAME COIN, (our acronym) holds special concerns which suggest the need 

for reform of the foreign aspects of the Endangered Species Act. 

The ESA actually harms some foreign species, particularly those that 

would otherwise have a "game animal" status. The problem is inherent in 

the Act. It interferes or disrupts range nation programs, and yet it 

bestows no benefits. The benefits we are accustomed to with ·domestic 

species don't exist in the instance of foreign species. Domestic species 

benefit from critical habitat designation, cooperative arrangements, 

recovery programs and funding. These benefits don't exist in the case of 

foreign species. It is important to understand this to appreciate the fact 

that the Act is more detrimental than beneficial to foreign s~cies. 

Instead of bestowing benefits, it actually obstructs and interferes with 

range nation programs, frequently over the objection of the range states, 

range nation authorities are helpless to protect themselves against low 

level agency personnel that administer these things in the U.S.A. 
495 

We should not interfere with range nation programs, particularly low 

volume, low risk, high revenue producing tourist hunting, without offering 

a viable and acceptable substitute. It is one consideration if the range 

nations ask for our help, which we are not able to give anyway. It is 

another when we show no regard for their programs and interfere with 

them. 

We must reform this act to facilitate the importation of tourist hunting 

trophies when they are a component part of a range nation conservation 

program. ESA's severe restrictions on Importation of trophies have cost 

range nations hundreds of millions of dollars, revenues which could 

support local villages, anti-poaching and game warden efforts. 

Thank you for this opportunity to make a statement, and for reforming the 

Act to address these very important issues. 
496 

Foundation for rtorth American Wild Sheep 710 ALLEN AVENUE •CODY. WYOMING 8~-ll-l-3.;q~ • PHO:-.E t3071527-6261 • FAX (3071 517-7117 

nmCF.RSA.ND 

DIRECTORS 

~~~Cimellaro 

.:V:?IIE;a.'>l.\\a,htn)!lnn 

I'IMoenn. _-\/. ~~Ul.J 

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Leland Spnkes. Jr. flrv \'iu-l'rni/Uru 

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Karen Werbtlow 

Ennui•~ OiTn"/Or 

STATEMENT OF THE FOUNDATIO!S FOR NORTH AMERICAN WU.D SHEEP 

IN FAYOR OF REFORM OF THE FOREIGN ASPECTS 

OF THE ENDANGERED SPECIES ACT 

The Endangered Species Act has a history of harming foreign species by obstructing 

foreign range national conservation programs. An example very dear to this organization 

is the listing as endangered and threatened of the argali sheep in China and in the CIS. 

Like many other foreign species, the sheep was listed not because its status was know, not 

because it was know to be endangered or threatened, but out of ignorance or the so-called 

"precautionary principle." It was listed because it's territory was so vast and it existed in 

so many different populations that its real status wasn't know to agency bureaucrats in 

Washington, D.C. They listed it until the foreign range nations could do the impossible: 

establish what its' population was and its status, which would be prohibitatively expensive. 

The consequences were that the range nation conservation programs that were dependent 

upon tourist hunting dollars, and the anti-poaching effect inherent in having the hunter 

present and giving the wildlife value in the field came to an abrupt end. Argall that were 

worth fifty times that of a domestic sheep as tourist hunting trophies taken under license in 

a regulated hunt suddenly were converted to being fifty time less valuable, and were the 

first to be eaten or eliminated from the field. It was not only improper to list the species as 

endangered and threatened, tbe listing of it obstructed programs over range nations 

"onservation authorities objection. There was no high volume commercial trade or illegal 

activity. There were approximately 125 trophies a year from all of its' habitat. 

CITES is a more appropriate instrument for governing the importation and exportation of 

foreign species. There seems to be little alternative but to take agency personnel out of 

the equation. The importation of trophies of threatened game animals should be exempted 

completely when it is a component part of the range nation program. which means when 

it is lawfully taken under license. It is fundamentally unsound to have agency personnel in 

the U.S. imposing restrictions and costs that constitute taxes on theSe poor range nations. 

There must be at least a presumption in favor of those imports. An endangered species 

should be allowed to be imported when it is a component part of a range nation program, 

particularly when it is sanctioned by CITES. Tourist hunting is a fundamental 

conservation tool that gives wildlife a "game animal" status. It is very low in risk because 

1t is very low in volume, and it's select. It is an ideal conservation tool in remote locations 

where wildlife has little or no other chance. It generates revenue, local incentive, and 

helps quelch poaching. 
497 

Listing of the ltgali has actually banned the species because of its impact upon the 

imponation of the trophies that tourist hunting-base conservation programs are completely 

dependent upon. 1be ami-hunters have argued that even threatened argali should not be 

allowed to he imported based upon the wolf and grizzly bear decisions of our courts. This 

should have been stopped long ago, because we can't replace the benefits that we are 

imerfering with. We IIIUSI exempt trophy imports from restriction. Tourist hunting is an 

exceptional category of sustainable use that gives remote wildlife a ' game animal status". 

We have no rigbl to stop it when there is no adequate substitute for its presence and 

potential '>eneficial effects. We have been embarrassed about the U.S.'s lack of knowledge 

and meddling, but that's outweighed by our concern for the welfare of the species that we 

c:are so dearly about. Tourist lwnting is a conservation tool and when you tax it, eliminate 

it, or interfere witb it, you are reducing the benefits to the species. The U.S. is in no 

position to subslitute its judgement in the fidds of foreign lands for that of the range 

nation authorities. It is a documented failure. The ESA m11st be reformed to exempt 

tourist Imming since it is a licensed, regulated, component part of the range nation 

programs. 

1be Foundation fur North American Wild Sbeep is a leader unong wildlife conservation 

organizations. Our c:ommitrnent to the wild sheep ofNorth American is without 

comparison. OYer 13 million dollan has been generated for wild sheep conservation 

programs in the United States, Canada, and Mexico. The programs not only benefit wild 

sheep, but all wildlife. 

We thank you for the opportunity to make this statement. We hope that our experience in 

wildlife management will help you in addressing the issue of reforming the Endangered 

Species Act. 

Karen Werbelow 

Executive Dira:tor 
498 

STATEMENT OF 

LEVY (RAMS} RAMMUTLA 

IN FAVOR OF REFORM OF THE FOREIGN ASPECTS 

OF THE ENDANGERED SPECIES ACT 

My name is Levy (Rams} Rammutla, I am the Director of Marketing and 

Communications with the National Parks Board of South Africa. Additionally, I 

am the former Director of the Botphuthatswana National Parks Board. During 

my tenure as Bops Parks Director, I was intimately involved in the effects of the 

U.S. Endangered Species Act upon conservation and the sustained management 

of a national parkland in South Africa. 

The United States Endangered Species Act is a small but significant 

portion of the debate around the political, social, economic and environmental 

resource relationships that exist between the "rich North" and the "poor South". 

The ESA is a product of lhe so-called "No Go" (protection} philosophy on 

dealing with the issues of environmental degradation and natural resource 

depletion. This general approach is prevalent in the developed countries (rich 

North} of the world who have already experienced or are experiencing the 

immense social and economic costs of an accumulated environmental debt. 

In contrast to this approach is the "wise use" (sustainable use} philosophy 

on dealing with these issues. The "wise use" approach is generally supported by 

the developing countries (poor south}. It is the difference in these two 

approaches that creates an apparent conflict or the policies of one country 

having negative impact in terms of the success or policies of another. 

In order to make nature and species conservation work in any society, the 

society as a whole has to place a value on it. That value often comes at a high 

cost. In a developing country with extreme poverty, low food security, high 

illiteracy, poor health services, high unemployment, etc. such as South Africa, 

other value concepts such as aesthetic, intrinsic, extrinsic existence, opportunity 
499 

costs, long term sustainability, animal rights or other "esoteric" values do not 

enjoy a place of high priority in such as society. In this context, issues such as: 

where the next meal will be coming from: whether there is a roof overhead, and 

whether there will be an opportunity for a job tomorrow; carries far more weight. 

The country's policy with respect to nature and species conservation has to be 

placed within the context of societies priorities, needs, aspirations and hopes. 

For this reason the "wise use" approach is the favored alternative in developing 

countries. 

In addition to this, nature and species conservation efforts in South Africa 

are viewed negatively. This negative perception is a legacy of the apartheid era, 

where the majority of people saw the nature conservation areas as elitist "whites 

only" areas which were created by forcibly removing the black inhabitants. 

Therefore, the conservation efforts are under extreme pressure to implement 

politics which demonstrate visible and tangible benefit to the public and in 

particular to communities which neighbor conservation protected areas. 

To specifically focus on the impact of the ESA. The restrictions imposed 

by the U.S. ESA is to limit the opportunity for South Africa and her people of all 

colors to use its endangered species resources wisely and sustainably. Such 

use, can achieve both the objective of conserving endangered species and 

stimulate economic growth in the usually economically deprive, regions 

surrounding protected areas. 

Consider the implications of the following statements: 

But for the U.S. ESA, the United States would be a potentially rich market for the 

sustainable use of South Africa's wildlife; 

Internationally "endangered species" are common locally and in some cases have 

to be culled or reallocated to ensure local ecosystem integrity (viz. Rhino and 

elephant debate); 

Ecological culling or reallocation program operations to keep animal numbers 

regulated cost the "South African tax payer" money to achieve an international 

objective of low local priority; 
500 

Local overabundance of endangered species present a major economic 

opportunity, unless international restrictions like the ESA prevent that use then 

they become a cost; 

Without commitment from society to conservation in South Africa, all 

conservation efforts will fail. Further enforcement or expanding the international 

endangered species lists and schedules as they are enforced by the U.S. will 

result in negative impacts on the species. 

Protected areas that produce values but are not valued by the adjacent local 

communities are under threat. Firstly, those communities have a strong demand 

for land under a rapidly expanding population. Secondly, this non-value serves 

as a front-line encouragement for illegal trade in endangered species and their 

products. 

Without value, areas and expanding populations of animals become costs. 

Governments of developing countries do not have the resource to maintain 

adequate security and management operations required for strict protection. 

The United States Congress has the challenge to develop policy which 

supports both the objective of ehdangered species protection and the objective 

of facilitating the development of viable and sustainable conservation efforts in 

developing countries. It cannot do either for endangered species under the 

existing ESA legislation. The ESA must be changed to reflect the international 

needs of rational, sustained, wise use of endangered species rather than 

punishing the species and the people that live with them. 
501 

Ba-t 0'0... Pla.D. 

._ • ...,.. ....... -~ u.s. ... _ Wldllllo.s.mce ...,........_...._ua...,.,._ 

Sc_ .. , Repnflac Needed R.r.ic. ofl.kalJts Crlteri• 

rer l!'ordp Spedoo Unllerlhe Eooolaa...,S Species Act 

The Endaqered Species Att is d~ 10 ...., rare speci.- &o1n funller decline ll1d 

nrinction. ~. iailhe cue offORip pme specia, encdy rlut opposite sometiJMI occun. 

For many dcwlopins coo--., tourir. lutlilos iA a.,....,....,.. toolthallbe ,...,.. Ulioftadoprived of when the Urited s- oists their s;lOCia and ialemrcs wilb trophy imports: yet llll"l' 

U.S. Filh llld Wilclli(e Ser;ice ot1ieials and .....,., of 1M JIMftl public miltlkenly beliew 1P0r1 

huMin& is caUJins population d._IIDII fillios J11CCiea ...,_ dte wishes oChosl ~will 

batc6r wilcllifc. Thut. die .&a if the Aa upoa finip ,..ecies oftoa is just the oppolile ofd.-

illtei!Cied. When applied to lbrqpl species apioal,...lllllialls' willla, the Act iaterllnl will 

JIRIIPflll to~..._ and,_.....- becuae it depriwo the lllliona orraour-...-.s 

to ....... wildlifit and wil4lilll .,._, 

~·alhi• probiMt sllaol!d 11e ~ u... s · ·,.. not -anins,tbe Ad.. 

Durill8 much of the Pill SO ,_. I bPe liwd. wurloed. rmded. photOifllllacd. hu!Ud, and 

CGllduclod or dinored w.-..-dt in Aerie&_. Alia. 1 .... ob......t many in-ill wllich 

our l!ftdaeSered Specia Aa wa,..... .....,..._....,..,.....to.....,._ or lintply-ill 

lhe~ oflciCIII people. ad lciCIII,.....- not...._.. ... filnlp councry- ... ~~~e 

1l¥ill .,. ... or enclicaullocal wihllile. 
502 

?lease a.ilow me 1D exea~ on just t•.•:o so~ie.s. ·wirh v--hu:h 1 ~:we tirst-h3nri cxperier.te ... the 

cheetah an~ argaii (giam Asior. "'ild shco~• · 

During l97'J. 1 visiced a :a.t"ge ranch in what is r:ow Namibia. The ranch~r, Charley Pistorius, 

raised livestoCk but made:mcst ,-.or.ey fi'om ror<i>;<1 o:g-game hunter•. Cheetah wore more numerous 

on &hat ranch than in any park or protecttd areal have visited in Africa. 

Clwley rcceiwd a ti•ed daily fee for housing, feeding, and guidin!! hunters on his rancll. Jn 

addition, he received a trophy fte on reach gJme animal taken by hunters. r,,., trophy fee on a 

Checlah wu then $SOO(U.S.), ~pproxur.a:elv IG :imeo that for Kuclu and gemsbok··lhe principle 

trophy animals in the arP.a. Charley toienucd cxtCilSl\.., Cheetah !lfedarion on livestock anc1 Kudu 

calves because Cheetah were "paying their way." 

The Ole«ah hacl reeer.:ly been placed on auiangered tisrs by severlli oountries and lltiN eould 

not be imponed to the Unirl!ti Stares. C.arley hacl hired a G.mnan :rapper to capture u many 

a.roh as he could for sale to xoos and pet dl!alers in countries that stiU allowed importatiotl olli"" 

C"-tahs. Thea, Charley plaMed to ,o,.on t'>e rest. He was sad about this bec&uM lie tikcd 

cheeulhs: however, he ""'d they wr:re too destruc:tVe of his other cub c:rops fur him to k.eep them 

without some renumerat1on. :I last Nr.r.~ibian raochers felt the same way, and the largeil cheetah 

population in the world wa§ r:!duccd dramatically by ·'protection ·• 

In on eft'ort to allei.oiate the problem, CITES oow allo..-s .-xpon or a iimited number of cheetah 

uophi101 from Narnilr.:~. However, t~• damage may already be irreparable. "BottJe..•ec:ki..r 

(reducing the population to 1 !ow leve(: t:ndoubtedly reduced genetic '\-ariability la the Namibian 

population. Low scnccic variability is considered a problem for coi\HI"Vation of the entire world'! 

"'-all population. 
503 

Owing the l&le 1910s-..ty 1990s. I M)fked willl wildifc oillcWs in Qinshai Pmviftce, 

China, in an au....,.. to --. ....., pone uoimols ia 1t.e floc of cxpan~ing numboro or· peoplo and 

liwaoclt The em.- ao......-.,.-pRdic:aiJy • ,.;;dJife on paper. but it is on paper only. 

PI1ICiieally no money is lhailablc nw ~ aiucal:m, lrbd, or ""her manogecnent necalitia. 

One ln!lmau-1 Huali111 Area - alallished, pnmorily lbr the hunting of btle lheep. 

Allllou&h hlnraa •• ..,t willing pay loiF prioea b biD. abap, the huntinz program eocou111pd 

IOCII raidollu ro mface poadoiDa by Ollllidoro; c...,....ty .a f1ICCia of wildlife increased. The 

lultin& pnop~m car.ribuleli only rhr• percent to the locel ~. but locel· people liked it and, 

for lhe lirlllime, saw - Yllilte ut wildlil'e beyaNI an:11. 

ne pntp~~llbo<pnwided lhclilsunoaoy ....... - wil4lllie oft"~eiala to c:onduc:l-

... llad out..._--.lly lllppeMa •aa dtc .,_,.t. • n.~nure of the blile sheep bunting to 

.....,...._ loaal...,.. l>r odwlontl-11111 praoille--sen widlaeedecl ...,_.is- atcar. 

N..,.J hullrpr blue alleep. ~:oW!k~ dlelp lluMr, and is a colorNI coouatry to Wil. 

Clrlaa ca11 bitely •-pae. &-.II'Pii d..ad..,. pncea, 8lld • tiny paeeat•a• of ...un.Ja 

illeplly killed tOr - could pnwida ...aap ..-y 10 iMiitule a viob1c W'tldHft Coaserwtian 

prapa~~~. The -vyprov;..zaro- hid iniliad •upli hua&intl prot1111mthat wu incteaslng 

..-;on oftha Speciaanol its hellil.l_, .......-.. wHGo Dffidalo with money for fidel acudin. 

n. U.S. 'Fish ucl ~ s.vi<e ,...., • .pi on the Enclangeted Specin litt and 

bnJuaht all proarea to allolr. 

Clllnl io..,.,...apicullunt.~ IIIII w:!a. Oftly ~that are PIOfltable 

...,. oupport. ~.-,.....,.. .. ofiiPii prallebly will beoome eoctinct within 10·20 

yews. 
504 

Although an of these opttons. r.I'.Vt' mem an ~:y k"m3 run, they '\a.'ill he oflittle help in rhe stlon- while 

large g:~me animals are declining, or beccmin~ e~"''Jnct in Chin:l. 

Chinese. pask5 gc:neraity are unguard~d.. or the guards panicipate !n poaching. T.'1ls may 

chaage, but not iast enough to save some pop:~ lations or eYen the species. 

Photo 911faris and eco-tourism reouire infnstructure, such as good roada and lodgings, that 

are net available. Also. tourists generally d<> not like to l/lSit areas that arc not scenic, espoci•IIY those 

atl2,000·16,000 foot e.:evations Lastlv. h1mns gcneraily will pay :2()..30 rimes more fora tnp then 

will photOI!Japhea oc touriscs. .\bout 75 percem of huntcr3 money stays with loc&l people and 

coaocrvations agencies. Generally, less :han five percent of tourists' oooney remains in the loc:ole 

where game is found or with conversation agencies~ most is spent on trave1. accommodations and 

profit for the travel agency 

Aller a life of trying to ,., .• wildlife. I am convinced me U S. Fosh and Wildlife SCtVice should 

not ordinarily he allowed to list a to reign game animlll as enci•ngcred if the hoat country does -

coacur. Funher. foreign. species prosendv on the U.S Endange1-ed Species list should be removed 

If the ilost country oo desires 

ReapecdiJIIy, 

...3-d-0~~ BartO'Gara 

BO/kj 
505 

Rob & Bessie Welder Wildlife Foundation 

Wildlife Research and Education 

Post OffiCe Box 1400 • Simon. Texas 78387·1400 

PhOne fS I 2) 364· 264 3 

FAX f512J 364·2650 

'l'HB ROLB OF 'l'HE ENDANGERED SPECIES ACT 

IN INT~ATIONAL CONSERVATION 

~ndangered Species Act was passed by the u.s. 

1973 to protect and ultimately enhance populations of scarce and 

sensitive life. It bas bad aixed results largely because of 

inadequate funding and the inability of recovery projects to be 

implemented by federal and state authorities. Nonetheless, it has 

been successful in brinqinq to safer levels several species ot 

wildlife of which the american alliqator and bald eagle are the 

most noteworthy exaaples. 

In the interest of protectinq living resources, many species 

were placed on endangered or threatened status without sufficient 

data to warrant such action. For example, several of the spotted 

cats and herbivores were not endangered. Efforts to remove them 

from endangered or threatened status have been expensive, timeconsuming, and largely fruitless exercises. 

Perhaps of aost importance are problems of the Endangered 

Species Act in protecting wildlife in foreign countries. Aside 

from the problem of invasion of sovereignty and conservation 

affai~ of range states, inadequate information and communication 

from ranqe states have been available to the Scientific Authorities 

of the u.s. Governaent. considerable resentment has built over 

this issue by range states and damage to conservation efforts has 

resulted. 

Further, when a species is listed in a protected category thus 

preventing its utilization in recreational hunting or some other 

econoaic use, funds for licenses, safari fee~, and other income 
506 

attendant to ita use are lost. Loss of funds for conservation 

especially in developing nations, is serious because conservation 

efforts are fueled largely by tourism of which recreational hunting 

is a very important part. The effect has been a decline in 

conservation efforts in African and Asian nations. 

Recommendations are as follows: 

1. Review existing data on the status of species that are 

presently protected from use, especially those that are potentially 

economically important to conservation efforts; 

2. Involve the range states much more closely than at present 

by providing funds and by sending u.s. scientists to work with them 

in developing information on the status of species; 

3. Develop partnerships between conservation authoritie.s of 

governments and private sectors that utilize or have scientific or 

conservation interests in biodiversity and species conservation; 

and 

4. Develop true partnership arrangements between the U.s. 

Government and those nations with wildlife species that have been 

designated as scarce or sensitive. 

The World Conservation strategy embraces utilization as a 

factor in sustainable use of wildlife resources. Unless some 

attention is qiven to the needs of local peoples, and unless 

government authorities recognize the economic values of wildlife 

to conservation efforts in developing nations, wildlife resources 

will continue to be at risk. 

Prepared by: _) 

~~·~ Welder Wildlife Foundation 
507 

. STA:IEMEN:i' OF TANAnGOSIX CORPORATIO]II 

. _REGARDING H.R:. 2275· · . . . · -. ·. 

THE :E!-4-r>~lii'GERED SP_ECIFS CONSERVA1JON A.>m ~AGEMEN'r Acr 

COMMIITEE ON RESOURCES 

u.s. HOUSE _OF .REPRESF:illlAT!VES· 

. ~ am;;m,;, my II2UIIC is Ron P. P.llilenionoff aDd I: 8m d.; ~ of. tbe · · 

Board of _Directors aDd alief E:ucalive OffiCer of TaDadgusiX ~on ("1Dr). • As· yo\1 

know. IDX is tbe · Alasb Na!ivi. ~ Cmpomlion fodt. Paul lsbind. · Alaska;. Organized .. 

p~t tO die~ NaliveCiaims .Settlem!:m A£1: (" ANCsA ")~ St. P8DI iS oDC of die Prihi!o{ 

tslands, along WilbSt. ~ aDd isl~ _in die mi~ oftbeBezing Sea, "'¥oxiliwdy 500 . iniles-fipm ~ Alas1!L · · · · · · · 

ln~wilh'ti»~ lllld~ !)f·ANpSA..IDX ~ed aile' . io appro~iy 90'l> oftbc 27,000 ai:res of laud_ on St.'Piml lslmd Over die last fO yeoits, 

mx has sought 10 m8nage aDd ose i1s .hm~ 10 ·met:t die ecX!ilomiC. SoCial and Ca1\uial nC:eds ·of. 

its ."JaSka Native AHm as ,inu!ioded by CoupsSc · I.ilri· ~ ANcsA Cmponllions, 

IDX bas had iiS<sbale of sUccesse$ and diffic:u!tieS. OYelllll, ~ JB.ve been able 10 mab: 

consider.>ble ~ in oqr SfOitS." · · · · 

The~ kxazion of~ Pribilofs in 1lie BUing ~~cantfy'-~ ·d!C··. economic oppotiumries Whk:b <R anailable tO as. ~ ihar do ~are based oa tbc wildlife . 

and on die islimds. '11111: is c:ertainJ;y 1JUe of ihetWQ P$oary furins of~~ . commetcial~ aDd~. · · · · · ·· ·· · ,.. . · · · · · 

The residCD!s of die ~fislands ~ tb!;ii~:willl a·Ia!g_e ~of :Sorth 1'acific Fni' Seals. lp tact, die Aleut Nalives wae ftnt brougbl to die ·isl;mcl& as SlaWs by · 

Rnssia!> fur aadc!s in tbe 18dl eeatucy 10 hamsttbe ~ OftbcfQ[ For DeeiiY.200~ 

the Pribllovians' ~ haW. revolved 'arO.md the batveo't of ru.:sea1s.--:£""" ..:.;.;., ~ tbmt .10 · 

yean after tbe laSt CoJnmr:n:ial banl!sl. we still barvest tbe_ seal fur ~-~- · ·· -· 

lt is 'be<:aaSe. ef_!be_ s;,q ~-we ~' ~ in· ~ bili\o . ihe · En!iangered s,PecicS Acr \ESA">. H.R.. ms_ . The tor sa1s ~~~e ~ ~ rilliDa8ed under. 

the Fur Seal Acl.("FSA. "). as~ mel tbc Maline MBmmal ~cia. ACt (,"W;fi>A"): As . 

. you. well lcnow, tbC. provisioos oflhe l'SA aDd MMPA prolJilliiiq 1hr: "iakiDg" of !be. sealS and 

other 111Brine.lD8IIIIIll!ls - sim;ihor lo _ibose of die :£SA. Foi-'lbe -.sao. 9e .bavit ~ · 

many of tbC same problems 'Iinder tbe FSA and tbc ~ wilic:a ~biD secb. ip·adchess· in · the cnf6roemeDr: of die F.S.A: . . . - . . • 
!Ji'ltl !Jt1.ifrr~ 

1 tr lr' tfi].J 

r rll'ltJ rtllltlf ·,

a a.r ]s. • rll ~~~if·: 

r i I~ I rI I ·j f l 

r. : I ~f ~·~t~!~l 

1 " 11 f • lat· ~~ t• 

~ I ,; t:a t;:s it' 8; "it

1 ~~~tl Jt~ll·t'ti 

a (ieJf f:l~ rt11

i I t~~l •iJJl•ij 

~ ~ I~! .I ll··lt!li~; 

I •. r i i . ··t. r11 

. : t .-a I a 'J I· r · 

• II" f. ' 

1.,~1 Jl~.tiJI~ 
509 

BoFEssiQNAL 

___ 1(~_I_E __ ~------------------------~~~ ~C_IE_T~Y O~F~A~M7.E ~CAN~~FOR~E=S~T=E~RS -,.- 5400 Grosvenor Lane • Bethesda, Maryland 20814 • (30 1) 897..S720 

Introduction 

Comments on the Reauthorization of the 

Endangered Species Act 

Statement of the 

Society of American Foresters 

for the Record 

Committee on Resources 

U.S. House of Representatives 

September 20, 1995 

The Society of American Foresters recognizes The Endangered Species Act (ESA) of 1973 (P.L. 

93-295, as amended; 16 U.S.C. 1531-1543) as one of this nation's most important and powerful 

environmental laws. However, the methods of implementing the act and its use to restrict forest 

management on public and private lands suggest modifications are needed to temper the initial 

goals of the act with the reality of society's need for forest resources. 

The ESA was enacted to provide a means of conserving ecosystems upon which endangered and 

threatened species depend, and a program to conserve such species, including those covered by 

various treaties and conventions. Recent listings of species as threatened or endangered (T &E) 

have sharpened the debate on the goals, provisions, implementation, and consequences of the 

Act. Two species in particular--the red-cockaded woodpecker in the South and the northern 

spotted owl in the Pacific northwest--have intensified the discussion, especially as they are 

affected by management of forestlands. The protection of both species has significant impact 

on forest management options on a regional scale. 

ESA Reauthorization 

The ESA is in need of and overdue for reauthorization. As a result of a two year review of the 

ESA Reauthorization by the SAF ESA Reauthorization Task Force, comprised of professional 

foresters, SAF made the following recommendations to the US Congress in 1993. 

Continue listing of species based solely on science. 

• Provide for peer group review before completing the final listing process. 

Using the Scientific Knawledge and Teclwical Skills of the Forestry Profession to Benefit Society 

20-707 95-17 
510 

Comments on the Reauthorilillion of the Endangered Species Acr 

SAF Position Statement 

Develop criteria and guidelines for listing below the species level and use 

scientific techniques to answer questions on speciation, subspeciation, and distinct 

populations. 

Mandate recovery plans that address physical and biological feasibility and 

consequences, economic efficiency, economic impacts, social or cultural 

acceptability, and operational or administrative practicality of recovery actions. 

Include a range of recovery alternatives and risk analysis of each. 

Complete recovery plans within one year of listing using a core group of an 

experienced recovery team, managers, planners, and scientists. 

Develop measurable and clearly defined recovery objectives and recovery 

timeframes for each species at the lowest feasible social and economic costs. 

Evolve toward ecosystem management as public policy for public land 

management as documented scientific knowledge becomes available to support 

this approach. 

Prioritize species for recovery efforts to wisely allocate scarce financial resources, 

focusing on habitat protection for all species, not just listed species. 

Change the composition of the Endangered Species Committee ("God Squad") so 

that its members are high-level and knowledgeable resource and social science 

professionals from other federal departments. 

Recognize rights of private landowners and society's responsibility to mitigate 

costs for species protection on private land. 

Develop a phased approach from voluntary landowner plans to acquisition of 

property at fair market values for species protection. 

Delete citizen suit provisions against private landowners. 

Basic Principles 

Our position is built on several principles that together serve the needs of species protection 

and preservation while working within the general beliefs upon which society is built. The 

Society of American Foresters believes: 

-2-
511 

Comments on the Reauthorization of the Endangered Species Act 

SAF Position Statement 

The conservation of species and ecosystems as provided for by the ESA is 

important to society and the profession of forestry. 

Management of the nation's forests should take into account the entire biotic 

community, especially species that are threatened or endangered. 

• Species conservation must operate within the context of our democratic society 

that depends upon and values private enterprise and respects private property 

rights. As societal goals change, so do the related issues. Thus, laws will be 

enacted and modified over time to meet changing public values and 

expectations. 

The ESA must work in harmony with other laws (e.g., National Environmental Policy Act of 1969, National Forest Management Act of 1976, Federal 

Land Policy and Management Act of 1976) to maintain and support healthy . 

forest ecosystems that can insure a range of resource benefits, both amenity 

and commodity. Therefore, conflicts surrounding the interpretation of these 

laws regarding species preservation should be recognized and reconciled. 

A comprehensive approach using all environmental laws and trending toward 

broader ecosystem management is needed to provide habitat protection for all 

species, not just those listed as threatened or endangered, thereby minimizing 

the need to list additional species. 

Institutions and landowners, both public and private, should support the 

purpose and intent of the ESA. Cooperation, not confrontation, will offer the 

greatest potential for success. 

Public and private forestlands have a significant role in the conservation of 

species and ecosystems. Pursuant to the 5th amendment to the U.S. 

Constitution, basic private property rights must be considered, valued, and 

protected where private lands are necessary to conserve a listed species or 

habitat. 

As U.S. and world populations continue to increase, there will be additional 

demands on forestlands to produce a range of outputs. The ESA must 

consider human needs for both commodities and a healthy environment. 

The Society of American Foresters makes the following recommendations for improving the 

current ESA and its application. 

- 3 -
512 

Comments on the Reauthoriultion of the Endangered Species Act 

SAF Position Statement 

The Listing Process 

Listing of species should continue to be based solely upon the best scientific and commercial 

data available, as currently stated in the ESA (Section 4b). The Secretaries of Interior and 

Commerce may, on their own initiatives, propose to list species, and interested parties may 

petition for a listing but, in either case, neither the general public nor the biological sciences 

community of interests are involved in the process for purposes of comment until a&!: a 

proposal to list is published in the Federal Register. 

With respect to the scientific basis of a proposed listing, the broad interests of society must 

be provided for in a revised process that guarantees an objective and impartial application of 

science in determining the adequacy of biological information that supports proposals or 

petitions to list a species. 

Accordingly: 

• Prior to a listing, a proposal to list should be referred to an independent Select 

Biological Committee (SBC) comprised of federal and state government and 

private sector scientists who are not involved with federal agency listing activities. 

The SBC "peer group" would accept, hear, and review all information 

pertinent to a listing proposal and make a finding about the scientific adequacy 

of the proposal. If the Secretary's subsequent decision to list is inconsistent 

with the SBC finding, the Secretary must disclose the inconsistency and 

explain to the public the reasons for proceeding with the listing. 

• The SBC should also participate in developing or changing criteria and 

guidelines for listing any fish, wildlife, or plant below the species level. 

Modem scientific techniques such as electrophoresis, DNA analysis, or other 

state-of-the-art techniques should be employed where appropriate. The 

committee should also be involved in reviews of questions about speciation, 

subspeciation, and listing of populations. 

The Recovery Plan Process 

The recovery plan process is one of the most fundamental components of the ESA, and is 

initiated after a species is listed. Federal agencies have an affirmative responsibility to 

support the development and implementation of recovery plans, and to work towards 

recovery of listed species. A revised ESA should specify that recovery plans should address 

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Commems on the Reauthoriwtion of the Endangered Species Act 

SAF Position Statement 

the physical and biological feasibility and consequences, economic efficiency, economic 

equity, social or cultural acceptability, and operational or administrative practicality of 

actions aimed at promoting the persistence and recovery of listed species. 

Additionally: 

Recovery plans should contain clearly defined objectives and timeframes that 

lead to measurable goals for recovery and ultimately delisting of the species. 

Critical habitat designation should become a key component of and emerge 

from the recovery plan process. 

Habitat Conservation Plans are an important component of this recovery plan. 

Habitat Conservation Plans (HCP) have been developed by several private 

entities in voluntary cooperation with the U.S. Fish and-Wildlife Service that 

are effective in preserving and providing habitat for endangered and threatened 

species. For example, Plum Creek Timber Company has established HCP's 

for both the Grizzly Bear and the Spotted Owl in the Cascades region of 

Washington. In the Southeast, Georgia Pacific Corp., Hancock Timber, and 

International Paper Co. have developed HCP's for the Red-cockaded 

woodpecker. Pinehurst Country Club in North Carolina has managed 

Longleaf pine to encourage the Red-cockaded woodpecker to inhabit their 

property to facilitate recovery of the species. All of this has been accomplished 

under Section 7 consultations within the current law. 

Realizing the potential for extreme adverse impacts to the private property 

rights of Pacific Northwest landowners under the President's Forest Plan for 

the Northwest and Northern California, the U.S. Fish and Wildlife Service is 

proposing to exempt all private woodland owners whose property is eighty 

(80) acres or less in size from the Spotted Owl recovery program if no owls 

are present. Thus, the Interior Department is utilizing significant 

administrative leeway provided under the ESA. This is the type of sciencebased, common sense implementation of the ESA that is needed. More of this 

kind of innovation and constructive reauthorization discussion is needed. For 

example, there is a nation-wide five-acre proposed exemption that is part of 

Secretary Babbitt's 10-point proposal. 

• The entire recovery plan process should be completed within twelve months 

following the listing of a species. 

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Comments on the Reauthorization of the Endangered Species Act 

SAF Position Statement 

• To improve the efficiency and continuity of the recovery plan process, special 

recovery teams should be established around a core group of experienced 

recovery process planners and scientists. The core team would be augmented 

with the appropriate species specialists from within and outside the agency 

responsible for each individual recovery plan initiative. Provision should be 

made for periodic review and public comment on proposed revisions. 

• To gain the efficiencies that the shortened recovery plan process should yield, 

society must accept the fact that plans will be "living documents" that will 

change as additional data becomes available. Recovery plans should 

acknowledge key information needs and provide for research, inventories, 

monitoring, and specified timelines to fill information gaps and be adjusted 

when necessary to reflect new knowledge. 

• Recovery plans should include alternative options for achieving recovery, with 

associated risk analysis to assess the likelihood (high, medium, or low) for 

success of these options. Whenever possible, the alternative that achieves 

recovery with the least adverse socioeconomic impact should be selected. 

The agency responsible for recovery initiatives should develop a set of criteria 

and guidelines for establishing a species recovery prioritization process that, 

among other things, recognizes actual and potential ESA program funding 

levels and limitations, societal values and priorities, and chances for recovery 

success. 

• While recovery plans focus on public lands, a program to stimulate 

government/private partnerships should be developed and implemented where 

private lands are critical to the recovery effort. An option to include in such 

programs should be a provision to relocate listed species from private to public 

lands where feasible. 

Because the knowledge base for many situations is currently inadequate, a 

statutory requirement to list multi-species and "endangered ecosystems" would 

be premature at this time. Rather, the recovery plan process should be 

stimulated to evolve steadily over the longterm toward multi-species 

management plans that focus on ecosystems and ecological communities. 

The Secretary of the Interior and Undersecretary of Commerce for Oceans and Atmospheres 

released a lengthy set of documents on March 6, 1995, which describe ten principles to 

balance endangered species protection with economic development. Their implementation 

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Comments on the Reauthoriwion of the Endangered Species Act 

SAF Position Statement 

will bring significant change to the way the Endangered Species Act is implemented. These 

principles are strikingly similar to SAF's recommendations to Congress in 1993 concerning 

reauthorization of the ESA. They are: 

I. Base ESA decisions on sound and objective science. 

2. Minimize social and economic impacts. 

3. Provide quick, responsive answers and certainty to landowners. 

4. Treat landowners fairly and with consideration. 

5. Create incentives for landowners to conserve species. 

_ 6. Make effective use of limited public and private resources by focusing on 

groups of species dependent on the same habitat. 

7. Prevent species from becoming endangered or threatened. 

8. Promptly recover and de-list threatened and endangered species. 

9. Promote efficiency and consistency. 

10. Provide state, tribal, and local governments with opportunities to play a 

greater role in carrying out the ESA. 

Private Lands--Roles and Responsibilities 

Seventy-two percent of America's commercial forests are in private ownership. These 

private lands play an important role in the protection of biotic communities. The principle of 

private ownership of land is based both upon English common law and the 5th amendment to 

the U.S. Constitution. Private ownership thus carries with it a commensurate stewardship 

responsibility. A revised ESA should encourage willing stewardship through incentive 

programs designed for various land use and management activities. The revised ESA, and 

the implementation of its principles, should recognize the following: 

• Private landowners who cede control of their lands to society in the name of 

preserving threatened or endangered species should receive just compensation. 

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Comme111s on the Reaurhorillllion of the Endangered Species Act 

SAF Position Statement 

Species recovery on private lands is a public responsibility. Private landowner 

roles concerning avoidance of "take, • as defined in the ESA, must be clearly 

stated in federal law. 

• Applicants for an "incidental take" pennit are expected to file an associated 

Habitat Conservation Plan (HCP), which, for many landowners, could be 

prohibitively expensive. A new, more workable process should be substituted 

for the current HCP process. A phased approach, as outlined below, would 

address those landowners whose lands are essential to the conservation of a 

listed species, but who are unable to bear the costs. 

: Upon determination that a listed species occurs on private ownership, 

the agencies involved should, where the lands and species are essential to the 

conservation of the listed species, immediately seek to work with landowners 

and/or managers to develop a voluntary cooperative management plan that 

meets the species' needs for protection and landowner objectives. The plan 

should result in a documented finding of "no take" or "no jeopardy." 

Generally, the process should be completed within twelve months. 

fllm_1: When steps to produce voluntary plans do not prove successful, and 

where material interests in the property are necessary to meet species 

protection goals, the responsible agency should seek to purchase a conservation 

easement covering the interests needed. Generally, Phase 2 should be 

completed within 2 years of the start of Phase I initiatives. 

~: If neither Phase I or 2 prove successful, the responsible agency 

should seek either (I) to exchange public lands acceptable to the landowner, or 

(2) be prepared as courts may direct to justly compensate the owner. If an 

exchange is not acceptable, the agency should seek to acquire the affected 

property at a value at least as great as it would be without the presence of the 

listed species. Generally, Phase 3 should be completed within 3 years of the 

stan of Phase l initiatives. 

As an alternative to a judicial determination of easement value (Phase 2) or compensation for 

a taking (Phase 3), a "Market Values Board" should be considered to settle taking and values 

disputes that may arise. This approach should not be construed as making "compensation for 

a taking" an agency responsibility without a legal finding under current law that 

compensation for the taking is due. Rather, SAF proposes the alternative as a "willing buyer 

- willing seller" scenario within which to resolve administratively taking 

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Comments on the Reauthoriwion of the Endangered Species Act 

SAF Position Statement 

compensation cases quickly and fairly. If the result is not successful, landowner claims that 

compensation is due for a taking of property shall be addressed in the courts under existing 

law. 

• If the responsible agency determines that management plans or acquisition of 

interests are not necessary, a landowner's responsibilities under the ESA 

should be considered terminated. 

Surveys or other practices to determine the presence of a listed species are a 

wildlife agency's (state or federal) responsibility. Landowners should grant 

rights of ingress, and be encouraged to cooperate voluntarily, but not be 

expected to bear the cost. 

• Funding realities mandate establishing priorities for recovery of a species. 

Populations or individuals of a listed species outside of targeted recovery 

populations and/or critical habitats, and not part of the Phase I cooperative 

planning process, should not be subject to ESA restrictions. 

• It is a federal responsibility to ensure landowner compliance with the ESA. If 

a landowner is thought to be in violation of the Act, citizen suit provisions 

under section ll(g) of the ESA should be limited to actions against the 

appropriate federal agencies. 

The Endangered Species Committee 

The make up of the current Endangered Species Committee ("God Squad") guarantees its 

impracticality and unworkability. Its federal members (Cabinet and near-Cabinet levei--ESA, 

Section 7[e][3]) are seldom personally involved in ESA tasks at hand or routinely familiar 

with the issues at stake. Except for the Secretary of the Interior (one of the six federal 

members) who chairs the ESA, the federal members should be replaced. In their stead 

should be appointed high-level and knowledgeable natural resource and social science 

professionals from other federal departments. The Secretary of the Interior, as under the 

current ESA composition, would be accountable for ESA exemption decisions. 

SAF urges Congress to immediately address the issue of reauthorizing the ESA. What is 

needed and desirable is reauthorization of the ESA through thoughtful discussion to devise 

legislation that is firmly grounded in science, and with due consideration to economic and 

social factors. 

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518 

Statement by the Hon. Andy Ireland, Senior Vice President For Corporate Animal 

Policy and Development, Ringling Bros. and Barnum & Bailey Combined Shows, Inc. 

to 

The House Resources Committee, United States House of Representatives, 

Regarding Endangered Species Act Refonn 

September 20, 1995 

OVERVIEW 

On behalf of Ringling Bros. and Barnum and Bailey, I would like to thank you for 

this opportunity to express support for several proposed amendments to the Endangered 

Species Act (ESA). Ringling Bros. has been and continues to be strongly supportive of the 

underlying purposes of the ESA. However, we believe, as do many others, that it is time to 

inject a measure of reasonableness and prudent judgment into its implementation. 

Since 1871, Ringling Bros. and Barnum & Bailey has been recognized as the foremost 

circus in the world. For the more than II million people who attend our performances 

yearly, animals are an integral part of the circus. For many people, the circus is their first 

introduction to animals not native to the United States and which only exist in critically 

declining numbers in the wild. While several of these animals are now protected under the 

Endangered Species Act, the circus is often the first opportunity many have to actually see a 

live elephant, tiger or lion. 

The educational value of this type of public exhibition is evident in the awareness it 

creates, not only of the animals themselves, but of the need to protect and preserve at-risk 

species and their habitats. 

This statement outlines amendments we support along with relevant background 
519 

material and experiences of Ringling Bros. and Barnum & Bailey, which will illustrate the 

need to re-affirm and protect the educational and conservation value of public display of nonnative wildlife. 

In general, these amendments provide for --

(I) general permitting for the public display and exhibition of endangered species by 

exhibitors licensed under the Animal Welfare Act, thereby recognizing that the public display 

of these animals contributes to the education of the public about the ecological role and 

conservation needs of the affected species; and 

(2) statutory recognition of the meaning of "bred in captivity" or "captive-bred" based upon 

the definition as currently set forth in the Code of Federal Regulations. 

Education of the Public 

Specifically, the amendments authorize a "public display permit," under terms and 

conditions that the Secretary of Interior prescribes. The permit is similar to that created for the 

marine park and aquaria community under the Marine Mammal Protection Act amendments 

enacted last year. This general permit simplifies and provides clear statutory authorization for 

the public display community to continue certain limited activities in accordance with the ESA. 

In terms of the circus, these activities involve the possession and movement of non-native 

endangered species as part of a traveling exhibition. 

The permit requires specific standards and criteria for eligibility. Principal among the 

criteria for obtaining such a permit is the recognition that the public display or exhibition of 

living wildlife contributes to the education of the public about the ecological role and 

conservation needs of the affected species. Permitted activities include buying, selling, 

importing and exporting of endangered species by USDA-licensed exhibitors for authorized 

public display purposes. Because the animals involved are, by law, either captive-bred or 

acquired prior to the Convention on International Trade in Endangered Species (CITES), there 

is no detrimental impact on wild populations. In fact, the resulting increase in public awareness 

to the plight of endangered species actually helps to further efforts in conservation of species and 

their habitats. 

Bred in Captivity Definition 

The amendments also clarify the definition of "bred in captivity" and "captive-bred" to 

reflect the current regulatory definition that has been in use for many years. Under the 

amendment, such terms mean "wildlife, including eggs, born or otherwise produced in captivity 

from parents that mated or otherwise transferred gametes in captivity, if reproduction is sexual, 

2 
520 

or from parents that were in captivity when development of their progeny began, if development 

is asexual. • 

Licensed Exhibitors 

The remaining amendment conforms the proviso regarding the definition of commercial 

activity with the above amendments. 1be Endangered Species Act prohibits trade in endangered 

species for commercial purposes. However, it was not the intent of Congress to include public 

display or exhibition of commodities as "trade". 1be current regulatory definition reflects this, 

but has been wlnerable to legal challenge and requires clarification. Public display of live 

species by USDA-licensed exhibitors is currently recognized as beneficial to the species' 

propagation or survival and the amendment establishes that this activity is non-commercial for 

purposes of the ESA. 

EDUCATION AND CONSERVATION 

The animals which are part of Ringling Bros. and Barnum & Bailey circus are, in 

essence, ambassadors for those of their species in the wild whose habitats, and consequent 

survival, continue to be in jeopardy. The educational value of the public exhibition of wildlife 

lies in the awareness it creates -- not only of the animals themselves -- but of the need to protect 

and preserve threatened or endangered species and their habitats. 

In response to the Fish and Wildlife Service proposed rulemaking deleting education as 

the sole basis for captive-bred wildlife registration, Ringling Bros. and Barnum & Bailey also 

commissioned a study on the effect of live animal entertainment on education and, in tum, the 

effect of education on preservation of endangered species. The study, by Yale University 

Professors Dorothy and Jerome Singer, "The Circus As An Educational Experience: Teaching 

Children about Animal Life, • reflects the results of a survey of general academic articles and 

studies on the educational value of live entertainment. 

A study by the Roper Organization, entitled • Attitudes of Parents and Teachers Towards 

Education and Animals in the Circus, • confirms this. Interviews with 1000 parents of children 

ages 2 to 12, and over 400 teachers, illustrate the circus' contribution in providing a significant 

forum for children to become aware of, and be educated about, animals. More importantly, the 

study shows that this awareness and sensitivity promote an increased desire on the part of the 

public to protect animals and their habitats. 

The Roper Organization's poll focuses more specifically on the link between live viewing of 

animals in the circus environment and the resulting increased awareness among parents, teachers 

and children of the need to conserve and protect exotic wildlife. Some of the results of these 

studies are summarized below: 

3 
521 

Ninety-six percent of teachers say that seeing animals in a circus adds to the 

interest students have in learning about animals and makes them want to protect 

these animals in the wild. 

Live animal acts evoke huge responses in children and are talked about long 

afterwards. The glamour of the circus experience stimulates a child's interest in 

animals and makes him more receptive to learning more about animals. 

Circus visits provide an opportunity for teachers and parents to enhance learning 

about animals (and thus conservation needs) through the use of follow-up 

materials. 

Seventy-two percent of parents believe that showing children what the animals can 

do will help them learn respect for the animals and make them want to protect 

them. 

Seventy-eight percent of teachers have added information on circus animals to 

their curriculum as a result of circus attendance. Eight in ten teachers surveyed 

felt that after a visit to the circus, students will be more likely to protect these 

animals in the wild as a result of their new knowledge and respect for wildlife. 

It cannot be disputed that there exists a strong and compelling public educational value 

in viewing exotic and threatened species. One's life experience as well as studies such as those 

cited directly support that observation. Children who are sensitized toward the plight of 

endangered species are more likely to be conservation minded as they mature. Parents whose 

children are interested in animals are more likely to act in ways that promote conservation 

efforts through involvement in the political process or public activism. 

Recognizing the well documented link between seeing live animals at the circus and the 

opportunity to educate children about those animals and their conservation needs in the wild, 

Ringling Bros. and Barnum & Bailey realized the impact and contribution that the circus could 

make in the areas of education and conservation. Established in 1975 to respond to the flood 

of requests received each year from educators, Ringling Bros.' Department of Educational 

Services now provides a variety of programs, including: 

I. Uo Close and Personal. This specially scripted program brings classrooms to the 

Circus for a special performance, which includes a complimentary teacher's guide. 

2. Touch Tours. To bring the Circus experience to the hearing impaired and 

physically-challenged, Ringling Bros. designed a special tour which enables patrons to 

actually touch and sense the animals and other aspects of the circus. In conjunction with 

4 
522 

the National Braille Press, Ringling Bros. designed a braille circus program. Signlanguage tours are also available and include question and answer opportunities about the 

circus and its exotic animals. 

3. CIRCUSWQRKS. An intensive teacher workshop, CIRCUSWORKS, provides 

a half-day resource building seminar geared towards children K-8th grade. The seminar 

is offered at no cost and provides teachers with reproducible materials in a variety of 

subjects such as math, physics, artS, social studies, sciences and animals in particular. 

CIRCUSWORKS is provided on a weekly basis across the country and has been 

presented at several reading conferences. 

4. Ringling Rea4ers. Ringling Bros. was presented with a wonderful opportunity 

to work with the Reading is Fundamental (RIF) program presented in schools, libraries 

and other care facilities nationwide. The Circus was especially honored to participate 

in a White House program on RIF. Recognizing the importance of encouraging the 

development of reading skills in children through the use of fun and informative 

materials, Ringling Bros. began publication of its own quarterly complimentary circustheme newsletter, the "Three Ring Gazette". With a current circulation of over 35,000 

students and teachers, the Gazette provides an insight into circus life with an emphasis 

on the need for conservation and protection of endangered wildlife. 

5. School/Library Kit. Containing a variety of activities relating to animals and 

other aspects of the circus, this kit is available to educators and librarians at cost. 

6. Public Outreach. In light of the valuable educational and conservation experience 

of a visit to the circus -- especially to those who would otherwise have no opportunity 

to view these exotic and magnificent animals in a live setting -- Ringling Bros. distributes 

more than half a million free tickets each year to disadvantaged children and their 

families. Ringling Bros. believes that the family experience provides a unique and 

valuable impetus for continued learning and education. 

The efforts of Ringling Bros. and Barnum & Bailey to educate about and conserve 

endangered species have recently been jeopardized by a proposed revision of the captive-bred 

wildlife (CBW) registration system. Although the ESA prohibits certain uses and activities 

involving endangered species, exceptions are available when such activities serve a scientific 

purpose or "enhance the propagation or survival" of species. Integral to the definition of 

enhancement of species survival is conservation education. The Congressional findings in the 

enacting legislation itself specifically recopjze education as a contributing factor to the 

conservation of endangered and threatened species. 1be Fish and Wildlife Service implementing 

regulations reflect this component, as well. 

In fact, the Fish and Wildlife Service made a finding in 1979 that the live exhibition of 

wildlife before the public plays a positive and beneficial role in enhancing the propagation of the 

species exhibited. The Service stated thats 
523 

"Evidence supports a finding that nonnal practices of animal husbandry, the 

accumulation, holding and transfer of surplus wildlife, and the live exhibition of wildlife 

to educate the oublic about the ecological role and conservation needs of the species are 

activities that are beneficial for the pu!J!Ose of enhancing prooagation or survival. 

Accordingly, the Service proposes to pennit such activities under conditions that will 

provide sufficient regulatory control without impeding the activities. • (emphasis added). 

(See 44 Fed. Reg. 30044 (May 23, 1979). 

In addition, the Congress found and declared in Section 1531 of the ESA --

Congressional Findings and Declaration of Purpose and Policy -- that endangered or threatened 

species of • ,wildlife, ,are of aesthetic, ecological, educational, historical, recreational, and 

scientific value to the Nation and its people • (emphasis added). 

Nonetheless, the Service promulgated a regulatory review of the CBW registration system 

and challenged the conservation education value of public display. In spite of the well 

documented evidence favoring the educational value of public display, and absent any evidence 

of an adverse effect of exhibition on the protection of endangered species or their habitats, the 

Service deleted conservation education as a sole qualification for registration under the CBW 

system. In addition, a proposed rulemaking is pending which would remove conservation 

education as a basis for pennits in general under the ESA. These actions are simply not 

justified. Contrary to its intended effect, this change will have a detrimental effect on the longtenn conservation of endangered species. 

The creation of a public display pennit for exhibition purposes resolves these issues and 

injects some certainty and reasonableness into the regulatory process under the ESA. 

WILDLIFE BRED IN CAYfiVITY 

In addition to providing an opportunity for people to see and learn about endangered 

species, Ringling Bros. and Barnum & Bailey is engaged in the captive breeding of endangered 

Asian elephants. Since 1962, Ringling Bros. and Barnum & Bailey has been involved in the 

births of more than 25 baby elephants. Given the increasing degradation of the natural habitat 

of a species as critically endangered as the Asian elephant, captive breeding becomes an essential 

factor in rescuing the species from the brink of extinction and strengthening the likelihood of its 

long-tenn viability. 

Ringling Bros. and Barnum & Bailey currently owns and operates its own Asian elephant 

breeding facility in Florida where it successfully breeds through natural service and researches 

artificial insemination, animal husbandry and reproductive functions. Ringling Bros. and 

Barnum & Bailey works closely with universities and zoos on breeding techniques and has been 

involved in breeding loans with other entities in an effort to strengthen and enlarge the 

current captive gene pool. Ringling Bros. and Barnum & Bailey's reputation as a responsible 

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524 

and knowledgeable source with respect to animal care and husbandry practices is exemplified 

by the numerous requests received for information and assistance from zoos, veterinarians and 

universities. 

In addition to endangered Asian elephants, the owner of Ringling Bros. and Barnum & 

Bailey is also very involved in the conservation of rare white tigers and lions through the 

production of the Las Vegas show featuring world renowned entertainers and conservationists 

Siegfried & Roy. Siegfried & Roy have been heralded for their successful breeding of Royal 

White Tigers and are now entering into an alliance with the Johannesburg Zoological Society 

and the Timbavati Nature Reserve to do the same for the endangered white lions. With fewer 

than 10 white lions currently in existence, successful captive breeding is the only hope for 

survival of this rare species. 

In 1979, the Fish and Wildlife Service concluded that wildlife in captivity "can be used 

to bolster or restock wild populations ... provide an alternative to wild populations ... and ... 

provide opportunities for research for wild populations. • The Service stated further, that it 

"believes that a wide range of activities involved in the propagation and maintenance of wildlife 

may be permitted for [enhancing the propagation or survival of the affected species] when it can 

be shown that they would not be detrimental to the survival of wild or captive populations of the 

species. • (30 Fed. Reg. 30044 (May 23, 1978)). In the long run, conservation of many species 

will continue to be partially dependent upon captive breeding. The amendment, therefore, stands 

to enhance conservation efforts, and through such efforts, the propagation of affected species. 

Because of the requirements of the ESA and CITES, the public display community relies 

on animals born and bred in captivity in the United States or those acquired prior to the 

enactment of CITES. As the population of pre-CITES animals in captivity ages, however, there 

is an increasing need to develop and encourage viable captive-breeding programs. In this 

country the ESA is the domestic enabling legislation implementing CITES. In light of captive 

breeding's potential for enhancing the continued existence of endangered species and the goals 

of CITES, the ESA should encourage, not frustrate, captive breeding efforts. 

Captive populations represent an essential component of preserving and enlarging gene 

pools for the future and provide an opportunity to study the behavior and needs of endangered 

species. The mere fact that ooblic dimlav is entertaining or for-profit does not diminish 

its ya!ue in tenns of education or c:onsemtjon awareness. The private sector should not be 

discouraged from investing its time and resources in the conservation and propagation of species 

and their habitats. Unfortunately, the current policies of the Fish and Wildlife Service do just 

that. 

In order to receive permission to export an endangered species under the ESA, it must 

be shown that the animal was either "pre-Convention", i.e., acquired prior to the CITES ban 

on trade in endangered species, or "bred in captivity". The current regulatory definition of 

captive-bred under the ESA requires that the offspring be born in captivity to parents that mated 

in captivity [50 CPR §17.3]. For purposes of export, however, the Service is imposing a more 

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525 

stringent and incoosistent policy reqwnng proof of a viable second generation captive 

population. This requirement reflects UDilab:ral implementation by the Fish and Wildlife Service 

of a CITFS resolution adopled at the Coofermce of the Parties in 1979. Notwithstanding the 

existence of a conflicting and eslablisbed n:gulatory definition, the new requirement has never 

been formally adopled as domeslic law either by Congressional ratification nor by standard 

rulemaking pursuant to the AclminisiJalive Procedures Act. 

Even more significant tban the Service's failure to submit the • second generation • 

requirement to Congress or the public rulemaking process, is the fact that this higher yet 

completely ineffective tbreshold undennines current private sector efforts regarding the breeding 

of animals in captivity and, thus, the loog-nnge viability of that species. 

For example, the advene effecls of the CITFS-inspired captive-bred policy are illustrated 

by Ringling Bros.'s 1994 applicatioo for permits to take eighteen of its Asian elephants to 

Toronto, Ontario for a week-long mgagemmt. Fourteen of the elephants were "pre-convention • 

and four were born in captivity in this country to parents who mated in captivity. Despite the 

definition set forth in its own regulations, the Service applied the CITES "second generation" 

standard to the export applications. As a result, Ringling Bros.' request for permits to transport 

(export to Toronto and re-import back to the United States) four captive-bred Asian elephants 

was denied, although there was no defensa'ble rationale given to support such a denial ... only 

the Service's "policy" in direct conflict with the regulations. 

Subsequent negotiations with Full and Wildlife Service and Canadian officials, during 

which Ringling Bros. pointed out the banlship of separating four young elephants from the herd 

and the logistical dilemma of housing the animals for a week at the US-Canadian border, did 

yield a form of compromise. mtimaldy, the four elephants were allowed to travel to Canada 

provided they did not perfonn in the sbow. This counterproductive and illogical outcome is 

but one example of the advene effect of the application of this unwarranted new policy. This 

unnecessarily frustrating experieace will be repeated each time Ringling seeks to travel abroad 

with the Circus and return unless a sensible resolution is implemented such as the one outlined 

in the proposed amendments. 

To remedy this, the amendment adopts statutorily the regulatory definition of "bred in 

captivity" and "captive-bred" developed by the Fish and Wildlife Service and currently found 

at 30 C.F.R. 17.3. Captive bra:din& is mcognized as an important means of assisting in the 

propagatioo and swvival of species of c:crtain wildlife and one that both Congress and the Fish 

and Wildlife Service have nomgni7WI in the past. 

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ADDITIONAL MATTERS 

Delays in Pennit Notices 

Another issue of concern is the prompt publication of permit notices in the ~ 

~- Publication is a required step in the permitting process -- purely administrative and 

in no way discretionary. Yet, unnecessary delays in publication often undermine or render moot 

the underlying permit request. 

One example is a situation Ringling Bros. and Barnum & Bailey recently faced in an 

attempt to import several captive-bred lion cubs from England. The cubs had been born in 

captivity in England while their owner/trainer was performing in the United States. Because it 

is critical to begin training at an early age, arrangements were made to import the cubs to the 

United States. Weeks became months and no publication of the permit notice appeared in the 

Federal Re~ister. 

Delays in publication can and do result in substantial hardship on everyone involved 

including the wildlife, and can have the same effect as a denial. In this case, months of delay 

by the Service in publishing the permit notice resulted in a permanent loss of valuable training 

time and Ringling Bros. and Barnum & Bailey was ultimately forced to abandon its effort to 

import the cubs. This type of problem not only impedes the goals of the ESA but needlessly 

frustrates the operations of the Circus. 

Animal Welfare and Husbandry 

In closing, I would like to address briefly the matter of Ringling Bros. and Barnum & 

Bailey's commitment to quality and humane care of animals, especially those in its care. 

As an exhibitor of animals, Ringling Bros. and Barnum & Bailey is subject to U.S. 

Department of Agriculture (USDA) regulations under the Animal Welfare Act (7 U.S.C. 2131, 

et seq.) and must apply for an Exhibitor's License every year. The Circus is subject to regular 

unannounced inspections by the Animal and Plant Health Inspection Service (APHIS) and a 

written report is filed by each inspector. Never, in the past 20 years, under its present 

management has Ringling Bros. been cited for any incident of animal neglect or abuse. 

Ringling Bros. and Barnum & Bailey works diligently and cooperatively with government 

agencies to ensure its full compliance with the Animal Welfare Act and to be responsive to any 

suggestions relative to the care and welfare of animals in its charge. Ringling Bros. and Barnum 

& Bailey takes its responsibilities to the animals in its immediate care, as well as its additional 

responsibilities to those in the wild, very seriously. 

9 
527 

CONCLUSION 

Captive populations represent the hope for the future in terms of preserving gene pools 

and studying the behavior and needs of endangered species. Without certainty in the law and 

the incentive to continue to invest in and display these species, private enterprise participation 

in conservation efforts will decline. 

Ringling Bros. and Barnum & Bailey furthers the cause of the Endangered Species Act 

in two ways - by providing a public display that is both educational and entertaining and 

through its stabH>f-the-art efforts in captive breeding. We take our responsibility to care for 

these animals seriously and believe that through cooperation between the private and public 

sectors we can work together to help conserve species and protect habitats for future generations. 

Mr. Chairman and Members of the Committee, I appreciate your consideration of the 

concerns I've expressed about the ESA and our support for amendments to address those 

concerns. These amendments, we believe, represent a sensible and responsible approach to the 

issues and are supportive of the underlying purposes of the Endangered Species Act. We urge 

the Subcommittee to incorporate the amendments in its legislation to reform the Endangered 

Species Act. 

10 
528 

IMPLICATIONS OF THE U.S. FISH AND WIDLIFE 

SERVICE ENDANGERED SPECIES ACT OF 1973 

ON CONSERVATION ACTIVITIES IN AFRICA 

ESPECIALLY TANZANIA 
529 

1.0 JNl1U)QUCDQN: 

The a1arrniDJ raee at which wildlife population~. are declillina in their respective ranaea 

hu drawn the anencion of many conservation interest pups. aovemments and other 

international conmuniaes. lndiiCI'iminate poecben. illeaaJ dealers and traders worltina in 

concert 110 fuel international lucrative markeu with wildlife products. and coupled with man and 

animal c:onf1ict at points of interface 1ppear to be inc:reuina and are the main cau~e~ of drivina 

catain species 110 1he verJe of extinccion. 

Habitats occupied by cenain endanpred species have also been delflded and 

frapnented u a result of eiiCIOICbment and malpnctices by man. Human population numbers 

are also on the inc:reue and undoubtedly 1he multiplier effects cannot be o~huized. 

In 1he course of rec:osnizina these unprecedented problems and concerned that wildlife 

resources must be conserved for the benefit of the preaent and future aenerationa, aovemments 

in Africa includinJ Tanzania. and 1he international COimlunity with specific reference herein 110 

the U.S. Fish and Wildlife Service (USFWS) have made effons to propound pouible 

solutions to the causes of decline in numbers of certain species, but the stricter domestic 

measures many times put in place by the USFWS appear to be too restrictive to allow for 

countries in Africa to practice 1he wise use of resources, as spelt out by international bodies like 

IUCN, The Convencion on Wetlands Especially u Water Fowl habitat (The Ramsar 

Convention), CITES - which curbs illeJal tnlde, etc. 

This document examines some of the threats and mitiaations in place, at local and 

international circles, which respectively may witness the disappearance and/or the Survival of 

Endangered Species from Africa. The document also examines the USFWS Endanaered 

Species Act in light of the strateJic types of mitigation in place. It is the belief of the 

conservation conununity that this Act may not enhance other conservation strateJies in place 

today. 

2.0 1lJREAIS FACBQ BY WilDLifE RESOURCE$ IN MOST OF 1liE 

AFRICAN RANGE STATES ESPECIAU.)' TANZANIA 

The decline in wildlife populations in Africa bas mostly been attributed to the poachina 

fueled by illeJal trade more than habitat loss. In the advent of economic development habitat 

loss is also becoming a matter of great concern. Most of the endanaered species have been 

exposed to threats includina:-

(i) Poachina and iUegal trade for raw and fmished products which finally find way into 

international lucrative markets. llieJal traders and dealers in wildlife products enjoy windfall 
530 

profits which constitute the major pan of incentives for poaching. Benefits left to local people 

in range states are marginal and those involved in poaching continue to remain poor. 

(ii) Habitat loss through encroachment in acquisition of increased farmland and livestock 

keeping area has become increasingly common. This is a manifestation of human population 

growth most of whom living in rural areas. 

(iii) Possible inadequecy of legal instruments has made it difficult to gun down culprits and 

in certain cases the punishments imposed have no correlation with the status of the species in 

the wild. 

(iv) The use of resources in many areas is not often done through guidelines which could be 

born out of management plans for the respective areas. 

(vi) Local communities who live amongst wildlife in rural areas do not derive adequate and 

direct benefits from the use of these resources. The participation by local communities in 

conservation is therefore inadequate and this situation may condemn conservation efforts from 

government. 

3. MIDQAOONS TO JHE JHREATS 

3.1 MmGATIONS IN AFRJCA 

(i) Up-date of legislation to adequately address conservation issues is receiving attention, 

e.g. in Tanzania those convicted of elephant poaching and found guilty are sentenced to a jail 

period 30 years. 

(ii) Conservation Areas are delineated with boundaries demarcated by use of modem 

technology. 

(iii) Resources use forms are made according to the location and access of a Conservation 

Area. The Selous Game Reserve for example, is infested with tsetse flies, highly inaccessible 

and is mostly used for sport hunting activities. At the other extreme the Serengeti National 

Park is strictly used for photographic tourism purposes. In doing so one finds that the income 

generated per unit area from a conservation area is optimal. Both types of use are therefore 

necessary. 

(iv) Management plans for conservation areas are being put in place. 

2 
531 

(v) Policies and Manaaement Plans for significantly traded species and those which are 

critical or endanaerod are speedily coming in place. Tanzania has policies and management 

plans for tbe elephant, crocodile, bird trade etc. 

(vi) Most Ranae States (In Africa)have taken the initiative to ratify or accede to International 

Conventions or Aareements use of resources sustainably. Recoplizing that illegal trade in wild 

fauna and flora in Africa has been going on unabated notwithstandina the existence of effective 

international ins1nlments, it is pertinent to undedine here that a legal action to reduce and finally 

eliminate poaching and finally eliminate poaching hu recently been concluded in Africa. The 

action called 1be Lusaka Agreement will come into force as soon as a certain number of States 

shall have ratified it. This Agreement is open for ratification or accession to all African 

countries. It is an action to reckon with since its adoption hu put in place a mechanism for 

closer co-apc:ntion among designated national law enforcement agencies. 

(vii) - Recognizing that governments alone have not fully addressed strategies to stall 

conservation activities and that depletion of wildlife resources continue although at reduced 

rates. 

Accepting that while resident hunting in many African countries is practiced by the local 

"rich" people and the resident expatriates, tourist/spon hunting remains to be practiced by 

tourists from overseas, 

concerned that local communities (villagers) can neither afford the resident licence fees 

nor to use lnlditional weapons under existing legislation, and therefore do not have the rights of 

use of wildlife resources accuring in areas which would otherwise be used for agriculture or 

timber logging. 

Decisions have been made across Africa to develop coherent community conservation 

policies which take into account local conditions of human settlement and land tenure systems. 

It is within the premises of intergrating local communities and conservation that governments 

must promote the conservation of wildlife and its associated habitats by allowing the villagers 

to enjoy direct benefits that accrue from resoW'Ce-use based activities. Having done so the 

villagers who are often times employed by dealers and traders in wildlife resoW"Ces and in turn 

labelled as poachers shall change their attitude and join hands with governments to stamp-out 

poaching. Community conservation projects around some protected areas in Tanzania have 

been launched to this effect and results are that poaching in and outside protected areas has 

declined significantly. 

3 
532 

3.2 MmGADQNS IN IJIITEBNADONAL CIRCLES 

(i) BEVISION OF BESOLlTDQNS:- e.g. CITES 

Under Article (iii) 3(a) of the CITES Convention it became obligatory for the Scientific 

Authority of the State of lmpon to determine and decide that the impon of the respective 

specimens and especially for Appendix I Species shall be at the level and for purposes which 

are not detrimental to the survival of the species. It has remained the concern of many range 

states that this wording of the convention did not require the Scientific Authority of the State of 

impon to determine that the EXPORT shall be for purposes that are not detrimental to the 

survival of the species as after all this is the prerogative of the state of expon as stipulated in 

Article (iii) 2(a). But imponing countries like the U.S. have often times taken a position of 

intent that imports would be subject to the findings by their Scientific Authorities. At the 9th 

meeting of the Conference of the Panies to CITES the authenticity of the findings of a 

Scientific Authority in an imponing country was discussed. The point is - Does mere 

information gathered by the importing country qualify a decision that specific imports, like 

tourist hunted elephant trophies, be banned without appropriate but all very objective and 

expensive scientific studies which undertaken in the exporting countries anyway! Since this is 

not the case the 9th COP recommended a revision of various CITES reslutionsincluding, for 

example, Resolution Conf. 2.11 (Trade in Hunting Trophies of Species listed in Appendix I) 

that under the new Conf.2.11 Rev.(b) the problem raised in the wording of Article (iii) 3(a) has 

been harmonised. Through free but regulated use of resources in exporting countries wildlife 

can be saved from going extinct 

It has also been the concern of many Parties to CITES that several cases of violation of 

the Convention have occurred as a result of inadequate implementation by Management 

Authorities in both importing and exporting countries. In circumstances, the 9th COP called 

for the obligation of Parties to collaborate closely in the application of the Convention through 

exchange of information on matters related to illegal trade in wildlife. The situation in 

developing countries including matters related to their socio-economies, and the like in relation 

to the implementation of the Convention was also underscored. It was therefore recommended 

that Resolution Conf. 3.9- International Compliance control be revised. Res. Conf. 3.9 Rev. 

(a)- (c) is now in place- advocating for strict compliance and control in the regulation of trade 

in wildlife. These are just a few revisions, among several, which are made at meetings of the 

Conference of the Panies to CITES to ensure continued survival of endangered species. 

(ii) NEW RESOLUTIONS: 

At every meeting of the conference of the Panies new resolutions are made. 

Resolutions deemed obsolete are repealed of these meetings. Decisions are also made at 

CITES meeting, and a few from the 9th COP are herein quoted. 

4 
533 

Where natioaallqillalioa is believed generally not to address the requirements for 

implemelltation of CITES ICtioas were put in pl~ee. The need for Parties to take all the 

necessary Acpl to put ill pllce lqislllion for implementation of CfmS; RegardinJ issuance of 

pennits - viJi11nce is aec:eiSirY wbeo issuinJ documents for valuable specimens and specimens 

of species listed in Appendix I of CITES; Repnling acceptance of Pennits, the ems 

Secretlrill's ldvice is DeCelllr) befcJrc ~ of the impon of live specimens of Appendix 

I species deemed to have been lnd ill capavity,llld Parties need check with the Secrewiat 

when in doubt about the autbeatic:ity of pennits ac:companying shipments in suspect -

RegardinJ illepl hdc, Parties sbould endeavor to identify and convict suspects upon seizure 

of specimens. Reprclilla iqllemmtatioa of Resolution Conf. 8.9, "The Trade in Wild- cauJht 

Animal Specimens•, lbe ADima1s Committee should choose a "safe" level of trlde for species 

subject to sipificanl trlde and alisled in Appendix D of ems; etc, etc. 

4.0 'DIE USfWS ENDANGERED SP§QR$ ACT 

The USFWS I!DdaJiaemi Species Act of 1973 u amended by the lOOth Conpss 

embodies purposes which nan wen to conservation especially in the context of the U.S. 

legislation system. However, this document underlines the following observations with 

subsequent sugestioas:-

(i) Sec.2(4)(F) and (G) -lbat the U.S. hu pledges for sovereignty in the international 

community to conserve to the exat practicable various species of fauna and flora facing 

extinction is respected. The plltic:ipllion of the u.s. in ems matters todate is commendable 

and would lite to see more of its (her) various inputs in the form of technology, fmancing, 

training, law enfon:emeot teclmiques. etc. 

In Sec.2 subsection (a) the Act underscores the need to provide a means where 

ecosystems which are meut eo be the home of threatened and endangered species may be 

conserved with the lim of providing a program which allows for taking measures to conserve 

the respective species. But while the Act is tailored to fully address issues in the U.S. it 

remains a maaer of great concem tbat ill the inlemalional context pnclical application of the Act 

may not bear fruits fully. This point CID be clarified further with the example of the black rtUno 

(Diceros biconlis) wbic:b illspitlc of illternational obligations in pl~ee the species is at at the 

brink of extinction perhaps u a result of lack of funds. It appears therefcn chat stricter 

dorneslic meuure lite a bin in ll'lde alone may not enhance the conservation of species. At the 

9th meeting of the Conference of the Parties to ems South Africa's proposal to tnde in live 

rhinos wu endorsed. This move may not be f&VOUNd by the U.S. Endangered Species Act 
534 

but the gist of the matter is that revenues generated from the sale of some rhinos shall be 

ploughed beck into rhino conservation activities. 

Section 4(a) of the Act constitutes criteria to determine whether a species is threatened 

with extinction or endangered But this assumes that if some of these factors prevail then the 

species or its habitat may not recover if trade in its products is not curtailed. But contemporary 

conservation strategies in Africa as sti~ulated in item 3.1 of this document appear to reduce the 

speed and force of deslruction of habitat or decline of species. A mere blanket ban in the use of 

wildlife may not be the solution. 

Section 4(3)(b) • Basi~ for Determinations" of the Act empowers the Secretary to 

"make determinations required by subsection (a)(l) on the basis of data available to him after 

conducting a review of the status of the species" .... In many instances observation has it that 

information which may not necessarily be scientific data has been used. An example is the 

recently (1994) USFWS Proposed Guidelines on the African Elephant Spon-hunted Trophies. 

While the guidelines were constructive and needed comments from the range states it was 

puzzling to have the need to spend time and money on this exercise when respective range 

states have deposited hunting quotas with the CITES Secretariat These quotas were sent to all 

CITES member states in the form of a notification. These quotas are set by Scientific 

Authorities of the range states, and a move such as the proposed guidelines by the USFWS 

questions the credibility of these authorities. It must be known that the USFWS does not 

undertake research projects on site in the respective range states. How could it be possible to 

question data from range states without scientific data collected by the USFWS or by a 

reputable organization (in collaboration with range states) The 9th meeting of the CITES COP 

has addressed this matter as stipulated in item 3.1 of this document 

It is necessary to understand that in the case of the African elephant in areas where this species 

brings no tangible benefits, evidence suggests either that illegal exploitation will take place or 

that large numbers of elephants will be shot on sometimes dubious pretext of causing damage 

to human property. Both these activities are considerably more detrimental to the survival of 

the African elephant than spon hunting. In the circumstances the USFWS should adopt 

measures for the impon of trophies or Jive animals that follow an approach of adaptive 

management as practiced by many range stales. 

S. CONCI.USION AND RECOMMENDATIONS: 

(i) The USFWS Endangered Species Act appears practically feesible for the U.S. States. 

It may only be most modified to suit modem conservation strategies in other countries. 

Modifications would include:- making management plans for conservation areas: 

6 
535 

ensuring that policies and management plans for endangered species are in the countries 

of origin are in place 

Donors especially in this case the USFWS should help fund sustainable fact fmding 

and strategic planning and law enforcement projects. 

Confidence in data that comes from Scientific Authorities of other range stales 

Appreciation of the contemporary strategies that guide towards wise use of resources 

including, intergrating local communities with conservation activities, promoting sustainable 

taking of species for example spon hunting of elephants, etc. 

(ii) It is the concern of many African countries as to how the USFWS would monitor the 

effectiveness of the Act when projects of this nature are not known to be conducted in the 

endangered species' range states. It is herein submitted that the USFWS Act may not be an 

appropriate mechanism for checks and balances. It is cenainly not the appropriate 

backstopping mechanism for species whose continued existence is questionable. 

(iii) The Act and various USFWS guidelines do impose on other range states to undertake 

detailed and regular surveys outside the possible scope, if one considers that most of the areas 

of occurrence of endangered species in Africa are heavily-wooded. Routine monitoring of 

endangered species is done in most range states and with increasing law enforcement efforts it 

should suffice to accept suggestions for harvest levels done by the range states and endorsed 

by international bodies. 

(iv) Reputable international conservation bodles are in place with varying strategies to 

conserve endangered species. Activities undenaken by these institutions in concen merge to 

ensure survival of endangered species. CITES, for example, controls illegal trade. CITES 

resolutions and decisions are revised at every meeting of the Conference of the Parties to keep 

abreast of ~eehnology and strategies used by poachers, illegal traders and dealers. Since the 

U.S. is a member to most of these bodies it should suffice to operate within the premises of the 

mechanisms agreed upon by the international community, and it would be expensive to 

introduce and put into action other instruments like this Act in countries which are satellite to 

the U.S. 

7 
536 

THE ESA AND AFRICAN RHINO CONSERVATION 

- A SOUTH AFRICAN PERSPECTIVE 

OR MARTIN BROOKS (Head Scientific Services, Natal Parks Board, Kwalulu-Natal, South 

Africa , {Also Chair /UCN SSC Africall Rhi11o Specialist Group, Chair Rhi11o Ma11agemem Group/) 

INTRODUCTION 

The concern shown by the USA in the 

wnservation of threatened and endangered 

species in other countries is appreciated 

throughout the world. However, the 

United State's Endangered Species Act 

1 ESA) as it currently stands is 

controversial with regard to foreign 

species. 

The crux of the debate concerning the 

application of the ESA to foreign species 

i> one of philosophy .. . 

Should one adopt a strategy like 

the current ESA that large I y seeks 

to criminalise and severely restrict 

or prohibit trade in rare species? 

Alternatively, should one's focus 

be on providing incentives for the 

conservation of biodiversity and 

maintenance of habitat in range 

states; whilst promoting measures 

to increase self-sufficiency in 

funding conservation ? 

Should one pursue conservation or 

preservationist policies ? 

To what extent should the ESA 

promote policies that take into 

account human needs in developing 

countries? 

Is commercialisation and 

sustainable use of wiiJ:!!·,. 

necessarily a bad thing whe~: :: 

species is classified as threateneu 

or endangered? 

Does the ESA currently make ;, 

significant contribution to 

conservation of rare foreign 

species such as rhino,·.· 

Alternatively, could the ESA ::'::n 

be prejudicial to successful 

conservation in foreign range 

states? 

The acidition of foreign species to the 

ESA took place at a time. when there was 

no adequate international wildlife trade 

legislation. With the subsequent 

development and growth of CITES to 

become a major international treJty with 

I 08 member countries ... 

Is the application of the ESA to 

foreign species now large I y 

redundant, seeking to duplicate 

much of what is already covered 

by CITE~? . 
CHOICE OF RHINOS AS CASE 

STUDY SPECIES 

Given that the ESA seeks to improve the 

status and long tenn prospects for 

endangered and threatened species it is 

worth examining the South African case 

histories of two rare flagship species - the 

black and white rhino. 

• What lessons can be learnt from 

South Africa's experience with 

these species 1 

• What sorts of conservation policies 

are going to succeed in future 1 

• The application of trade bans in 

foreign species listed as endangered 

or threatened under the ESA is 

based on the Western protectionist 

view that commercialisation and 

SUSiainable use of rare and 

endangered species is detrimental 

to their conservation. Do the rhino 

case histories support or refute this 

argument'? 

This submission therefore examines how 

the ESA relates to the conservation cif 

rare and endangered foreign species, using 

white and black rhinos in South Africa as 

examples. 

As the country holding 78% of Africa's 

wild rhino, and with a demonstrably 

successful track record in rhino 

conservation; South Africa has earned the 

right to express its opinion on what is 

537 

best for successful rhino conservation. 

SUMMARY 

This paper discusses how live trade and 

sport hunting of white rhino has opened up 

new habitat for these animals in both state 

and privately run parks. This has 

contributed to the increase in their 

countrywide numbers from 1800 in 1968 

to over 6370 today. 

Black rhino were commercialised in 1989, 

and five private populations now exist in 

South Africa. Although to date, no hunting 

of black rhino has been officially 

sanctioned, the hunting of the occasional 

individually known post-breeding geriatric 

male black rhino is being seriously 

considered in some quarters. 

This commercialisation and sustainable use 

of rhinos in South Africa (through live 

sales and limited sport hunting) has 

contributed significantly to the success of 

rhino conservation. It has achieved this by 

1) generating additional revenue which has 

been ploughed back into conservation as 

well as 2) providing economic incentives 

for the private sector to look after and 

breed rhino. The country has also 

benefited from the influx of foreign 

exchange and the additional jobs created. 

The rhino case histories suggest that the 

present blanket application of the ESA 

trade restrictions on listed endangered 

foreign species can limit the options 

available to range states to develop 
appropriate successful conservation 

strategies. In particular, listing of a foreign 

species may limit the ability of range states 

to generate their own funds for 

conservation programs. This is contrary to 

CITES calls for range states to adopt 

measures to increase self-sufficiency. 

Suggestions are made on how the ESA 

could be improved when dealing with rare 

foreign species ... 

• The ESA provides clear benefits 

(eg funding and provision of 

habitat) for listed US species; but 

provides no such benefits for listed 

foreign species. If foreign species 

are to be listed under the ESA, 

then provision should be made for 

financial support of necessary field 

conservation programmes. 

• 

• 

It appears there should be more 

consultation with range states 

before any foreign species is listed. 

Range States in most cases have 

the best idea of what conservation 

strategies will be most appropriate 

for their species, and thus have the 

biggest chance of success. For 

example, the blanlcet application 

of a trade ban on the importation 

of legal CITES approved hunting 

trophies from ESA listed 

endangered species in developing 

countries may be counter 

productive. 

There is a concern that application 

of the ESA to rare foreign species 

may foreclose some options that 

could potentially contribute to 

their conservation. For example the 

more progressive approach of 

sustainably using and 

commercialising South African 

538 

rhinos has benefitted their 

conservation as well as the people 

of the country. 

• For conservation to succeed in the 

longer term in developing countries 

it must obtain the support of the 

people. In listing foreign species 

under the ESA it is imperative that 

such actions will I) not alienate 

and disadvantage local people or 2) 

remove or reduce the economic 

incentive for the private sector to 

conserve the species. 

To this end, more support should be 

forthcoming for controlled sustainable use 

and commercialisation of even rare species 

provided it can be demonstrated that this 

will not be to the detriment of the species. 

This paper presents the views of the Natal 

Parks Board. However, it would be fair to 

say that the opinions expressed here 

would find agreement amongst most, if not 

all, the other major state conservation 

bodies in South Africa, as well as those 

individuals and organisations in the private 

sector who conserve and manage 

populations of rhino. 

TilE "SAVING" FROM EXTINCTION 

OF THE SOUTIIERN WHITE RHINO 

The southern white rhinoceros 

(Cerarorherium simum simum) is one of the 

very few large mammals which has 

recovered from the brink of extinction to 

increase greatly in both number and 

distribution. 

By 1895, only one population of an 

estimated 20-50 animals remained in the 

south of what is today Hluhluwe-Umfolozi 
Park in KwaZulu-Natal, South Africa. 

With good protection, numbers in the park 

built up to the level where concerns were 

expressed about possible "overgrazing" by 

the burgeoning numbers of white rhino. 

The timely development of immobilisation 

and translocation techniques allowed the 

Natal Parks Board to move large numbers 

of white rhino to many other Parks and 

private Game Reserves/Ranches (both 

inside and outside South Africa), as well 

as to Zoos and Safari Parks around the 

world. 

Over the period 1962-1994, the Natal 

Parks Board alone moved 3,629 white 

rhino to new homes. Other conservation 

agencies and vets in South Africa, 

Namibia, Zimbabwe and Kenya have also 

developed the capability to successfully 

move animals. 

A century on, numbers of southern white 

rhino have increased from the one small 

founder population in Hluhluwe-Umfolozi 

Park to an estimated 6, 750 in the wild 

spread throughout 184+ populations in 8 

countries; with an additional 630 odd in 

Safari Parks and Zoos around the world. 

Currently 94.4% of the southern white 

rhinos in the wild still occur in South 

Africa; with an estimated 1 ,250 of those 

on private land. Zimbabwe, Namibia and 

Kenya account for the bulk of the 

remainder. 

This "saving" of the southern white rhino 

was recognised by the international 

community at the recent CITES COP9 as 

one of the world's great conservation 

success stories. 

SUCCESSFUL CONSERVATION OF 

539 

THE ENDANGERED BLACK RHINO 

IN SOUTH AFRICA 

Despite bans in the international trade in 

rhino horn, the black rhino (Diceros 

bicornis) in Africa has suffered a 

catastrophic decline in numbers. Since 

1970 numbers in the wild have fallen by 

98% from 65,000 to only 2,550. Despite 

this overall decline in numbers, black 

rhino in South Africa, have like the white 

rhino, increased both in number and 

distribution. From only about I 10 in two 

populations in 1933, numbers of black 

rhino in South Africa are currently 

approaching I ,000 in 22 populations; five 

of which occur on private land. This year 

at least another one new private and one 

new state population will be established. 

Interestingly, the same three countries, 

Namibia, Zimbabwe & Kenya, account 

for the bulk of the balance of world's 

black rhino. 

SOUTH AFRICA'S RHINO 

CONSERVATION SUCCESS 

OBTAINED AT A PRICE 

One key reason behind South Africa's 

success (and indeed the success in other 

parks in Africa) is that the majority of 

remaining rhinos occur in smaller, fenced, 

well protected and intensively managed 

sanctuaries. 

Sadly, rhinos have all but been poached 

out, or removed from, the vast unfenced 

areas of bush where they once roamed in 

large numbers - but where it was not 

possible to deploy sufficient manpower to 

limit poaching (eg. Luangwa Valley in 
Zambia, the Selous Game Reserve in 

Tanzania, the Zambesi valley in 

Zimbabwe/Zambia, Chobe/Moremi in 

Botswana, and Tsavo N.P. in Kenya). 

Successful rhino conservation is not 

cheap. It has been estimated that to 

successfully conserve and manage rhinos 

in South African sanctuaries can cost as 

much as $1,000 to $1,200 per square 

kilometre per year. 

The financial cost of the intensive 

management and protection responsible for 

South Africa's conservation success has 

been great; and has almost entirely been 

provided from internal sources within 

South Africa without support from external 

donors. In 1994 the total budget from the 

state to South African public conservation 

departments loolcing after rhino was 

approximately R340 million rand (equiv. 

$95 million). Private sector rhino 

conservation has been self funded. 

As was mentioned at CITES COP 9, 

provisional results from an international 

study of the cost:benefits of different 

approaches to rhino conservation indicate 

that the size of in-situ conservation budgets 

has the biggest positive influence on 

likely success. South Africa's proud record 

with rhinos is not unrelated to its high 

expenditure on conservation. 

A major problem currently facing not only 

South Africa, but also many other rhino 

range states, is that state conservation 

departments have for a number of years 

experienced budgetary cuts in real terms as 

government grants have failed to keep 

pace with inflation. In some cases grants 

have even been cut. Funding levels for 

state conservation departments in South 

Africa are now reaching critical levels. 

Thus it is becoming increasingly difficult 

540 

for African conservation bodies to 

maintain the levels of spending necessary 

for success. Short falls are expected in 

some areas in future. 

Although the black rhino is listed as 

endangered under the ESA, no funds are 

currently forthcoming under the act to 

contribute to supporting protection of the 

species in-situ. Despite world wide bans in 

illegal hom trade, thino hom still fetches 

high prices which stimulates demand and 

creates poaching pressure. Thus it is 

essential that additional funds are found to 

maintain adequate security for in-situ 

populations. 

To date adequate levels of alternative 

support from external donors has not 

materialised to cover shortfalls in rhino 

conservation spending in range states. 

Even if such support if were to become 

available, it would be unlikely to be 

available on a sustainable basis. 

The new US Rhinoceros Conservation Act 

is very positive, although unfortunately it 

appears that available funding will be very 

much lower than the $10 million per 

annum envisaged earlier. 

Seen against this background CITES COP 

9 recognised that it is critical for rhino 

range states like South Africa to develop 

innovative means for self-generation of 

additional income to cover any current 

and future shortfalls in conservation 

funding. The CITES COP 9 resolution on 

the Conservarion ofRhinoceros in Asia and 

Africa RECOMMENDS rhar all range 

srares develop recovery plans. for rhe 

rhinoceros popularions which inrer-alia; a) 

are appropriare for the situarion in their 

counrry; b) will not adversely affect rhino 

conservation in other range stares; c) 

include provision for the reinvestment of 
revenues derived from the use of 

rhinoceros thai is consistent with rhe 

(CITES) convention, in order to offset the 

high costs of their conservaJion; and d) 

aim towards a long term goal of 

sustaining, on a basis of self-sufficiency , 

rheir rhinoceros conservaJion ejfons. 

There is concern that the blanket banning 

of trade in endangered species and their 

products may be short-sighted and reduce 

conservation options available in range 

states. This is contrary to CITES which 

urges that all potential conservation 

options be evaluated. 

For example the importing of black rhino 

trophies taken during conservation 

dehorning exercises in Zimbabwe would 

help pay for the cost of such measures, 

.without being to the detriment of the 

species; yet the importation of such 

trophies .into the USA was prohibited. 

Over the years, excellent black rhino 

monitoring in Pilanesberg National Park, 

South Africa, led to the identification of 

three geriatric old males. All three animals 

subsequently died within a year of being 

identified - either being killed by other 

bulls, or dying a long slow death due to ill 

health, complications associated with old 

age and resultant malnutrition. Let us 

hypothetically suppose that an American 

hunter offered to pay $250,000 to hunt one 

such geriatric male black rhino. The 

animal's reproductive life is over; and so 

hunting it is not going to be to the 

detriment of the species. The revenue 

generated from just one such rhino 

however could go a long way to 

contributing to the high costs of rhino 

conservation and/or to contribute to 

developing neighbouring communities. 

Under the current ESA the importation of 

such a trophy would be automatically 

20-707 95-18 

541 

prohibited as the black rhino is classified 

as endangered, even if CITES permission 

was obtained. 

Thus, from a South African perspective 

there is a need to consider each case on its 

conservation merit, rather than resorting to 

an "automatic" policy for all endangered 

species. It is important that no valid 

options for conservation are foreclosed. 

GENERATION OF ADDITIONAL 

INCOME FOR CONSERVATION IN 

SOUTH AFRICA 

I) ECOTOURISM 

Ecotourism has substantial potential in 

South Africa to generate revenue. 

Unfortunately not all rhino parks or 

wildlife reserves/ranches are accessible or 

suitable for substantial ecotourism. While 

non-consumptive ecotourism can generate 

additional funds, on its own it is not 

enough. 

The current high interest rates in South 

Africa make it very expensive for 

conservation departments to borrow money 

to build new ecotourism. developments 

such as camps and lodges. Putting in and 

maintaining the additional necessary 

infrastructure for mass ecotourism, such as 

serviceable tourist roads is also very 

expensive. Indeed, after paying loan 

repayments there may (in the short to 

medium term) be little surplus ecotourism 

revenue available to plough directly back 

into conservation. 

Some people outside the country have 

suggested that South African Parks may 'Je 

too cheap, and that the simple solution ,:-> 

make up budgetary shortfalls is simply to 
increase charges. However this ignores the 

r:tct that I) South Africa has a sizeable 

Jomestic ecotourism market which is 

'dready resisting what they see as high 

prices"; 2) Air fares to South Africa from 

major tourist markets like Europe are 

much more expensive compared to those 

to East Africa because of the increased 

distances involved. South Africa therefore 

needs to keep its prices lower to maintain 

competitiveness and thereby increase the 

country's share of world tourism; 3) some 

of the most upmarket private reserves 

catering largely for wealthy overseas 

tourists are already charging high prices; 

and 4) when state parks are funded by the 

taxpayer. one cannot charge such high 

prices as to make them inaccessible to the 

very citizens who pay for them. 

2) GAME SALES 

Commercialisation of game has made a 

very positive contribution to South African 

conservation in the short term. The sale of 

328 white rhinos and 36 black rhinos by 

the NPB on auction/secret bids has 

generated a total turnover of Rl2.92 

million and R 10.37 million respectively 

in just six years. Until 1995 some white 

rhino were also sold by the NPB at a fixed 

price. and these are excluded from the 

:tbove totals. Sales by the private sector 

and other conservation departments have 

also been excluded. Using current 

exchange rates Natal Parks Board rhino 

auction sales alone produce a gross 

turnover in excess of over $1 million per 

annum. It is encouraging to note that this 

,·ear average white rhino prices jumped by 

.!7. %. 

542 

These game sales are highly beneficial as 

the major state conservation departments 

in South Africa with rhino (being 

parastatal), are able to plough back any 

additional revenues generated from game 

sales into conservation. 

Rhinos are not the only game species sold 

on auction. The total turn over at game 

auctions annually in South Africa tops 

about R6 million (approx $1.7 million). 

The recent NPB auction alone had a gross 

turnover of R 5 million ($1.4 million). 

Given their high value, the bulk of the 

turnover at these auctions (in the region ,,;· 

:;Q%) is made up of rhino sales. 

Before 1989, the Natal Parks Board sold 

its white rhinos at low prices that were 

effectively well below their true market 

value. However, since 1989 the Natal 

Parks Board have auctioned their rhinos, 

letting them find their true market value. 

In 1989 black rhinos were also sold to the 

private sector for the first time. 

Apart from greatly increasing revenue for 

the Natal Parks Board, this increased 

commercialisation of rhinos has had a 

number of positive consequences ... 

It sent a message to magistrates 

and police that rhino crimes were 

very serious and deserving of being 

accorded top priority . The high 

value of rhinos is now routinely 

quoted by conservation departments 

in court to persuade magistrates to 

hand down stiffer sentences. The 

South African Police Endangered 

Species Protection Unit also was 

founded the same year that rhinos 

were given a true ·marketvalue"instead of only a 

"conservation value··. 
• 

• 

The high live sale prices were used 

to lobby for substantial increases 

in the legal penalties for 

convictions relating to rhino 

poaching and illegal trading in 

rhino horn. 

The high prices fetched for live 

animals significantly increased the 

incentive for the private sector to 

breed up rhinos. This contributed 

to increasing the economic 

viability of game farming. Indeed 

the more conservation can 

demonstrate that it is the best form 

of land use, the more conservation 

will be supported by the majority 

of the public and the politicians. 

Also if game is profitable a bigger 

area of the country will be 

managed as wildlife habitat as 

opposed to being transformed into 

agricultural monocultures of sugar 

cane, gum trees; or used for more 

ecologically damaging beef 

farming. 

The abuse of hunting by some 

elements in the private sector when 

white rhinos were sold at a 

subsidised price ( eg such as 

shooting all adult bulls or even 

breeding females) dropped 

substantially once rhinos fetched 

market related prices as the 

clement largely responsible for 

these abuses were to a large extent 

eliminated from the market because 

they could no longer afford the 

new high prices being asked for 

rhino. The annual proportion of 

white rhinos hunted per annum on 

private land dropped from 10.5% 

to 3% once the live value of rhino 

increased. As a result, numbers of 

white rhino on private land have 

543 

been increasing, and now number 

around 1 ,250. 

Thus, even after allowing for the costs of 

capture and translocation, live rhino sales 

have raised a substantial amount of much 

needed revenue for conservation as well as 

having a number of other positive spinoffs. 

3) HUNTING 

Adcock & Emslie (1994) have 

documented that hunting of white rhino in 

South Africa has been sustainable, and has 

substantially benefitted conservation. Some 

key points to note from this paper are 

that .. . 

• The average annual hunt as a 

percentage of all white rhino in 

South Africa has averaged less than 

1% per year since 1968 (when 

sport hunting of white rhino began 

in earnest). 

• 

• 

Since white rhino hunting started in 

South Africa in 1968, white rhino 

numbers have increased from I ,800 

to over 6,370. 

Using current priCes rhino hunting 

since 1968 has generated a gross 

turnover of equivalent to over $22 

million (excluding other trophy 

fees, taxidermy costs, additional 

hotel charges, ammunition, and 

additional tourism and curio 

expenditure). This generation of 

foreign exchange has been to the 

benefit of the country. (This year it 

is estimated that hunting fees and 

daily rates for rhino hunts alone 

will generate a turnover of close to 

$2 million.) 
Trophy hunting of rhino has moved 

the economics of many 

ranching/game park enterprises 

towards profitability, and has 

promoted the continuing existence 

of white rhinos on private land. 

Hunting helps drive the live sale 

industry providing another way for 

owners to finance and justify their 

populations, and realise a return on 

their investment. 

The hunting and associated capture 

industries generate and contribute 

to the creation of many jobs in 

South Africa. 

State conservation bodies like 

North West Environmental 

Conservation (ex Bop Parks Board) 

and the Natal Parks Board have 

generated revenue from both 

hunting and live sales; whilst rhino 

have continued to increase in 

numbers in their areas. 

Indeed removing rhinos to maintain 

populations below carrying capacity and 

hence keep populations productive is a key 

component of the strategy that has seen 

rhino numbers increase greatly. 

As part of the data collection phase of an 

international cost:benefit study into 

different approaches to rhino conservation 

it was found that the United States imports 

the majority of hunting trophies (Richard 

Emslie pers.comm.). The proportion of 

white rhinos that are shot by American 

hunters has been as high as 74.9 " but in 

recent years has dropped to 61.7 ". 

Should the importation of white rhino 

trophies into the USA ever be stopped for 

any reason, the impact on conservation in 

both the public and private sector would 

544 

be devastating .... 

Live sale prices would crash and 

conservation departments would 

lose the substantial income that 

they need to top up budgets to 

ensure good protection of rhino. 

• White rhino hunting prices would 

decline as more ranchers chased 

fewer clients: 

• 

• 

• 

Potential income for ranchers from 

having white rhino would decline 

sharply. Many ranchers might 

unbundle themselves of rhino as 

the risk and expense of protecting 

rhino was no longer justified by the 

potential returns. 

The economic viability of game 

farming may be affected in some 

areas forcing farmers to change 

from game to cattle-farming, 

sugar-cane or forestry. This would 

result in habitat transformation to 

the detriment of many wildlife 

species. 

South Africa's FOREX earnings 

from conservation would decline. 

Many people in ihe hunting and 

game capture and subsidiary 

industries would lose their jobs. In 

rural areas it has been estimated 

that each worker can support as 

many as 15 people. Thus the 

number of people negatively 

affected would be much higher. 

This brings one to the inescapable fact in 

Africa, that conservation cannot be 

divorced from human needs. 
CONSERVATION AS A VEHICLE 

FOR HUMAN DEVELOPMENT 

For conservation in South Africa to 

succeed in the long term, it has to have the 

support of the majority of the people and 

the politicians. 

The fact is that there are many very poor 

people in Africa. The more conservation 

can contribute to human upliftment and 

empowerment the better. It is very 

important that rhino conservation, and 

indeed all conservation, is not seen as a 

luxury that only "rich white-people" do. 

Conservationists cannot afford to give the 

impression to neighbouring communities 

that they "care more about animals than 

people" . 

It is essential that conservation wins 

friends and builds good relations with 

neighbouring communities. The more 

wildlife can create jobs and facilitate 

community upliftment (for example by 

facilitating the provision of clean water, 

schools or health clinics) the better. Also 

the more revenue, FOREX and jobs 

conservation can generate, the stronger its 

case will be for more funds from central 

government. 

The early history of African game reserves 

and parks is one of colonialism. Parks 

were set up and people moved out. Strict 

protectionist policies were enforced with 

no thought for the welfare of the poor. 

Neighbouring communities saw little 

benefits from parks, yet the Park's wild 

animals caused damage to their crops, 

livestock and property. Over the decades 

antagonism was created between parks and 

their neighbours. 

However, over recent years a major 

545 

paradigm shift has occurred in many 

African countries. Protectionism is now 

seen as discredited; while sustainable use 

of wildlife has been adopted as the 

cornerstone of the philosophy underpinning 

conservation in the region. This offers the 

best approach to helping generate the 

necessary funds for conservation. In the 

poorer countries of the world there is 

growing pressure for land and there is 

pressure to "use land or loose it" . 

Sustainable Use enables conservationists to 

justify conservation as a productive form 

of land use. 

Conservation developments are expanding 

in many areas of the region simply 

because they make good economic sense, 

and have the best potential to bring in 

wealth and jobs, and so help empower 

poor rural communities. Relationships 

between parks and neighbours is 

improving in many areas, and the 

antagonism of the past is being broken 

down. In some cases rural communities 

are now setting up their own game 

reserves. Without the commercialisation 

and sustainable use of wildlife this would 

never have occurred. 

Good neighbour relations also contribute to 

successful conservation, as neighbouring 

communities are more inclined to provide 

intelligence information on potential 

poachers that may have moved into their 

area. 

Therefore the application of the ESA to 

foreign species needs to consider the 

impacts of any listing on the people that 

may be negatively affected in the foreign 

country. Better still, the philosophy 

underpinning the ESA should be brought 

up to date to reflect the promotion of 

sustainable use of wildlife for people as set 

out in the world conservation strategy . 
THE ESA AND CITES 

CITES provides a forum where expen 

specialist and range state opinions can be 

included in the decision-making progress 

when deciding about trade in any listed 

species. 

The first listing of foreign species under 

the ESA occurred when there was no 

adequate international legislation governing 

trade in wildlife products. 

However with the forming and growth of 

CITES, and because listed foreign species 

currently do not get any of the benefits 

that would be available for listed American 

species, consideration should be given as 

to whether the ESA should revert to only 

dealing with domestic US species. 

ESA rating sometimes bear no relation to 

CITES ratings, with the latter being 

increasingly being based on objective 

scientific criteria. To avoid confusion the 

ESA should therefore adopt the CITES 

ruling on the status of foreign species. 

CONCLUSIONS 

Based on our conservation experience in 

Kwazulu-Natal and the rest of South 

Africa I would fully support the 

sentiments expressed by the ministers 

from the four SACIM countries In their 

submission to Congressman Don Young, 

Chairman of the House Natural 

Resources Committee. 

My first choice would be that we relied 

on CITES to control the trade in wildlife 

products. Thus I too would favour 

dropping foreign species from the ESA. 

546 

However if foreign species are to be 

included then I would suggest ..• 

• 

• 

• 

• 

• 

That it be mandatory that range 

states should be fully consulted 

before the inclusion of any 

species 

That the economic and 

conservation consequences of any 

listing are thoroughly evaluated. 

The history of South African 

rhino conservation is a good 

example where commercialisation 

and sustainable use clearly has 

benefitted rare species. 

That provision should be made 

for financial support to be given 

to foreign range states to promote 

successful recovery programmes 

or listed species as is done for 

species listed in the USA. 

That the ESA be adapted to be 

more flexible so that under 

certain circumstances it could 

allow sustainable use or 

commercialisation of selected 

endangered species provided this 

will not be to the detriment of 

the species. Where possible it is 

recommended that the new act is 

underpinned by the philosophy of 

conservation for people rather 

than protectionism. 

That the ESA brings its listing of 

foreign species more into line 

with the listings adopted by 

CITES. 

REFERENCES 
Keryn Adcock & Emslie R.H. (1994) 

The role of trophy hunting in white rhino 

conservation with special reference to Bop 

Parks. pp35-41 Proceedings of a 

Symposium on "Rhinos as Game Ranch 

Animals • Onderstepoon 9, 10 September 

1994 (published by SA VA, Pretoria). 

547 
548 

RcauLhoriz.alion or Lhe 

Endangered Species Act 

i\ ~l'llfll'l In lht• ~h'lllh('I'Hhill 

or I he Sod•·ly or AnU'I'it'an Fon,stcrs hy 

UU' S;\1' '!its~ Fon·•· on ~•·aulhorization or 

IIU' End:m~:t'n'd S!U't'i('H Act 

111,!!11·"' 1.'1.'1·1 

• 
549 

EXECUTIVE SUMMARY --- --------- - - - -----.. -·- ·· 

The Society of American Foresters CSAF) Council chartered the 

Endangered Specie< Acl RcaulhOri7.aliun Task Force to study the 

innucncc nf the act nn manllgcmcnt of forestland resources and 

to make recommendations for appropriate responses by the 

for~stry profcssinn nn changes to the Endangered Species Act 

(f:SA). The task force was supp<>rted by a group or professionals 

whn provided diverse perspectives to their deliberations. The 

suhscqucnt report rcnccts a rcgulatory/Jegislative review rather 

than a comprehensive scientific assessment of threatened and 

endangered species management in the forest. The task force 

reviewed the history of ESA. the issues surrounding its imple~ 

mentation, and specifically its impact on private forestlands. 

To guide its review of the ESA and develop recommendations 

for changes to the act. the ta"k force developed the following 

M:l of principles: 

• Con~ervation of species and ecosy~tems as provided for by 

the ESA is important to society and the profes.<ion of forestry. 

• A comprehensive approach to management of the nation's 

forests should take inlo account the entire biotic community 

providing habilal protection for all species in order lo mini· 

mize listing of additional species. 

• Species conservation must operate within the context of our 

democratic society that depends .upon and values private enterprise and respects private property rights. 

• As society's goals change. laws will be enacted and modified 

to meet thc."c changing public values and expectations. 

• The ESA must work in harmony with other Jaws to maintain 

and support healthy forest cco~y~tcms to produce a range of 

both amenity and commodity benefits. 

• Institutions and landowners, both public and private, must 

support the purpose and intent or the ESA. 

• As US and world populations continue to increase, there will 

be additional demands on forestlands to produce a range or 

nul puts. Application of the ESA must consider this need for 

commodities and a healthy environment. 

• Basic private property rights guaranteed by the Fifth Amendment of the US Constitution must be considered, valued. and 

protected when private lands are necessary to conserve a listed 

species and the habitat upon wbicb it depend.<. 

The influence of the ESA on the practice or forestry and members or the forestry profession is highly important. The preservation of millions of acre." of productive public lands for a sin· 

gle •pecies in the Paciftc Northwe•t and the indicunent of three 

professional foresters on charges of criminally conspiring to 

destroy endangered species habitat in the Southeast are significant events for the profession. 

As species listings increase, the act's impact and consequences 

will increase. The act itself is uncompromising legislation passed 

during a troubled period of our history. It is doubtful the sponsors 

or the legislation fully understood all the potential implic.ations or 

the act. However, its ba."ic pmpose-to provide a program for the 

conservation of threatened and endangered species-forcefully 

illustrates the human impact on our environment. 

The metbods of implementing the act, and its use to restrict 

forest management on both public and private lands, suggests 

modifications are necessary. These modifications must temper 

the initial goals of the act with the realities of society's need 

for forest resources. 

The principles expressed by the ESA task force and its review 

of the act resuhed in the following recommendations fnr con· 

sideration as Congres." responds to the multitude of legisla_tive 

proposals for reauthorizing the ESA. 

Tbe recommendations: 

• Continue listing of species based solely on science. 

• Provide for peer group review before completing the final 

listing process. 

• Develop criteria and guidelines for listing below the species 

level and use scientific techniques to answer questions on spe· 

ciation, subspcciation, and distinct populations. 

• Mandate recovery plans that address physical and biological 

feasibility and consequences, economic efficiency, economic 

impacts, social or cultural acceptability, and operational or 

administrative practicality of recovery action.". Include a range 

of recovery alternative~ and risk analysis of each. 

• Complele recovery plans within one year of listing using a 

core group of an experienced recovery team, manager~ . plan· 

ners, and scientists. 

• Develop measurable and clearly defined recovery objectives 

and recovery timefrarnes for each species at lowest feasible 

social and economic costs. 

• Evolve toward ecosystem management as public policy for 

public land management as scientific knowledge becomes 

available to support this approach. 

• Prioritize species for recovery efforts to wisely allocate scarce 

fmancial resources. 

• Change the composition or the Endangered Species Conunittee ("God Squad") to enhance involvement and knowledge of 

the issues by members. 

• Recognize rights of private landowners and society's re."pon· 

sibility to mitigate costs for species protection on private land. 

• Develop a phased approach from voluntary landowner plans 

to acquisition or property at fair market values for specie.• protection. 

• Delele citizen suit provision.~ against privale landowners. 

(The remainder of the report was placed in Committee hearing fl.les 
550 

United States Department of the Interior 

Mr. Rolland Scbaitten 

Director 

OFFICE OF THE SECRETARY 

Washinglon, D .C. 202-10 

October 6, 1995 

National Marine Fisheries Service 

National OCeanic and At.ospberic Adainistration 

U. S. Depart.ent of Collaerce 

Washington, D.C. 20230 

Dear Rollie: 

This letter is in regard to an issue raised at a recent hearing 

before the House co.aittee on Resources. During the September 20 

hearing on proposed legislation to reauthorize the Endangered 

species Act, congressman Jack Metcalf expressed his frustration over his inability to obtain information from the National Marine 

Fisheries service regarding a computer model on salmon resources and water flow in the Coluabia River basin. Apparently this 

model is known as the •flusb• aodel. 

congressman Metcalf stated that be bad raised this issue with you 

previously and that you bad indicated the information about the 

model would be aade available. He also stated that as of the 

date of the hearinq, he bad not received the requested 

information and that, if necessary, be would consider seeking a subpoena to obtain the model from the Service. 

At the hearing, I indicated to Congressman Metcalf that although 

I was unaware of the particular model that he referred to, I 

would contact you to bring his concerns to your attention. 

If you have any questions about the hearing, please feel· free to contact me. In my view, I would urge you to contact Congressman 

Metcalf directly in an attempt to resolve this matter as expeditiously as possible. Aside from this issue, I hope all is 

going well for you and the Service in this uncertain period. 

siry, ;r6') b.( R._ • VL/! 

George T. Fra pton, Jr. ~ 

Assistant Sec etary for Fish 

and Wildlife and Parks 
551 

• 

PJlO'l'ECl'ING .IIIBBICA'S LIVIRG IIEIUTAGE: 

A fAIR, COOPIIATIVI AD SCIDTifiCAU.Y 80DD APPROACH 

TO .UVIRG TilE DDARGIRID SPICIIS ACT 

• 

llw:B 6, 1995 
552 

ftODC'DNG AMDI('A"SUYING Jll!llll'AGE: 

A I' Alit. COOI'DA'IIU AND IIICIIIN'l'DICAY SOOND .uftOACB 

TO JllfiiOu.G '1BE )INIWICDIID SI'BCIES ACI' 

Tbc Clinlm Aclminillratjan ia ..... i"' a JIICblc of impiCNelllt:IIIS to carry out tbc 

P..ndaiJ&ered ~Ad (BSA) ill. fair, efticieat aad w:jmtjfQJ!y IDUIId llllllllel'. Tbae 

improyemcDts build Oil tbc ailaiDc law 10 pnwide dfective CllllleiVItiOD of duaimcd IDd 

eodaJI&eral species IDd flimc:D 10 peqile lbnJacb iDDovlti¥e, ClCICipefttM, IDd c:omprehellsM 

approaches. 

1be AdminiiiDiiOD believa dill IIIia JaliOD aeedl 10 maialaiD ill cnmnritmr:nt to c:oDJerVe 

imperiled species for tbc baldit of f'IIIIR e' ptjms u well u OlD' own. 1be P..ndaiJ&ered 

Species ~ is • laDdmad: ar.riroaaleatlllaw CIIKIIDd 20 years 110 to praerve tbc ecosystems 

upoll Which eodaJI&eraliDd llu.-...l_lpiCies aad people dcpcDd. 1be law bas been rapoasible 

for impmviDg popu1atiau of c1a:1iniDc lpCICir:a lluCJUibout tbc United States IDd bas served u 

a model for inla'llltioall CDIICMdiOD diOrll. 1be ·bald eqle, pizzly bear, IDd Aleutian 

Canada goose bave been relliMRid from ibe briDt of mrmon IDd are apprciiChing recovery. 

Califomia coadors IDd md 'Milva llave been n:tumed to tbc wild IDd are improving 

dran!alically. Amcriam aDiptan, Araic pc:RpiDc ~ gray wbales, IDd brown pelicans 

no lqer need tbc Ad's J*'*dim aad bave been removed from tbc list of thmdelled IDd 

endangenxl species. Ovaall, aady 40 pen:alt of tbc plants- lllimals procec:led Ulldi:r tbc 

Endangered Species Ad are aow lllble Cll' implvYiDc u a clin:ct result of recovery efforts. 

Although this natiOD bas liadc ~ JIIOCRSI with cadlllgered species CIOIIJerVation over 

tbc past twenty years, tbc IUt is llllt camplrte To ensure dill tbrealaaed IDd eodaJI&eral 

species are procccted IDd relliMRid, tbc A.clnriaillmlio believes tbat tbc ESA needs to mnain 

a strong, effective COIIIer\lation IDOL 

At the same time, tbc Mminillratjan J'elllllili«S tbat implemmtatioo of tbc ESA should be 

improved by building stroop:r J*llltilbips with States, loc:al govanments, privale industry, and 

individuals; by exerciliD& ~ ~ flclibility to nriDimize IIOcio-economic effects 

IDd assure fair treatment for illldowDen; IDd by reduc:iDc delay IDd UDCeltlinty fOr States, local 

governments, privaae industry, aad iDdMdulls. 

The ESA provides a IIUIIIber of !!!C'J!'Jwnism' llddom ued in tbc past-to raolve or avoid 

appan:nt c:onflic:ts bctwcal tbc ...... of llpClcies lluealtiled with atinction IDd tbc abort-term 

demaDds of OlD' socic:ty. Ill tbc last ,_-, tbc AdmiDistrabOD, worlcing with JIOII:Fcdc:ral 

partners, bas 1auDched a IICdcs of iailialiWI to improve tbc ESA's effi::c:tiveuess while 

minimizing itS impact Oil people aad dlcir liveliboods. There will be other similar initiatives 

wbich together mark tbc tc:ciuujuc of a DeW lpiiRIIdl to preserving ecosystcim bealtb IDd 

sustainability, one tbat Joob to tbc future with COIIIJII'dleDsi efforts to avoid crisis management 

IDd unpredictable piccemc:8lapJ*CiiiCbcs. 
553 

2 

For example, President Clinton con¥efted a Forest Coafermce iD Portland, Oreaon, 10 address 

enviroomental aDd economic illuea UIOCialed wilh lllllllpiDCIIt of Fedc:ral forest laDds in 

California, Oregon, aDd WasiJington. In the 18 months following that conference, the 

Administration developed aDd . bas bepD 10 implement a balaDced Forest Plan wbich will 

Pr-ve the .northern spoiled owl aDd the IUJiain the economy of timber communities in the 

Pacific Northwest. The Forest Plan will help prevent other species that depend on latesucceasional fon:sts, includiug salmon aDd related fish species, from declining 10 the point wbme 

they need the proleCtion of the ESA. 

In another i:wnple, the Department of the Interior bas publisbed aeverai special rules (called 

"4(d) niles" after the section of the ESA that autborizes diem), wbicb allow development of 

private lands 10 proceed while jmecting tbrateoed species. A special 4(d) rule developed for 

the c:oastal California gnatcatcber defers ESA requirements 10 a State planning process beCause 

this process will conserve the gnatcatcber and all other species that depend on the same habitat 

while allowing residential deYelopment 10 continue. In the States of Wasbington and California 

we have proposed a 4(d) rule wbicb will generally exempt landowners with less than 80 acres 

of forestland from the Act's prohibitions on incidental take of spotted owls. 

The Departments of the Interior and Commerce have joined with other Federal agencies 10 help 

prevent species from becoming threatened or endangered as a result of actionS by these agencies. 

For example, on Januar.y 2S, 1994, the U.S. Fish and WJldlife Service, Bureau of Land 

Management, National Park, National Marine Fisheries Service entered iniO a Memorandum of 

Understanding (MOU) initiated by the U.S. Forest Service 10 conserve candidate and proposed 

species. The Forest Service and the Fish and WJldlife Service quickly applied this MOU by 

signing a cooperative agreement 10 protect a rare species of salamander, which lives only on the 

ridges of the Shenandoah Mountains of Vizginia and West Virginia. The cooperative agreement 

on the salamander was designed 10 Slabilize and Proccct populations of the salamander on the 

George Washington National Forest so that the Fish and WJldlife Service will never have 10 list 

it as threatened or endangered. -

The Department of the Interim bas entered into three cooperative agreements with private 

industry 10 protect the recl-cocbded woodpecker in the southeastern United States. These 

agreements, which have · been signed with Georgia-Pacific Corporation, Hancock Timber 

Resource Group, and International Paper Company, make significant contributions toward the 

recovery of the woodpecker and will also benefit all of the species occurring in the longleaf pine 

ecosystem. Because these cooperative agreements benefit both the woodpecker and the timber 

companies, four other companies are in the initial stages of negotiating cooperative agreements 

with the Interior Department. 
554 

.A FAJil, COOI'DA'I'Ift Ale SCIIINIUICALLT SIJUa) Al'ftOADITO Dll'llOVING 3 

'IIIB DIDANGPUD ..:US ACr 

1. Rw ESA dcr:Hpm •...., wl Mltdfn rimer 

2~ Mlplmlrc ... .., ft. ·+ ...,.., 

Tbe ESA must,be cmied out iD a IDIIIIIel' dill awids lllllleCeSS8'}' IOCialiUid economic 

implcls upon private property IDd die rcplaled public, IDd minimi:ms tbose impacts that 

C&IIIIOt be avoided, wbile prvridiDg dtectiYc JMOIIt:Ctiw IDd recovery of c:uciangered IUid 

tbreatcDed species. 

3. Prpyldc qgk;k. r= •be IPI1!D'I wl cnplpty to lapdoJ!11CD. 

Tbe ESA must be cmied out iD a efticiCut, rapolllive IDd predictable JDaDDer to avoid 

1mnccessary IOCialiDd CCCJDDIIIic implcU IDd to Riduce dday IJid uncertainty for Tribal, 

State IUid local aovemmeats, die prMie 1eCU IDd iDdividual citizens. 

4. 1)nt Japdcnrgmfairh 1111 willa t •,W,.,tlcm, 

Tbe ESA must be adnrinjarml iD a IDIIIIIel' dill usura fair IUid considerate treatment 

for tbose wboe - of pruperty is afrec:aed by its )JIOiniiiS. 

S. Create lrwn•••m lw W+••W! to,.,...-,...,. 

eooper.tion with landowDen iD JHoeediu& IIIII rccoveriDg species sliould be encouraged 

through UJe of iDcadives. . 

6. Make cO'fldiD 11M tl lrnlta!JIIblc wl wiDtc mgpm:s by fonJS!pg op grggm of 

,., dcpcgdcpt .. tile --hehbt 

To make effective UJe of limiflld raources, priority sbould be given to multi-species 

listings, recovery ICiiolls IUid CIDIIICrVatian plamliDg. 

7. Prmpt ,., frp IJf1 1M!il'" """"""'d or lbmltalcd· 

In carrying out its laws IDd ~. die Federal Govemmeslt sbould seek to prevent 

species from decliniDg to die point at wbidl they must be protcctcd UDder die ESA. 
555 

4 ftonrcnNG AMEIUCA'S UVJNG IIEIUTAGE: 

8. Pnmptly m;oycr apd dHist lbrcetmcd IJld """""'""' speclrs. 

Tbe ESA 's goal ofbriDgiug species back to tbe point at which they 110 longer require tbe 

Act's procection should be achieved u eJqJeditinuly u practicable. 

Tbe ESA should be ac!mjnistmd efficiently and consislently within and between tbe 

Departments of Commen:e and tbe Interior. 

10. ProylcJc state· tdbal and Jocalauoawcpts !rlth opputggltlrstp play a mater role 

In c;amlng opt the EU. 

Building new . partnmbips and Slrellgtbening existing ones witb Slate, tribal, and loc:al 

gOYCmlllellts is essential to each .of tbe Dille previous principles and to tbe conservation 

of species under tbe ESA in a fair, prediclable, efficient and effective manner. 
556 

A FAJR, COOI'IIL\'l'IVE AND SCIIIHI'InCALLY SOUND APPilOACII TO IMPROVING 5 'IIIE IINDANGBUD SPBCIES ACT 

A PACKAGE OF REFORMS TO IMPROVE 1BE ENDANGERED SPECIFS ACI' 

.. The Clinton AdmiDistraDon is 111unnv:inc a pacbge of reforms and proposed reforms that will 

have an immediale and positM effect 011 bow the ESA is implemented throughout the Nation. 

This package builds 011 the tal principles let forth above. It clesc:ribes administrative actions that 

have been taken or will be taken in the_. future by the U.S. Full and Wildlife Service (FWS) 

and the National MariDe Fuberics Service (NMFS). ADd the package identifies ways in which 

implementation of the ESA could be impnMd duough Jecis1ative action by the Congress. 

1. Bue ESA JledslcwF em s-1111 111111 ~ Sdeaee. 

IssuE DEfnm'JON: Coacems ctist tbat decisions made under the ESA have not always 

been objective or baled 011 the beat available ICicntific: information. 

Aciminjmatjm Positigg: Fcdcnl I3DdiDga'cd Species Act policy must be based 

objectively on tbe beat ICicntific information awilablc. 'Iberefore the Administration has 

initiated the following rd'orms: 

.,. Peer mWIII 111111 ilifo,.,.,., lillllllllmb. To ensure that Endangered Species Act policy 

is baled on tbe belt ICicntific information available, the NMFS and tbe FWS have issued 

a joint policy cfircclive requiriDg il!llepeudent ·ICicntific: peer review of all proposals to 

list species and all draft pllllls to recover JpCCies within tbe timeframes required by the 

ESA. A separare cfircclive eslablisbes -rigorous SlaDdards for tbe kinds of scientific 

information used in llllking ESA decisions • 

... l.btUig pdldo• lliiiiiiiWI. Tbe NMFS aDd the FWS have publisbed draft guidelines 

for public review aDd COIIIIIICIIl tbat would let tougher, llllifonn standards for the 

scientific determination that~ is "subslantial information" to propose a species for 

listing aDd would pJace - burden 011 the petiticJom to lhow that the action may be 

warranted. 

IssUE PmNmoN: Tbe ESA bu been c:riticized for not giving greater consideration to 

tbe social and ecooomic c:.cmequences of listing species under tbe Act. 

Mmjnjmatjm Positigg: Tbe ESA must be carried out in a IDIIIIIIer that avoids 

UJIIICCeSsary social and ecooomic implcls upoo privale property and tbe rqulated public, 

and minimius tbose impldS tbat cannot be avoided, wbile providina effective protection 

and recovery of endaJi&aed IDd duadmed !!pecia. 'Ilaefore, tbe Administration has 

initiated or supports tbe foDowiD& ld'orms: 
!" 

i' e ~- Lr :j ~.- a i ~ -~ li" s 

----- ....... """L• 

lfU HJ.j·a·ll[! flll· tl I tlt 

1 U.

. . t " .f p ..

tHl HlHHI fiti if r h l~

•l·tJ ~J.il~~ ~., ~~~~; II 1 11 )'

i~~t~ t. rli~h I ll ~1! ~~If ~H

11 J sl1 ;·t • g."' ~ •• a ... tt . !It ~ ..

s-tl§ a-·~- fl I 1:1 IIJ

.~~~ ~~:iJ~!J 1'1!1 il 11 J~r

tl( f ~nru ·lii.1(B .l l·

! 1 ~~ J ~I: I: IJ ~· t f l · ~ i 1· g ~·

I ,;;tt A s ~· 10· r .. ~--= l --= g ~ 
558 

A FAIR, COOPI!RATIVE AND SCJDmPJCALLY SOUND APPROACH TO IMPilOVJNG 7 11IE ENDANGERED SPECIES ACr 

c:oaservation plan UDder tbe n:quirements of lleCtion 10 of tbe ESA. 1be draft handbook 

recognizes t1uee c:arqories of habilat CIIIISilrVation plans based on tbe level of impact to 

tbe c:oaservation of species (hip, medium, or low impact). It requires simplified 

procedura and fasttz permitting fOr low and medium impact plans. 

• •No 6111prila•. A policy of •No SurpriJes• bas beat issued by tbe FWS and the 

NMFS in babilat conservation planning UDder lleCtion 10 of tbe ESA. Under the policy, 

landowners wbo devdop an approved babilat c:oaservation plan fOr any Clldange:red or 

tbreatened species will not be subject to later clemaDds fOr a larger land or financial 

cbmmitment if tbe plan is adhered to-even if tbe needs of IJIY species covered by tbe 

plan increase aver time. A landowDer wbo agrees to provide for tbe long-term 

conservation of listed species in accordaDc:e with 111 approved babilat conservation plan 

is assured that activities on tbe land can proceed without having IDY additional mitigation 

n:quirements imposed, except u may be provided UDder the terms of tbe plan itself. 

Consequently, this policy provides tbe neccss;uy ISSIIJ'IJICCS to landowners who are 

engaged in development· activities aver a period of many years that their babilat 

conservation planning permits will remain valid for tbe life of the permits. 

• C.ttldnly /or IIUIItl-~p~da pltuudng. 1be CONGRFSS should provide additional 

certainty to ·landowners who devdop approved habitat conservation plans that protect 

non-listed species u well u listed species. l.IIJidowners wbo have satisfactorily 

demonstraled that they will protect canclida!e species or the significant babilat types 

within the ara covered by a habitat conservation plan should be assured that their land 

use activities will DOt be disrupted if tbe candidate species or additional specific species 

not covered by tbe plan but · dependent upon tbe same protected babilat type are 

subsequently listed UDder tbe ESA. 

4. Treat Laudowuers Fairl)' aad With Coasideratioa. 

lssUJ! Dl!FJNmQN: 1be ESA bas beat criticized for placing an unfair burden on 

landowDen, particularly smalllandowDers. 

AdmjnjgratjPQ · Posjtjon: 1be ESA must be lllrnini~ in a manner that assures fair 

and considaale treatment for those whose use of property is affected by its programs. 

'l'berefole tbe Administration bas initiated or supports tbe following reforms: 

• G1Wikr F.Uml rupouliJillq. The· Adminislratioo is emphasizing tbe importance of. 

having each Fedaai agency fully meet its responsibilities for conserving species in order 

to ft!duce impicta to privale lands. It is facilitating ec:onomic use of privale land by 

placing ldditioaal fedaallands in proii!Ctioo, by acquiring military lands wben bases are 

c:loscd, by cnroUing ClistiDg fedaa1 lands in b!lbitat reserves, and by arranging for 

purdlases of RTC lands. 
8 

559 

•l'l<er i4ilou "'f-w v -s,..,.. adltnr t.lpfJd lldlriiiG. For t1m:atenec1 

species we will JII'IIIIOie npllliiiiiS dill aDow lllld ue activities by landowners that 

rault in jnc:jdem111b IIIII individuiDy Cll' CllllllllaiMly have no Juting efrec:t 011 the 

1ilrzlihond of the lllnivlllllll recovay of a species IIIII, lbcnbe, have ooly Degligible 

adw:ne eiJecls. ID pmticular, the followiD& activities would not be regulated UDder this 

proposal: 

activities aa 11ac1s of lllld occupied by a lingle bousebold IDd used solely 

fCII' raidadial piiiJICIICS; . 

oae-tiDic activities dill affect me ~~e~a of lllld or less of caatiguous 

J11UP1DY if dill J11UP1DY was acquiJed prior 10 the dale of listing; IDd 

activities dill. are idaltified u aqligible. 

In cues in wtiicb the CllllllllldM ldvale dfeccs of tbeae emnpced activities are likely 

10 be siprificnt, the SecnDry would be reqUinld 10 issue • special rule. The Secretary 

abo would be lequiled to c:aasider issuiDg • special rule 10 eumpt activities 011 tr3Cts . 

of lllld lupr llml S ~~e~a dill are abo liRly 10 be Degligible. 

The CONGRESS lbould e:dald this flr::ldbi1ity 10 include activities tbat result in 

inciclen1al11b of aadaa&aed species IIIII the CONGRESS should provide tbat incidallal 

take activities _llllllertlba Jlllllllllll to m lppiUVed stale c:onse:rvatiaa agRICIIICIIt (see lllfller pobrt 110) are not mgulated. 

5. Create la:ealiws r .. :t..dowDen to Caasene Species. 

lssuJ! Dl!FJNmoN· Coocem has been e:xpraard tbat c:umnt implemeolation of the ESA 

fails 10 · provide iDcallives .fCII' species c:onse:rvatiaa or even cliJcourages such 

c:oaservatiaa. 

•l~~eMIDu .for ..,_, ...__.., The FWS and the NMFS will provide 

incc:otM:s to laDdowDc:n wbo wbmlarily ~pet to eubaDce the babilat Clll their lands by 

insnlatjng 1bcm from n:sttictions if they Iller Deed 10 bring their lllld back to its previous 

cooditiaa. l..aDdoMJen oftai are intaesled in lllllll1ging their lands in ways tbat bave 

as a by-product .... J!Ijw! beaefit 10 tbrealaJcd and eodangered species. However, 

landowDen cam:ady are reludaat to III8IIIIF their lands in this IIIIUIJieC because tbey are 

c:ona:med tbat my lllblequall Jaluctiaa in quantity or quality of the improved habitat 

would rault in a Yialalioo of the ESA. The proposed policy would apply only 10 those 
560 

A FAIJl, COOI'EilATIVE AND sc;mN'11ftCALLY SOUND APPROACH TO IMPilOVJNG 9 THE I!NDANGDED SI'IICIES ACr 

si.tuQoas in which it is possible to mc::asure a conservation beuefit to a species from 

habitat improvements. In those cases, JandowDers would not be ~ for bavin& 

made those improvements: 

.. luellllNI ptD'Pillltl bJ other ,.,..,., pnm.ltlu. In addition, tbe "No Surprises" 

policy and the proposed legislatiw action to encourage landowners to participale in 

habitat conservation planning to procect multiple species will provide significant 

incentives for laDdowDers to c:onserve species. 

6. Make FJfectiVe Use oCUmltecl Public and Priftte Resources by FocusiD& on Groups 

or Species Depencleat OD the Same Habitat. 

IssuE I>J!m!moN: The ESA bas been criticized for placing too much emphasis on single 

species and not enough emphasis oo groups of species and habitats. 

Administration Ppsjtjon: To make cffectiw usc of limited public and private resources, 

priority should be given to multi-species listings, recovery actions and conservation 

planning. Therefore, the Administration bas initiated or supports the following reforms: 

.,. Mulli-6peciu couei'WIIiDn empluuis. The FWS and the NMFS have adopted a policy 

that empbasir.es cooperative approaches to conservation of groups of listed and candidate 

species that are dependent on commoo habitats. It directs that multi-species 

listing decisions should be made where possible and that recovery plans should be 

developed and implemented for areas where multiple listed and candidate species occur. 

The policy further emphasizes the impor'tance of integrating federal, state, tribal, and 

private efforts in cooPerative multi-species efforts under the ESA . 

.. Hfmi~Dl consei'WIIiDn 11114 nco-nry p/luudng. In addition, tbe habitat conservation 

planning and recovery planning policies in this package encourage multi-species and 

habitat-based conservation efforts. 

7. Prevent Species From Beccwnlnc EodaJJ&ered or Tbreatened. 

IssuE I>EFJNmoN: Federal land-managing agencies, States, and others have expressed 

strong interest in having greater opportunities to put conservation measures in place that 

would remove threats to species and make their listing unnecessary. 

Admjnjsgation Position: In carrying out its laws and regulations, the Federal 

Government should seek to prevent species from declining to the point at which they 

must be protected under the ESA. Therefore tbe Administration bas initiated the 

following reforms: 
10 

561 

•F~ ,_., llflft• .t~,... Tbc PoJat Service, BLM, National 

Part Service, FWS ad NMFS . have liped 1D qreement with ibe lnla'Ditioaal 

AS!OC'ilfjm of Filii ad Wildlife Apac:ies that alahti"'es a federal-llale framework to 

cooperUe in dl'arls 10 reduce, ·mitiple. ad polaltiaUy elimiDa1e die need to list species 

under die J3SA.. 

·~-11llflft• ..,....,.,. Tbc NMFS ad ibe FWS bave publisbcd draft. 

guidiDce -public RlView ad CDIDliiC:Ilt that aiCIIII1'IpS IDd Ids uniform standards for 

die clevelopmcat of pm-liltiDg CCIDierVIIiaD l&leemeals "with o1be:r parties to help make 

die lilting olllpCICies a•FO espry. Tbc pidiDce abo is intended CO clarify die role of 

die PWS ad NMFS in CCIDierVIIiaD of CIDdidale llpCICies ad ensure that 1bere is regular, 

periodic RlView of die 11a1us of CIDdidlle llpCICies co help prevent tbeir furtbei' decline. 

• Iltlbillll.....,....,. ~for 111M-IbU4 ,.e~G. Providing additional ce:rtainty, 

as reccwnnw,.iell lbove, 1D IIDdowDas wbo par1icipia1e in habitat conservation plans that 

prUIIX:t llllll-lillal llpCICies. IS wdl IS lislal species will help prevatt species from 

beccJmiD& duadtiltd or c:adaJJ&aed. 

8. Pnmpdy Jteanoer _.De-list 'lbratmed ad FManpred Species. 

IssuE DI!FJNmoN: Caacems have been eqxased that too little emphasis is placed on 

RICCJVering ad de-listiag species OIICe tbey bave been lislal. 

MmjnjiUJiiop Pypjtjm: Tbc pi of die PSA is co bring species back to the point at 

wbicb they DO Jaa&u require die Act~s proleetion. Specifically, die Administration 

supports die followiD& n:forms to prumptly Jatore duealaled and endallgered species to 

laltby llalus 111111 tbaa prumptly de-list tbemi 

•1!/f«<iN ,.,.,.,. ltalow:ry sbould be dle c:a~ttai focus of efforts Under the ESA. 

Plans b die recovery of u.t llpCICies sbould be more than discretionary blueprints. 

Tbey sbould be DJellliagfuliDII provide for implementation agreements that are legally 

biDdiDg on all parlies. Tbey sbould prescribe those measures necessary to achieve a 

species' recovery in IS ~ ad definitiw manner as possible in order to 

provide grata" cedaiDty ad quiclla' decisioas in IIICICtiDg die requirements of the ESA. 

Tbc CONGRESS sbould ensure that recovery plamling: 

miculllla definitiw recovery objectives for populations (mcluding levels 

that would iDitiale down-lilting or de-listing) based on the best available 

ICiallific informabon ad die o1be:r requirements of the ESA; 

provides all jmisdic:tional entities IDd Slakdlolden an opportunity to 

)lldicipall: in development IDd implementation of the plan; 
562 

A FAI&, COOI'BL\TIVE AND SCJDmnCALLY IIOOND API'IIOAOI TO IMPilOVJNG 11 . 1BE DIDANGDJID SI'IICIES ACr 

.tl to miDimize any IOCial or ecooomic implcls that may result from 

implemrmtation; 

- · emp~wm,.. multi-species,· babi1al-bued approldles; 

is aempled from NEPA if tbe planoiDa process is equivalent to that 

nquired by NEPA; . 

filciJilaJea iDiepation of llllUJal n:IOURle and land m11•apment PJ011U11S 

at Ill juriJdicCioaiJ Ieveii; and . 

identifies lpCICific IICtivities or poemphic ..,.a that are exempt fJOm or ·that will not be affecled by tbe ICCtion 9 probibitioos .of tbe ESA 

· c:oacemiD& •tm• of lpeCies covered by a plan. 

'l1le CONGRDS lbould improve tbe R1C0YaY planoiDa process UDder tbe ESA by 

requirinllll ippiopi:iale Die · and fedaa1 qeDCiea to develop ODe or IIICR lpCICific 

IIJ"CCIICCltt to implemrmt a RlCOYaY plan. Upoo approval· of an implementation 

apemcat by acb of tbe ippRipriale .. and fedaa1 apacia, tbe qreement lbould 

be leplly biDdiD& and iDcoJponled into tbe RlCOYaY plan. . Recow:ry plans and 

implemcmiDc IIJ"CCIICCltt lbould be reviewed and upda1ed 011 a iqular buis. An 

incentiw lbould be created for .fedaalqeocies to lppl'OYe implementation apemmts 

by pnMding an easier, quicllm ICCtion 7 process. Such implementation apemmts 

lbould: 

expcidite and provide usuriiiCCI c:oacemiD& tbe ouU:ome of intaqellcy 

conpltltjons UDder lleCtiOII 7 · and babitat ·couervation planniDa UDder 

ICCtion 10 of tbe ESA; 

easure that acdoas tab:D punuant to tbe qreement meet or exceed ·the 

requilaDents of tbe ESA; and . 

. niquire tbat acb appropriale apacy that sips Ill qreement comply with 

its terma. 

• Mllrr 1'111iolllll proua· for ~ aiiiDil iGJitat. '111e CONGRas lbould 

modify tbe timiJI& of c:ritical babitat c!aiplltiona 10 that they result fJOm tbe recovery 

plaJmiD& process. Specifically: 

Desiplltion of critical babitat should be bued 011 tbe c:umnt SlaDdards of 

tbe ESA and tbe specific recom!!!mdltions in recovery plans. 
12 

563 

J)esipation lliould occur ClUiiCWteiitl:f with m:overy plan approval, lUber 

IbiD die cam:at Rlqllheweat dill it be c!esipa!WI It die time of listing • 

.. ~ ., lflt'v 11114 ~. PloiDpt clowD-Iisting lllld de-listing of species 

wben wananll:d ~ c:dticaiiD 1be 1UCCe1S of 1be ESA. 'lbe CONGRESS sbould give 

tbcsc acdoas empbllis equal liD dill of JisiiD&. Speci1ically: 

DoMt-liltiDc or. up-lillillg lbould be done adminimatively bued oo 

c:ritaia in a m:overy plan dill meet 1be IIIIDdards of 1be ESA lllld sbould 

DOt be lllbject to 1be curreat procas reqUiJed for listing, de-listing and 

c:biDps in llltUs of a species. 

'lbe ciHilliDg procas lbould be trigered wben die criteria established by 

a m:overy plan ~ met. 

• ll6CON11 ~ btMllbta. 'lbe PWS lllld 1be NMPS adopled a policy dill requires 

c:ompldioa of a draft m:ovet)' plan within 18 moatbs of listing and a final m:ovet)' plan 

witbin 12 moatbs of completioo of die draft plan. 

•AI/fnullN ,_-~ b! F.wal..,u:la. Fourteen fed«al ageocies liave 

enterecl into ID Wipi tdenlei:l ~t to improve efforts to recover lisled species. 

Each agenc::y bas. aped to ideo1ify atJirmaJM opportunities to recover lisled species and 

to 111e its ailtiDg JIIOPUIS or autborities toward dill end. 

lsStJE DJ!fJND'JON: 'lbe PWS lllld 1be NMPS have been criticized for c:arryjng out the 

ESA ii!C'Q!silln!tly lllld indficiendy. . 

Ac1mjnjJIAbon Ppsjtion: 'lbe ESA sbould be ldminisieied efficiendy lllld c:onsistendy 

witbin 111111 between 1be De,putmeats of Commenle lllld 1be Interior. Therefore, the 

Adminisbatioa bas iDitiated 1be followDig refonus: 

• JObll NJillSIFWS lllllllllmbllllll ptf~Utbua. 'lbe NMPS and the PWS ~committed 

to ldmjnjlb!rUJg 1be ESA in 1D cfticicnt lllld c:onsistent 1111DJ1er 10 dllllbe public always 

gets oae IDIWel' fiom 1be · tMI agencies 111111 from diffelmt offices witbin the IIIJDe 

agency. 'lbe agencies will IIIDdardize tbcir policies and piocedures through issuiDce of 

joint orders, guidlace, regulatioas, lllld incrased traiuiug. Coasequendy. each policy 

identified in this pacb&e is being implemented or proposed joindy by the PWS and the 

NMPS. . 
564 

A FAa, COOPDATIVE AND SCIIIN'IUICAU.Y SOUND Al'l'llOAOI TO IMPROVING 13 

'l1IE ENDANGERED SPEaBS lll:T 

•Jolat .... 1 coUIIIItlliDn pollda 11114 JII'O"(llua. Tbe FWS llld NMFS, for 

example, bave publilbed a drift baDdboolt for public review and comment tbat will 

S1aDdanlize tbe policies and proc:edures aovauiD& leCiioft 7 c:onsullalions between tbe 

Services and otber federal apaciea CIIIICet'lliDg actioas by 1boac federallgCIIcies tbat may 

affect a lisled species. 

•NIIIiolllll/lflvDI ~ l'fHIIII. Tbe agreement by 14 FederallgCIIcies identified 

above establilbed a natioaaJ . inlaapllcy \IICII'IdDg JRIUP to identify. and ·coordinate 

improYements in Federal implementation of tbe ESA, including identification and 

resolution of issues ISIOCiated with inlaapllcy c:onsullalions lDider1aken pursuant to 

leCtion 7(a)(2) of tbe Act. 

10. Provide State, Tribal, ud Local GowaJIIDelds with OpportuDities to Play a Greater 

Role Ia Carrylaa Out the ESA. 

1ssuJ! DJfJNDlON: . S1ate, tribal, and local governments bave expressed strong interest 

in greater utilization of their expertise and in playing a greater role in tbe ESA's 

implementation. 

Administration Positjon: Building new partnerships and strmgtbeDing eXisting ones with 

state, tribal, and local governments is euential to acbieving tbe ESA's goals in a fair, 

pnxliclable, efficicot and effective IIIIIUier. ~. tbe Administration bas initiated. 

and will suppoit tbe followin& reforms to establish a new cooperative federal-state 

rela1ionsbip to achieve tbe goals of tbe ESA: 

• PrulidptzdDn of lllllilul llibal lfi'N1JUUIIII. Tbe Departments of tbe Interior and 

Commert:e will, in c:onsulllllion with IDdian tribal governments, propose a policy 

cliftctive to clarify tbe relationship of IDdian tribal governments to tbe ESA and to 

provide greater opportuni~ for tbe puticipltion of these governments in carrying out 

tbe Act. 

• PrulidptzdDn of smt.j&h 11114 w1141q• apu:ia. Tbe FWS and tbe NMFS have issued 

a policy cliftctive to their Iliff which recognizes tbat Stile fish and wildlife agencies 

generally bave authority and responsibility for protection and 11111111eme11t of fish, 

wildlife and their habitats, unless preempted by Federal authority, and · tbat . Stile 

authori~. expertise and working relationship$ with local governments and landowners 

are euential to IChieYin& tbe goals of tbe ESA • . Tbe policy cliftctive, therefore, requires 

tbat Stile expertise llld informatinn be used in pre-listin&, listin&, c:oasultation,' recovery, 

and c:ooservation planning. It furtber requires tbat tbe Services encourage tbe 

putic:ipation of Stile lpiCies in tbe development and implementation of recovery plans. 
14 

565 

• Flu:llitlltk S111U .tfotts ttl l'llllbl ~ ll#llwrlq. Tbe CONGRESS should 

provide a State with opportunities IJid iDceatives 10 retain its jurildictioa cmr Jllllllllgemellt 

of a tbrealeaecl or eadlllaered species within ita jurildictioo. Specifically: 

To CDCIOUJa&e 11a1es 10 prevent the aeed 10 piOCeCt specieS UDder the ESA, 

the ESA abould eq>licidy CDCIOUJa&e IJid recopize agreements 10 c:onscrve a species within a state 1!11011& all .ippnlpriale juriwtictional state IJid 

fedcnl~ga~Cies. If a state has approved such a cimervatioo agreement 

IJid the Secrmry ddeunines tbat it wiD remove the tluals 10 the species 

IJid proiiiOie its recove:ry within the state, tben the Secrmry should be 

Rlq1liled 10 COIICUI' with the agreement IJid IWipCIId the ConsequenCes 

UDder the BSA tbat would otherwiJe result from a final decision 10 list a 

species. Tbe suspension abould Jalllin in place u loag u the terms or 

goals of the agreement are be:ing met. Tbe Secrmry abould be authorized 

10 revoke a suspensioo of the ClOIIIeqUeiiCeS of listing if the Secrmry finds 

tbat a state c:ooservalioo agreement is not be:ing carried out in ICCOidance 

with its tams. 

Conlervalion agreementa IIIDOIIC all appropriate state IJid fedcnl agencies 

within a state should be reviewed IJid updaled on a regular basis. 

Each appropriale fedcnl IJid state land llllllllgemeDt agmc:y that signs a 

CODSer\llltioo agreement 10 remove tluals 10 a species IJid promote its 

rec:overy abould be required 10 eDSUR tbat its acdoas are consistent with 

the tams of tbat agreement. 

Suspension of the ClOIIIeqUeiiCeS of listing a species pursuant 10 an 

approved state comcrvatioo agreement abould be permiUed at any point 

before or after a final listing decision. 

• Spedlll t:t~IUilhnllill• of SIIJU JdaiVk llf{onulio._ · Tbe CONGRESS should 

recognize tbat the States baw subslantial expertiJ!! c:onceming species within their 

jurisdictioo by requiriDg tbat special COIISideraDcJil be given 10 State scientific knowledge 

arid information 011 wbedler·a species lliouJd be proposed for Jistinc UDder the standards 

of the BSA, u clelcribed below: 

Petitions abould be seat 10 each affecled State fish IJid wildlife agency. 

If a State fish IJid wildlife agency recommends against J11UP01ina a species 

for Jistinc or de-Jistinc, . the Secrmry should be Rlq1liled 10 1cc:ept tbat 

I'CICOIDJIIelld unless the Secrmry finds, after coaduc:ling independent 

scientific peer review, tbat the listing is required UDder the provisions of 

theESA. 
566 

A. FAIR, COOPERA.TIVE AND SCIJ!IimFICA.LLY SOilND A.PPilOA.CH TO IMPROVING 15 11IE ENDA.NGIIIIED SPECIIS ACT 

•IAtMl Stille rok OJJ TKONf1 plluulill6. The CONGRESS sbould provide States the 

opportuDity to assume. tbe lead raponsibility for developing recovery plans and any 

component implema!tation agreements. 

In those cases in which a species' Ja111C exteDds beyond tbe boundaries of 

a siDgJe llate, tbae sbould be a mcd!anism to ensure participation by and 

coonlinatioo with each affected 11ate in tbe development of tbe plan for 

tbe species. recovery. 

The Secretary sbould approve a state-clevdoped recovery plan unless tbe 

Secretary finds that it is not adequate to meet the standards of the ESA. 

• Lmd Stille ivle OIIJUJJJ-jedemllulblt4t CDIIUI'WIIiDJJ. DecisiOns conccming use of nonfederal lands should be made to tbe Cl[tellt possible by 11ate and local governments. 

Tberefore, the CONGRESS should: 

Spec:ifically authorize appropriate State agencies, u well u tbe 

Secretaries, to enter into voluntary pre-listing agreements with c:oopcrating 

landownen to provide assuranc:es that ·further conservation measures 

would not be requiied of tbe landownen should a species subsequently be 

listed. I.andowDen wbo have satisfactorily demonstrated that they will 

procect candidate species or tbe significant babitat types within the area 

covered by a pre-listing agreement sbould be assured that they will not be 

subjected to additional obligations to protect species if the candidate 

species or additional specific species not c:ovaed by tbC agRCIDCDt but 

dependent upon tbe same protecled babitat type are subsequently listed 

under tbe ESA. 

Provide a State with tbe opportunity to assume. responsibility for issuing 

permits under section 10(a)(2) for areu within tbe State which have been 

identified for such assumption in an approved recovery plan cir for which 

tbae is otlierwise an approved comprehensive, babitat-based state 

program. 

•llnluwe oblllldn to Fllhral/Stoul1'rliNil CDO]III'IIIioJJ. Federal, state, tribal and local 

governments should be able to c:ooperate and Cuny coordinate their actions in canying 

out tbe ESA. Spec:ifically, the Secretary should be e:xempt from tbe provisions of the 

Federal Advismy Committee Act in c:oopcrating and coordinating with state, tribal or 

local governments in canying out the ESA. 
567 

16 

CONCUJSION 

1bis rdorm ·pacbp JdJeds tbe AdminiJtradon'a lti'OIII eommitmeDt to carry out tbe BSA in 

a fair, cfticialt a W:jr:ntjfically IOUDd JIIIIIJICI'. 1be impaovemeats tbat bave been inilialed 1114 

tbe legialalive ICiim recom............, build 011 tbe exilling Jaw to provide cfl'ective CIOIIICI'Yalion 

o( tbn:alaled .ad eaclaapred apcc:ies .ad fairDea to people through iDDovatM, c:oopemtive, and 

c:Onrprc:beaaM apjliudei. 
ISBN 0-16-052021 -5 

90000 

9 780160 520211