UFfiNG OF MORATORIUM ON ESA liSTINGS 

HEARING 

BEFORE THE 

COMMITTEE ON RESOURCES 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTH CONGRESS 

SECOND SESSION 

ON 

LIFTING OF THE MORATORIUM ON LISTING OF 

THREATENED OR ENDANGERED SPECIES UNDER 

THE ENDANGERED SPECIES ACT WIDCH WAS IMPOSED IN APRIL, 1995, OF ESA; AND THE NEED FOR 

A COMPREHENSIVE REFORM 

26-566cc 

JUNE 25, 1996--WASHINGTON, DC 

Serial No. 104-89 

Printed for the use of the Committee on Resources 

U.S. GOVERNMENT PRINTING OFFICE 

WASHINGTON : 1996 

For sale by the U.S. Government Printing Office 

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

ISBN 0·16·053605-7 
COMMITTEE ON RESOURCES 

DON YOUNG, Alaska, Chairman 

W.J. (BILLY) TAUZIN, Louisiana 

JAMES V. HANSEN, Utah 

JIM SAXTON, New Jersey 

ELTON GALLEGLY, California 

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, California 

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, California 

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, California 

EDWARD J. MARKEY, Massachusetts 

NICK J. RAHALL II, West Virginia 

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, Virginia 

FRANK PALLONE, JR., New Jersey 

CALVIN M. DOOLEY, Californi~ 

CARLOS A. ROMERO-BARCELO, Puerto 

Rico 

MAURICE D. HINCHEY, New York 

ROBERT A. UNDERWOOD, Guam 

SAM FARR, California 

PATRICK J. KENNEDY, Rhode Island 

DANIEL VAL KISH, Chief of Staff 

DAVID DYE, Chief Counsel 

CHRISTINE KENNEDY, Chief Clerk/ Administrator 

JoHN LAWRENCE, Democratic Staff Director 

(II) 
CONTENTS 

Hearing held June 25, 1996 ...................................................................... ............. . 

Statement of Members: 

Pombo, Hon. Richard, a U.S. Representative from California ..................... . Thornberry, Hon. Mac, a U.S. Representative from Texas .......................... . Young, Hon. Don, a U.S. Representative from Alaska; and Chairman, 

Committee on Resources ............................................................................. . 

Statement of Witnesses: 

Bivins, Hon. Teel, a State Senator in Texas ................................. ................ . Prepared statement .................................................................................. . Glitzenstein, Eric, Fund for Animals ............................................................. . Prepared statement .................................................................................. . Hollingsworth, Dennis, Riverside County Farm Bureau ............................ .. Prepared statement .................................................................................. . Leshy, John, The Solicitor, Department of the Interior .............................. .. Paulson, Steve, National Association of Home Builders ............................. .. Prepared statement ....................................... ........................................... . Rivett, Robin, Pacific Legal Foundation ........................................................ . Prepared statement .................................................................................. . 

Roge~g~d ~~1f:~~~~~~~:.~:~: ~~~~.~~~.~~~~.~~ .. ~~~~~.:::::::::::::: ::::: :: Schmitten, Rolland, Assistant Administrator for Fisheries, National 

Oceanographic and Atmospheric Administration ...................................... . Prepared statement .................................................... .............................. . 

Additional material supplied: Agreement sets timeframe for protecting rare plants and animals, a news release of DOl of December 15, 1992 ................................................ . Alternatives for listing decisions .................................................................... . Ame~d?nents and Changes to the Federal Endangered Species Act, a pos1tion paper ............................................................................................... . Article from Statesman of Monday, June 24, 1996: "107 species lose 

ESA candidacy'' ............................................................................................ . Court case: Brad Bennett v. Michael Spear, cover page (remainder in 

committee files) ............................................................................................ . Federal Register excerpt from May 16, 1996, on Endangered and Threatened Wildlife and Plants; Restarting the Listing Program and Final 

Li~;s;}n~r~~~jY s~:?::i~ ·ch;;;~~i~gi~~~·o~d:~~··(th~~t;;~~d··~~d··~-;;d:~~~ 

o:eili~ l)s;Ws ··&tti~~~~t··~g~di~g···F~d~;;~i""ii~ti~g···~rE-;;d~~g~~d Species, by Eric R. Glitzenstein .................................................................. . Riverside County Farm Bureau News: Petition to Delist the Stephens' 

kangaroo rat, and other articles ................................................................. . SMUD and the ESA ........................................................................................ . The Truth About The Endangered Species Act ............................................ . 

Communications submitted: 

Leshy, John D. (Interior Dept.): Letter of July 17, 1996, to Hon. Don 

Young ............................................................................................................ . 

(III) 

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LIFTING OF MORATORIUM ON ESA LISTINGS 

TUESDAY, JUNE 25, 1996 

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 Pombo (Acting Chaj.rman of the Committee) presiding. 

Mr. POMBO. The Chairman, Mr. Young, is running a little bit 

late, and we try to keep these on schedule, so we are going to go 

ahead and get started with our first panel. I would like to ask 

unanimous consent that the Chairman's opening statement be included here in the record. And without objection it will be done. 

[Statements of Mr. Young and Mr. Pombo follow:] 

STATEMENT OF HON. DoN YOUNG, A U .S. REPRESENTATIVE FROM ALAsKA, AND 

CHAIRMAN, COMMITI'EE ON RESOURCES 

Good morning. I want to welcome all of you to this oversight hearing on the re- sumption of the listing process under the Endangered Species Act. As many of you know in April, 1995, Congress imposed a moratorium on new listin¥,S of species under the ESA. This was done with the intent of giving the country a 'time out" from listings and the conflicts that frequently accompany listings in 

order to give Congress time to reform the ESA. 

George Frampton, Assistant Secretary for Fish, Wildlife and Parks, admitted in 

testimony before this Committee that there are problems with the ESA that Congress needs to address. 

Over the last year and one half this Committee has built a substantial record for 

the need for a comprehensive reform of ESA. 

The Committee has held more than thirteen hearings on the need for common sense ESA reforms. 

In each of these hearings we have heard testimony of loss of private property, fail- ure to recover endangered species, thousands of lost jobs, broken families, heavy un- funded mandates on local governments. This Act is not working as those of us who voted for it back in 1973 intended it 

to work. 

However, the Administration still has not sent us a bill to flX the problems that 

they havefublicly admitted exist. 

Those o us who have voted for the ESA in the past are disappointed that the 

Act has been used, not to protect endangered and threatened species, but to allow 

the Federal Government to expand its power and control over the lives and property of individual citizens. I want to see the ESA used to conserve and protect those plants and animals that 

most need its protection, but I do not want it misused to take away the freedom, 

dignity, and self reliance of our citizens. · I believe that the moratorium gave Congress a chance to take a hard look at the 

implementation of the Act. 

During the moratorium the Fish and Wildlife Service fmally began issuing Section 

10 permits and developing recovery plans for those species already listed. The moratorium gave our citizens an opportunity to take out time for much needed debate on how best to proceed to reform the Act. 

(1) 
2 

Now that listings have resumed, my concern is that good science be used to support any listing, that the public be allowed to fully partici{>ate in the process, that our states and local governments are made full partners m the process, and that we insure that private property rights are respected. It is unfortunate that the mere rumor that a species might be listed strikes fear 

in the hearts of many local citizens. If the listing of species did not result in such punitive restrictions or loss of jobs 

and economic opportunity, then all of us could contribute more to species protection. We should stop blaming and begin looking for solutions to these problems. . The best way to insure successful and effective wildlife protection programs is to 

put people back into the environmental equation and to rely on our natural human 

desire to protect and insure our natural heritage. 

STATEMENT OF HON. RICHARD W. POMBO, A U .S. REPRESENTATIVE FROM CALIFORNIA 

Thank you, Mr. Chairman, for holding this very important hearing on the re- sumption of the listing process following President Clinton's decision to lift the mor- atorium on new listings under the Endangered Species Act. As with the previous 

thirteen hearings held in this Committee-including those that took place outside 

of Washington, D.C.-I sincerely appreciate your commitment to the reauthorization 

of the ESA, one of our most important Federal wildlife statutes. As you are aware, Mr. Chairman, Congress passed- and the President signed- a moratorium on new listings in April of 1995. This moratorium was intended to 

put the brakes on any new listings of endangered or threatened species until we replaced the existing law with an updated and upgraded reform measure. One year 

later, in April, 1996, the President lifted the moratorium using the authority provided to him in the final FY 1996 budget for the Interior Department. Shortly after that, the Administration promulgated regulations establishing a priority system for deciding which species to propose for listing. In their prioritization 

of so-called listing activities, the U.S. Fish and Wildlife Service has placed any and all delisting activities at the bottom of the barrel. This means that despite any evidence to the contrary, species that are candidates for delisting will not even be evaluated for the remainder of the fiscal year, even if there is significant evidence to 

show that a species should no longer be listed. Under this plan, private property owners can expect no regulatory relief, while they retain the privilege of protecting an endangered species that probably isn't even endangered. The listing process, along with many other components of the existing ESA, are simply not working. The law is conflict-ridden and problematic. Many of the species are often not endangered and most do not have a recovery plan. Even the species 

that do have a recovery plan have shown little improvement. Furthermore, when 

the public is forced to protect a species not widely considered endangered, they 

begin to lose confidence in the entire statute-and in those implementing it. This 

is not good for the species, and not good for the people who are charged with protecting them. 

The result is that people who live day to day with the Endangered Species Act 

have grown to fear it. The phrase "shoot, shovel, and shut up" was not created by some public relations firm on Wall Street. It is a product of the collective fears of 

farmers and ranchers and other private property owners all across the country when 

they discover an endangered species on their property. 

The listing process is but one aspect of the Endangered Species Act that needs 

to be reformed. If the public is going to devote their time and resources to the protection of an endangered species, they have a right to expect that it be endangered. The current law-and the current administration of the law-doesn't place a value on sound science. Furthermore, the public has very little input in the decision-making process. Even State and local governments are practically shut out of the proc- ess. I can think of no better way to remove the incentive to protect species than 

by making listing decisions behind closed doors, with little or no input from State 

and local governments, using highly politicized "junk" science. The ESA does all of 

this, and more. Mr. Chairman, it is our responsibility to adapt and refine laws to ensure that they 

achieve their laudable goals through proper administration. Clearly, this is not cur- rently happening. For that I applaud your leadership not only for your continued 

interest in ESA reform, but for your willingness to hold oversight hearings so that we can get to the bottom of this important piece of the ESA puzzle. Remember, we all want an ESA that works, one that enables private landowners and their government to cooperate to make it work. I look forward to hearing the testimony of all 

of today's witnesses. 
3 

Mr. POMBO. And if he shows up, he can say whatever he wants 

when he gets here. He usually does. 

OK, we are going to go ahead and get started. I know that the 

first panel is already seated. At this point I would like to turn to 

Mr. Thornberry, who has requested to introduce one of his constituents. Mr. Thornberry. 

STATEMENT OF MAC THORNBERRY, A U.S. REPRESENTATIVE 

FROM TEXAS 

Mr. THORNBERRY. Thank you, Mr. Chairman, and it is certainly 

a pleasure for me to welcome one of our first witnesses today. State 

Senator Teel Bivins has been a member of the Texas State Senate 

since 1988. In a body which is controlled by the Democratic Party, 

he chairs a Nominations Committee and is also on the Natural Resources Committee in the State. 

He is very familiar with the Endangered Species Act, how it affects the State in general, but particularly how these proposed listings may affect our neck of the woods. And the thing that I think 

he brings as much as anything else is not only a perspective of this 

as a legislator, but it also affects him personally. He makes his living off the land. He has been involved in cattle ranching and other 

things in the Texas Panhandle, his family has for a number of 

years. So I appreciate very much the opportunity for him to come 

and testify from his perspectives, and particularly on the moratorium and how its lifting could affect us in one of the most agriculturally rich parts of the country. Thank you. 

Mr. POMBO. Thank you. We also have on our first panel Mr. John 

Rogers. He is the Acting Director of the U.S. Fish and Wildlife 

Service, and we would like to welcome you here today. And Mr. 

Rolland Schmitten, who has has testified before the Task Force on 

ESA in the past and testified before this Committee in the past. 

He is the Assistant Administrator for Fisheries, National Oceanographic and Atmospheric Administration, Department of Commerce 

in Washington, D.C. 

Welcome, and we will start with Senator Bivins. Just the ground 

rules. We have the lights sitting in front of you. If you are not familiar with them, we try to limit the opening statements to five 

minutes. Green means go. Yellow means hurry up. Red means stop. 

Your entire statement will be included in the record, but if you 

could try and limit your oral statement to the five minutes, I would 

appreciate it. 

Senator Bivins, you may begin. 

STATEMENT OF SENATOR TEEL BIVINS, TEXAS STATE SENATE 

Mr. BIVINS. Thank you, Mr. Chairman, members. I appreciate 

the opportunity to be here. I have been on your side of the dias far 

more often than I have been on this side, and I must confess that 

this is probably good for me. I think that I will listen more carefully when I go back to Austin and hear testimony before the Senate Natural Resources Committee. 

I have submitted written testimony, and I know that the most 

boring thing that you as a member can do is listen to someone read 

it, so I won't do that. I will, though, begin by including a quote 
4 

from my testimony that I read. I think it sort of sums up the overall issue. Stewart Pimm, who is an ecologist at the University of 

Tennessee wrote, "As ecologists see it, the greatest threat to biodiversity is the success of one species, our own." 

I think that really shows the corner that we are painting ourselves into with enforcing the Endangered Species Act in its current form. I was very hopeful that the moratorium would provide 

us with an opportunity to take a step back and to inject some common sense and some guidelines into this law that I believe now has 

far outpaced the original intent of the drafters of the Endangered 

Species Act. 

Generally when you look at what has happened, we have listed 

over 1500 species, but we have only recovered or delisted, like, 26, 

less than two percent. And with the number of species that are proposed out there, we are going to wind up in an impossible situation, because every species that is listed carries with it restrictions 

on the ability to use the land where that species exists. And then 

God forbid critical habitat should be found for that species, which 

puts even more restrictive restrictions on the ability to use land. 

So I believe that science is outpacing our ability to do what the 

framers or the drafters of the Act intended for us to do. So I would 

hope that this moratorium would allow us some time to revisit that 

and to redirect it. 

I think in general I would commend to you the proposal from 

Texas Parks and Wildlife and the Texas Agriculture Department 

that would propose that we refocus the Act toward ecosystems and 

groups of species as opposed to taking rifle shots at increasingly 

limited and rare species. Secondly that proposal would encourage 

the delisting-decoupling, I should say, of this process, allowing 

U.S. Fish and Wildlife to go ahead and list species but charge the 

states and groups of states with the duty of crafting recovery plans 

for these species. 

If you retain the current law, I would urge you to change it by 

injecting minimum scientific standards as criteria for proposed listings that would require in law peer review of the listings. And we 

recognize that some species are just plain rare, and that is what 

God intended them to be, and we don't need to be spending money 

trying to make them grow. And finally, this idea of listing subspecies, I think, is carrying, 

again, the intent of the original drafters too far. In the past couple 

of years we have had two species proposed to be listed in the Texas 

Panhandle, which is the part of Texas that Mac Thornberry and I 

both represent in our respective bodies, the crown of Texas as we 

oftentimes call it. One was the Swift fox and the other was the Arkansas River shiner. The Swift fox, fortunately, was not listed because the State, working with five other states, were able to convince Fish and Wildlife that they could do a recovery plan that 

would be preferable to listing the species. 

One of the problems with both of these listings was that the way 

we found out about them was not from U.S. Fish and Wildlife, but 

reading about it in the newspaper, which points up a real problem 

with the law that we have today, and that is the total lack of communication between the Federal Government and State wildlife 

agencies around the United States. 
5 

When both species were listed, and they were at separate times, 

both times there were shock waves that went through our part of 

the State. The first reaction is fear on ti¢ part of landowners and 

people that live off the land or indirectlY' live off the land, which 

is primarily the industry that is the Texas Panhandle. There is no 

upside for a landowner when it comes to the listing of a species. 

There is nothing but downside, and that is why I would encourage 

in rewriting this Act the use of carrots as opposed to sticks. 

Let me close by listing-by sharing with you one of my real concerns about the whole process. The Arkansas River shiner was proposed to be listed, even though there is a thriving population of Arkansas River shiners in the Pecos River in New Mexico. However, 

that population of shiners was introduced in that river. They were 

stocked about 25 years ago. And in fact, amazing as it may seem, 

U.S. Fish and Wildlife is recommending that that group of Arkansas River shiners be eradicated because they are threatening the 

Red River shiner that exists over in the Pecos River, which is indigenous, and instead at the same time list this critter as an endangered species in the habitat to the east. It is this kind of scientific hair splitting that just doesn't make sense. I challenge even 

a trained scientist to look at an Arkansas River shiner and a Red 

River shiner and tell me the difference. I think that is where so 

many of us get so frustrated with the implementation of this Act. 

Again, I applaud you, Mr. Pombo, and your colleague, the Chairman, for your efforts in this regard. And I hope that sooner rather 

than later we can amend the Endangered Species Act. I will be 

happy to answer questions. 

[Statement of Teel Bivins may be found at end of hearing.] 

Mr. POMBO. Thank you. Mr. Rogers, before you begin I just wanted to say that you are now Acting Director, filling in for Mollie 

Beattie, and our thoughts and prayers go out with Ms. Beattie in 

the struggle that she is going through right now, but we are glad 

to have you here. And you may begin. 

STATEMENT OF JOHN ROGERS, ACTING DIRECTOR, U.S. FISH 

AND WILDLIFE SERVICE, ACCOMPANIED BY JOHN LESHY, 

THE SOLICITOR, DEPARTMENT OF INTERIOR 

Mr. ROGERS. I appreciate the opportunity to be here, Mr. Chairman. I would like the record to reflect the deep appreciation those 

of us in the Fish and Wildlife Service have for the efforts of this 

Committee and the personal efforts of Chairman Young to name 

the wilderness area of the Arctic National Wildlife Refuge after Director Beattie. We appreciate it. Her family appreciates it. We in 

the Service feel her absence. We will miss her and face the immediate challenge of attempting to live up to the standard she has set. 

Over the past three years the Service has worked to improve the 

implementation of the Endangered Species Act in a manner that 

conserves species, recognizes the rights and concerns of property 

owners, and achieves the greatest conservation benefits in the most 

cost-effective manner. The ability of the Service to evaluate the status of imperiled species and to provide protection to them under 

the Endangered Species Act was greatly curtailed in Fiscal Year 

1995 and eliminated from October 1995 through April 1996 because of the moratorium on final listing decisions coupled with a 
6 

severe budget cut. Because of that moratorium, the Service is currently facing a backlog of 242 proposeg species with another 182 

candidates. We must also deal with 11 pending court orders or settlement agreements that require us to take listing actions on numerous species, 25 lawsuits, as well as 90-day petition findings due 

for 28 species and 12-month petition findings due for 29 species. 

In light of the moratorium being lifted and the backlog we face, 

it became clear that the Fish and Wildlife Service cannot do everything, and it is critical, then, that we develop and follow an orderly 

plan with identifiable priorities for resuming listing activities. 

Guidance setting forth a priority system for the Service's listing 

program was published in the Federal Register on May 16, 1996. 

And I would request that a copy of the guidance be placed in the 

record. 

Mr. POMBO. Without objection. 

[The information may be found at end of hearing.] 

Mr. ROGERS. The restart of the listing program will be guided by 

four basic principles. First, highest priority will be given to those 

species in most need of protection. Second, biological need, not the 

preference of litigants or others, will drive the listing process. 

Third, sound science, including peer review, will form the foundation of listing decisions. And fourth, public participation, comment 

and cooperation of states and other Federal agencies as well as the 

affected public will be a cornerstone of our activities. 

We have thus prioritized our actions as follows. In Tier 1 we will 

initiate emergency listings if determined to be necessary. In Tier 

2 we will process final listing decisions on proposed species. Within 

Tier 2 highest priority will be placed on species facing imminent 

and high magnitude threats. Under Tier 3 we will process new proposals for listings, delistings and downlistings. We will also process 

final decisions on proposed delistings and downlistings as well as 

administrative findings and critical habitat designations. 

The resumption of the listing program not only required that we 

assign approximately 100 listing staff back into the program, but 

also required that we review all packages as quickly as possible to 

determine their priority and currency. However, because the proposed packages are in various states of completeness, the rates at 

which they move through the process will vary. To ensure the best 

and most accurate species status, public comment periods may 

need to be reopened and public hearings may need to be held. 

Another issue facing the Service as we restart the listing program is the numerous lawsuits involving petition findings, critical 

habitat designations and missed statutory deadlines. These lawsuits are diverting considerable resources away from our efforts to 

conserve species. The listing priority guidance was developed to 

help the public and the courts understand precisely how we will 

use our limited listing appropriations for maximum effect. In closing, I would like to stress to the Committee that the management and policy formation foundations of the ESA are as strong 

as they have ever been. We have spent the past several years buttressing that foundation with sound science, clear priorities founded in conservation biology, and clear open communication with the 

public. At this point our ability to deliver further improvements 
7 

will be based on the availability of adequate funds and a clear statutory framework. 

I will be happy to answer any questions that the Committee 

might have. 

[Statement of John Rogers may be found at end of hearing.] 

Mr. POMBO. Thank you. And, Mr. Schmitten. 

STATEMENT OF ROLLAND SCHMITTEN, ASSISTANT ADMINISTRATOR FOR FISHERIES, NATIONAL OCEANOGRAPHIC AND 

ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE 

Mr. SCHMITTEN. Thank you, Mr. Chairman. First let me echo the 

concerns and support for Director Beattie. Not only is she a good 

colleague, but more importantly she has been a very good friend 

and I do miss her. Mr. Chairman, I am Rollie Schmitten, NOAA's Assistant Administrator for Fisheries, and it is a pleasure to be here today to discuss the implementation and administration of the ESA and our 

procedures to restart the listing process in a rational and scientific 

manner. I will just summarize my comments. For the last 23 years, the Secretary of Commerce has been 

charged with the management of marine fish, all anadromous 

fish-those are the fish that live in salt water and spawn in freshand nearly all marine mammals under the ESA, providing protection and recovery actions for those species that are listed either as 

threatened or endangered. We are currently responsible for the 

conservation and recovery of 29 listed species. Most of the marine 

species that are listed by National Marine Fisheries Service are 

highly migratory, and managing the recovery of species that travel 

through multiple jurisdictions, including both local and State, at 

times tribal, Federal, and international waters, requires an enormous amount of planning, flexibility and coordination, and some- thing that I continue to stress, the ability to collaborate with these 

parties as partners. 

Currently NMFS has 14 expected actions under the ESA. Eleven 

of those deal with anadromous fish. Currently we have no emergency listings proposed. There are two actions pending to reclassify 

species from threatened to endangered status. Those include one 

action relating to the summer, spring and fall chinook salmon, as 

well as an action relating to the western group of Stellar sea lions. 

We also have a pending action to delist the shortnose sturgeon in 

the Kennebec River in Maine, which will be done in July. 

As Senator Bivins suggested, good science is absolutely essential 

to these proposals for listing. We now incorporate independent 

science review, peer review in the listing and recovery activities to 

assure the quality of the information and will, and I stress will, 

submit all listing decisions to peer review by an outside independent group of three experts. We strongly support a collaborative 

process when conducting a listing review, as the agency has come 

to realize that often the valuable information or the data rests with 

other entities. And that is especially true for salmon and steelhead 

on the West Coast. We also believe in maximizing public comment 

for all proposed listings. 
8 

Concerning litigation on our proposed activities, there are three 

pending cases, the Umpqua River cutthroat, West Coast coho and 

West Coast steelhead trout. We presented schedules for all three 

of these species to the courts. In both the cases of coho and 

steelhead, the State of Oregon has agreed with our proposed schedule and has submitted a brief on behalf of the government. The 

State of California is expected to submit a brief on behalf of the 

government very soon. 

Following the President's waiver of the ESA listing moratorium, 

I issued guidelines to all of our regions on restarting the program. Basically it is based on the following principles, which, frankly, are 

a mixture of my strong belief of reliance on science and some common sense. They are very similar to those that Director Rogers has 

shared. The first principle is the biological risk to a species, the degree of risk facing a species. An emergency listing to address an 

emergency that poses a significant risk to the well-being of a species is by definition our highest priority. Our next priority are final 

listings that will provide maximum benefit to the species when 

there are no concentrated efforts already in place to protect the 

species. 

Second would be our principle of biological benefits from taking 

a pending action. The listings generally would be considered a 

higher priority than reclassification as listings provide species protection under the ESA either through section 7 consultations, section 10 or section 4(d) rules. That doesn't mean, however, that we 

shouldn't complete all of our reclassifications in a timely fashion. 

In some instances, proposed listings may benefit a species. For 

example, a proposed listing could encourage commitments from 

both our Federal partners and non-Federal entities to protect a 

species even before or in lieu of listing. What I am getting at here 

is something I am promoting-habitat conservation plans with the 

private sector and with the states-to be proactive. Let us avoid 

listings if we can. 

Mr. Chairman, our stewardship efforts will continue to concentrate on non-Federal conservation initiatives and regional consensus building. It is the agency's view that in the long-term, aggressive Federal, State and local conservation initiatives have the 

potential to significantly reduce the risk to many species. 

Let me just cite a few examples of conservation plans in 

progress. We have in Maine the Atlantic Salmon Conservation Plan 

that the State is putting forward. We have habitat conservation 

plans for both the states of Washington and Oregon. These are 

mammoth. The HCP for the State of Washington involves a million 

acres. We have a habitat conservation plan under development 

right now, in the mid-Columbia for the PUDs, and several for private timber companies. 

Mr. Chairman, that concludes my testimony. It is a pleasure to 

be here again, and I look forward to any questions the Committee 

may have. 

[Statement of Rolland Schmitten may be found at end of hearing.] 

Mr. POMBO. Thank you. Mr. Saxton, do you have questions of the 

panel? 
9 

Mr. SAXTON. Thank you, Mr. Chainnan. I would like to also welcome all three of you here today. I know that in different respects, 

you have all worked very, very hard to represent your various constituencies and the agencies that you represent. We appreciate 

that. 

Senator Bivins, I was interested in particular in part of your testimony where you made reference to--I have forgotten the exact 

name of the fox that had been proposed to become listed. Mr. BIVINS. Swift fox. 

Mr. SAXTON. Swift fox. 

Mr. BIVINS. Right. 

Mr. SAXTON. It was swift enough to get out of the way, I guess. 

Mr. BIVINS. Nobody has ever seen it. 

Mr. SAXTON. And you indicated that in this situation several 

states, I think you said five, had worked together, apparently, to 

develop a program or some kind of a habitat management program 

that was successful or that was thought to have the potential to be 

successful to help the species recover to the point where it would 

not be threatened. Is that a fair analysis or summary of what you 

said? 

Mr. BIVINS. Yes, sir. I think all the states-and I am not certain 

of the number. I think it is five. Mr. Rogers may know exactly. All 

opposed the listing when it was proposed, and after they learned 

of the listing, they were able to work with the agency and convince 

the agency that instead of listing the species that a multi-state conservation or recovery plan that was led by the states would be preferable to listing the species at this time. 

And I really applaud that action. In fact, when we had Acting 

Chairman Rogers in front of the Texas Natural Resources Committee, we beat him up pretty badly about doing these types of things, 

doing everything we can to avoid listing because of the draconian 

effects that listing has. 

So we did get that done with the Swift fox. I am hopeful that we 

can have a comparable result with the Arkansas River shiner. 

Mr. SAXTON. Senator, did the states work together to put in place 

some kind of a conservation program that benefited the Swift fox? 

Mr. BIVINS. Yes, sir. There was a-in Texas our agency is called 

the Parks and Wildlife Department, but there are equivalent agencies in all of those states, Kansas, New Mexico--help me, John. I 

think Colorado and Oklahoma. All those State agencies are involved in that plan. 

Mr. SAXTON. Do you believe it is preferable to have some preemptive activities and conservation programs in place that can help, 

too, from time to time avoid listings as you apparently successfully 

did? 

Mr. BIVINS. I think it is vital. I mean, I don't think the Act as 

currently written can really survive unless we do more and more 

of this. 

Mr. SAXTON. Mr. Rogers, you mentioned in your testimony the 

term statutory framework. In the current statute, is the framework 

permissive enough to allow these times of preemptory strikes, if 

you will, or programmed planning or conservation efforts? Do you 

need more tools to work with in order to encourage if not permit 

these types of activities to take place? 
10 

Mr. ROGERS. I suppose we could always use more tools, but we 

believe that the Act as currently laid out gives us the appropriate 

flexibility and tools to carry forth those kinds of activities. As an 

example, in 1992 we had 14 habitat conservation plans in place. At 

the end of last year, there were 142, and in 1997 we estimate more 

than 300 will be in development. Habitat conservation plans, as I 

am sure the members of this Committee know, are designed to provide for incidental take of listed species, but also very important 

is that when properly designed, HCPs also deal with the needs of 

candidate species that could prevent the need for their being listed. 

So we support those kinds of efforts, and to the extent our resources permit, we are always anxious to enter into new ones. 

Mr. SAXTON. Thank you. Let me ask one other question, Mr. Rogers, while you are here. In your testimony you indicated that the 

listing program as it gins back up again will be a three-tiered system. And the third tier would include delisting. And it seems to fall 

into a category of importance that is somewhat less important in 

terms of the process than Tier 1 and Tier 2. Is that fair to say? 

Mr. ROGERS. I would not characterize them as activities that are 

less important. I would characterize them as activities with less urgency. Obviously the Tier 1 activities are emergency listings. That 

is pretty evident. The Tier 2 activities are species that have already been evaluated and the determination has pretty much been 

made that they do deserve to move through the listing process, so 

the degree of biological urgency on Tier 2 species is higher than on 

actions that might occur under Tier 3, not necessarily less important. 

Mr. SAXTON. I can sympathize with the feelings of some of my 

colleagues who from time to time see species listed, the grizzly in 

the west comes to mind, where the species seems to have been, to 

an outsider looking into the process, it appears that the grizzly has 

pretty well recovered, and yet the delisting process is not addressed 

as an issue. And that is an issue that is of some urgency to some 

of my colleagues and their constituents from the western part of 

the country. And so I am just curious as to how we might begin 

to address some of those kinds of issues where in fact it at least 

appears that recovery has occurred. Mr. RoGERS. The final determination of whether the grizzly bear 

has recovered or warrants delisting has not yet been made. Right 

now we are carrying forward activities with grizzly bear under the 

recovery program. We have recently been named in a lawsuit that 

has asked us to determine habitat-based recovery criteria as well 

as population-based criteria, and we are currently going through 

that process. And once done, we would hope that then we have a 

new yardstick by which we can measure the success of grizzly bear 

activities and, if warranted, move forward. 

Mr. SAXTON. Does the statute as it is currently written provide 

you with the flexibility that you need to determine the urgency of 

delisting? It appears that the intent of the Endangered Species Act 

is obviously to protect endangered species. And one of the things 

that might happen along the way if a species is recovered is that 

it might get delisted. I mean, that is the impression that we get 

from the process as we have watched it over the last few years. Is 

that an accurate characterization? 
11 

Mr. RoGERS. Yes, it is. Obviously you have characterized it correctly. It is there to protect species, but it is not there to carry on 

protection ad infinitum for species that don't need it. Mr. SAXTON. Well, you know that I want the Endangered Species 

Act to work. You know that there are several members here who 

have approached the reauthorization of the ESA from a different 

perspective. One of the things that we have got to do among ourselves and among our constituencies is to find support for this program. And this is one of the issues that I think needs to be addressed from a public support perspective in order for us to get to 

a point where we can reauthorize a bill that will work and that 

makes sense to our constituencies. And that is why I wanted to explore that aspect of it with you. Thank you very much. 

Mr. ROGERS. Thank you. 

Mr. POMBO. Mr. Romero-Barcelo, did you have some questions? 

Mr. ROMERO-BARCELO. Thank you, Mr. Chairman, but I have no 

questions at this time. 

Mr. POMBO. Thank you. Mr. Thornberry. 

Mr. THORNBERRY. Thank you, Mr. Chairman. I think Mr. 

Saxton's last point is a key one, Mr. Rogers, that public support to 

make this work is absolutely essential. And I think back to testimony that Mr. Pombo's task force received in Texas by one of the 

State officials. And that was that more habitat for a bird, and I forget which one it was, was lost after it was listed than before because the problems too often now are that the government and the 

landowners are the enemies and they work against each other. We 

are not cooperative. 

Senator Bivins, would you testify at least from your district 

about this issue of public support and working together rather than 

having one side versus another. What has that meant for the people that you represent? 

Mr. BIVINS. Well, I think you are-the first part, Congressman, 

the species; I think, you are referring to is the Golden-beaked warbler-Golden-cheeked warbler, which the people in Central Texas 

had the misfortune to have critical habitat designated, and land 

values cratered. And as you pointed out, people got rid of the habitat so that they would not be subject to all the restrictions that 

went along with it. 

In the proposed listing of the shiner, Fish and Wildlife had a 

hearing in Amarillo, Texas. And in a room that held about 200 people, 400 people showed up for that hearing. And as I pointed out 

to the folks from Fish and Wildlife, there wasn't a person there 

that was glad to see them. It is clearly adversarial today, because 

as I said, there is nothing but downside for the folks that are affected. And I think one of the ways to get public support is to create some carrots in this Act to encourage people to enter into conservation habitat recovery plans either through income tax credits 

or estate tax credits or some other mechanism where people are 

going to want to participate as opposed to feel like they are victims 

of the U.S. Fish and Wildlife when a species is listed. 

Mr. THORNBERRY. Mr. Rogers, I would be interested in your comments on how we can work together more. And question number 

one is wouldn't that be more productive not only in taking the 

landowners situation into account, but also in helping species? 
12 

Question number two is do you have any comments about this situation that we face with the shiner where it seems to abound across 

the State line, but yet we want to get rid of it over there to protect 

another species and we want to protect it on the other side of the 

State line, which is another-getting back to Mr. Saxton's point, I 

suggest it is another reason the public thinks that we are not all 

quite operating with a full deck here as we try to do things thatwe should be doing things that make sense rather than take away 

here and give there. 

Mr. ROGERS. I think clear and open communication-maybe the 

lack of it in some instances-is behind many of the problems that 

we have faced. I would like to turn maybe slightly to the Goldencheeked warbler example, maybe 180 degrees or maybe at least 90 

degrees, because as we sit today it is more of a success than not. Critical habitat was not designated for the Golden-cheeked warbler, and it is also one of the principal species covered by the 

Balcones Canyonlands Conservation Plan, a major habitat conservation plan in central Texas, in Austin and Travis County. So 

in that respect it is a success. 

Mr. THORNBERRY. But don't you-just a second. Don't you 

think-don't you recognize that people were scared to death in 

central Texas, just as people were scared to death in our neck of 

the woods? And it cannot survive, it cannot work when people are 

that terrified that they are going to lose everything they have 

worked for for their whole life. 

Mr. ROGERS. I don't disagree with you. The communication process that caused or could have prevented that fright is what we all 

need to work on. I wouldn't disagree with you at all. 

In terms of the incentive issue that you raised, we are very sensitive to the need for private property owners to have incentives to 

do positive things for endangered species without unintentionally 

later on feeling the heavy hand of the law on their shoulders in 

such things as the safe harbor policy. It provides assurances to a 

landowner that if he or she manages for a certain suite of endangered species and ultimately wishes to take their land condition 

back to their preagreement situation, that they will be able to do 

so without penalty. There have been obviously issues of tax incentives and others raised, and we are eager to enter into discussions 

on issues that do provide the positive feedback for private landowners. 

Mr. THORNBERRY. Do you have any comment on the shiner situation where you are taking-where the proposed listing would take 

care of it on the Texas side and you are trying to get rid of it on 

the New Mexico side of the line? 

Mr. ROGERS. Any . comment I make would have would be based 

on what I heard this morning, and I couldn't make an intelligent 

comment on it. We can get back to you for the record on that if 

you would like. Mr. THORNBERRY. I'd appreciate it. Mr. Chairman, let me just 

close with one other situation that Senator Bivins and I find ourselves in. We both represent a nuclear weapons construction plant 

that has some leftover contamination going back to World War II, 

and yet what we find today, based on articles that were in the 

paper this weekend, is that there may be some Swift fox dens in 
13 

this area that we are trying to clean up. So the environmental 

cleanup of this potentially toxic situation has been put on hold 

until these pups grow up, at least, or some way can be found to 

deal with the Swift fox problem. It is just another example, it 

seems to me, of where sometimes I think that we are not complete-we are not in balance as we should, and that is one of the 

reasons I think your efforts and other efforts to make this thing 

work better for everyone are so needed. Thank you. Mr. POMBO. Thank you. Mr. Pickett. 

Mr. PICKE'IT. Thank you, Mr. Chairman. I apologize I was not 

able to hear the previous part of the testimony this morning, but 

I think that the logical follow-up question to what Mr. Thornberry 

posed to you is is there any way to legislate some common sense 

into this process? 

Mr. ROGERS. Not to be facetious, I don't think there is any way 

to legislate common sense. 

Mr. PICKETT. That is apparent. Mr. ROGERS. We have all got to practice it. 

Mr. PICKETT. That is very apparent, but it seems to me that we 

allow situations to develop that, as has been stated previously, create more in the way of friction and a lack of cooperation, a lack of 

will to want to go forward with this by the way in which the Act 

is being administered. 

Did the issue about whether or not there was any prospective 

change in the process for listing come up in the previous testimony? This morning, I meant. 

Mr. ROGERS. I don't think so. 

mr. PICKETT. I am curious to know whether you anticipate with 

the backlog of proposed additions to the endangered species list 

that you will change in any way the process for making the listings. 

Mr. ROGERS. As far as the Fish and Wildlife Service is concerned, 

as I laid out in the testimony, biology will drive the order in which 

species are considered. The Endangered Species Act is there to protect species, and therefore those that receive our attention first will 

be the ones most in need of the protection. In terms of the process, 

we are placing greater emphasis as we move forward with public 

involvement and, as Rollie Schmitten mentioned, peer review to 

make sure from independent reviewers concurrent with the public 

comment period that the best science, and most up-to-date information is in fact used in the listing process. 

Mr. PICKETT. Did you wish to add something to that, sir? 

Mr. ScHMI'ITEN. Yes, Congressman Pickett, I think some of the 

lessons learned from the recent listings is, first of all, we need a 

more informed public. We need a more involved public, and certainly we need science to guide the decision. There has been a perception, right or wrong, that the ESA activities have been under 

Federal jurisdiction done privately behind closed doors. 

And there is a ten-point policy that the Secretaries of Interior 

and Commerce promulgated, and several things, I think, get at the 

question you are asking. One, involve the other partners, primarily 

the states, early in the process and throughout the process. Two, 

hold multiple public hearings. For the salmon we have now held 23 

public hearings. Improve your science. The credibility of science 
14 

through peer review is something that we have undertaken. And 

finally look for private property incentives, such as programs that 

can bring people along through an incentive process. One of those 

is something Fish and Wildlife established, the habitat conservation plans. This involves a proactive approach that NMFS so thoroughly believes in that we have loaned people to their process to 

be a part of that. HCPs provide a private owner the ability to control their destiny. If a conservation plan is developed that we agree 

to and we are a part of that process, frankly that will either cause 

no listing, or if a listing is in place, we will accept that plan in lieu 

of our plan. 

Mr. PICKETT. What procedures do you have in place to ensure 

that you get a balanced presentation when the evidence is being 

presented in support of listing a species? 

Mr. SCHMITTEN. I think it goes back to the issue of credible 

science. And the commitment for National Marine Fisheries Service 

is that once we have decided which way to go with a proposed listing, we will send that out for independent peer review by three outside experts in this area, whether it is steelhead, whether it is Atlantic salmon or whatever it is, to make sure that we do have good 

independent data in our decision. 

Mr. PICKETT. What criteria do you use in establishing whether 

a species may be endangered in a particular area but there are 

other areas where there is an ample supply of the species? How do 

you handle those types of situations? 

Mr. ROGERS. There are procedures laid out in the Act, criteria 

against which the species status should be measured in order to 

make the determination. There are five factors: First is the present 

or potential destruction, modification or curtailment of the habitat 

in which they live. Second is over-utilization for commercial, scientific or educational purposes. Disease or predation is another factor. Inadequacy of existing regulatory mechanisms is a fourth factor. And finally other natural or man-made factors that may be 

pressing. So these criteria are those against which the population 

status or the status of a species are measured in going through the 

listing process. 

Mr. PICKETT. And is it a part of your procedures or process to 

develop the pros and cons on each one of those characteristics? 

Mr. ROGERS. Yes. 

Mr. PICKETT. And this is made a part of your record? 

Mr. ROGERS. Yes. 

Mr. PICKETT. Do you have any procedure for validating the statements and presentations that are made in support of or in opposition to listings? . Mr. ROGERS. That is the purpose of the peer review process, to 

get independent outside experts to look at the record and validate, 

or not, our determination. 

Mr. PICKETT. Is there an appeal process from the listing or refusal to list? 

Mr. ROGERS. Somebody can correct me if I am wrong, but I do 

not believe there is an appeal process. I know the Congress recently passed a law by which review of major Federal actions occurs within a 60-day period after their enactment. And I suppose 
15 

the Congress could take independent action, but there is not an appeal process as part of the law. 

Mr. PICKE'IT. Thank you. Thank you, Mr. Chairman. 

Mr. POMBO. Mr. Pickett, I believe that in the law that if he refuses to list, you can sue in Federal court on that, if he lists, that 

there is no provision to sue based on that. So that the provision is 

there if Fish and Wildlife refuses to list, that you can then file suit 

on that. 

Mr. ROGERS. Mr. Pombo, I understand that-it was whispered in 

my ear that you can sue either way. 

Mr. POMBO. I believe you are incorrect, because you don't have 

standing to sue. You don't have standing. I don't know how you 

would have standing under the current implementation of the Act 

to sue based on that. 

I was just told by staff that that is going to be a Supreme Court 

case that should come up sometime this summer as to whether or 

not someone has standing to sue based on that, but it has not been 

decided yet. 

Mr. Cooley. 

Mr. COOLEY. Thank you, Mr. Chairman. Mr. Rogers, I have a situation in my State that I would like to ask you some specific questions on. I don't mean to be confrontational but I want to ask these 

questions even though they will seem to be. Does the ESA make 

a distinction between urban and rural areas when it comes to protecting a threatened endangered species? 

Mr. ROGERS. Not to my knowledge. 

Mr. COOLEY. Does the ESA contain any broad stipulations about 

protecting a threatened or endangered species because it resides in 

an area that would not be considered a species natural habitat? 

Mr. ROGERS. I believe it does. 

Mr. COOLEY . Could you explain that to me? 

Mr. ROGERS. The Endangered Species Act focuses on species and 

the habitats in which they occur, principally with reference to 

where they naturally occur. An introduced population is not covered. 

Mr. COOLEY. So you say the species that is in a habitat that they 

are not normally in are affected by a special rule? Do you enforce 

this ESA rule? 

Mr. ROGERS. Only if they have been introduced subject to an experimental, nonessential population rule, such as is being done 

with a number of species. 

Mr. COOLEY. If we had a spotted owl living in a drainpipe, which 

is not their normal habitat, would there be an exclusion to the Endangered Species Rule? 

Mr. ROGERS. I can't answer that. 

Mr. COOLEY. Well, now wait a minute. You just said--

Mr. ROGERS. The birds are protected as individuals against take. 

Their habitat is also protected. If you took down a drainpipe that 

a spotted owl was seen perching on or in, the destruction of that 

habitat without damage, excuse me, the destruction of that drainpipe without damage to that individual owl would be OK. 

Mr. COOLEY. OK. 
16 

Mr. ROGERS. Physical habitat for the owl has certain constituent 

elements that have been described. And it is those constituent elements in the case of an owl. 

Mr. COOLEY. Well, I just used an owl, because I have something 

else. In Portland, Oregon, we have a curious situation. There are 

three nesting pairs of endangered peregrine falcons in Portland. 

One pair is in a building and two are on a bridge. According to the 

U.S. Fish and Wildlife in Portland, unless there is some major 

bridge maintenance or modification, there would be no steps taken 

to protect these falcon because they have obviously acclimated to 

their urban conditions. 

Now if these falcons were nesting in a rural area, a rancher 

would be unable to manage his lands or control insect infestation 

within seven miles of the nest. Let us focus on a pair of endangered 

peregrines that are nesting in the Freemont Bridge, which happens 

to be an interstate highway. This particular nest was home to 

three baby endangered peregrine falcons until Monday, June 3, 

when one of the babies left the nest too early to fly. On Tuesday, 

the 4th, the second baby also left the same nest, even though it 

could not fly. Both of them were severely injured in the fall but are 

being nursed back to health. Still, the U.S. Wildlife Service is not 

going to do anything to protect the only remaining babe in the nest, 

even though they admitted that the first two had been disturbed 

and probably were forced to leave the nest early. 

What could have disturbed these things, the interstate highway, 

the traffic, increased river traffic, a carnival ride brought in by the 

Portland annual Rose Festival? Helicopters were used to land and 

take people on rides. What I would like to ask is how can the Fish 

and Wildlife justify the inconsistent application of the Endangered Species Act to protect an endangered species just because it chose 

to live in an urban area, particularly because these have already 

lost two endangered falcon babies because of lack of protection. If this was in a rural area and it was a farmer or a rancher that 

wanted to move his cattle or anything else across the line, you 

would be down there with the men in black jackets and your M16s shutting the whole area down. And yet we have the same situation in an urban area and nothing is being done. We really feel 

that there is a double standard, and we would like to know where 

the Department stands on that double standard. These are facts 

and we obtained these facts ourselves. 

Mr. ROGERS. I don't know enough about the specifics of this case 

to sit here today and answer it, but we would be more than happy 

to look into it and get back with you either in person or in writing 

subsequent to this hearing. 

Mr. COOLEY. OK, the thing that I am asking is that this doesn't 

need to be answered in a specific case. You as the Acting Director 

know the rules and regulations. If the agricultural or the rural 

communities are forced to adhere to the Endangered Species Act as 

your department has mandated in the past, why is something like 

this not as strictly enforced as the other rules? 

Mr. ROGERS. Your point, I believe, is that regardless of the situation we need to be consistent in application of the law. And I agree 

with that point. In cases where we are not consistent, we need to 

look into it and make sure that everybody understands what we 
17 

are doing and why we are doing it. And so I couldn't agree with 

you more that we need to be consistent and people need to understand. 

Mr. COOLEY. Mr. Rogers, I am trying to put you on the spot, but 

the problem has been seen by many people throughout small communities all over the country and they are afraid. They are terrified of the Fish and Wildlife Service. The inconsistencies of the applications of your law make everybody frightened because it seems 

to be discretionary. It seems like you do one thing in one area and 

something else in another area. I think that the public has a right 

to be frightened. 

We don't certainly have much oversight over you, nor does anybody else. I think that this point here was just to bring up the fact 

that maybe there will be too many people disturbed if you enforce 

the ESA on Portland at the particular bridge. You would run into 

a lot of problems and a lot of public opinion, but if you do it to a 

farmer out there when he is by himself, who cares. I think that 

was the point I wanted to bring out in my question. When we 

worked on the ESA rewrite, we tried to put some common sense 

language and some latitude in this. Of course, we did not achieve 

that, but I think that this is a case in point to where the agency 

itself should take a look at the way they promulgated their regulations to comply with the law. I think you went way beyond the 

original concept of the law itself. 

Mr ROGERS. Your point is well taken that we need to be consistent and people need to understand what we are doing and why we 

are doing it. 

Mr. COOLEY. Thank you, Mr. Chairman. 

Mr. POMBO. Mr. Abercrombie. Mr. ABERCROMBIE. Thank you very much, Mr. Chairman. Mr. 

Rogers, in the material-! don't know whether you have seen the 

material that was passed out by the Committee staff on resources. 

In that material is a list of proposed species in chronological order 

as of April 30, 1996. They propose going back to May of 1991 and 

listing the date that the species was proposed, the status, the common name and the historic range. And it goes up to October of 19-

yes, October of 1995. The overwhelming majority of species listed 

there are in Hawaii. I assume that you are familiar, at least, with 

this list even if you don't actually have it in front of you. It starts 

way back with the addax, gazelle, bighorn sheep, et cetera, listed 

in California, New Mexico. It goes through mostly plants in Hawaii. Are you familiar with the general idea of what I am talking 

about? 

Mr. ROGERS. Yes. Mr. ABERCROMBIE. It would be-l would for the record read into 

the record all the Hawaiian names, Mr. Chairman, but out of deference to yourself and the other members, I won't. I won't ask anybody else to try and pronounce a lot of the names. 

Mr. POMBO. We will include the entire list in the record, and I 

will have you explain to me how to pronounce them later. 

[The information may be found at end of hearing.] 

Mr. ABERCROMBIE. Right. I will just bring up the haha for right 

now, but my point in bringing that up, Mr. Rogers, is-if I can take 

off a little bit or extend a little bit what Mr. Cooley was saying, 
18 

is that to some degree many of the species that are listed in Hawaii, that is to say are proposed, are there because of our isolation. 

They exist there and virtually nowhere else. And in many instances, they are exotic. That is to say if you go back historically 

in Hawaii, many of these species have come in as a result of all 

kinds of things, including the invention of the airplane, the internal combustion engine and steam and sail, commercial activity over 

hundreds of years. And displacing species, both plant and animal, 

that existed in Hawaii previously are in the process right now. So one of the things that bothers me is that some of the rhetorical dialog, if you will, that has taken place, I think, possibly confuses or obfuscates a really essential discussion with respect to 

what Fish and Wildlife will do or not do in deciding whether to list 

something in an area of origination. I am thinking of Senator 

Bivins' statement, I think, about rivers, whether a particular fish, 

for example, was introduced into a river or whether it originated 

in a river. 

These things-my point being that historically point of origin is 

not necessarily the basis upon which a species establishes itself. It 

can be taken various ways, including natural ways. I mean birds, 

lots of things that have been established in Hawaii came as a result of, say, seeds being brought by birds over hundreds, even thousands of miles over the ocean and then deposited in the land in Hawaii, and plant species establish themselves. So my question or the observation I would like you to make is 

with respect to how we might revise the ESA to the degree that 

we do. Is there something that you are contemplating in relation 

to the Endangered Species Act that will move us beyond the rhetorical confrontation? I don't think it does us a lot of good to say that 

people are terrified of the Fish and Wildlife Service. I am not terrified of you, Mr. Rogers. 

Mr. ROGERS. I appreciate that. 

Mr. ABERCROMBIE. And I certainly would invite you to come to 

Hawaii, if we could manage to get anybody to come out there who 

wouldn't be in fear of the Washington Times exposing them for 

coming to one of the states of the union. But I do think that it is 

important to try to take into account a listing, not so much from 

the point of view of consistency, because you could be consistently 

wrong, but rather consistent in the sense of trying to take into account how species arrived where they are, why it is important to 

us as human beings to be respectful of them and their habitat 

other than our own species, and what we can do to try to accommodate both, if possible, without becoming rigidified to the point that 

they become enemies of each other. 

Mr. ROGERS. It is a good statement. Most of the species on the 

list, Hawaiian-all of the species, as far as we know, on the Hawaiian list are naturally occurring. That is within historic times naturally occurring. Mr. ABERCROMBIE. No, I agree. These are, but there are many 

there that aren't, and they compete fiercely with one another forliterally for existence. 

Mr. ROGERS. As a matter of fact, and I have been to Hawaii, and 

it is worth going back to, but one is struck in Hawaii by the beauty 
19 

and diversity of the flora and fauna, but on closer inspection more 

than half of what you see is exotic. 

Mr. ABERCROMBIE. And much of it is destructive in the sense--

Mr. ROGERS. It is that half that has reduced in many instances 

the diversity of what was there originally. We were at a meeting 

yesterday with Senator Akaka, who as you probably know is leading the charge to try to prevent further spread of exotics both to 

Hawaii and elsewhere. And I guess the point is that exotics are in 

fact one of the major causes of endangerment of many of the species we consider today. 

Mr. ABERCROMBIE. If I could just have a moment more, Mr. 

Chairman. I realize the time is up. 

One of the things that happens, and I am sure that Senator 

Bivins would be interested and others, we are-we have been the 

subject of-we in Hawaii have been the subject in some instances 

of what, I guess, some people think is hilarious commentary about 

trying to prevent the brown tree snake from being established in 

Hawaii. And it is deadly serious business, and I use the word deadly because that is exactly what it is. If the brown tree snake is reestablished from other areas in the Pacific like Guam and gets 

loose in Hawaii, we will-there won't be a bird alive. Every living 

creature aside from human beings is in danger of being eliminated 

totally. A kind of animal version of a holocaust will occur. Everything will be destroyed. And so we try to prevent that. I mean, it 

is a very, very difficult proposition. I suppose the brown tree snake 

is indigenous someplace and might qualify. 

I am not trying to get the equivalent in Texas or elsewhere, but 

what I am trying to drive at is that-and this is in relation to trying to revise it, Mr. Chairman, the Act, in what has been termed 

a sensible way or common sense way. What I am trying to get at 

is that what we need to do, it seems to me, is to try and determine 

where we have urbanized, where we have a rural area that may 

be in competition, speaking in terms of habitat, with other species 

and try to figure out a way where we can accommodate both the 

species and the species other than human in the various habitats 

that we have established, generally under this rule an urban category. And I guess suburban now, somehow we have to try and fit 

that in. And I have an idea that that comes in more often than not. 

And so I don't envy the Chairman his task here in trying to do 

this, but I appeal to you not to be inhibited by some of the more 

inflated rhetoric that might come around this that the press seizes 

on, but rather that the emotions expressed and the fears expressed-! don't mean fears in a terrified sense, but fears in the 

anxiety sense. Suggestions could be made, I hope, coming from Fish 

and Wildlife where we can arrive at a consensus that will benefit 

all the species given the context that we are in in contemporary 

times. 

Mr. ROGERS. Agreed. 

Mr. ABERCROMBIE. Thank you, Mr. Chairman. 

Mr. POMBO. Thank you. Mrs. Chenoweth. 

Mrs. CHENOWETH. Thank you, Mr. Chairman. I found the gentleman from Hawaii's comments very interesting. I think that with 

information we have been provided that Hawaii has 222 listed spe-
20 

cies and 708 candidate species compared to Alaska's five listed spe- cies and candidate species of 45, I can see your concern. 

Mr. Rogers, back in 1990 the Inspector General of the Department of Interior estimated that the cost of recovering all presently 

known species would be at $4.6 billion. And that was using a figure 

that would calibrate out to $2 million per species. The top ten most 

expensive recovery plans include, instead of $2 million per species, 

the Atlantic green turtle at $88 million, a loggerhead turtle at $86 

million, the blunt-nosed leopard lizard at $70 million, Camp Riddle 

sea turtle at $63 million, the black-capped vireo at $53 million. 

And we have a statement in here from Michael Bean of the Environmental Defense Fund. In spite of all of this money that has 

been spent, Michael Bean of the Environmental Defense Fund says 

despite nearly a quarter century of protection as an endangered 

species, the red-cockaded woodpecker is closer to extinction today 

than it was a quarter of a century ago when it was-when the protection began. 

A quarter of a century ago. Why haven't we been able to reach 

a conclusion with some of these species in spite of all of the money 

that has been spent? Why have we not been able to recover and 

come to a conclusion and let America get on with its business? 

Mr. RoGERS. There are a number of answers to the general question. One could say maybe we haven't made good on our commitment that was made when the species were listed to try to do what 

could be done to recover them. I can't discuss all those expenses or 

that report, but I do know that the red-cockaded woodpecker today 

is one of the outstanding success stories in the Southeastern United States. Timber company after timber company has lined up and 

joined with us in habitat conservation plans so that the redcockaded woodpecker, while maybe not ready for delisting at this 

point, is in good shape and is expanding its current range because 

of the efforts of all of us. That, just by example, demonstrates that 

with the appropriate incentives and appropriate commitment we 

can do it. 

Mrs. CHENOWETH. So actually what you are reporting to the 

Committee, then, in answer to my question is that working with 

private landowners on a voluntary basis without condemning their 

land has worked better than the taking of land for critical habitats 

in the past? 

Mr. RoGERS. What I am saying is that if all of us work together 

and are committed to accomplishing our day-to-day activities while 

at the same time doing them in a manner that is sensitive to the 

needs of endangered species, we can do it. The Fish and Wildlife 

Service, the Department of Interior and the Federal Government, 

the State of Idaho, the local county, the private landowners therenone of us alone can do it. Together, if folks are really interested 

in sitting down, it can be done, and there are examples. 

Mrs. CHENOWETH. The interesting thing about the Inspector 

General's report in 1990 is that it was only six-it is only six years 

old today, and at that time he was assuming a $2 million per species cost. And we are seeing hundreds of millions of dollars, billions 

of dollars. 

Following up on the Chairman's question with regards to standing, the Ninth Circuit Court of Appeals in two cases, one entitled 
21 

Plenart v. Bennett and the other entitled Nevada Land Association 

v. U.S. Forest Service, the Ninth Circuit Court of Appeals has said 

that they don't believe that Congress in setting forth the factors to 

be weighed, including economics, in formulating a plan for protecting species meant that-they say that Congress intended to do 

more than to assure and insure a rational decisionmaking process. 

Tell me, Mr. Rogers, do you believe that in addition to the species having standing in court automatically, do you believe that 

human beings should also have standing in court if they are impacted directly, such as an economic impact regarding their ability 

to make a living or their private property? Do you or do you not 

believe humans should have standing? 

Mr. ROGERS. Humans are part of the total equation, yes. 

Mrs. CHENOWETH. So you believeMr. ROGERS. Equal standing in court-! can't begin to address 

that as I am not a lawyer. We can get back to you with the answer, 

or with the indulgence of the Committee, I could ask John Leshy, 

the departmental solicitor, to address that. 

Mrs. CHENOWETH. I would be happy to listen to whomever you 

want, but you are Acting Director. I know under the circumstances, 

by the way, it is not pleasant and our hearts go out to Mrs. Beattie, 

too. She is a remarkable woman and I am sorry that you are appearing as the Acting Director under those circumstances. But I 

wonder if you could provide the Committee with an answer for not 

only the Department but the Administration, taking into consideration the whole body of law that has gone before in this country? 

Should humans have standing in court or in assumed damage? 

Mr. ROGERS. John. 

Mr. LESHY. Mr. Chairman, Congresswoman Chenoweth, I would 

be happy to get back to you. The case you quoted from is actually 

in the Supreme Court now and the United States is in the process, 

literally as we speak, of putting together a brief on that issue. It 

should be filed within a couple of weeks. And after that is filed, I 

would be happy to get back to you with detailed information. Mrs. CHENOWETH. You know, there is--

Mr. POMBO. If the gentlewoman would yield for just a minute. 

Mrs. CHENOWETH. Yes. 

Mr. POMBO. You need to identify yourself for the record so that 

they know who said that. 

Mr. LESHY. I am sorry. I am John Leshy, the Solicitor, Department of Interior, Mr. Chairman. 

Mr. POMBO. Thank you. 

Mrs. CHENOWETH. Thank you, Mr. Chairman. Mr. Chairman, 

with your indulgence I would like to ask Mr. Leshy further. You 

know, you are not only known within the Department, but all over 

the Nation as being a very bright lawyer. You have studied law 

very well. And I just want to know-I mean, we don't-lots of times 

we react to the Supreme Court decisions. Sometimes we don't. Your 

department doesn't always react to the Supreme Court decisions 

with regards to the taking of property. I just want to know what 

your opinion would be. I mean, I am asking you a direct question, 

what your opinion would be. Should humans have standing in any 

case when-including the Endangered Species Act or more specifically in the Endangered Species Act along with species? That 
22 

doesn't mean excluding species. It means if-1 mean, the courts 

have always been open if someone alleges that they have been 

damaged. The courts have always been open in the past. 

Mr. LESHY. Mr. Chairman, Congresswoman Chenoweth, of 

course, we believe very deeply in judicial review. We think the decisions that the Department and all of its agencies make ought to be 

subject to scrutiny in the courts. The rules of standing are very 

technical and very complex in the case that you mentioned, Bennett 

versus Plenart. One of the problems was that only the Fish and 

Wildlife Service was named as the defendant in that case and not 

the agency that actually took the action in implementing the biological opinion, the Bureau of Reclamation. So there is a particular 

technical problem in that case which poses some complexity in 

terms of formulating a position, but in general there is no doubt 

that we believe strongly in judicial review. We want our decisions 

to hold up to scrutiny. We don't mind the courts looking at them 

in the proper case where the proper plaintiffs are there that meet 

the constitutional standards for standing. 

Mrs. CHENOWETH. Mr. Leshy, you sound like a very good lawyer, 

but you haven't answered my question. Now, the plaintiffs were 

two irrigation districts and two ranchers. 

Mr. LESHY. Right. 

Mrs. CHENOWETH. If-do the ranchers and the irrigation districts, in your opinion, do they have open access to the courts to 

allege the damages that have occurred? Shouldn't they have open 

access to our court system along with the endangered species? 

Mr. LESHY. Well, the Supreme Court has long said that you have 

to meet certain tests of injury in order to go into court. And the 

Supreme Court in recent years has tightened up those rules and 

made it a little more difficult to get into court. We obviously have 

an obligation to follow the Constitution and the rules that have 

been laid down by the Court on standing. And in the proper case 

we have been reminded by the courts many times that, if these 

plaintiffs are not the proper plaintiffs or have not made the proper 

allegations, then they shouldn't be there. So you have to go ultimately on a case-by-case basis. 

Mrs. CHENOWETH. Mr. Leshy, in the case of Bennett v. Plenert, 

of course, the court ruled that these plaintiffs were outside the 

zone of interest, but until Bennett v. Plenert, and some of the cases 

that may have come up under the Clean Water Act, I am not sure 

about that, but primarily the load of case law that has come down 

with regards to a person being able to allege damages for recovery 

purposes has laid out certain standards. The Supreme Court and 

almost every other court have laid out certain standards that have 

to be met for recovery. But I have got to say, and I am sure you 

would have to agree with me in all honesty, it is highly unusual 

to apply those standards for standing that have been applied historically for damages. There is such a clear difference there. 

Mr. LESHY. There are two different kinds of lawsuits, I think, 

that we are talking about. One is a lawsuit such as Bennett that 

challenges an agency action carried out under the Endangered Species Act as being wrong, inconsistent with the statute. There is a 

separate kind of lawsuit where property owners can go to the Court 

of Federal Claims and claim compensation for loss of property 
23 

under our constitutional taking standard. And the standing rules 

for those two different lawsuits are or can be different. So we have 

to, again, be specific about the kind of case we are talking about. The Supreme Court, in the Bennett case where they have already 

granted review, will certainly, we hope, provide a lot more guidance 

in this area and lay down some rules that we will obviously follow. 

So we welcome the review of the court in that case to clarify these 

kinds of rules. 

Mrs. CHENOWETH. But in the short run, what you are telling me 

in plain old rancher language from Idaho is that you are not going 

to answer my question, right? 

Mr. LESHY. Well, I am sorry. I thought I did. 

Mrs. CHENOWETH. OK. 

Mr. LEsHY. A£, I said, I think the best thing for us to do is to 

get back to you in writing after we have filed the brief in Bennett 

and we can address both the Chairman's questions and your question. 

Mrs. CHENOWETH. Thank you, Mr. Leshy. And, Mr. Chairman, I 

just have one more comment. And that was the gentleman from 

Hawaii was talking about the fact that the brown tree snake would 

be terrible if it were introduced. It would cause terrible damage if 

it were introduced in Hawaii, and I know now they are trying to 

preserve its status as endangered or impose an endangered status 

on the brown tree snake in Guam, but that is the same thing that 

we in Idaho face, not with a snake, but with the grizzly bear. The 

same ramifications are occurring. And even though this Congress 

has reduced funding, our states have said no, we don't want any 

more grizzly bears in Idaho, we still continue to get them. And I 

think it is that kind of program that creates not the good working 

relationships that could be worked out as Mr. Saxton had mentioned in his questioning and as was brought up with the redcockaded woodpecker incident. And I hope in the future that we 

can see a lessening of those adversarial situations. Thank you, Mr. 

Chairman. 

Mr. POMBO. Thank you. Mr. Kildee is next, but just for a brief 

moment I will yield to Mr. Saxton. Mr. SAXTON. I am sorry. Let Mr. Kildee go first. I didn't realize 

you wereMr. K.ILDEE. Thank you, Mr. Chairman. I apologize for not being 

here at the beginning of the hearing. I had another meeting. But 

I will make a comment, not so much directly on the Endangered 

Species Act, but like Representative Abercrombie I am not terrified 

of the U.S. Fish and Wildlife Service. Your office in Lansing, Michigan, to my mind, has worked very well and very sensitively with 

local government and with the business community in Lapeer, 

Michigan, in a very, very important project regarding wetlands. And I was really very impressed with your people out there. I think 

they-we pass the laws here and you enforce the laws. And I was 

really impressed with their knowledge of the laws and their sensitive regard to the local government there, the city of Lapeer, and 

the local business community. 

So my own experience with U.S. Fish and Wildlife Service has 

been a very positive one through the years, and one just in the last 

couple months, very, very impressed with-these are people who 
24 

are balanced. They have the law to follow and they try to do it in 

a way that takes into account the considerations of the local unit 

of government and the local business community. In this instance 

I think it was a great page out of the U.S. Fish and Wildlife Service, which I think there are many pages like that. 

I just wanted to bring that to your attention. 

Mr. ROGERS. Thank you very much. 

Mr. KILDEE. That is all, Mr. Chairman. 

Mr. POMBO. Mr. Saxton. 

Mr. SAXTON. Mr. Rogers, the information that we have here indicates that in April you were provided with about $4 million for 

your agency to carry out the listing process. In Fiscal Year '95, the 

appropriation, I believe, was $8 million for 12 months. My understanding is that the appropriators are looking at a $5 million appropriation for Fiscal Year '97. 

Question number one, did you have adequate funding in '95 and 

'96? And do you believe that if it is a $5 million appropriation, you 

will have adequate funding for '97 for the listing program? Those 

are questions one and two. Question three is if not, what effect 

does that have on the listing process and specifically what effect 

does it have on our constituents who may be in favor of a good scientific approach to listing? 

Mr. ROGERS. Let me see if I can remember all these properly so 

that I can address them. First of all, in 1995 we had initial appropriation of $8 million. That was reduced by a million and a half 

during the recision in April at the same time the moratorium came 

along. It is correct in '96 we have as of April a $4 million appropriation and the President's budget requested $7-1/2 million in '97. 

And the House so far has recommended an appropriation of $5 million. 

We believe that with the appropriation of $4 million this year, 

we can make a very good start at getting out of the backlog that 

we face and may be able to list, if numbers themselves are important, as many as 140 of the 242-make decisions, excuse me, on as 

many as 140 of the 242 proposed species. Because the workload is 

concentrated variably across the country, and there is in California 

and Hawaii a preponderance of workload. The backlog will clear up 

less swiftly there than elsewhere, so we ought to be able to begin, 

very closely on or about the beginning of next fiscal year, a more 

balanced program across the country. We would not be able to 

make the expeditious progress that we might have in light of the 

fact that the appropriation so far recommended is two-thirds of 

what the President's budget requested. So we might in fact, excuse 

me, get to some of the Tier 3 activities a little later than we might 

with the full appropriation. 

Mr. SAXTON. Let me just follow up by asking if it would be fair 

to say that your representation is that $5 million probably won't 

be enough to do the kind of a job that you would like to do for Fiscal Year '97, and that you might not be able, therefore, to get to 

the Tier 3 issues that are obviously important to some of our constituents, particularly in the area of delisting? What does it do 

when you don't have the money? Do you cut back on the science 

that you do when listing species? 

Mr. ROGERS. We cut back on--
25 

Mr. SAXTON. Where do you cut back? 

Mr. RoGERS. We cut back on the pace. We just don't have theresources to do-respond to every petition appropriately. We don't 

have the resources to do the full job that needs to be done on each 

species. And additionally, it is difficult, probably impossible, to say, 

since we have been in business for about six weeks, it is difficult 

at this time to say really what we will face in October after we 

have got the listing program back up and essentially full speed for 

six months. But it is possible that some of those Tier 3 activities 

won't get done or at least won't get completed. Mr. SAXTON. We may differ here on the Committee about pace 

that we would like to see you proceed to list. I would be in favor 

of the normal pace. Others here may be in favor of a slower pace, 

but what we all, I think, have in common is that we want you to 

make good decisions. And I am trying to find out from you what 

too little money makes in terms of the right and good decisions. 

Mr. ROGERS. We will make good decisions. We will make fewer 

of them. Mr. SAXTON. Thank you. 

Mr. ROGERS. Fewer total decisions. 

Mr. SAXTON. Thank you. 

Mr. POMBO. Well, thank you. I had a few questions. I will start 

off with Mr. Rogers. One of the issues in answering questions that 

you responded to was on the Balcones Conservation Plan. It is my 

understanding, if my memory is correct, that is about less than two 

months since that has been signed in. I believe it has been about 

a month, but it has been less than two months since that has been 

signed. The latest report-and you say that the Golden-cheeked 

warbler is one of the success stories or the positive things that has 

happened. The latest report that we have received from Fish and 

Wildlife, that Congress has received from Fish and Wildlife, lists 

the Golden-cheeked warbler as a declining species. 

And the Balcones plan that you referred to has a cost of approximately $100 million in order to implement that. It has not been 

raised yet and you don't have-! know that I spent some time in 

that part of Texas. I can tell you that the ranchers down there are 

terrified. They are afraid. They think that they are going to lose 

their ranch. I am glad that Mr. Kildee and Mr. Abercrombie have 

not had constituents approach them with the same fears that many 

of us have, and I am glad that is working in your part of the world. In a large part of this country it is not. These people are afraid. And with the Golden-cheeked warbler, in specific, you list it as 

a declining species, not as a success. With the red-cockaded woodpecker, you also list that as a declining species and not as a success. Quite frankly, many people on both sides of this debate over 

the past couple of years have listed the red-cockaded woodpecker 

as one of the very real problems that exist under the current implementation of the Act because of the loss of habitat as a result of 

the way the Act is being implemented. Many people say that that 

is the perfect example of one of the major downfalls of the Act and 

the way it is being implemented, because that fear is very real. 

Whether it-whether you believe it is accurate or justified or 

whether we believe that it is accurate or justified really doesn't 
26 

matter, because the people out who are being regulated by this Act 

believe it is very real and justified. Another issue that I wanted to respond to that came up earlier 

in the questions was you talked about saving habitat versus numbers of species. I believe it was in response to Mr. Saxton the first 

time around. If you don't have numbers, if you don't say that we 

need X number of grizzly bears in order to delist it, what would 

you do? What would you say, that we need so many acres of habitat? 

Mr. ROGERS. I can't respond to that question with specific-specifically to the grizzly bear because--

Mr. POMBO. Well, not specifically the grizzly bear. I was just 

using that generically. 

Mr. ROGERS. Assuming that the species was not subject to a considerable amount of the other five-four of the other five factors, 

that is take, disease predation, competition, et cetera, if the only 

factor was habitat, you could measure the needs of the species in 

terms of acres of habitat with the constituent element, whatever 

elements of the habitat are necessary for the survival of the species. So, yes, it could be done. 

Mr. POMBO. OK, if that were the case-in my part of California 

there are a number of listed species. One of the issues that has 

been brought up by Fish and Wildlife was that habitat was destroyed in order to develop farming lands and cities within the 

Central Valley. If you need to increase the number of acres-if it 

is not numbers it is acres or it is habitat, would you then propose 

that we set aside so many acres of farm land, that we not allow 

cities to grow or that we take back the habitat that had been developed into suburbs? How would you go about doing that? 

Mr. ROGERS. I understand that particularly in heavily occupied 

areas that are under heavy agriculture that the presence of habitat 

for various species is one of the principal problems for the species 

of interest. And it is certainly possible, and as I am sure you know 

with the habitat conservation planning efforts going on in California, that it is possible through the process to identify the needs of 

the species and also identify ways that those needs in terms of 

habitat appropriately managed are provided through the process. 

And I understand that habitat needs can .be portrayed as no 

growth statements by those who would be, maybe, opposed to endangered species, but I will still say in general where local governments and our folks have sat down in a free and open atmosphere 

with a willingness of people to work together to conserve both the 

species while allowing the development activities or agriculture activities to go ahead, it can generally be done. It is not always easy. 

Mr. POMBO. I understand the line that you are proceeding down 

and I have probably spent as much or more time than anyone in 

this room, but the question specifically was if it is no longer numbers and it is habitat-they claim that species have been put on 

the list because of a loss of habitat in the Central Valley of California because the habitat was-is now being farmed under irrigated 

agriculture, whereas before it was not irrigated, therefore they 

have lost farm land-they have lost habitat. If we are going to recover that habitat, does that necessarily mean that there are areas 

that are currently being farmed that will not be farmed? 
27 

Mr. ROGERS. That is possible, and it is really one of the elements 

of the safe harbor policy that I had discussed earlier. And the--

Mr. POMBO. No, that is not necessarily a safe harbor policy. The 

safe harbor policy deals with if I am farming and I create a situation which will attract endangered species to my property, that I 

don't necessarily lose that. What we are talking about here is the 

idea that we will take lands which are currently in production and 

try to go back in time and put them back to a habitat situation in 

which they were 150 years ago before they began to farm. And 

there is a big difference between those two. I think that the safe 

harbor provision is a great idea, and I think that that is a positive 

step. But what we are specifically talking about with the difference 

between protecting species and protecting habitat is much more far 

reaching. And it is a very different concept that we do need to gothat we do need to talk about, because if that is what we are going 

to do, the implications are very immense, especially in a part of the 

country like mine. 

You are talking about areas that have been farmed for many 

generations that because of an action taken under the Endangered 

Species Act will no longer be farmed. And then we will get-then 

we will definitely get into a discussion on how are you going to pay 

for this land and how are you going to do that. You know, you have 

been able to operate by telling developers that they have to pay 

into a fund, but we are not talking about that anymore if you start 

doing it this way. So it is very different. There is a couple other things that-other paths that I wanted 

to follow. One in particular, you talk about delistings being priority 

number three on your list, and yet June 14 you delisted the Lloyds 

hedgehog cactus, which in the Southwest you delisted that as being 

an endangered-well, at least that is when it appeared in the Federal Register. It is my understanding from the limited time that 

I have had to look into this that there was little or no controversy 

really surrounding this particular plant species on the Endangered 

Species List, that there was very little economic or social impact 

that had occurred in that region of the country because of this, that 

it was not a high visibility species, so to speak. Why do-with limited funding that you keep talking about, with 

limited personnel that you keep talking about, why would you 

choose to spend agency personnel, agency money, looking into 

delisting a species that has resulted in very little or no conflict? At 

the same time, we have other species which have caused very high 

conflict that have resulted in the science that the agency uses 

being challenged, lawsuits being filed, general plans being held up 

in court. A lot of things are happening on some other species and 

you have chosen not to even look at those. You don't have the 

money, the time, the personnel to touch those, but on one like this 

which seems to me, at least in the amount of time I have had to 

look into this, that there has been little or no conflict over this particular listing. Mr. ROGERS. First off, the decision to move or not move with that 

cactus package didn't have anything to do with controversy. Second, this was a completed package that was sitting in Washington, 

D.C. , at the time the moratorium was lifted. All it meant was picking it up and taking it to the Federal Register. So that was 
28 

moved because it was sitting there ready to be moved. It would 

have probably not b( 1 the right thing to do to have done anything 

more with it. Unfortunately, most of the other actions that we are 

anticipating taking are considerably more complex and are going to 

require review by the biologists, sometimes peer review,_ sometimes 

opening public comment periods. And to make sure that we are, in 

response to Mr. Saxton's question, making good decisions, it is 

going to take more time. But the fact or not of controversy is not 

weighing into our decisions. 

Mr. POMBO. So this one was all ready to go. You did not have 

to expend any agency funds on this one? 

Mr. ROGERS. Other than Federal Register costs, which are 

minimal. 

Mr. POMBO. This was done on June 14. The listing was lifted 

April 26. So in a two-month time span you did nothing with this 

at all? 

Mr. ROGERS. To my knowledge--

Mr. POMBO. You just took it down there. In response to your 

statement, it seems to me like the ones that are controversial and 

have caused a great deal of conflict, that those would take some 

type of priority. I am not asking you not to do good science. That 

is one of the arguments I have had with you guys is that I think 

you ought to do good science, but there should be some priority in 

trying to resolve some of the most contentious issues. 

Mr. ROGERS. I can understand how you might feel that way 

about certain species from California, and I am sure others would 

have their feelings. We have, and I believe appropriately, established our priorities based on the magnitude and immediacy of the 

threats to the species and thus their need for protection under the 

Act, not the controversy that would be generated by them, nor the 

preferences of litigants or others. Because, I mean, I have this kind 

of apocalyptic vision with 242 proposed species that we end up with 

242 judges sitting around deciding which one will be listed first. I 

don't think that would serve any of us well, and we are trying to 

make decisions based on biology and nothing else. 

Mr. POMBO. I can understand that. The people involved are secondary. You have got your priorities that you have put down, and 

I can understand that that is the attitude that the agency takes. 

At the same time, I know that there has been a delisting petition 

that has been filed on the fairy shrimp in California, and yet the 

agency is continuing with establishing a recovery plan. They are 

spending money on that side of it at the same time that if and 

when you ever get around to priority number three, which is looking at delisting, you may delist that species. In the meantime, 

there have been funds expended by the agency, there has been time 

and effort expended by the agency on a recovery plan, and countless millions of dollars that have been spent by the private sector 

as a direct result of that listing. And it is my opinion that that very 

well will be delisted if you ever get around to looking at it. 

Mr. ROGERS. I can't speak to whether or not it will be delisted, 

but the rather strange set of circumstances that you raise with respect to developing recovery actions under the recovery part of the 

Endangered Species Act without dealing with-without being able 

to do anything about it under the listing activity is just one of the 
29 

things that I think, it is not an artifact, it is direct consequence of 

the moratorium and the fact that we were not able to do our job 

for the last year on the listing program. SoMr. POMBO. The moratorium--

Mr. ROGERS. It would have been less responsive-excuse me, less 

responsible not to do anything about recovery than it would be to 

have begun to look at the recovery activity. 

Mr. POMBO. Even if the species is truly not endangered? 

Mr. ROGERS. We don't have any information that we have evaluated to allow us to come to that decision yet. 

Mr. POMBO. No, that is-I guess that is my point. Maybe you 

ought to evaluate the science that is in front of you before you expend more money on that. Mr. ROGERS. We will do that as we reach it in its appropriate 

priority. 

Mr. POMBO. Well, my time has expired long ago. Mr. Thornberry 

had another question. Mr. Thornberry. 

Mr. THORNBERRY. Mr. Chairman, as I listened to Mr. 

Abercrombie's situation, as I listened about the grizzly bears in 

Idaho, it-I come back to a deep anxiety about whether at a Federal level we are every going to make this thing work and deal 

with all of the individual situations. Senator Bivins commented 

earlier that perhaps we might decouple, in a way, and that is have 

the Federal Government list something but leave it up to the states 

to do something about it. 

We talked about the Swift fox situation earlier. I would like to 

ask Senator Bivins at least in our State can you evaluate the ability and the willingness of the State to address these problems. Can 

we handle it or is this something only the Federal Government can 

do? And is this a situation where the people, at least in our State, 

are-don't care too much about it? 

Mr. BIVINS. I think there are two questions there. The first one, 

I think the Swift fox protection initiative demonstrates clearly that 

A, the State is interested, and B, they can handle it. We have biolo- gists on staff in Texas Parks and Wildlife and they are out there 

on the ground in far greater numbers than Federal employees in 

the State. So I think clearly they can handle it. I think that ought 

to be a part in a reauthorized ESA that focuses more on groups of 

species and ecosystems than taking a rifle shot at each species. 

And that gets me to the second part of your question about do people care. You know, we have heard a lot of talk about steelhead, 

Atlantic salmon, grizzly bear, Peregrine falcons, but we haven't 

heard talk about the Texas blind salamander or the Cornell Springs 

ripple beetle or the Sacramento orcutt grass. 

I don't think these were the species that were in people's minds 

when this Act was originally passed. I think these guys were doing 

their job, but I think the situation we have gotten ourselves into 

is much-is analogous to the Delaney Clause, which is part of 

the-! think it is in the health department, but the clause said we 

can't-we will not allow to add additives to food products that could 

potentially cause cancer. And at the time that that was put into 

Federal law, we had the technology to discover parts per million. 

We now have the technology to discover parts per billion, and yet 

the Delaney Clause is still law. 

26-566 0 - 96 - 2 
30 

I think a similar thing has happened with endangered species. 

At the time the level of ecological science was not nearly where it 

is today. And I think unless we act and do something, that we are 

going to be in an analogous situation where we have painted ourselves into a corner and these guys are still just doing their job. 

So I don't think that people care. A lot of times that care is misguided. If a species is as significant as the brown tree snake, it 

needs-we need to pay attention to it, but if it has less significance-if you can't tell the difference between a Red River shiner 

and an Arkansas River shiner, maybe we need to prioritize and direct these guys to do that so that they are not creating these very 

frustrating situations. 

Mr. THORNBERRY. I think that goes back to your point, Mr. 

Chairman. Thank you. 

Mr. POMBO. Thank you. Mr. Rogers, I had one final question. It 

is a question that the Chairman had wanted to ask. According to the Idaho Statesman, and I have a copy of the article here that ran Monday, June 24. 

[The information may be found at end of hearing.] 

Mr. POMBO. An environmental group called the Biodiversity 

Legal Foundation is suing the Fish and Wildlife Service over its recent change in how species are designated as candidate species. 

The new policy reduced the pending candidate list by magic from 

almost 4000 down to 260. This group claims that this is part of the 

Administration's effort to make the ESA more politically palatable. 

It is possible that the Administration is currently considering the 

political implications of how the ESA is used and that this suit 

may result in the reversal of your candidate species policy sometime later in the year. 

How would you respond to that? 

Mr. RoGERS. First, I would respond by saying that the new candidate policy recognized the application of good biology and sound 

science to the candidate list. Second, I would say that there may 

be somebody somewhere who is worrying about the political implications of implementing the Endangered Species Act, but the Fish 

and Wildlife Service is looking at the biological implications of implementing it. 

And in terms of the specifics, in terms of that lawsuit, we disagree very firmly with the assertions that have been made by the 

Biodiversity Legal Foundation and will carry that as far as it needs 

to go to make our point. 

And I just want one point that is off of your question. I want to 

clear up the record. The brown tree snake, the only way it is related to the Endangered Species Act is that it is a cause of the 

endangerment of a number of species. We-the National Biological 

Service and others-are currently looking at ways to eradicate the 

brown tree snake, not create more. 

Mr. POMBO. I realize that earlier someone had mentioned something about the brown tree snake being on the endangered list, and 

of course it is not. It has taken over the island of Guam, or the islands, and is causing havoc in that area. And I think that all of 

us on the Committee would probably be in full support of reversing 

that trend because of the havoc that it is causing down there. 
31 

I would like to thank the panel for your answering the questions, 

for your testimony. I realize that we kept you a long time, but if 

you do not have another meeting that you have to run off to, I 

would appreciate it if someone from the Service would stay so that 

we could ask questions that may come up in the next panel. So I 

would appreciate that. Thank you. 

I would like to call up the next panel: Mr. Steve Paulson, Mr. 

Eric Glitzenstein, Mr. Robin Rivett and Mr. Dennis Hollingsworth. 

Thank you very much. I appreciate you waiting. 

Mr. Paulson, if you are prepared, you may begin. Thank you. Mr. PAULSON. Thank you for having me. Good morning, my name 

is Steve Paulson. I am an environmental consultant with a company called SWCA that does work around the West with endangered species. 

Mr. PoMBO. Just pull it close to you. 

Mr. PAULSON. OK. Good morning again. My name is Steve 

Paulson. I am an environmental consultant and we deal with endangered species issues all over the West. Thank you very much. 

I am here today representing the National Association of Home 

Builders and some of their opinions. I am here representing them 

for two reasons. 

Can you hear me now? 

Mr. POMBO. Just switch his mike and we can start his time over 

again. 

STATEMENT OF STEVE PAULSON, NATIONAL ASSOCIATION OF 

HOME BUILDERS 

Mr. PAULSON. Hi again. My name is Steve Paulson. Good morning. I am an environmental consultant with an environmental consulting firm called SWCA. We do endangered species work all over 

the West and in Texas. I live in Austin, Texas. I am here today 

representing the National Association of Home Builders. I am here 

for a couple of reasons. First, I have an extensive knowledge and 

hands-on experience with endangered species issues. I have done 

many habitat conservation plans, et cetera. Secondly, I have been 

working for the last couple of years with a working group for the 

National Association dealing with the Endangered Species Act and 

trying to come up with good, solid, consistent recommendations regarding the reauthorization of the Endangered Species Act. 

I want to say first that I believe that the listing process which 

we are here to discuss today is the vulnerable underbelly of the Endangered Species Act, and currently controversial decisions regarding listings taint many of these decisions. Until Congress and Fish 

and Wildlife Service can design a listing process that is based on 

sound and reliable scientific information with consistent, carefully 

established guidelines, the entire Act will be vulnerable to attack 

from all sides. It will continue to be controversial. 

The listing of the Golden-cheeked warbler in Central Texas is a 

bird that-a migratory bird that nests in Central Texas in the 

springtime, illustrates some of the flaws of the process. It was listed in 1990. I want to point out the Act's language is insufficient 

to guide Fish and Wildlife Service in their listing. Accordingly, the 

Agency routinely renders questionable listing decisions with little 
32 

basis in science. The listing process also does not provide adequate 

public notice of participation opportunities. 

Now I will go through the problem with the Golden-cheeked warbler. Basically what happened, in 1990 through Section 6 money 

Fish and Wildlife had funded Parks and Wildlife to do a study. A 

researcher for Texas Parks and Wildlife named Rex Wahl and various associates were doing the study. That study was not released 

to the public until the listing process was actually completed and 

they had actually listed the species. Also the Wahl report was 

based on information stating that fragmentation and habitat loss 

was the number one cause for endangerment of the species. 

They did not contact or if they did they spent about ten minutes 

with what is the renowned expert on the Golden-cheeked warbler, 

a Mr. Warren Pulich, who spent about 30 years dealing with the 

warbler. Basically the warbler was his life. Dr. Pulich wrote a letter to Fish and Wildlife Service during the review of some of the 

comments that came on later after the species was listed, and basically called into question some of those assumptions used by Wahl. 

He said that unless you ground truth or go out in the field and test 

these assumptions, these are just assumptions. 

Unbeknownst to a lot of people, Fish and Wildlife had commissioned a study by Dr. Robert Benson. Dr. Benson was an A&M, 

Texas A&M professor. He went out and looked at the assumptions 

by Wahl and went to ground truth them. His data ran counter to 

the Wahl report and basically undermined a lot of the assumptions 

and opinions used by Wahl and by Fish and Wildlife in listing the 

species. This report, however, did not see the light of day and to 

this day it is still in draft form and not used by Fish and Wildlife 

in any of its determinations. 

The listing of the warbler also exemplifies also how the public, 

especially landowners, are excluded from the decisionmaking process. The Wahl study used by Fish and Wildlife to justify the listing, 

as I pointed out earlier, was not available to the general public 

prior either to the emergency or the proposed rule, despite the fact 

that the study was funded by Section 6 money, which came from 

Fish and Wildlife Service. However, several members of the Bio- logical Advisory Team for the Balcones Canyonlands Conservation 

Plan, including representatives of environmental organizations, 

had the opportunity to read the report. 

Although I have focused on the example of the Golden-cheeked 

warbler, there are many more illustrations of the problems of the 

listing process. In Austin alone we face the specious list in the Barton Springs salamander and the procedurally defective and scientifically deficient listing of the karst vertebrates, which are cavedwelling, troglodytic species. 

Congress must ensure that the Act's significant protections are 

extending only to those species which are truly in danger of extinction. There are several means of accomplishing that goal. I have 

three recommendations. First, Congress should direct Fish and 

Wildlife to establish specific criteria for listing species which contains consistently applied guidelines. The first step in this process 

should be to develop a more specific and useful definition of endangered species. As currently written, an endangered species can be 

anything. They described the five things, the threats and the pre-
33 

dation and things like that, that could cause them to list it. These 

definitions are so vague that virtually any species in decline could 

be considered endangered. 

Second, Congress should improve the scientific data upon which 

the listing decisions are made. Petitioners should bear the burden 

of proving that the species is endangered or threatened. Congress 

should require a listing petition that contains substantial scientific 

or commercial data, and further the Act should define specific 

standards and requirement for what constitutes substantial information. And that includes field testing. 

Finally, Congress should open the listing process up to the public 

review and participation. The general public does not read the 

Federal Register, and if you want to get peer review, you include 

the public in the process. You include them up front and you include them at all three phases, the candidate phase, the listing 

process phase and then finally after it is listed if there is any new 

information, that information should be made available to the public. 

I am having difficulty in my work trying to understand why the 

Fish and Wildlife Service can make a lot of information available 

to various environmental groups and that the impacted parties are 

excluded from a lot of this information even through decisions 

under Freedom of Information Act. 

I thank you and I will yield the rest of my time. 

[Statement of Steve Paulson may be found at end of hearing.] 

Mr. POMBO. Thank you. Mr. Glitzenstein. 

STATEMENT OF ERIC GLITZENSTEIN, FUND FOR ANIMALS 

Mr. GLITZENSTEIN. Thank you, Mr. Chairman. I have been asked 

to testify about a lawsuit that I brought on behalf of some organizations. I am-for the record, my name is Eric Glitzenstein. I am 

an attorney in Washington. I have my own firm, but I have represented environmental organizations. And we brought a lawsuit a 

number of years ago and settled it with the Bush Administration. 

And the purpose of that case was to expedite decisions on various 

species considered to be candidates for protection under the Endangered Species Act. And one of the things I just want to stress-! 

go into fair detail in my written testimony about exactly what the 

agreement was about and what it was attempted to accomplish, but 

if we can strive for a point of consensus here, I think one point 

might be that prompt decisions based on good science are in 

everybody's interests. 

And, Representative Chenoweth, you brought up the question as 

to how could it be that we have to spend all this money on these 

species and they are still not doing better than they were before. 

And I think one of the objective reasons everybody would agree on 

is that for a lot of these species it takes so long to get to the point 

of actually doing something about them that they are in such desperate straits that you really have very limited regulatory flexibility by the time the species is dealt with, either by the Federal Government or a habitat conservation plan. 

So I would hope that we could get a consensus that looking at 

a species early enough to look at warning signs, if we don't do 

something about the plight of that species, then it is going to have 
34 

a problem with habitat destruction, whatever it might be, so that 

the agencies and the private parties affected can in fact have more 

options to work out how you can deal with that before you need 

Federal listing and all of these problems that go along with Federal 

listing and some of the perceptions, as well as problems, come into 

play. 

On the other side of the coin, if in fact the species doesn't ultimately require listing, it is also very useful for people in your districts and around the country to know about that earlier rather 

than later. And I think the fear and the anxiety that people have 

talked about is the fear and anxiety of having these species sit 

around as candidates for years if not decades. And I think a lot of 

the time that anxiety builds up over the course of time when we 

don't have decisions. 

And so in that sense what I would hope is that everybody on all 

sides of this debate would look at whether or not actions which 

delay the process, however that process turns out, whether it leads 

to listing or it leads to a decision not to list, i.e., that the species 

can be handled in another way through a habitat conservation 

plan, State action, whatever it might be, that delay in a lot of respects exacerbates everybody's concerns, because it simply means 

that when we get to the point where a decision is necessary, the 

options are that much more limited. And that is one of the reasons, 

I think, if you look at a lot of those cases, why so much money had 

to be spent. Those species were really in pretty desperate straits 

by the time we got to list. 

Now having said that, let me also make the point that there is 

more than one way to impose a moratorium on a Federal agency. 

Obviously you could do it by saying through legislation "thou shalt 

not make any decisions on endangered species." I think that the 

adverse consequences of doing that are fairly apparent at this 

point. It really delayed actions on those species affected by the 

moratorium. . There is another way to impose a moratorium, and the other way 

is to get the Federal agency-we have used the word "terrified," 

and I won't purport to speak about whether or not there are individuals. around the country who fall in that category-but a lot of 

these Federal agency people are terrified by what Congress may do 

on the Endangered Species Act. And I find it rather shocking to sit 

here and listen to Mr. Rogers, for example, say that politics have 

played no role in the listing process. I think any of us who look at 

these species from any vantage point would have to agree that politics is playing an enormous if not the overriding factor in the listing process. 

Attached to my testimony is one rather extraordinary document, 

Attachment 3, which was prepared about a species called The Alexander Archipelago wolf, which is a subspecies of wolf that exists in 

the Tongass National Forest in Alaska. And it reflects a briefing 

that was held among Fish and Wildlife Service biologists. And if 

you look at it, it has got the pros for listing the species and the 

cons for listing the species. Now the pros are that it would be "consistent with our analysis of the five factors in the listing regulations." In other words, it would be required by the law. The con is 

that it would be "least controversial with the age.ncies, industry 
35 

and the Alaskan delegation to Congress" if we didn't list the species. Now they went on and decided not to list the species. And I 

am not going to sit here and argue about whether or not that was 

a scientifically based decision or not, but, you know, this is one of 

those rare documents. You know these things are going on all the 

time. This is one of the rare documents which shows beyond any 

question that political factors have become enormously important 

in all of these decisions. 

Now I personally believe that they shouldn't play a role, but let 

us not sit up here and pretend that we have got this biological 

analysis going on which is dictating the outcome of these decisions. 

Politics, for better or for worse, has become an enormous influence 

on the process. 

Now we talked a moment ago---Mr. Rogers addressed the elimination of the 4000, what are called, "candidate two species." Again, 

if you look at what category two are supposed to do, those were 

supposed to be the warning signs. It was never supposed to be a 

situation where all 4000 of those would make their way onto the 

Endangered Species List. And biologists, and I think even some 

people on the other side of the fence on these issues, said yes, it 

is good for us to know about those category two species. Those are 

the ones which we might catch before we need to get into a Federal 

listing process. But the agency's response was not to say "let us 

continue to monitor those species and figure out how we can reduce 

the anxiety about them." Its response literally was to sweep 4000 

species under the bureaucratic rug, which it did with the stroke of 

a pen, saying we will no longer monitor category two species. And 

now we hear biologists in the Fish and Wildlife Service time and 

again say, "well, previously we had a way of dealing with those 

problems before they got to be extreme, now we don't anymore, we 

will just have to wait until somebody files a listing petition." 

My plea is let us apply good science, but let us also look at the 

reality of what the political football is doing to this process at the 

same time. 

Thank you. 

[Statement of Eric Glitzenstein may be found at end of hearing.] 

Mr. POMBO. Thank you. Mr. Rivett. 

STATEMENT OF ROBIN RIVETT, PACIFIC LEGAL FOUNDATION 

Mr. RIVE'IT. Thank you, Mr. Chairman. On behalf of the Pacific 

Legal Foundation and the Fairy Shrimp Study Group, I appreciate the opportunity to present this testimony today. I am Rob Rivett. I am the Director of the Environmental Law section of Pacific 

Legal Foundation, and I have worked for the last year and a half 

or so with the Fairy Shrimp Study Group as an advisor. And I am 

grateful that you asked us here today to talk about our experiences 

as part of that group and with the administration of Endangered 

Species Act, especially with the listing and the delisting process itself. 

The Fairy Shrimp Study Group is an organization of California 

businesses, statewide associations and individual businesses who 

are organized to reevaluate the endangered status of four listed 

species of California vernal pool shrimp. The group formed at the 

end of 1994 in response to the United States Fish and Wildlife 
36 

Service's listing of three species of fairy shrimp and one species of 

tadpole shrimp as endangered or threatened. Our group suspected, 

as did many members of the scientific community, that at the time 

of listing at least two of these four species were not endangered. 

And our principal task was to gather more information, and if our 

suspicions were correct, share the information with the Fish and 

Wildlife Service, and if needed, initiate delisting petition. 

As a result of the effort, the Fairy Shrimp Study Group did file 

a delisting petition on February 29 of this year. It has not been 

acted upon. The group reached a number of conclusions as a result 

of its efforts. First and foremost is that Fish and Wildlife Service 

has really turned the Act into a mechanism to control land use activities rather than to protect sensitive species. The 1994 listing of 

fairy shrimp is a prime example. 

Fairy shrimp are very small, freshwater crustaceans that have 

relatively short life cycles. They live in California's vernal pools 

and many other annual mud puddles that appear after rain. The 

pools form in permeable soil areas and dry up after the rainy season. Fairy shrimp eggs by the thousands can be found in dried soils 

in one vernal pool. Up to 800,000 have been found in one pool. 

They will spring to life after it rains. Fairy shrimp are found by 

the millions and millions in the Central Valley of California, where 

we have approximately one million acres of suitable habitat. Since the 1994 listing of the shrimp, enormous economic impacts 

have resulted, none of which should have happened. Here is what 

we found out. The listing resulted even though there was a complete absence, and I say a complete absence, of credible scientific 

support, and there was no independent objective peer review of 

data underlying the scientific conclusions and studies. Had there 

been, the fact that there was no credible scientific data would have 

been pointed out. 

Let me explain. There were two primary studies that were relied 

upon by the Service. One was in 1978, an unpublished, non-reviewed paper which estimated that 90 percent of the vernal pools 

in California had been lost and that two to three percent of the 

pools were being lost per year, when in actuality the historical loss 

is closer to 50 percent with current activities having virtually no 

impact on the total remaining vernal pool acreage. We still have a 

million acres of remaining vernal pool and fairy shrimp habitat. 

The second study, which was cited some 41 times in the final 

rule, was a study of a utility pipeline right of way, and it was described by its authors as a random 200-mile transect in California. 

The authors wrote that this study demonstrated that two of the 

fairy shrimp were found in only ten out of 200 miles, or five percent, and that this demonstrated the need for the listing of these 

species. 

Upon more careful review it showed that one of these species was 

found in 35 percent of the sites and the other was found in actually 

43 percent of the sites. The problem was when we plotted the pipeline we found the survey missed most of the significant habitat. In 

fact, the pipeline study was clearly irrelevant as a scientific tool. 

I point you to the attachment that we have to our testimony, which 

shows where the pipeline went and shows where the vernal pool 

habitat is. They are totally inconsistent. 
37 

Now, this brings us to the next problem. Fish and Wildlife Service failed to use independent objective peer review of these studies. 

They argue that the comments of fairy shrimp proponents, some of 

their own employees, were adequate peer review, but none of these 

people evaluated the above studies' methodologies or their data for 

scientific and statistical validity, none of them. When the Fairy 

Shrimp Study Group pointed this out and other data, the other 

data was basically ignored. We had our own experts that provided 

testimony, principally biologist Paul Sugnet. It was ignored when 

it came to the listing of these species. Interestingly enough, we 

were told that Sugnet overestimated populations. We were never 

told why or how there was an overestimation. And in fact, one of 

Mr. Sugnet's studies was used to determine that a fifth species of 

fairy shrimp should riot be listed . .. When the Fairy Shrimp Study Group sought to spend its own resources to do further surveys to show that there were additional 

fairy shrimp populations, that they were vast and that they were 

unthreatened, Fish and Wildlife Service was totally uninterested. 

They were uninterested in doing any further survey work. We were 

consistently met with objections, with impossible conditions and 

stonewalling. Mter trying to work with the local Fish and Wildlife 

Service to gather more data with no success, we presented our information to the Secretary of Interior's Office, pointing out all the 

problems. And we were told we will get back to you. We were told 

there can be some corrections made here. We spent significant time 

and lots of effort traveling to Washington, going to Portland, dealing with the folks in Sacramento. We provided lots of pertinent information and the results were always the same, nothing. We never 

even received answers from these folks as to why they would do 

nothing for us. We were extremely frustrated and we still are extremely frustrated. Accordingly, we offer a few recommendations with regard to 

the delisting and listing process. I think you have heard this to a 

certain degree already from other members of the panel. 

The species listings must be based on a lot better scientific evidence. Evidence must be scientifically valid, which means it must 

be independently peer reviewed and statistically significant. Perhaps Congress should take a hands-on role in assuring independent 

peer review. A minimum level of field studies and surveys should 

be conducted prior to listing and scientifically valid public input 

must be considered. If public input is not considered scientifically 

valid, the basis for this determination must be fully and openly explained. Additionally, all administrative records of the listing process must be open to public review and comment to ensure above 

board decisionmaking. In this way there would be fewer chances 

for biased, unsupportable listing and delisting decisions based on 

little meaningful evidence. 

With regard to species delisting, the Fish and Wildlife Service 

places this activity in a very low priority position, the lowest. Quite 

frankly, such prioritization demonstrates to us that the Service 

continues to be committed first and foremost to controlling land 

use. The Service seems to have little interest in demonstrating that 

under the current ESA when mistakes are made, they can and 

should be corrected. This attitude needs to be changed. We would 
38 

recommend that the best way to ensure such a commitment to fair, 

even-handed processing of delisting as well as listing petitions is to 

allocate separate appropriations for listing activities and separate 

adequate appropriations for delisting activities. Moreover, delisting 

criteria and standards should be the same as for listing. Simply 

put, there should not be a higher standard for delisting than for 

listing. Either a species is in need of protection or it is not. Thank 

you. 

[Statement of Robin Rivett may be found at end of hearing.] 

Mr. POMBO. Thank you. Mr. Hollingsworth. 

STATEMENT OF DENNIS HOLLINGSWORTH, RIVERSIDE 

COUNTY FARM BUREAU 

Mr. HOLLINGSWORTH. Thank you, Mr. Chairman, for the opportunity to speak today. I am representing Riverside County Farm 

Bureau as their Director of Natural Resources. We re.Present the 

interests of over 1700 member families, and we are affiliated with 

the California Farm Bureau Federation and the American Farm 

Bureau Federation. Together we represent the interests of over 4 

million of the nation's farmers, ranchers and rural communities. I 

am going to tell you about some of our experiences over the last 

four years in the preparation and submission of a petition to delist 

a species that has never been in any danger of extinction. 

As you know, the endangered listing of the Stephens' kangaroo 

rat caused severe problems in our county. Since its listing in 1988, 

many of our farm families have suffered economic loss, restrictions 

on the use of their properties and diminution in the value of their 

land. You know about the terrible injustice that was done to the 

Domenigoni family and the devastation of 29 homes caused by a 

wildfire exacerbated by Stephens' kangaroo rat restrictions. 

A few years ago, the Farm Bureau's Board of Directors began to 

wonder how a species that was supposed to be so rare kept popping 

up all over the place. It seemed anywhere an economic activity or 

new land use was about to occur, kangaroo rats would be found, 

surveys would have to be performed and expensive fees paid. In 

March of 1992, I was hired by the Farm Bureau to investigate the 

status of the k-rat. Based on this research, I began Rreparing a 

delisting petition. The first thing that we needed was information 

about the k-rat, so we asked the local Fish and Wildlife Service for 

their k-rat files. The result was a handful of reports and documents 

handed over reluctantly and sporadically. We found that in order for our friendly request to be taken seriously, we had to file a Freedom of Information Act request. That 

request was received at the regional office in Portland on August 

13, 1992, and they indicated they would quickly reply. After 

months of waiting and despite statutory requirements in FOIA requiring strict response deadlines, we finally received the last of the 

materials on May 13, 1993, nine months after the Service had received our request and well past the deadlines. However, we were 

not finished battling the Service over what we should be allowed 

to see in the k-rat reports. 

The Service wanted to heavily censor all of the reports that indicated the presence of the species. The first reports we received from 

the Service were useless in developing a picture of the status of the 
39 

species for a delisting petition. We were finally able to get the 

Service to only censor the exact locations of the populations and infonnation about who the private landowners were that had k-rats 

on their land. However, these reports were still heavily censored. 

And this is an example of what we eventually received. 

Interestingly, the Service was extremely concerned about protecting the privacy of landowners when it came to letting us know if 

endangered species were on their land, yet most landowners are 

unaware that each and every time there is a survey performed on 

their land for an endangered species by a private biologist holding 

a Section 10 pennit, a copy of the survey automatically goes to the 

local office of the Service. 

Another stated reason for not releasing the exact locations of the 

k-rats was that their disclosure might endanger the safety of the 

populations. In other words, that we might go out and destroy krats if we learned their locations. This points out the inherent 

problem with the ESA itself, and it shows that the Service is well 

aware of that problem. By so zealously protecting the locations of 

endangered species, the Service admits that the Act has created 

powerful disincentives to conserve species. This is the unfortunate 

adversarial situation landowners and America's wildlife have been 

placed in by this ill conceived law. 

I could spend several hours just telling you some of the interesting and shocking things we learned through this process, but let 

me describe only a few, and that is that our investigation revealed 

that the Stephens' kangaroo rat has never been in any danger of 

extinction, that the Service's assumptions about the species' range, 

habitat, population, size, et cetera were all substantially underestimated and likewise their analyses of the threats to the species 

were grossly overestimated and purposely exaggerated. In fact, I 

think that Stephens' kangaroo rats are about as endangered as attorneys are, inside the beltway. 

I have included a copy of our petition with my testimony for your 

review if you would like. Another shocking example is the method by which the species 

was determined to be endangered rather than threatened. One single page document was all that we could find that provided any 

clue as to whether the Service determined to list the k-rat as endangered-as to how the Service detennined this rather than 

threatened. It is a record of a phone conversation between the biologist in the local office who was preparing the listing package and 

Ron Nowak in the Office of Endangered Species. The record says, 

"Ron called and asked some questions about the kangaroo rat package. He said that in general I had presented a good case. He wanted the acreage figures clarified and some place names clarified as 

well. He wanted to know how much habitat is left. I, as best as I 

could, came up with some acreages. We then discussed whether 

threatened or endangered status would be more appropriate. We 

decided upon endangered." 

In an entire record of over 20,000 pages and hundreds of surveys, 

reports, meeting records, agendas, documents of all types, this is 

the only evidence we could find of any analysis as to why the species should be listed under the more onerous status of endangered 

rather than threatened. 
40 

Mter this research, the Riverside County Fann Bureau submitted its delisting petition in April of 1995. Let me quickly recount 

to you what has happened, or probably more appropriately what 

has not happened since then. In March 1995, you remember, Secretary Babbitt announced his ten-point refonn initiatives. Included 

are aspects for scientific peer review and a commitment to greater 

responsiveness by the agency. 

On April 26 we submitted our petition, and on May 12 I hand 

delivered a foot-high packet of documents, that were largely obtained from the Service, to the Carlsbad office of the Service. On 

August 1 we inquired about the status of the petition, indicating 

that they were behind on their 90-day finding obligation, and we 

were informed from the Carlsbad supervisor that they would soon 

be publishing a finding. The following day we were contacted by 

the Service and told that they had never received the background 

packet of scientific infonnation that was from their own files. 

On October 31, 1995, a cover letter signed by you, Chainnan 

Young, and Congressional representatives from our area, Calvert 

and Bono, forwarded the petition on our behalf to the Fish and 

Wildlife Service. October '95 through April '96 the Fish and Wildlife Service claimed that the moratorium did not allow them to 

process delisting petitions. 

On May 8, after the Federal budget was signed, Secretary Babbitt appeared in Riverside at a press conference to sign the HCP 

for the k-rat. Mter his remarks, I was able to remind him of his 

refonn initiatives and the lack of compliance by the agency and 

asked whether he could provide an estimate as to when the Service 

might provide us with a 90-day finding. He was very irritated in 

his response and said that I should contact my Congressman asking for more money for the ESA and said that there was absolutely 

money for listings, but absolutely no money for delistings. When I 

informed him that I had the opinion that the Endangered Species 

Act treated the processes equally, he got very irritated and stonned 

away from me. 

The Secretary's reluctance to process delisting petitions is not 

only, in my opinion, contrary to the law, it is also bad policy. Mter 

all, the whole point of the Endangered Species Act is to list a species in trouble, get it recovered and then delist it. 

When the public loses confidence in the enforcement of laws by 

seeing one portion enforced unfairly over another, they begin to 

mistrust the application of the whole law. What is happening in 

Riverside County is property owners are actively working their 

lands, disking, dragging, whatever it takes to make sure no species 

that might even be remotely sensitive takes up residence on their 

land. They are not doing this out of hostility to the species, but in 

self preservation. The presence of a listed species on private land 

has come to mean financial ruin and possibly the loss of one's livelihood. These reactions show that the Endangered Species Act is a 

complete failure. 

The Secretary's priorities, rather than showing that the Act is 

workable and does not need reform, show that-coupled with these 

reactions and by private landowners to the law, show that it must 

be totally reworked and rethought before it can be successful. What 
41 

is needed is an Act that conserves species by allowing and encouraging landowners to be good stewards. 

It should be an Act that is so simple to be immune from the bureaucratic evils that so often do not become apparent until years 

after the bill has left Congress and becomes law. In order to have 

an Act in which agencies can no longer twist, ignore, subvert and 

use both the scientific evidence and the statutory processes to further a political or ideological agenda, it must be a law that is simple, incentive based, and non-regulatory. 

Our experience has shown us that, given the regulatory power 

and the wide latitude of "discretion" by the courts, the agencies will 

be sure to abuse and ignore the intent of Congress to make a law 

that is successful for both conservation of wildlife, and upholds the 

rights and freedoms of the people it affects. In conclusion, while it has been a few days since I have seen the 

Federal Register, which, incidentally, arrives on my doorstep 

every morning, like all the rest of the regulated public, I don't 

think the Service has provided a 90-day finding yet, after having 

our petition for over 425 days. 

Thank you. 

[Statement of Dennis Hollingsworth may be found at end of hearing.] 

Mr. POMBO. Thank you. Mrs. Chenoweth. 

Mrs. CHENOWETH. Thank you, Mr. Chairman. And I take full responsibility for being the person that the Chairman was referring 

to that made the comment about the brown tree snake. I do want 

you to know that today Senator Murkowski is holding some hearings in the Senate with regards to what is going on in Guam, and 

apparently because the Federal Fish and Wildlife Service have not 

made a distinction between how it protects species where they currently exist and the use of singles species-single uses for a species 

where they would be preserved in their potential habitat-it has 

caused a great deal of problem in that the brown tree snake is the 

cause of the single use of the land in Guam at the Anderson Air 

Force Base which prevents the families of the Aguero [ph] families, 

the Castro families, and the Artirio [ph] families from even 

accessing their private properties. So maybe technically the snake 

has not been listed, however it is managed as being listed in that 

it prevents people from using their-having access to their own private property. And I appreciate you, Mr. Chairman, for demanding accuracy in 

the Committee, and so I also wanted to take this time to be accurate in my own statements. So thank you. Mr. Glitzenstein, your testimony was so well presented. I thank 

you for that. And I wanted to know what your philosophical view 

was with regards to .the killing of any animal for any human purpose. 

Mr. GLITZENSTEIN. Well, I don't know if I made this clear at the 

outset, but I just want you to understand that I represent a range 

of different kinds of organizations. I mean, I am happy to answer 

that personally, but I will not be speaking on behalf of the Fund 

for Animals because I don't work for the Fund for Animals. I have 

my own law firm, it is a public interest law firm. We represent ev-
42 

erybody from animal welfare groups to environmental groups to 

journalists. 

So I just want to make sure you don't see what I am going to 

say as in any way purporting to represent some general sense of 

what the Fund for Animals would say. If you want to know that, 

I think you should go to Heidi Prescott, who is the National Director of the Fund for Animals, or Cleveland Amory, who is the President of that organization. 

My personal view is that there are situations where this society 

can take obvious steps to stop abuses of animals that we haven't 

taken yet. There are other situations which are far more complicated. I think that as a society we would do best to address the 

clear abuses that are going on today, things that we don't need to 

be doing and there is no societal interest in doing. 

I mean, I will give you one example, an issue that my firm has 

spent some time working on in the hunting arena, something called 

canned hunts, which is a situation where people take an animal, 

frequently an endangered species, put it in a small area-there has 

been some incredibly graphic footage on the nightly news on some 

of these things-an enclosure no larger than the size of this room, 

release wild dogs, go and shoot that animal from point blank range 

after it's ripped to shreds by wild dogs. 

Personally, I see no societal benefit in that kind of activity taking 

place. My own view, and again that is all I can speak to, is that 

we can do a lot in our society by stopping the abuse of animals in 

situations where 98 percent of the public would agree we don't 

need to be doing that, and put off for another day those issues 

which I think are the ones that, unfortunately, the press and a lot 

of folks focus on, which are the more contentious ones like biomedical research, which in my own mind I am still thinking 

through. I think we can wait for some of those issues and first get 

at the obvious places where we don't need to be treating animals 

the way we do in a lot of situations. That is my own personal philosophy. 

Mrs. CHENOWETH. But even though you testified on behalf of the 

Fund for Animals, you don't know what their policy would be with 

regards to the slaying of an animal for a human purpose? 

Mr. GLITZENSTEIN. If you want me to say what the Fund for Animals position is, the Fund for Animals is essentially an anti-hunting organization. It does not believe in sport hunting. It was originally started, I think, largely with the philosophy that we should 

extend legal protections to animals. It largely works on wildlife-related issues. It does not, as I understand it, generally take a stand, 

at least in the same kind of public way, on a host of other issues. 

But it believes in protecting animals and protecting wildlife, and 

that is its philosophy. 

Mrs. CHENOWETH. I see. I asked that question because last weekend as I was leaving to go back to Idaho I met the man who is the 

AIDS activist who received a transplant from a baboon, and I was 

amazed to see him. He looks terrific. His color is good. His skin 

aura is very good, and yet he said that the animal rights activists 

were marching and shouting against him for having received the 

organ of a baboon. And I just, you know, I think that is a breakthrough. And I just wondered where your organization stood there, 
43 

because I think there are certainly times when we-animals can 

benefit humankind, even people who like a good pheasant dinner. 

I certainly do. 

Mr. GLITZENSTEIN. And I think everybody obviously has different 

views on those subjects. I should say I have represented AIDS activists, people with AIDS in various contexts as well, so I would be 

the last person to say I am not sympathetic to the plight of that 

individual. Again, I think it is unfortunate that as a society right 

now when we come to these kinds of issues, how should we treat 

animals, we tend to focus on the ones that are the sexiest news stories. And there are a lot of ways we can treat animals better that 

I think 98 percent of the public would agree with before we get to 

what do we do with somebody with AIDS. There are going to be 

people on the extreme fringes of both sides of that debate. And my 

own personal view and my recommendation, and I can't speak for 

the organization on that issue, because that is not what I am here 

for, is that our society should focus on the issues where we can get 

general consensus on how to treat animals before we get to some 

of these more difficult problems that you may be talking about. 

Mrs. CHENOWETH. Thank you. And, Mr. Chairman, I just wanted 

to ask Mr. Hollingsworth one quick question if I might. 

Mr. Hollingsworth, you have been-you come from an area where 

the Fish and Wildlife Service has introduced programs under the 

Section lOJ program. 

Mr. HOLLINGSWORTH. Yes, lOA. 

Mrs. CHENOWETH. lOA? 

Mr. HOLLINGSWORTH. Yes. 

Mrs. CHENOWETH. OK, thank you. How has that worked down in 

your area? 

Mr. HOLLINGSWORTH. Well, in our opinion it has been a disaster. 

It was sold to the public as a solution for the listing of the Stephens' kangaroo rat that would provide a balance of allowing people to move ahead with the use of their lands if they had economic 

plans, and in the end after the Section lOA permit was signed, 

which creates a habitat conservation plan, the public was told that 

these reserves encompassed in the plan would be self contained, 

that there would be no more costs to the local area on this other 

than management of those lands, and there would be no more impacts on private property outside of those reserves. 

What we got, however, after six years of what was supposed to 

be a two-year interim program, was a plan that cost our local county over $126 million all from our county, according to a letter from 

our Board of Supervisors to our Congressional representatives, and 

cost the private sector over $30 million just in mitigation fees 

alone, not nearly a dime of which has come from the Federal Government to help implement this program. But we also got in that 

plan an HCP that has reserves that have buffer areas, impacts on 

private property to the value and the use of those, downzoning private property without compensation around these reserves, and an 

ongoing acquisition program of lands that throws a cloud over 

everybody's property near these reserves as to what may happen 

down the road with their uses and their marketability. 

People are just left in limbo, and I think the public was sold a 

bill of goods on what would happen with this HCP. 
44 

In fact, I think the HCP is not the way to go, because it simply 

intensified all these affects that come from the listing, because if 

your property is an area that-like, for example, we had the study 

areas that caused all the problems with the fire and the 

Domenigonis being stopped from farming. The rest of the property 

owners know about that and they know that they are targeted and 

they then want to make·darn sure that there is absolutely no reason that they could be stopped and so they make sure that there 

is no habitat for endangered species on their property. And so it 

is a terrible, perverse incentive that is focused by these plans. 

Mrs. CHENOWETH. Mr. Hollingsworth, in Idaho the Service is 

working with some of our people in Northern Idaho to bring the 

grizzly bear in under a Section lOA plan, and they have been 

told-they being some of my constituents in Northern Idaho, that 

this is the first time that this kind of plan has been proposed. 

Weren't you told similar things? 

Mr. HOLLINGSWORTH. Well, we were told that we were certainly 

one of the first HCPs, but the major difference between the kangaroo rat and the grizzly bear is they didn't need any reintroduction, as I pointed out in my testimony. I think we uncovered that 

these kangaroo rats are certainly very plentiful. In fact, there are 

probably too many of them, but we were told that our HCP was 

probably at that time one of the largest and most complicated to 

ever be attempted under the Endangered Species Act. And I think 

its experience has proved-and as much as other areas, particularly in California, say that they are not going to repeat the mistakes that were made in Riverside County with the k-rat HCP, but 

I think that experience has proved that Section lOA and the HCP 

process were not designed for giant regional plans with thousands 

of landowners of large and small sizes. They were designed for an 

individual landowner who had a problem who was going to do a development activity where he could afford to dedicate part of his 

property over for conservation of these species without a giant economic impact. 

Mrs. CHENOWETH. I appreciate your answer. Thank you very 

much. 

Mr. HOLLINGSWORTH. Thank you. 

Mr. POMBO. Thank you. Mr. Paulson, in your testimony you 

talked about the fact that there was a second study that was not 

included or was not paid attention to. Can you elaborate on that? 

Mr. PAULSON. Yes. Before I elaborate on that, I just want to 

make one point to Congressman Chenoweth, and that is the general counsel that tried to answer your question regarding standing. In Williamson County, Texas, county commissioners filed a suit in 

court regarding economic harm, regarding a delisting petition, and 

the position of the Justice Department was that they did not have 

standing and the county commissioners lost that particular lawsuit 

because of that. So I am curious as to the inability of the counsel 

to not tell you about their position in court regarding the 

Williamson County lawsuit. 

I will go back to the question at hand. Dr. Robert Benson is a 

very esteemed physicist and birder who deals with noise and its 

impact on environment. Dr. Benson was commissioned by Fish and 

Wildlife through the Section 6 money to go out and ground truth 
45 

the assumptions by Wahl. Wahl had made these assumptions that 

habitat was being eliminated in Texas over a period of time and 

the reason for that loss. He also made the assumption that fragmentation of larger patches of habitat down to smaller, less then 

50 hectares let us say, patches would allow the warblers to occupy 

those particular patches of habitat. So when Wahl made his assumption on the amount of habitat that was actually out in Texas, 

he eliminated all patches less than what is 50 hectares, basically 

123.5 acres. Through this assumption he was able to minimize the 

amount of habitat that was out there in his assessment. 

Benson, in his ground truthing, was able to find birds in 10 to 

15 acres, patches of land, calling into question Wakl's assumption. 

And if you take the 123.5, or the 50 hectares, down to, say, just 

a 50 acre assumption of what would be an occupied warbler habitat, then take the estimates of what Wahl did as far as numbers 

of bird per acre, you would increase the population estimates for 

warblers from four to 16,000 nesting pair to as high as 36 to 50,000 

nesting pair. Changing that one assumption through actual ground 

truthing could recover the species. . Dr. Benson turned that information in in May of 1990. That is 

when the warbler was emergency listed. In late November of 1990, 

that information carne into my possession, and nobody in the impacted community knew about it at all. It actually came about 

when a commissioner from the Texas Parks and Wildlife Depart~ 

ment at a commission meeting asked the head of the Nature Conservancy if he was aware of the second status report for the Golden-cheeked warbler. He said he was aware of that report. Up until 

that time, no one in the impacted community had even heard about 

the study. 

Mr. POMBO. It is your opinion that this second study was ignored 

by Fish and Wildlife, that it was not used? 

Mr. PAULSON. It is still in draft form and I am told by Fish and 

Wildlife that it is not used today, even though Fish and Wildlife 

has changed the assumptions by Wahl-which describes minimum 

patch size as 50 hectares--down to anywhere from 20 to 30 acres 

if you are a landowner and you have the suitable habitat. And until 

you prove otherwise, it is still occupied habitat. But they have not 

readjusted any of their figures regarding habitat in total for the 

range of the warbler. 

Mr. POMBO. I am familiar with at least one parcel in that area 

that was as small as 15 acres that was considered potential habitat. 

Mr. PAULSON. Yes. 

Mr. POMBO. But you have a second study that may call into question the science that was used on the original study, may call into 

question whether or not-what the listing status of the Goldencheeked warbler should be. And it is your opinion and in everything that you have been able to find, you can't find anywhere 

where Fish and Wildlife compared those two or used those two or 

in a proper peer review fashion determined whether or not the first 

study that they used had used legitimate scientific principles? 

Mr. PAULSON. Well, this was interesting, because after that information was released to the public, the individuals who were behind 

the listing got together and peer reviewed Dr. Benson's study. That 
46 

critique was very venomous and vicious, and they went after him 

in many different ways, leading Dr. Benson, who is a very good 

scholar, to remark in his responses, and I can provide that information at a later date, that he felt that there was a double standard 

being applied in his information, which he believed was valid, statistically valid. 

Mr. POMBO. You also stated that in the process that you were not 

allowed to review the data that was presented until the listing actually happened. 

Mr. PAULSON. Well, what happened was-let me step back here 

a second. This points out the problems with the listing process, 

that the impacted parties are not allowed to really review this information. There is not a cooperation between the Service and the 

landowners. Fish and Wildlife Service, from my memory of the 

West, used to be very cooperative to landowners, used to assist 

them in managing natural resources. It has only been in the last 

few years that they have taken on an antagonistic type of behavior 

to these landowners. It goes back to the problems that we face 

here. If we were allowing the public to be aware of this information 

and be able to review it, we would have good peer review. If we 

would be allowed, then, to be inclusive in the problems prior to the 

listing, we would have species that wouldn't even get to the list. 

So to answer your question specifically, yes, we were precluded 

from reviewing that information prior to that. And even if our information had been reviewed, I believe it would fall on deaf ears. 

Mr. POMBO. Mr. Rivett, I am much more familiar with the process that you have gone through with the fairy shrimp. You also had 

other biological data that was, for lack of a better term, ignored by 

Fish and Wildlife Service. 

Mr. RIVETT. Yes, sir, that is correct. We had substantial data 

that was produced by our own biologist and his firm, Sugnet and 

Associates. In fact, he had put in a tremendous amount of work actually going out and surveying the various vernal pool populations 

up and down the valley. In fact, a great deal of his information was 

actually used, which is interesting, was actually used by the Service to make the determination that a fifth species, called the 

linderiella, would not be listed. 

Now it was very hard for us to understand how the Service could 

take that information and rely upon it as valid scientific data to 

not list a species and then take a look at information developed the 

exact same way with regard to the other four species and essentially discard that information. It was discarded on the basis that 

the estimates made were overestimates. 

Sugnet surveyed over 3000 vernal pools up and down the State 

and he came to some basic conclusions with regard to the populations. However, the final rule discounted those conclusions to a 

very great extent but never told us why. It merely said that these 

were overestimates of population and came back with the conclusion that the reason why there weren't nearly as many vernal pools 

and as much habitat available is because Mr. Sugnet had not evaluated for vernal pool complexes. This was a terminology which 

hadn't been used before. And so essentially the Service reached the 

conclusion that when you found one pool with maybe 800,000 species, that didn't necessarily mean that that was one habitat. You 
47 

looked at other pools and they started combining pools. And by 

combining pools here and pools there they came up with a very 

small-well, it still wasn't that small, but with a smaller population. It is very creative. 

We have looked carefully at the populations and at the locations 

and the data points. And you find fairy shrimp basically every 

place up and down the valley where there is free standing water. 

And I am not being facetious when I say that. You can find fairy 

shrimp in tire ruts. You find fairy shrimp in old, discarded tires. 

You find fairy shrimp anyplace that there is an impermeable layer 

of soil and the water stands waiting to evaporate. I have shown this picture before. This is a picture of fairy shrimp 

habitat. I wish you could see it, but it is a picture of an old drainage ditch with lots of discarded rubbish in it. And there is another 

picture here of a similar location. There are four or five pages here, 

which I could submit as well, which are fairy shrimp habitat. 

[The information may be found at end of hearing.] 

Mr. RIVE'IT. The point to be made is that there are many examples of habitat within this 200 by 400-mile habitat range. They are 

found every place. And unfortunately, as I indicated previously, it 

became very clear that the purpose of the Service was not to really 

identify where that habitat was, where the viable habitat was, and 

whether there are threats to it, but was to control the land where 

that habitat was found. Certainly that is the experience that we had when we tried to 

actually go out and do additional survey work and were met with 

additional requirements with regard to our surveys to where they 

became actually impossible to do. We were told that where we 

wanted to do the survey work wasn't going to help the Service 

amend its listings, yet they wouldn't tell us why where we were 

doing the survey work wouldn't help them. So we were basically 

confused, and the Service refused to enlighten us. 

Mr. PoMBO. Were you provided with all of the data that they 

used to list it before it was listed? 

Mr. RIVETI. We didn't have everything. No, of course we didn't 

have everything. In fact, I am still trying to get everything through 

FOIA requests at this point. 

Mr. POMBO. You still have not received all of the information? 

Mr. RIVETT. We have received the record. We have received the 

record that was utilized for the listing and for the final rule. We 

have received that record. We received it in unorganized fashion , but we have gone through that. We have received the record, but 

there is a lot of additional information that has come forward since 

the listing because of the consultation process itself. We would like 

to get that information to augment our delisting petition. We have 

had a very difficult time getting that information. 

Mr. POMBO. What were you told by the Service when you filed 

the delisting petition? Were you told that they would look at it and 

give you an answer? 

Mr. RIVETT. Well, when we filed the delisting petition, the moratorium was in existence. We were told at that time that they would 

look at it, but they couldn't tell us when they would get back to 

us with any kind of an answer. After that, we met with folks at 

Interior. We also met with Deputy Secretary Garamendi, who es-
48 

sentially told us that nothing was going to happen, that it would 

be illegal for any department personnel to even pick up the petition, so to speak, and do any work on it. He said our only recourse 

was to lobby Congress for a full funding of the Act and then the 

Service would be able to get to the delisting petition.-Of course, 

that is not the case. Delisting has been placed as the very lowest 

priority issue for the Service at this point. 

Mr. POMBO. Mr. Glitzenstein, in your prepared testimony, you 

have one portion here that deals with peer review. And to paraphrase what you have here, because I don't want to read the whole 

thing, but you say that it would unnecessarily slow down the process to demand peer review on every listing. And I believe that that 

is an accurate reflection of what you have here. Having heard your 

fellow panelists talk about three specific issues where I believe that 

if peer review had been used that we would not be talking about 

this today, do you still feel that peer review is unnecessary? 

Mr. GLITZENSTEIN. Well, again, !-just to be clear about my 

point, I wasn't saying that peer review is unnecessary in any particular instance. What I was addressing was a Congressional mandate for peer review on each listing decision, which I think you 

would actually have to consistently, I believe perhaps these gentlemen would agree too, apply to delisting petitions as well. 

Mr. POMBO. I would insist it then as well. 

mr. GLITZENSTEIN. Right. But that kind of Congressional mandate, I don't believe, is adequately supported by the entire experience with the listing process, that certainly the Fish and Wildlife 

Service and the Interior Secretary should have the tools and perhaps criteria could be established for when those tools would be applied through a regulatory system as to when there is the kind of 

controversy that requires some additional peer review. But at the 

same time, I think there are some decisions that you will look at 

which are so clear that it makes no sense to say you must go and 

get outside experts in, which is costly. We are all talking about saving money and this is not a free process. When you go out and you 

get three outside experts from the National Academy of Sciences, 

bring them to Washington, have them collaborate, that is a costly 

process. There are some listing situations which are so clear that 

to say that there has to be peer review in every situation-there 

will be delisting petitions which are that clear as well-! would 

submit, that a mandate for peer review would make no sense. 

Let me give you an example. In our testimony we talked about 

the Alabama sturgeon. This is a species which the Service said it 

was not going to list, and I would submit on flagrantly political 

grounds, because it was extinct, even though one of the members 

of that species had been pulled out of the Alabama River a year 

earlier. And six months after the decision that it was "extinct" another Alabama sturgeon was pulled out of the same spot of the 

same river. Now that species still isn't protected. And I would submit under those circumstances to say we need peer review before 

we decide whether that species is extinct just is not the kind of 

Congressional micro management of the system which is in anyone's interest. I think encouraging peer review in appropriate circumstances makes sense, but as to requiring it across the board, 

I stand by what I said there. I do not believe that a legislative 
49 

mandate in every situation involving a listing decision is justified 

by the entire experience with this program. 

Mr. POMBO. I would disagree with you. And so you understand 

where I am coming from on this, I don't know where the next fairy 

shrimp or the Golden-cheeked warbler or the Stephens' kangaroo 

rat is, and the way that it currently operates, the Fish and Wildlife 

Service claims that they do peer review of their decisions. That is 

highly debateable in the scientific community. In fact, I talked to 

a government scientist the other day who runs one of the agencies 

who told me that peer review is in the eye of the beholder. You can 

call it whatever you want, but there should be some criteria for 

listing. But what the Service is capable of doing today is listing 

something like the fairy shrimp with biological data that every scientific magazine that is printed in this country would refuse to 

print because it has not been peer reviewed, and yet we can list 

it based on that same data, have the kind of social and economic 

disruption that we have had because of that listing and have absolutely no peer review and have absolutely no oversight whatsoever. 

Now I will agree with you 100 percent that it is laughable to say 

that these decisions aren't political on both sides. They list stuff because it achieves their goal. The don't list stuff because it would 

hurt them. And I have had people in the Service tell me that decisions were made not to list something because of a certain political 

decision or political backlash that would occur because of that. And 

I agree with you completely on that, but the only way around that 

is to use good science. What we are doing right now cannot be 

called good science. 

Mr. GLITZENSTEIN. I think you make a good point, and just to 

clarify again, Section 4 of the Act already says they are supposed 

to base decisions on the best available biological data. So that is 

an existing mandate and I think your point that peer review is in 

the eye of the beholder is well taken. Certainly they have to go out 

and look at the available scientific studies. I think you have to 

make a distinction between looking at the available literature as 

it currently exists and going through a new process of calling in 

new scientists, sitting them down, saying "what do you think about 

that literature." So I think we do have to make some of those distinctions, but I fully agree that if the Service makes a decision 

which is not supported by the science, it should be called on the 

carpet for that, however it makes that decision. And I for one, for 

example, think that folks whose economic interests are harmed by 

a decision which is arbitrary or illegal should have the right to go 

to court just like my folks do and make their case to the court. And 

if they can demonstrate that in fact the decision is not biologically 

supportable, they should get relief from the court. And I for one 

would be perfectly happy to sit down and talk about any legislative 

fixes that would make sure that we all get equal access to the 

courts to make those cases, because judicial review is absolutely 

vital to keeping a check on an agency, no matter whose ox is gored 

by a particular decision. 

Mr. POMBO. Well, I am glad to hear you say that, although I am 

a little hesitant because I believe that you and every other attorney 

in the audience would agree that everybody ought to be able to sue 

whoever they want. I am glad to hear you say that. 
50 

One question that l-and I realize I am way over time, but one 

question that I do want to broach with you, and it goes along the 

idea of good science. The lawsuit that said that they had to list 400 

species over a period of time, and I believe that the settlement was 

100 species a year that they had to list, where is the good science 

in setting an arbitrary number of species that must be listed. 

Mr. GLITZENSTEIN. Well, first of all, that is not precisely what 

the settlement said, and I think this may help answer your question. We did not say they had to list all those species. What we said 

was that they had to take what they called their existing "candidate one" list, which are the candidates that the Fish and Wildlife Service biologists themselves had said we believe that there is 

probably sufficient evidence to list these species, and simply required, according to a biologically based priority system, that within four years that they would make decisions on whether to move 

forward with listing. And I should emphasize this point, because 

actually over the course of the last four years 100 of those speciesactually I think it is more than 100. It is about 130 species as to 

which they published decisions in the Federal Register that they 

would not list. And I would submit that that reinforces the point 

I was trying to make earlier. It is a good thing when the Service 

says-! am not saying each and every one of those decisions I 

would agree with-but for the Service to say these were candidates, 

now we have decided they are not anymore, that that is good for 

the folks out there who are sitting waiting to find out what the 

Service would do, which the Federal Government is going to take 

jurisdiction. 

Mr. POMBO. But on many of those, lawsuits were filed against 

the agency for making the decision not to list. 

Mr. GLITZENSTEIN. Actually, I think of those 135 or so, I don't believe-! could be wrong about that-but I don't believe that there 

has been a legal challenge to any of those decisions not to list, 

which is not to say there won't be. Just like these gentlemen, and 

the people whose interests they represent, if we don't believe that 

a particular decision on one of the species was supportable, I am 

assuming you would agree that we should have every right to also 

go to court and make our case on that species. 

Mr. POMBO. At this point would you not agree with me that 

courts are playing too great a role in the listing decision? 

Mr. GLITZENSTEIN. Well, I think it is unfortunate that courts are 

playing the role they are. And in fact, that is exactly what our lawsuit was attempting to avoid. What we were attempting to say was 

"let us get some agreement on an overall timeframe within which 

the Service will make these decisions on a biological basis." We 

specifically incorporated the agency's own priority biological system 

and the Service could then use that in response to lawsuits to say, 

"well, look, we are making progress in making decisions, we are 

plowing through our backlog of species." And I think what has happened now, unfortunately, is that because of the breakdown of this 

process you have people running into court because they feel they 

have no options available to them either with regard to listing or 

delisting particular species. And I think all of us would probably 

agree, if we could get to a point of consensus, to get back to a system where they are making progress and making decisions on 
51 

everybody's petitions on a biological basis and that is really where 

we should get to. 

And I just want to reinforce the point that Mr. Rivett made that 

a separate appropriation for delisting, I think, would be very wise. And, I know that money is scarce and money is tight, but I think 

one of the problems you have is you have the same people in 

charge of making these new decisions to protect species that are 

looking at recovery and looking at whether or not delisting of other 

species is appropriate. And I think separating those out is really 

one of the sensible ways of doing it, as long as you make sure that 

enough money is being devoted to each of them. 

Mr. POMBO. But I would point out to you that, you know, we 

keep trying to segregate these issues. All of these different species 

that these gentlemen are talking about were filed-were the result 

of an action that was taken during-before Fish and Wildlife-before the moratorium was put in place, were all results of many 

years before that happened. And, when the moratorium was put in 

place, it was exactly because of issues like this that somebody said, 

you have got to put a stop sign up here and revise the law so that 

we don't have to keep coming back and doing this. If we don't revise this law, this isn't going to quit. The listing and delisting process is going to become more and more politicized. And I don't think 

any of us want that, but that is exactly what is happening. It is 

becoming more and more politicized with every decision to list or 

not to list. The recent decision on the Red Lake frog in California, 

that is listed as a threatened species and I read somewhere that 

they estimated there were 350 of them left and it is listed as a 

threatened species. And in one of his mud puddles he has 800,000 

fairy shrimp and it is endangered and he has got over a million 

acres of that. I mean, these decisions aren't based on good science. 

And, you know, regardless of what somebody can put together as 

a report on how great the science is, I think it is all based on politics. And we have to change the law or else we are just going to 

be back in here next year and the year after that. Mr. Hollingsworth has been working on this for years. I mean, he has been 

coming to see me for years on this and nothing happens. 

Mrs. Chenoweth, did you have any follow-up questions? 

Mrs. CHENOWETH. No, Mr. Chairman. 

Mr. PoMBO. Well, I would like to thank you for having the patience and the stamina to hang with us here. I appreciate the testimony and the answering of the questions and would tell you that 

there may be further questions. I know the Chairman of the Committee was unable to be here, but he did have questions he wanted 

to ask, so he will submit those to you in writing. A..."ld the record 

will be held open on the hearing to give you sufficient time to answer those questions. And if you would do that in a timely manner, 

I would appreciate it. Thank you very much. 

The hearing is adjourned. 

[Whereupon, at 2:15p.m., the Subcommittee was adjourned; and 

the following was submitted for the record:] 
52 

SENATOR TEEL BIVINS 

DISTRICT 31 

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June 17 . 1996 

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FAX t91 5)G84 7843 

U.S.- House of Representatives 

Committee on Resources 

Washington. D.C. 20515 

Mr. Chainnan and Members. 

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Thank you for the opportunity to present my thoughts on the reauthorization 

of the Endangered Species Act (ESA). in general and as it directly impacts the 

Texas Panhandle. "As ecologists see it. the greatest threat to bio-diversity is the 

success of one species. our own." This statement was made by Stewan Pimm. an 

ecologist at the University of Tennessee. I think it sums up in one sentence the 

impossible situation that is created by continuing to enforce the ESA in its current 

fonn. 

As of 1996. some 962 domestic and 562 foreign species have been listed as 

endangered or threatened. However. only 2~ species or 1.6 percent have heen delisted. If we cominue adding species to the Endangered Species list with the 

anendant restrictions on land use and critical habitat designation. we will paint 

ourselves into on inescapable comer. The sad truth is our efforts at protecting 

species and ultimately de-listing them has not kept pace with our ability to find 

new species to list. 

Some expens project that total species listed will increase to over 3000 in 

the coming years. If this occurs with no change in the law. the inevitable contlicts 

that result from limits placed on land use that result from designation. or worse yet 

designation of critical habitat. will expand at a compamble rate. The fact is our 

goverrunenr has neither the capability nor resources to enforce the ESA. I do not 

believe the authors of the ESA could have foreseen the explosion of listings and 

proposed listings that has occurred. Therefore. Mr. Chainnan. I applaud your 

attempts to refonn the ESA. 
53 

As a legislator. I know that the answers to the issue this commillee is 

wrestling with lie somewhere betwt.-cn environmental purism and absolute private 

property rights. We simply have to inject an clement of common sense into 

reforming the ESA. I have attached a proposal developed by the Texas Parks and 

Wildlife Department in conjunction with the Texas Department of Agriculture, 

Farm Bureau. and Texas Wildlife Association. I submit this thoughtful proposal 

for your consider.ttion. In particular. I suggest the ESA should be changed to move 

from individual species protection to more of a focus on habitats and ecosystems. 

Priority for fund~ and other resources should be given to multi-species ecosystem 

situations to maximize effectivene.'l.~. This will prove to be a more cost effective 

approach and, if done carefully, will provide for both conservation and sustainable 

use of resources on private lands. Recovery plans should be written for clusters 

of species and/or entire ecosystem.~. 

One unique feature of this proposal would be the de-coupling of listing and 

enforcement. The idea would be for U.S. Fish and Wildlife (USFW) to continue 

the listing process based on solid peer review science while the states would be 

responsible for developing recovery plan.~ for these species, clusters of species, or 

entire ecosystems. One of the central elements of the plan is that the states become 

partners with the Federal Government in achieving the goals of the Act. This 

element is sorely lacking under the existing ESA. 

In addition to the proposal made by Texas Parks and Wildlife, I believe it 

is critical that the re-authorized ESA mandate minimum scientific standards for 

listing decisions and require that such decisions be peer reviewed by qualified 

scientists. Under current law, the listing process can be initiated by a bored, 

housewife in South Dakota or a sixth grdde science project in South Texas. 

Because of the enormous consequences of listing under current law, it has become 

critically important that the process not be initiated unless there is a sound 

scientific basis. 

A fmal general conuoent l would make is that USFW in enforcing the ESA 

does not appear to distinguish between species that are just plain rare, like the 

Texas Blind Salamander, and those that once flourished, but are now substantially 

diminished. Recognizing this fact could take some of the edge off the enforcement 

of the ESA. 

Among other areas of West Texas, I represent the Texas Panhandle in the 

State Senate. My family has owned and operated a ranch on the Canadian River 

North of Amarillo for four generations. During the last two years, USFW has 

proposed two species be added to the Endangered Species list that inhabit our area, 

In 1994, USFW proposed listing the Swift Fox. Then in 1995, the Arkansas River 

Shiner was proposed for listing. 

2 
54 

One issue that immediately presents itself regarding these listings is the lack 

of communication between USFW and comparable state agencies. The Texas Parks 

and Wildlife Department learned of both of these proposed listings from reading 

newspaper anicles. Unbelievably, the Texas State Administr.1tor for USFW 

apparently learned of the proposed listing of the Arkansas River Shiner from 

newspapers rather than through communications within his agency. More over, 

USFW never looked at any state data before publishing the proposed listing. Even 

more imponantly, they did not seek any state data after the species were proposed 

for listing other than in the required public hearings held in the area. 

Both of the proposed listings sent shock waves through the Texa.~ Panhandle. 

The mere proposal for listing had immediate negative impact on farm and ranch 

real-estate values. Some 400 Panhandle residents showed up at a public hearing 

in late January of 1995 regarding the proposed listing of the Arkansas River Shiner. 

There was not one person who spoke in favor of the listing, For farmers and 

ranchers in the Texas Panhandle there is no apparent upside for listing a species. 

The only consequences of listing a species are negative. It was fear of land and 

water use limitation that drove so many people to attend the meeting. 

The proposed listing of the Arkansas River Shiner provides a great example 

why people across America are frustrated with the ESA and its enforcement. The 

materials clearly indicate that there is a thriving population of Arkansas River 

Shiners in the Pecos River in New Mexico. However, USFW chooses to ignore 

this population since they are not indigenous to the Pecos River and, in fact, were 

stocked there some 25 years ago. Even more incredible, USFW scientists have 

proposed elimination of the Arkansas River Shiner in the Pecos River because of 

potential damage they are causing to another Shiner species, the Red River Shiner. 

While the Arkansas River Shiner and the Red River Shiner may in fact be 

different species, even trained scientists have a hard time telling them apan. It is 

this type of scientific hair splitting, that carries with it huge risks of land use 

limitation, that causes additional frustration on the part of those who are saddled 

with the application of this act. 

One of the lessons we have learned in Texas is that a terrestrial endangered 

species is bad, but an aquatic endangered species is even worse. The land use 

restrictions associated with the terrestrial endangered species are difficult and 

cumbersome. If one is unfonunate enough to have land that is designated critical 

habitat, the land use restrictions can become insurmountable. With an aquatic 

endangered species, there is an additional and potentially more critical downside 

risk. That is in order to protect the species USFW may decide landowners must 

limit there use of surface and ground water. This can have devastating impacts on 

the landowner. 

3 
55 

With regard to the Arltansas River Shiner, USFW has suggested that 

a recovery plan may require limitation on pumping of water from the Ogallala 

Aquifer. This aquifer is literally the life blood of production agriculture in the 

Panhandle. Limitations on pumping could take some farm land and reduce its 

value by 80 percent. Tilis is why people shudder when you even mention the 

potential of an aquatic endangered species in their area. 

The Swift Fox was not listed as an endangered because Texas and its 

neighboring states opposed the listing. Rather the department allowed the states 

to create an interstate Swift Fox conservation strategy instead of adding the species 

to the list. Texas Paries and Wildlife officials play a key role in this interstate 

group and are optimistic about preservation plans for the Swift Fox. 

The proposed listing for the Arkansas River Shiner was interrupted by the 

Congressional moratorium on new listings. Now that this moratorium has been 

lifted we are once again in jeopardy of having this species listed. The people of 

the Texas Panhandle were very hopeful that Congress could rewrite the ESA during 

this moratorium. That did not occur. My constituents and I urge you and your 

colleagues to adopt common sense reforms to the ESA. 

I know that this is a controversial issue that the leadership has pulled off the 

radar screen at least for the time being. But the problems surrounding the 

continuation of the ESA as written will only get worse. As a rancher who inherited 

a ranch, I believe I have an obligation to leave it to my children in better condition 

than I received it. Likewise we as Americans have a similar obligation for our 

children and grandchildren. We'll never be able to meet this obligation unless our 

laws reflect good science and common sense. 

Thank you very much for the opportunity to testify before you today. 

TB/aed 

4 
56 

AMENDMENTS AND CHANGES TO THE 

FEDERAL ENDANGERED SPECIES Acr 

A Position Paper 

June 1995 

Presented by: 

Texas Department of Agriculture 

Rick Perry, Commissioner 

Champion International Corporation 

Texas Agricultural Extension Service 

Texas Farm Bureau 

Texas Logging Council 

Texas Sheep and Goat Raisers' Association 

Texas and Southwestern Cattle Raisers' Association 

Texas Wildlife Association 

U.S. Natural Resources Conservation Service 
57 

TABLE OF CONTENTS 

INTRODUCTION ••••••••••••••••••••.•..•.••.•.•... 2 

LisTING MORATORIUM •••.•••••••••••..••••••... .• .•• 2 

STATEMENI' OF PuRPosE •.•..••.........•............ 3 

IMPOIITANCE OF STATE PROGRAMS •••••••••••••••••• • •••• 3 

PRIVATE I.ANDowNER RIGHI'S • • • • • • • • • • • • • • • • • • • • • • . • . • 3 

RuRAL lANDoWNER INcENnvEs ......................... 4 

HABITAT/EcOSYSTEM APPROACH •••••••••..•.. • .•.. . •..• 6 

PROAcriVE APPROACH •••••••••••••••••••.•••.....••. 6 

LisTING, CoNSERVATION PRIORITIES AND REGULATIONS ..•..•...•. 6 

REcOVERY AND CoNSERVATION PlANNING ••••••.••.•..•...•. 8 

DoWN AND DELISTJNG ....•••....•.................. 9 

DECOUPIJNG PRINciPLE . . . . . . . . • . . . . . . . . . . . . . . . . . . . . . 9 

SUMMARY OF 11IE PosmoN PAPER ••••••••.•.••.....•.. .1 0 
58 

AMENDMENTS AND CHANGES TO TilE 

FEDERAL ENDANGERED SPECIES Acr -

A POSITION PAPER-JUNE 1995 

INTRODUCDON 

The goals of the federal Endangered Species Act (ESA) are worthy of support. However, 

the issues and concerns raised about the ESA and its implementation in Texas and other states 

make it clear improvements must be made if the original intent of the law is to be met. The debate 

over reauthorization ranges from abolition of the ESA to proposing stronger provisions for it. 

In response to the ongoing debate, the Texas agriculture community formed an informal 

working group to suggest changes to the ESA. Members of this group represent Champion 

International Corporation, Texas Agricultural Extension Service, Texas Department of Agriculture, 

Texas Farm Bureau, Texas Logging Council, Texas Parks and Wlldlife Department, Texas Sheep and 

Goat Raisers' Association, Texas and Southwestern Cattle Raisers' Association, Texas Wlldlife 

Association and U.S. Natural Resources Conservation Service. The working group, representing 

nongovernmental entities as well as state and federal agencies, has reached general agreement on 

the principles and concepts embodied in this position paper. 

These ideas reflect years of on-the-ground experience in dealing with the ESA, as well as 

observations of what has - and has not - worked. Some of the ideas were derived from a similar document being prepared by the Western Governors' Association. The principle that forms the 

backdrop for these recommendations is as follows: in order to meet our conservation responsibilities and seroe the conservation demands of the public, government conservation agencies 

must make conservation in rural rommunities and with private landowners easier. These 

principles emphasize accountability, practicality and providing conservation services, rather than 

emphasizing regulations. Regardless of its final form, any revision of the ESA should include consideration of these ideas if the original intent of the ESA is to be realized. 

LisTING MORATORIUM 

Congress is expected to consider a moratorium on the listing of species. A moratorium 

will allow United States Fish and Wlldlife Service (USFWS) biologists to return their focus to recovery actions for species already listed but neglected because of limited resources, and would allow 

for more considered debate about reauthorization. The USFWS has been mired in a court-mandated 

process (listing) over the last several years that has, for the most part, yielded little positive conservation action for newly listed species and, because of the conflict generated, has eroded support 

for the ESA's original intent. A listing moratorium would also allow people constructive reauthorization- a process within which the following ideas should be given careful consideration. 

2 
59 

S'fATEMENT OF PuRPOSE 

Any ESA reauthorization requires a preamble that clearly states Congress' intent to provide for and protect endangered species. It must be clear that the ESA is neither a tool for land use 

control, a means to stop urban growth nor the principal tool to resolve other environmental issues. 

Those issues must be addressed sep3l'lllely and on their own merit. 

IMPoKTANCE OF STATE PROGRAMS 

ESA revisions must recognize the states' preeminent authority over fish, wildlife and 

plants within their trust responsibilities. For candidate and listed species, states must be able to 

choose to assume responsibility, or at least full partnership, with implementation of the Act. States 

should be provided full funding to participate in all aspects of the ESA. Additionally, the Secretary 

of the Interior must be able to suspend consequences of a listing decision when states develop conservation plans to protect spedes and their habitat. When states choose to assume ESA responsibility, the decoupling principle (described brer) would allow states similar latitude to determine necessary conservation action. The importance of state involvement in other aspects of the ESA is presenredinotherpartsmthisd~enL 

FACA Constraints 

All ESA related actions to list or delist species, develop recovery plans, engage in Section 

7 consultations and Section 10 planuing shonld be ~empred from Federal Advisory Commitree Act 

(FACA) and require consultation with the state wildlife agency. FACA has been both an impediment 

and an excuse for not involving states in decision-making processes of the ESA. 

Fundine State AssiiiQPtion ofBSA Adiyities 

Federal funding shonld be provided to states that assume a greater role under the Act. 

States should receive approximately the same amount that the USFWS would have received for the 

same services. Federalappropi:iations, including those associated with Section 6 of the Act, should 

be distributed to these states in the fonn d block grants. The Land and Water Conservation Fund 

could provide additional funds to the Slates for landowner incentives and species recovery. 

Pluv.m! LANDOWNER RIGIITS 

One of the most important &ctors impeding progress in understanding the true status, 

and therefore potential for deli.sting, m species in Texas, is rural landowners' fear of sharing information with gO\'el'lllllellt agencies. This fear is based on the presumption that the data will be used 

to regulate their land use practices and, therefore, compromise property rights. If the follov.ing 

suggestions concerning incentives, tecluJial assistance and regulations are guaranteed through 

reauthorization of the Act, perbaps this fear would be diminished. It may, however, be necessary to 

3 
60 

pass additional legislation that ,-,mid protect landowners from the use of data gathered from their 

land to prosecute them for violations of the Act. It should be a part of the ESA that biologists shall 

not enter private land to gather information concerning rare species without the landowner's consent. Each landowner should be able to easily access and challenge data on rare species obtained 

from his/her property. The importance of protecting property rights and providing for meaningful 

input from landowners in other aspects of the ESA is presented in other sections of this document. 

Private landowner and local community involvement is now recognized worldwide as an 

essential component of success in conservation. Nowhere in the world is this more crucial than in 

rural Texas. In order to be actively involved, landowners and local communities should be empowered with accurate, accessible information and practical conservation tools, which will facilitate 

combining technical information and political judgment to achieve desired conservation and social 

goals. That is the best and most effective way to assure both conservation and property rights. 

RURAL LANDOWNER INCENTIVES 

There must be positive incentives and simple procedures to increase the participation of 

rural landowners in protecting endangered species. Possible incentives include three main categories: tax incentives, farm programs and technical assistance. 

Tax Incentives 

One of the most effective ways to improve conservation would be to offer ESA inheritance 

and income tax breaks for landowners who make a commitment to conserve endangered 

resources, make efforts to conserve rare species to avoid the need to list them, maintain land as 

native habitat or create habitat for rare species. Inheritance tax laws should be changed to prevent 

the often necessary fragmentation of farms and ranches, and therefore habitat, to meet tax 

demands. Short term incentives, such as cash payments, rents or income tax deductions are subject 

to annual budget constraints, but may be an effective incentive for smaller landowners. These tax 

changes would be insignificant within the context of the overall federal budget and would shift the 

financial burden for conserving rare species, which are in the public trust, from the individual 

landowner to a broader public base of conservation supporters. Inheritance tax relief would result 

in better long-term species and habitat management and would change private landowners' attitudes toward endangered species in general. 

Farm Programs 

Changes in farm programs could allow for the opportunity and funds to conserve habitat. 

The Conservation Reserve Program is one example in which the creation or restoration of rare 

species habitat could be a priority while still meeting the program's original goals at no additional 

cost. 

4 
61 

Technical Assistance 

While most people think only of the programs mentioned above when considering the 

role of incentives in the ESA, it is not so limited. Technical assistance, in lhe form of information 

and education, is also a powerful inceotive to promote conservation. The vast majority of people, 

especially those from rural and agricukural backgrounds, want to support conservation but simply 

do not know what lhey need to do. As an example of bow technical assistance can serve landowners consider a program whereby lmdowners voluntarily request a rare species review of lheir 

property to gain information on current management and its eliect on endangered species. 

Recommendations and discussions would remain privileged information and landowners could not 

be prosecuted. If Ibis silent majority could be motivated through education, it would be the most 

effective conservation strategy by far. Mechanisms must be developed and incorporated into lhe 

ESA to foster Ibis objective. · 

Facilitating Conseryation Options 

Several specific sections of the ESA should be modified to better promote conservation 

through cooperation wilh private landowners. Expansion of Section 6 programs, cooperative efforts 

with state agencies and programs like the Agricul~ Extension Service must be pursued and 

enhanced. Sections 10 and 4 of the AC1 need to be amended (or their implementations changed) 

and funds redirected to promote, not just permit, these planning activities. The ESA needs to 

empower states to facilitate the development of conservation planning efforts by local communities. 

This would lead to more effective conservation on private lands where most of the rare resources 

have been conserved because it will be the landowners themselves who initiate and guide the 

process. There must be more options than just a Section lOa permit or See1ion 7 consultation to 

allow for incidental take. 

There should be additional options directed at rural and agricultural landowners who 

wish to work together or individually to meet ESA requirements. These landowners need more 

diverse and accessible tools than those now in the ESA. Modified versions of Habitat Conservation 

Plans, conservation easements, conservation laws and wildlife management plans should be developed. New tools like Cooper.dive Consemtion Plans or Agricultural Conserwtion Plans have been 

proposed as such tools and should be pursued as a means of simplifying conserwtioil on agriculturally dominated landscapes. Market-based opportunities like the Transferable Endangered 

Species Certificates and Transferable Habitat Certificates should be promoted as additional practical 

solutions. 

Landowners who enter into wildlife management plans to enhance and restore habitat 

and ecosystem fune1ions on their land should be exempt from future ESA restrie1ions if they need to 

return the land to its previous st21e of produe1ion or its prior condition. This process would be 

similar to that currently used for wedaDds under a nationwide 27 permit issued by the Army Corps 

of Engineers. 

5 

26-566 0 - 96 - 3 
62 

USFWS does not have the resources to adequately assist in developing such options. State 

fish and game agencies do, especially in partnership with the Agricultural Extension Service and 

Natural Resource Conservation Servire. The USFWS need not duplicate such efforts, only fund and 

empower already existing and functional organizations to achieve the goals of the Act. Provisions to 

support this expanded stale role should be included in reauthori1ation of the Act. 

IIABITATIECOSYSI'E~ APPROACH 

The Act's focus should be changed from individual species protection to a broader focus 

on habitats and ecosystems. Priority fur funds and other resources should be given to multispecies/ecosystem situations to maximize effectiveness. This will be more cost-effective and, if done 

carefully, provide for both consei.'Ylllion and sustainable use of resources on private lands. 

Recovery plans (see below) should be written for clusters of species and/or entire ecosystems. 

Planners, however, need to recognize the realities of political and private landowner boundaries in 

their planning efforts. 

PROACI1VE APPROACH 

A habitat/ecosystem approach also will provide preventive management for some species 

before they start to decline. The Act should also be changed so that a greater, but nouregulatory, 

emphasis can be placed on species, mch as candidates for listing, before they become seriously 

endangered. Incentives should allow slates to take such positive actions. Proactive habitat planning 

should be encouraged for entire ecosystems. 

LISTING, CONSERVATION PluOR111ES AND REGUlATIONS . 

People are concerned about the current listing process because regulatory and economic 

consequences hinge on the outcome rllisting, financial and political realities influence the 

process, and some listings appear umrarranted. The listing process should be "decoupled" from 

the regulatory actions that are automatically inwked now. An initial proposal for a Decoupling 

Principle, what it might include and how it would work is attached. The Act should be amended 

so that the list is a tool to objectively inform the public about species perceived to be at various levels of risk from a biological perspecme. Being on the list should not guarantee the species any certain type of regulatory protection or lands for study or recovery. Biological information, including 

status, distribution and threats is the only type of information that would be used to place or 

remove species from this list Consequently, biologists -would be accountable for the data used to 

place species on the list This would decrease the incentive - perceived or real- to list or not 

list species for reasons other than biology. . 

More rigorous listing standlrds placing a greater burden on the petitioner to use the best 

verifiable science to propose a species for listing need to be developed. All petitions also would 

6 
63 

have to be exposed to an independent, objective, scientific peer review that would include participation by affected states. Stale determination on listing is presumed to be correct. 

Cat~ories of Endangennent 

There is currendy a great deal of disparity among species in the categories of endangerment to which they are assigned. For instance, Mexican spotted owls are considered threatened 

with about 900 pairs, whereas golden-cheeked warblers, with 4,000-17,000 pairs, and whooping 

cranes, with about 150 individuals in the wild, are both endangered. The public is justifiably concerned and confused. New categories of endangerment beyond threatened and endangered need 

to be refined and standardized. New categories could include such names as extremely endangered, endangered, threatened, sensi!Ne and uncertain. Criteria for these categories should include 

overall population size, taxonomic distinctiveness, distribution, certain ecological factors such as 

reproductive potential and degrees ofthreat. The Act needs to clarify the relative importance of 

conserving rare species, subspecies and distinct populations. These criteria would become the 

basis for establishing categories for which levels of protection and funding would be developed. 

Consemtion Actions; State RespopsibiUUes . 

Society must choose how to invest resources to assure conservation of rare species .. 

Acknowledging that we do not currently, nor will we in the foreseeable future, have enough funds 

to recover all species simultaneously, decision-makers need to develop criteria that will facilitate 

the hard conservation decisions that must be made. As currently implemented, there is liule 

accountability or uniformity in how these decisions are made. Decoupling regulations from listing 

and moving the consmalion decision-making responsibility to the state level are ways to assure 

accountability and greater participation by stlkeholders. 

. Stales must have the opportunity to assume appropriate responsibility for implementing 

the ESA. Federal funds would be provided to states according to a formula based on numbers of 

listed species present in the state and tht'k levels of endangerment, similar to the process used for 

distributing Seclion 6 funds. Essentially, a block grant approach would be developed to facilitate 

state assumption of I!SA responsibilities within a set of federal guidelines. 

Under the decoupling scenario, the USWFS, in consultation with states as described, 

would make listing decisions and determine the category of endangerment for candidate species. 

These decisions would be strictly based on biological issues. Responsibility for determining and 

implementing consemlion actions would fall to states if they choose to assume that responsibility. 

7 
64 

USFWS, in consultalion with states, would establish broad guidelines for appropriate conservation action. Those guidelines would be based on levels of endangerment, multi-state and/or 

international distribution of a species and related considerations. A state's failure to take appropriate conservation actions within those guidelines would affect federal funding to the state for ESArebled activities, and where multi-state or international issues remain, initiate appropriate federal 

action. 

Conservation actions, especially regulatory decisions, may be most efficiently handled if 

!hey are a part of the recovery or conservation planning process that could be assumed by states. 

Any regulatory action would be through state regulatory processes. This would make it easier to 

determine and justify why regulations are required and other conservation tools were not adequate 

to recover or stabilize populations. It would also increase accountability for such decisions. 

Ongoing elfective conservation elforts should be recognized and rewarded. For example, 

if one state is elfectively conserving a species that is imperiled in the rest of its range, then that 

Slate's population should be excluded from the application of federal regulations. 

Comparable Prohibitions Under Sections 7 and 9 

A number of perceived and real differences exist between how the federal government 

(Section 7) and privAte citizens (Section 9) are treated with respect to take and jeopardy prohibitions, the WlJ1f potential impacts are addressed, and the time frames associated with processing 

impact assessments. Section 10 of the Act, or its implementalion, needs to be changed so that private landowners are treated at least as promptly and &irly as are federal entities that may impact a 

rare species. 

Exempting Minor Violations 

Strategies that rely more on incentiws and cooperative and voluntary efforts and less on 

regulations are preferred and more ellective. The Act needs to be modified to prohibit penalizing, 

as determined by the state and federal agencies, minor or de minimis violations of the ESA, such 

as the incidental take of a few individiWs of all but the most seriously endangered species in the 

ordinary course of otherwise lawful activilies. This would be similar to california Senate Bill No. 

1549 that was introduced in February 1994. Penalties under the Act would then be reseiVed for 

more flagrant and serious violations. 

RECOVERY AND · CoNSERVA110N PLANNING 

State and local conservation agreements should be promoted as an alternative to federal 

regulations in all or parts of a species' range. Recovery plans need to become much more practical, acknowledging biological, fiscal and social realities. They need to be directed more at management activities that apply toward actual recovery. In order to produce these plans, recovery teams 

8 
65 

should always be formed and should include economists, landowners and representatives from 

stale agencies, as well as biological experts. Recovery plans must present specific recovery criteria 

that would initiate down-listing. Down-listing should begin within 120 days after the criteria are 

met. Decisions about whether or not to designate critical habitat should be made in each recovery 

plan. 

. DoWN AND DELISTING 

Recovery and delisting effons should be given at least as much attention and funding as are given to the listing process. The Act should be modified so that the status of species is reviewed 

periodically, and if mandated criteria are met, then the process of down-listing should be immediatcly triggered and proceed rapidly. Down-listing by stale or geographic population should be made 

easier, which would provide an extra incentiw! for priwle landowners to help recover species. 

Federal regulations, if imposed, may be suspended by the Secretary of Interior in all or pans of a 

species range if stale or local consemtion agreements protect species and habitat. 

DECOIJPLING PluNCIPLE 

Usting should be decoupled from the consequences of that action. Usting decisions. 

should be biologically-based and should use all of die best scientific lmowledge available and provide for a peer review process. The development of a recovery plan should incorporate all identifiable and necessary actions to conserve and recover the species. Socio-economic considerations 

should be reviewed and factored into recovery action. Recovery plans should be developed within 

a specific time frame within an open process to include stale agencies and affected parties. 

Emergency listing procedures provide the Secretary of Interior a means to protect species between 

the time of listing and plan developmenL The recovery plan embodies actions necessary to conserve the species and, upon adoption, invokes the full authority of the Act. 

Explanatoa Notes 

1. Concerns about interim takings (between listing and recovery plan) could 

be handled by emergency listing provisions if needed. 

2. Critical habitat- part of recovery plan. 

3. Section 7 consultalions required on listing, if necessary. The consultation 

process being modified to include states. 

4. Tune between listing and recovery plan allows for the grouping of species 

into ecosystem plans, provides time and notice to affected parties to participate. 

9 
66 

5. The concept of a recovery plan would be greatly modified to include all 

actions necessary to conserve species, including soqo-economic impact 

analysis, full record of input, etc. The recovery plan should be reoriented 

to management action rather than its present research orientation. State 

agencies and affected parties should be included on recovecy teams. 

6. Issuing a recovecy plan would become a record of decision. The Secretary 

could also determine that a recovery plan not be prepared if circumstances do not warrant it That decision should be made within a fixed 

time period, as should the preparation of a recovery plan. 

7. An alternative would be to establish a three-step process: listingAssessment- Recovecy Plan. The assessment would include points 4, 5, 6. 

REAUTIIORIZATION OF mE FEDERAL ENDANGERED SPECIES ACT: 

Summary of the Position Paper 

Common Sense Approach 

1. Focuses on the goal of protecting endangered species, rather than the 

control of land use and urban growth. 

2. Champions the rights and conservation imponance of rural landowners. 

3. Emphasizes accountability, incentives and more local control 

4. Gives at least as much attention and funding to recovery and delisting 

activities as to listing. 

Conservation Benefits 

1. Emphasizes greater voluntary involvement by landowners to achieve 

conservation goals. 

State Primacy 

1. Recognizes preeminent state authority and provides for a greater state role 

in the Act. 

2. Allows states to develop unique conservation strategies that work for them. 

10 
67 

PriDtc Lapdo1fll0' Ripts 

1. Gtwutees landowner coosent before dala can be gathered from his/her 

property. 

2. Gllll'll1teeS landowner ability to access and challenge dala. 

3. Gllll'll1teeS landowoers an idM! wice in delennining the llalllre of consemdon adions tba1 affect them. 

4. Requires c:hlqes so daat landowners are tre2led a least as promptly and 

fairly as are gmemmearal eatities. 

lgccgtlyes gd CooJmdlop lldar.r 1'baa Repletions 

1. Pmmoces use ol illberitance and income tax breaks as consemlion incen· 

cnes. 

2. Supports use ol elisllng farm prognms to fund and support landowner 

CODSea fllioD elorts. 

3. Bmpowm landowners and local communities with accut21e accessible 

consemtion information and a full ~ of coDSeMtion options and 

tedmical assistance. 

4. ReqaireS justification for using regulalions rather than wluntary oonsemtion ICiions. 

5. Regablions, if used, wuld be through state regulatory processes. 

6. Supports regulaliom daat would be specific to consemlion needs, rather 

than broad based. 

7. Eumpcs minor regublioos W<»ladons. 

fimtrr· AccopgtalpililJ 

1. EDsures daat by decoapJing regulations &om lisling: 

a) biolOgists are more ICCOUIItable for which species are listed, and 

b) decision-makers are more accountable for which consemlion 

aaions are used, induding regulalions. 

Al!l'ligdlon of lk:gcr Sdcorc 

.1. Requires refinement and standardizalion categories of endangerment. 

2. Requires de9eloping more rigorous liSiing Slalldanls. 

3. Requires the use of tbe best 'ft!rifiable science for listing and conservation 

pJannmg. 

4. Requires petitions to be exposed to an independent, objective, scientific 

peer review. 

II 
68 

24722 Fedoral .Registor I Vol 61, No: 96 /. Thursday. May 16, 1996 I Rules .;,d Regulations 

offerors to be ielected for phas&-lwli must not exceed 5 unless the ·., .: ·· .. :.: . · conlnK:ling officer detenninei 'that.':. ·: specifying a number greater than 5 Is In · 

tfle Govamment•s interest .ari.d II :: .' r 

consistent with the purpose and · ·: objectives of the twcrphase selection 

process. For phase4wo the solicitation should Identify all factors, including 

·price or cost, and any significant sub factors that .will be conaldored In· 

awarding the lease and state the relaU~ 

importance the Government places on those evaluation factors and subfactors and otherwise comply with psrosi-apb 

(a)(7)(i) of this SOCii~. : 

Dotad, Mayt0, 1996. 

Ida W. Utlod, 

Deputy Associate Administrotot' for Acquidfion Polky. 

lFR Doc. 11&-12198 Filed s-ts'-<16; s,•• oml 

IIU..artOCODI ..... 1..P 

DEPARTMENT OF TRANSPORT AnON 

Surf- Tranoporllltlon Board 

~~ CFR Pari 1330 

(STB Ex-No.l547] 

Removal of Obsolete Regulallona 

Concemlng Filing Quo-for 

GovemrnentShlpmenta. 

ACIEIICY: Surfoce T~tion Board. 

ACTION: F'mal rule. 

IIUIIIWIY: The Surface Transportation 

Board (the Boord) is removing from the Coda of Federal Regulations obsolete 

regulstions concerning the filing of rata 

quotations for government shipment&. 

EFFECTlVE DATE: Janumy 1, 1996. 

FOR FURTHER INFORIIAnoN CONTACT: 

Beryl Gordon, (202) 927-75t3.!IDD for 

tho baaringlmpaired: (202) 927-5121.) . 

SUPPLEMENTARY INFORMATION: Effective · 

January 1, 1996, the ICC Termination 

Act of 1995, Pub. L. No. 11M-38, 109 Siat. 803 (ICCTA) abolished the 

Interstate Coipmen::e Commiaion (ICC) 

and as!Abllsbed the Board within the Department of Transportation,Sectlon 

204(a) oflCCTA providaa' that"(tlhe . 

Board shall promptly rescind all .. · . . 

regulations as!Ablisbed by the (ICC! that 

""'based on provisions of law repealed 

and not substAntively reenacted by .this Act." . 

Former 49 U.S.C. 10721(b)(t) 

expressly provided that a cOmmon canler could provide transpOrtation for 

the United States goveminent without 

·charp or at a reduced rate.1 lbat 

pruvisioo is retained in new 49 U.S.C. 

10721 (rail transportation), 15712 , 

(transportation by mot.or or water 

canlqe aDd freight forwarders), md 

15504 (plpallna transportation). 

However, the ICCTA removed the 

requirement of fanner 49 U.S.C. 

1072t(b)(ZJ that common canlors 

ge~lly m .• copies of rate quotations 

or tenders with both the ICC and the 

department, agency or instrumentality 

of the United Slates government for 

which they were made. Therefore, the 

ICC regulatiOIUI to hDplemeni the 

quotation fi11ng lequlnoment. which 

were c:Ocli6ed In part 1330 at43 FR 

591144 (D'ocembar ZZ, 1978),2 have boaJ 

rendered obsolete. Because the statutory 

basis for the part 1330 fegulations has 

been removed, we are eliminating those 

rules. 

Because this action merely reflects, 

and ls required by, the enactment of the 

ICCT A end will not have an adverse effect on the interests of any person, this 

acllon will be daamed to be efioctivo as 

of January 1. 191!11: 

Tbts action will not significantly 

affect either the quality of tha human 

environment or the conservation of 

energy resources. 

u.t o(Subjocts In 49 CFR Part1330 

Freipt. Government procurement, 

Motor carrion. Moving of bOUJebold 

goodo. PlpalinM, Railroeds. 

Decided: Mlly 2, 1816. 

By the Boud. CbalnDOD Mo.pD. VIal 

Clalnnla Simmons, and Commluioner 

Owen. 

v Secnti..ry. ...... A.- PART 133G-'{REMOVED) 

For tho roUons sol forth in the 

pnoambla and under the authority of 49 

U.S.C.7Z1(a).title 49, chapter X of tho 

Code of Federal Regulations is amended 

by ramovina part1330. 

(FR Doc. 06-12280 FtJ:ed 5-15--U&; 8:45 ami 

~~ ............. 

~tDntrec::oclla.d..:tloaUof 

0.1111 ...... c..r.--c:. Act. Slctklll u al1oMd CDGJIDOil carn.n lo deput &ID their tarlfflln 

pro-nd.IJII.mc. to the p.,...g, 

I"J'11. nculatiou wen lat. madift.t to edmpt 

non.pkultural rail n.tli quotation& from tbl Blina 

nqubaleota..lfailroad r:.tttpt.-Fililf& .. ~ion J07ZJ, 7LC.C.2d315(tltt). 

DEPARTMENT OF THE iNTERIOR 

Floh..., Wildlife Service 

50 CFR P8ti 1r. 

EnclantieRd end Threatened Wildlife 

and PIMia; -rllng the Listing 

Program Md Flne.l LlaUng Prtortty · Guidance · · 

AGENCY: Fish and Wildlife Service, · 

Interior. 

ACTION: Notice of listing priority 

guidance. 

_,.,, Oo March 11, 1996, the Fish 

and Wilcllilo Service (Service) published 

a notiao In the Fadorala..- · dasaibing interim guidance for setting 

priorities ln the listing program and 

solicited public comments. The Service took. this action in anticipation of receiving a limited amount of funds to resume listing activities. Having received o limited appropriation of 

listing funds for the remainder of fiscal year 1996, the Service announces final 

listing priorities that wlllgovom the 

expenditure of the available funds for the remainder of the fiscal year. 

DATU: This guidance takes effect May 

16, 1996 and will remain ln effect until 

September 30, 1996, unless extended by 

further notice.. · 

ADDREIIU: Questions i.bout this guidance should be directed to tha 

Olio!, Division of Endangered Species. U.S. Fish and Wildlife Service. 1849 C Stroot, N.W .. Mallstop AIU.SQ-452, 

Washington, D.C. 20240 . . 

FOR FufmtER lefoRuDOH CONTACT: E. 

LaVerne SmJth. Chief, Division of 

~f.ilit'~~~,.~~~a.:~~~:(!. ADDAEUES soclion). 

SUPPLEMENTARY INFORMATION: 

BackpOwul ., 

Moratorium and Fun.ding ConslfYJints 

Over the past thirteen months. the Service's Endangered Spades listing 

program, which oparotas under the 

authority qf oecllon 4 of the Endangered 

Spades Act (Act) of 1973, as amended 

(16 U.S.C. 1531 et •eq.);bas boOn 

sharply ciutallad bf a variety of 

legislative and funding restricllons. 

PubUc Low 1~. wblcb .took effect 

Aprfl10, 1995. rescinded $1.5 inlllion · frOm the Service's than-current listing . 

approprlstion of $7.999 million and also 

stipulated that tho remaining Usting 

funda could not bO used to make final 

listing or critical habitat designations. 

Tho not effect of Pub. L. 104-0 bas been 

that no now spaclaa have boon added to 

tho U... of endangered and th1"8tenod 
69 

· Federal Regisior I VoC 61, No. 9& I Thursday, May 16, 1996 I Rules and Regulations 24723 

wildlife and plan~ In more than a yw ,. g~vemme~talshutdown and the CRS In end resolving petitions for 57 species. 

and~ a resuh,e backlog ofZ43_! ~:: : \ •. . effect from DeceJJJber 16, 1995, through This highly Irregular sltuatlon demands proposed llsUogsbao 8ocrued.o,.,> ;,,,, .. · January 26, 1996. , · . . · · lhat the ServlceesiAibliah biologlaUy .. .. f)om October I; 1995, until April28, .. • The CR that governed the period ·. defenlliblo work prlorltlee to guide 

1998, tholleP.,rtment ofthelntBrlor j,.: •' Januuy 27 through March 15, 1998, '·· . expenrutures of the limited listing .. operated without a regularly. enacted, ·. provided that fundo would ba available appropri0tlono in a manner that bast 

full·yoar appropriatio~s bUI.Instead, for the listing program based on the rate servoo the purposes of tho Act: .. . 

funding for most of the Department's established in the Houae·Senate 'llle Service ia aware that the programs, includihg the endangered conference report the Depaitment of the Department of Commerce and th~ . species listing program, was governed Interior's fiscal year 1996 National Maririe Fisheries Service by tho terms of a series of thirtoon Appropriations Act (Section 126 of Pub. (NMFSJ have also facad a highly .. 

.. continuing resolutions"".(CRs). The L. 104-99). This report included an Jrragular fundins situation fn fiscal ~ar 

deta t~ r:f these are complex and are ,annual rete of $750,000 for listing ' 1996 and may have dU:.a!~tnt pd :~ .as · 

sum~_;.lBd In what follow~. Their net activities and continued the . with respect to restarting their :i e> tion 4 

e ffect was essentially to staut do~ thi moratorium. At an annual rate of listing program. This guidance and its Hsting program · $750,000, about $100,J)OO were available priorities are not intended in any.way 

The CR for tb.e period odober 1.- lor lisUJJB activities during the period of. todff«:t the $nt8rpretation of the Act, . 

1995, throulth November 13, 1995, l thlaCR. .,: . : · . . tho Secietiry ofComniOn:e's end NMFS' 

continued the moratorium on final · ShorHenn CRs covered the periods decisions regarding implementation of listingsand .critical habitat dosignatl'ono March .. l&-22, March 23-29, March 3G- tho Act, Commerce's and NMFS' budget 

from the AprillO, 1995, enactment. The 'April 24, and April24-26, 1996. These priorities or Commerce's and NMFS' 

listing program was funded at a level .. CRs continued the moratorium on final administration of its section 4 listing 

equal to 95% of the overage of the" listings and critical habitat designations. program. This guidance is intended only 

funding for these acti~ities provided in and altogether provided the Service to reflect tho implementation di£ficullies 

the appropriate appropriations bills with very limited funding ($90,000) faced by the Department of the Interior 

then pending before the House and during this period. · and the Service, and not those of other 

Senate. For listing activitie,.s,.the House Those very limited funds were . agencies or Departmen!S. · 

bill provided zero·funds:1'he Senate bill quickly expended in paying for Federal Principles fo'r Restarting the listing provided only a token amount Register yublication ch_arges for a ($750,000) for the entire fiscal year. variety o listing docum8nts that were in Program 

Averaging these two, and apportioning the Washington Office awaiting The primary purposes of the ·· 

95% oCth8 ,verage across tht;t six weeks publication (e.g., Vertebrate Population Endangered Speci&a Act are " to provide the CR was in effect meant that only . Policy, miscellaneoUs petition findings, a means whereby the ecosystems upon 

$43,000 was available during this time and delistings or reclassifications) and . which endangered species and period. · · · • · ' · ·· providing biological infonnalion to the threatened i pocloa depend may ba 

The Acting pi rector of the Sefvice· district courts. . . . conserved, to provide a program for the 

issued guidance on Octo~r 13, 1995," . On April26, 1996, the appropriation conservation of such endangered 

describing the activities oh which these for the Department of the Interior for the_ species and threatened species, and to · 

funds could be spent-(1) completion of remainder of fiscal year 1996 was finally take such steps as may be appropriate to 

any comment periods and public enacted Into law. It provides achieve the purposes of the treaties and 

hearings for pending proposals; (2) · · approximately S-t _! Ilion for the .. conventions set forth in subsection (a) of 

completion of pending petition find ings; Service's listing program over the entire_. this section.•• .. 

:C~ac:lih=~~t:{ ~~~di~itl!!.ngs or ~:;:~~:d$~;.~!~th~d ~dy Se~i~~~~~;~~)h:~~~;~:~~d~g Washington Office awaiting approval. In appropriation,leavlng $3,767,000 for given to those species believed to face 

the same.memorondum ~~Director also the remainder of fiscal year 1.996. This · the greatest threat of extinction. It is 

ordered each Regional Director to begin act also extends the moratorium on especially important to continue this. the orderly transfer of llsting personnel expenditure of funds for final decisions policy with the current financial 

into other activities that were likely to . on listlnga and critlcal habitat - ·constraints. In carrying out that policy. : fu:~=~=~ n:::.:a~~96. ~is : · ~:!fd:~to::,S!~~!\~~som:!t:~::: the _ ~~=-~c~~~~!~!:Sta~~! ~~v~~~~~ng indications were 'd.at Co~ ,&rna ~ould pfovJalons. The Ptes'dent Issued a . process as the listing program is ... further restrict the listing budget, which waiver ofthet8 provisions on April26, restarted: ... ·,. , ·: could have resulted in reductionS-In~ . . 1996, shortly after signing the OmnJI:!us ." . . (t) Highest priority wlll be "glveiJ. to . Corea. Tho ""ultiog loss ollriolitu!fonal· Budget Reconciliation law. · . -~ . protectlng'apeclea moat In need, based 

and adanlific a>q>ertlse wciuld baV. . . ·. SigniQQUlt obsta cleo remain" tha .... : on the prloritiee ·esiAiblished bY tho aippled thollsting prOgr.m. ·· ; . . ; · Service rootarta ita listing p~m. Tlui'.' ·listing prlorityguidanoo finalized in this 

Tfialialing program liad lo l>t"ahut . available funds. fall far abort of what la.c . notice and tho t983.U•Ung Priority 

down completely upon ixpintion of the nooded to clear away tho backlog that ... · Culd!ilinea (48.FR 43098-43103; 

fillt continuing rooolutlon. Tho CR iJ) .. · boa buUt up .. CIInontly tho Service'facas' September 21 11183)· •lfoct.from mid-November thiouah . · ·. . a backlog ol 243 proposoid apectoO, a rar .. ; . (2) Biologl~ neod, ~ot the . 

llecambar 15 provided no f!inda to tho, larger backlog tll8l\ bas exiated In recant Jjl9feNIICOI or Utigenta, should drlvv tho 

listing program end aJ.o oontlnued.lbo times. Thio poooo a particularly difficult · listing procooa. Tha SerVice will work 

moratorium provisioi')S of Pub. J:1iM- problem for the Service in light of the . .. closely with the Department of Justice to 

6. Therefore. on November 22, 1995, the other Section 4 activlUes that nqutnt · defend ita prjorlty system in f:hose cases 

Director ordered the reassignment of all attention such aa resolving the . · whare plaintlfTa , ln pending or naw 

Hsting staff to other dut es untll lunda: . conserVation status oi18Z candidate · -: cases. request actions that woUld cause 

for these activities were 1'8$tored. .. species (see 61 FR. 7596; February 28, the Service to diverge from the 

Similar constraints applled ~uring the. . 1996): addnsslng pending C9wt orders; principles discti~sad here, and thoroforo, 
70 

24724 Federal .Register I Vol: sl. No. 96' I Thursday, May't6, 1996 ·1 Rules and Regulations 

in the judgment of the Se~ice, ,;;o~d : ' 

divert resources from providing prompt_ protection to those species the SerVice ·.' believes to be in greetOst need of the .-\.:, protections of the Endangered Species::_ Act: . ·" . ------: :· · .. ,. : ... : 

(3) Sound science, including poor review, will fonn the fonndetion of each 

and every listing action: ~d · 

(4) Public comment and porticipoUon 

in the petition and rulemaking · 

processcf,. ··.o\lill be enhluir:! •.~ to ensure 

that the States, other Ferier.,i agencies, 

and the affected public are provided 

with complete explanations _of the action and are provided everY :: 

mont Ume to bring to the stage of final . Babbitt, 13 F.3d 867 (9th Clr.: i995).: ',:.:. ,. 

decisiOn. ' Now tha~ the moratorium is no longer in 

is'!!'b!.~~f;J:...~~~t~~~=:: ~~~bi.!1o~:·t~i~~~;;':,J.i to eliminate tbe ·CWTent becklog of Z43 - · decide hOw to best apond'these ftinds ·to· 

proposed species. Beciluse the facts · .-.. cony out the purpose$ of the Act. The ' 

involved _in each ·final listing · · . . ·. press Of pending and thieatened new 

determination can vary widely, it is litigation could complicate this task impossible to generate meaningful immensely. · · · .· .· 

''average'" CO$ts for each listing activity. This pending and threatened · 

Processing a proposed final listing may litigation presents many competing and 

take only a few thousand dollars if conflicting ~lttims, and in the Cllf1'8nt 

basically all steps except final approval budgetary situation translates into 

and Fed.eralltegialer publication are . expensive demandS on inadequate 

completed. But processing may take resources. Actions requested by 

many tho~ dB or dollars if additional plaintiffs CC?Ver the Bntir8_ spectrum of 

f~fo:.ti~'K t~l)~o=:=~ . comment and respo11S8S or public · · · listing activities, from petitions to add 

. heerings .... required. The economic . speCies io_ the list to requests to overturn 

analyses required for critiCal hsbitat · existing listings. Talr.en ci>llectively;- ·' wi\1 be carefully evaluated and · 

resp nded to. · · .. designatim;ts, for example, may require these pending and potential cases seek· 

. substantial dollars as well as time. .. different and sometimes diametrically Actions Required To Restart the Listing FollowinR completion of work by th~ opposed results . . Program Field Offiat, draft recommendations on···· Oefending existing and any new 

The resumption of an effeCtive listing 

program will require a variety of · 

actions. First, the budget interruptionS 

described above required the Service to 

reassign all personnel funded through the listing program to other activities 

from mid-November 1995 through April 

Z&. 1996. Many of the listing biologists 

are in the process of being returned to 

their regular duties. The tasks that these 

b iologists have been working on during 

the listing shutdown will require a 

period of orderly shutdown or transfer. 

The Service estimates that it may 

require as much as 45 days to fully -

reengage all listing personnel. Where 

vacancies exist, steps are being taken to fillthem. · · 

As staff como back to the program, all 

listing packages will.be reviewed u . · 

quickly as possible to detennine their 

fa~~~~yp~~-:;:~=~~~~ . here. · · 

th~~:~ ~~:p~~~o~ C:e':~~~!i b~~ facts involved in each peckage. The 

packages are in vari~us lt~tes of. 

completeness, both u to substaJlce and 'to process. Some merely requlnt a final 

review to ensure that they eccurately 

·reflect the current sitil.i.tlon. while 

others will-require extensive revlaion 

because tlie biological-lituoUon may · i have changed since the propOAl w• issued. Still other proposals were issued 

shortly before the fundlngintorrupUnn, 

so that requests for publlc.h!!r!nge or to 

extend the comment periOCii"""could not 

be acted upon. As o result of this · 

variety, final determinations on the 

pending proposed listings will move 

through the aystom ot ""'Y dlffenmt · 

rates. Those that still require addressing 

pu_Dlic comments will take considerably 

each package will be sent to the laws·uits can divert considerable 

Regional Office for policy review and, if resources away from the Service's 

appropriate, concun:ence. Dependid.g on efforts to conserve endangered sPecies. 

the remaining steps that must be When the Service undertakes one·listing 

completed, the above described steps activity, it inevitably forgoes another. In 

may take -from 3G-120 days. some cases courts have ordered the 

Ornfo

08

llo• tbewing a.p

11

p=?1'ethndoe Regtt'onisonawt.lll Service to complete activities that are • dra aV>.Anu.au simply not, in the Service's expert 

be sent to tho Weshinliton Office for judgment, among the highest biological 

technical and policy review and priorities. · 

approval by the Director.lncluding a Ik~lopmentaad Publication or' . . brief review by the Department's Office Interim Listing Priority Guidance and 

of Regulatory Affairs, review time in the Its Relationship 10 lhe"l983 Priority 

Wesbington Office may require 30 to 60 Guidance -

~~:'i~11,;. ~"!h'J~.:i" habitat · . · In 1983 the Service adopted · · ' 

also require review _by the Office of · guidelines to govern the l!sslgnment of 

Management and Budget and will take priorities lo species under consideration 

additional time to complete. for listing as endangered or threatened under section 4 of the Endangered Pendill8 Uligolion Species Act (48 FR 43098-43105: 

n~~:=i~f:d::!1 !=:~tin_ ~!:=e~i~e~ !:! ~:;::~:heaof involve proposed and final listings, rational system for allocating available 

petition findings, and attica! habitat appropriations to the highest priority 

designations. AI of April-1. 1996, species when adding species to the lists 

approximately 60 separate civil suits of endangered or threatened wildlife 

directed at the process of listing species and plants or reclassifying threatened 

under tbe Act were.pending egotnst· species to endangered status. Tho 

Fedtpral officials or.agendes. As of April system places greatest importance on 

1,1996, tho Secretaty of the Interior bad the immediacy and magnitudo of . rooelved approximately 300 NotiC.. of · th..,.ta, but also factors in the level of 

lnteilt to ·sUe (required u,rider th"e Ad ·: . . · taxonOmic ~st4ttt1veness by aSsigning 

· befono suit may be filed (see 18 U.S.C. - priority In desoenclina _order to · · _ · 

§ 1540{&))); OD wh.ich litiSation bas not . monotypiC IJODI!n. fufl species, and yet been, but could be filed at any Uine: . subspecies (or equivalently, distinct =y ~~.:::=flntant dea~ ._ .. ' pof/:!a~:S~ ~!f;!:~fd~·~:':\:i,lit,b · 

Duriq th~ mo~torium on final priori~es among different typeS' or listings and aitical habitat designation li.UJ18 activities, which include 

that Wal in olfect for nearly thirteen _ ·. processing ponding proposed liati.ngs, 

months, the courts generally ag,eed new proposed listings, aeUstings or 

with the Service that It could not legally recla~~ ficaUons, petition findings. and 

act to meet d•dlines without a lawful aiticel habitat determinations. The 

oourco of funds. See, ·e.g.. . becklog of proposed species o;reated by 

E_nviionmental Defense_ Ce~rv~ · the_moratorium and the recent funding 
71 

Federal ResiSter /. V~l. .61; No. 96 /.-Thursday, May 16, 1996 I Rules and Regulations 247Z5 

constraints promptOd the SerVIce tO •·; • . . s...U,uy oUntorlm Uatieg Priority · · tho followleg organizatlons-BMl ·· .-

65tabliah pdorities. · . ·ng the varlOU~ · Gu~ance ·., . . . · Mork~ting end Marine Services Corp.;. Arizona Game 6: Fish Deportment;-the listing adlvitioo. -:· ,_···"'"•;_·,r:_.!·;_.,,;,_:;_-; . Tho main principle underlying the . · Morine lnduatritl Asaociatlon of : 

. Acconllngly, Ni-llor thl• •f:1· bi.d; ~; · llatlng priority' guide nee ls to ~·-!he · . Floride,lric.; and Moan. Eric. 

anticipation of faciO$ a pooa1blo lfting ·~ llmlt"!lllstlng '""!""'*_on thoao · :. · :--·· Glltzenateui, Micboal Sherwood, and 

of tho montorium on flnoill!atlngs ana ·.· actions that wlU nault lD the gtNiest . . Wllllam Snape. counsel for tho plaintiffs critical habitat design&UoD.a but. with · . . : conservation benefit-for the species in in the Fund for Animals v. Lujan, Civ. ·only limited funds availabl~ to cleer . most urgent need of the-Act'• · ' · . No. gz-aoo; ·D.D.C. · away the large backlog Ofpro~sed · p'rotections. Because only listed species The comments &om the Arizona 

species that had built up 'n thelntorlm, . .,.calvo the full conservation benefits . Depaitment of Game a. Fish expltiSsed , 

the Service pub~iabed.Jo~ listing · · and substantive protections of the Act, genB1'11 iupport f~r the iuterim prio~ty priority guidance in lho Mor·:h 11, 1996 · and bocouae_ tha v .. t majority o(the guidance, but J'OC!'illlMr.ded_thot 

edltlon oftho Federal Re,J:ater (61 FR proposed apaciea face hi><h·mosnitude roclassllicatloos and deliatiegs should 9651-9653) and !IOlidted. public . threalll to their continued survlvei, the rocolvo hlgl>er priority, perhaps In Tier 

comment on that guidanos." Sununarlas Servlco decided to give hlgb,oat priority 2 of the Interim Sllidance. 1:t>e Service of thelntorlm guidance and all • · to liandlleg ..Dorpi>cy sltuatiODS and • ._,_ tha useful nigulatory ·,.uor , comments n>ceived, and~ Ia " n100lving tha llating_atatua oftbe 243 -- · · that clellatlego or rwclaaallicatlons can 

.the commenlll, ora lnclu~ ln tho · outstaridiJig propoaod llstlngs."Highest · · provide. The priority guldence provides 

{o~;:a~~j~~ ~~;;;d;:..·· , , r::!~Yp~;;,:n.~lgned to Tier t; :=~e:!~.d"!:.~!h~h~n priorities lor the Service. under a tully·.. Tier t-Emergency liiJtings. Under Regional offices, these adlons will fun.ded Sadlon 4 program •. for making soction 4(b)(7) of tho Ad, the Socnltary proceed whlle the subject guldencels In 

eXpeditious progress in addins species may list a species on an emergency basi• erred. However, generation of new to the Usts of Endangered and · · · · · (without the usual public notice and . proposed de listings or reclassifications 

Threatened Wlldll!e and Plants. They comment procedure) If an emergency cannot he justified in a time of extreme are not. however. suffident to deal with exists that~ ''o sJgnUicant riak to budget constraints and while there is an 

tho present backlog OfJ>roposed . apacles. the well-being of any speCies "offtah or oxtonslvo backlog of proposed species The Service developed the Jnteri~ wildlife or plao.ll. • • ·~·Generally, an · awaiting final detennlnatiolll. The . Listing Priority Guidance, which lD a emergency llstieg rulo.remalnsln effect Service Ngr8la that the limited . . 

slightly modified !om> Is~ .. . . for 240 days, d~eg which time the · appropriations mode available, coupled · republlobod u finel guldonce, to Service typli:ally lsouea a propOoed .With the becklog of new listings built up 

provide a moans to reconcile these . liotlilg and makes a final determinotion by the moratorium, have delayed - · . 

compellRJ! and confllctleg domondsln a as to whether ftnalllstlng"la appropriate. · dSeelrvilotcelnga onddocrecl~~•stificocamtiobnlnso. Tha

1

.

1

e_ biologically effoctlvo and officiant way · Tier 2-Preporation and propaaslng of o bee uwu 

to best cany out tho purpo- of the Ad. final decisions on outstanding proposed actlvltles that wontossigned to Tiers 3, ·. 

Spociftcally, after careful dollbaration, • Jiatlngi. Wlthlo Tlor 2, highest priority 4, and 5 end place them colloctlvely ln 

the Service has decided that, In order IQ wiD he given to apocleo focleg the · a slegle Tior 3 for niUons explained · , 

focU. conservation benefits on.th'* highest magnitucfe and moat Imminent . lielow. · . · . . · . 

species ln greatest need, piOCIOilng final tbnoits. For spoclos with equalllat1eg The Marlnoln"dustries Association of 

cfetermlnationo nlstive to tho pandlng · priority aaolgnmenlll, the following Florida, Inc. {MIA) expressed a similar 

proposed Jiatiego should ncalve higher typao of acllona wlllN<lliw subo;quent concam ebout the lower priority of . 

priority than other actions required by . priorit~U.Ung pockagoa !hat cover. dellstinli or roclUNification octiono, . ...-:lion 4 (such os patltlon llndinp, now multiple spacloa; listing pocbges that responded .to above. The MIA also 

proposed llstingo, reclaasiDcetiono or . . can be qulclcly cleared {o.g., thoae wlth . commented that the proposed guidonca 

clellstings, end critical habitat -- few public commanlll or foc!ual . ... , . should not be used to """h new listings 

"dotennlnationa). Publleatlon of the · .. quostlona pNMDtod); and proposola that tbru" for species that oro hl,.bly 

priority guldence Is lntench!d jl> explain have boon pond leg the longest.· _ .. sclentiftcally controvenlal. In tho to tho public {Including Utiganll and . Tier 3-PNparleg and processing new Interim llating priority guidance, the 

.ntviowlDg couits) pnldaaly how the · · proposed Uatlngsfor apec1ea foclDg , _ Service noted that addltionsl public 

Service believes lt should -Ill llmltod blgh-magnltuda threoll; and acnenln& ." comment periods alight ba noceuory 

lilllDB appropriotlons to ~urn ·· . patltiono for emergency altuat!ona. . · . before ruloa can be flnelired lfthere,ore ef!oct to cony out the PUJPC!OII. of the . . . Tier 4-Preporlns and proceaaleg ·. wuoaolved quaatlons or now. . .. 

~tof~~ ;, :.=.~:1:..::=::~ ::: ~rM::: '!":=~=:~':J~JSee Deportment of the lntodor Solid~ a · . ·. p....-ingllnaJ dacia1ona OD pendiDa . · "Settina Prior!UN Within Tier 2"). The 

Olttce wil.lsenerally ultlltipnlo and · . . . Jl'llposed "!Claasl&atlona and . -- :. :. Service will """"" that aound aciance, tho cowts to dolor to thla Ullllf8"prlority dellatlnp: pnoporlna and J110C8U1n8 .. . . lDcluclleg peer nvlow, forme the _. 

ayotem. NMr tho ~d Of 1laceJ,..., 1998, ·. admlDlmativellndlnp for.poUU0111. : · founComdo~,? ..f,.IJ:I~ ~~ana. : . tho~Joawill ~-tl!e-tOfthe . nor~andpiOCIOilng , .. :c. --~ dby . remalnlDgllll!nibacltJoiODdthollocil .- crltlcalbabltatdalermlnaUonaand .: . . _. Moi-btingAMarin8ServiceaCorp., ~: yeor1997b\ldptaltuotlolitcJdelcmlne · pN.>aringo<JIIOI*Oin8new Proposed.-, t~~utioned lhlt llnal declalona on : .· .. · 

If an oxtenolon of thla guidance Ja . . . clelfotlngo or nclaulllcallono. . . . . · .. proposed llollego shoUld DOt be ruohed, 

:=i:~~':h.th!u":"J!~:.!&::d. sa-aryoi,...t...p...;....;; -: .. ::::~~::,~::e'h:i that aood cause exlllo under S U.S.C. ·. eom-ta uul • ......._.. • ..,.."" lieen lost. The Servico- with thll 

5S3(a) to mab thla guldancio ell'ecllve · tho latorlna LlatJeg PriGrity Goldui:e"". coJIIIIIenL l!och pending propoaal will 

upon the date ofpublicstlon ln .tho - Comments on the.lDterlm uith.s --, :,. _·. be reviewed to-.nsure lt contains 

Fed~al Jlaglotft. · ' priority liuldence 'were raoolved from --. _ ... cuintot and occurato Information. 
72 

24726 Federal ~er / ·Vol 61;No.·96 / .Thursday, May 16,1996 I Rules and Regulaiions 

Where nece~,Y. pubUC or;mment ." · 1 • on September 30, 1996. Given the 1996 to complying with the Fund /or periOds will be reo~ : :-; ' :: ·• '·' . · ·· maanitude of the bDckloQ;and the . Ani mots Settlement Agreement. th9 · .. 

The attorneys represeoUng the Fund· limited funds available, however, it is available funds would be insufficient.· · · For Animals (FF AJ.oJ!ijmsOd conQirD ',. . )ligbly unlikely that tho Service. will More important, if tho serVice 'wore to . 

that they wore not c;onsultoid jmi>r to •, '"· complete proceuing of all. of the · ... follow this course, It would he devoting 

release of the interim guidanCe, sinarlt : pending proposed listings wi~in that no resources to final Iisting,decisions on wlllsubstantially affect the Service'i · ·· time. Most of the.outstanding proposed the 243 species that have already been 

implementation of 1 courtaOI'dered listings are fot species detennlned to proposed for liaUng. Being so close to 

settlenlent agreement with FF A dealing . face high-magnitude threats (priority 1- receiving the full protection of th:e Act. 

with the processing of species regarded 6 under the 1983 listing priority these species would remain unprotected 

as candidates for listing under~ Ad. · ·. guidelines). Once the back.los of under this course of action, while 'llllhe 

~:c?rnAth~t~:J::>"~:!~e:r.J: ~ion proposed species that face high- Service's effoltS in th£ :::~ ~t; po~ mnognorltcoudn~~lroa, thlo• hScasrvbee, ·c·"w' h

1

.'1"' 1

· rosct;.gbt1

.nd would be bent toward dec1ding whether 4(h) of the Act by failing t" p.tovide 1de1 uv to movv -:andidnte species closer to opportunity for publ~c comment prior to. thl• guidance and return to a more . proposed listing. whete they ~iva 

enactment of the priority guidance. Tho typical implementation of 18Clion 4 that some limited procedure! protection (tho 

.FFA attorneys asserted that requirlas ·:· . abo include~ preparation of proposed section 7 conference req':lirem~t. see 16 oomplation ofallfinallistiDgi.bofore ' ·.· ' llsllnga, dollll)lnga, and processing of .u.s.C. 1536(a)(4)), but nol the full .. · ,· 

beginning n~ proposals-is contrary to petitions. ·. · ·. · .. · &ubstentive and procedural protections 

the settlement agreement and · The court-approved Settlement offered by final "listing. This course of inconsistent with sound administration Agreement in Fund for Animals v._ action would also result in a still larger. 

of tho Act. The FF A also oxprossOd · l.ujon, Ci v. No. 92-aoQ (GAG) (D.D.C., hock los of proposOd 5pecios awaiting concern that the Service has erected a Dec. 15, 1992) discussed by Glitzenstein final action. · , 

series of administratiVe hurdles that et ol. in their comments illustrates the Put·a little dlfferently. this one court· 

unnecessarily slow the speed at which problem posed by competing resoUrca approved settlement agreement, absent 

Sp4!Cles can be added to ihe Ust. :~:ad:~ '!!:.::~:c:..::!:!:: the modificalion, would defeat a primary 

in~~~::i~C::~~:i~~-=U~tely, . statU& of 443 csndidate species (either ::."::!~~;: ~';,}l!i~ the service believes it acted reasonably by the publication of a proposed listing rvcommending, therefore, that tho 

and responsibly in so doing. More . rule or the publication of 1 notice Department of Justice seek appropriate 

"importantly. althoute the Service ltatlng reasona why listing iUJ,ot reUef from the courts to aUow the f=:i ;:;.:~):ilia~ ~:u:idance ::=::::'~ :rtf:f:~':!: !u\:OO~uire; highest priority proposed specieS to be 

existed to make the guidance e~ve for each apecittt, publication of either a processed and, U appropriate, added to 

immedi8tely • it nonethelesa solicited proposed listing rule or a notice stating the lists of endangered and threatened and received comments from the public. re~ns why Ji&ting is not warranted. wildlife and plants, consistent with_ the 

and has taken them into account and The agreement does not, of its own proviJions of this listing priority 

responded to them now in confmning · terms. require final deCisioni on guidanoa. · · 

the guidance. There wu no opportunity UJtings. Therefore. while it in a sense The FF A also expressed concern that to implement. the Interim guidaoce advances the process of formally . the Service hal erected a series of 

anyway, because tho listing prognun protoctlrig spocloa, full compliance with edminlstrativo hurdles that 

was ••sontially unfunded and tho . the agroollltllll will not bring the full unnecessarily slow tho speed ot·which moratorium wauiot lifted until toctl · f the Act 1 an 1 · spoc!H can he added to tho list. This 

PresideO.t Clinton approved·• waiver o(· p~p to U: ~rna the fu~di/s ~th:· . comment does not pertain to the subject the moratorium on April 26, 199!6. Jiltin& prognm became18V81'8ly matter o( this notice, which deals with ·· 

As discussed above, the limited amstraiaed, the Service was on track to the relative priority of various listing 

appropriated fund& for listing ectiviUea echJeve full compliance with thiS - activities undertaken by the Service, 

now available ere si~pJy not aufficient agreement. 111e Service hu (tublilhed. rather than the procedures used to 

to allow the Service to meet all of its · during the period covered by the =:",&~i!'sa~:b': ~~~innns i~ · 

· ~i~~:~ith~o~b¥::!: tb:~~ · =-.n~==~stio~ rules for ~11 prOcess decisions on proposed 

mu1t make difficult decislona about . Daapita th1a progress, the Service is species as expeditiously as possible. 

how host to allocate the limited funda,. now left with tho following dilemma. If consistent with tho substantive and 

In anticipation of this _aituetion, the · · _'; ·. it were to continue tO e;xpend money on p~ural requlrem~n~s o~ Sectic:'n 4 of 

service madotho Interim I!Jtlns pnority movlnscandidataspocles forward to the .. the Act. ' . .. :.· : ' ·- , ... ,. ' . . ·:.. 

guidance offectivelminodiatoly upon ' . p...,_ad Ulllna state in order to comply Tho admini-Uve "hurdles" noted publication on March 11, 1~qceit with tho aottlometlt agreement, it would by the.FFA consist of joint policy · 

had no Idea whan a full year · :·" • · ·.. . deplete tho en tiN $4 mllUon listing ltatomaDia l11uod by tho National 

appropriation might be' .....,ted · · .. ·.. . appropriation fat fiscal year 1-. ·· . .' .Marino F'llhari.S Service and tho Fish · 

(Congress having enacted •veral short- Procoalaa of propi>iod Ulling ruloo- ' . and Wildlife service on July 1, 1994 (59 

ton:m Qos duri:J this period) and the . • ;:~d ~.:!";:"t!,:~=I~Je . !! ~O.:t!:~~':i:'.~J:': rc!!~ies ~~: ::' th:~!':;;';c!,P~ ;, .. . suhotantial .-n:h,atatua ravi8w, ··. · · requirement to use tho "host available 

would fece when the moretoriuDi wu coordination with Stela and local scientific aod commercial data" in the 

lifted. ~mments received in response·· governments and othe~ interested : ·: declsfon·making process on petition~ 

to tho interim guidance were oonsldorod parties, and conducting public haartngo and propoaad listing rules, see 16 U.S.C, 

end are adclrosaod In this notice · · and peer ievl- · · 1533(b),is met and that appropriate 

. Unless extended. the guid~ is ·· . · If the Sanicl ~to d~Vote its ~tire coordination oocun with State 

effective until the and ~f this fiscal year. budpt for the remainder Of fiscal , · · conservation agencies and the public. 
73 

Federal Resfit8r 1 'Vol. 61-, No. 96. 1 Thursday, ·May 16, 1mJ Rui8s and Rei!UJauciria Z47Z7 

Filuol Lkt~ Priorlty G~~~,.;e . ' · .'-' · . ·lovol ollisUng retOun:os. Tho.1!183 · .. , beliot08lf11111• P •. rovl . . .,d.• ...~ .• itod co .. ·. ~-. .... . lion. ·· Tho Service hos conoldenid ~11 " .. : ··' listins priori~ guidelines and lhlt :. o.6· 

=~~~:E;Etl~ · ~~~~~1~~ 3£1~;~£~~;~' uslgn all activities other IbiD · ... •·. ., · suffidentto CO!Dploto flnoi . megnltudo tluoots, such that additional 

emergency listings and final review o! detonninatlona ·on all pending propnaod guidance II needed to cluify tho relative pending propnsallto TIM 3. ThiJ . .., liatings, the Service doeo notantidpite prlorltitl within nor 2. Propnaod rultl . 

decision Is baood on tho reality that tho · undortaldng any actions In nor 3 prior dealing with ~ doemod to face · fiscal 'yoar 1996 appropriation II ;. · 10 September 30, 1996. . . : ·· . · lmll)lnont, blgh-mognituda thrests will . 

Insufficient to fully dispenoa with the . To •dd"'"' tha biologiu!l, budgetary, hov• tho ui£)>0fol pilorlty within Tier 2. entire bad.log of proposed apodos, ouch end \i<!Jninlslrstlvo !.Sues noted above; Tho Service w11; promptly n1vlew tho · that tho Service is unlikely to undertake tho Service therefore adopts tho· . . becklcis of 243 ·propoood .· spocios and any actions below Tier 2 prior toe . · followlna lllllns priOrity I[UidanC..; each Resion1orlll reevaluate the . · September 30, 1996. 11to Service adopts n.o foDowing loctlona iloscrlbe a lmmodllc)'and '1'"8JIItudo of~~~~ .. , . tho nrvlaad listlnSPriorlty suJdanca u • · multi-tiered apP!'oacb thataosigna · .· -. fac;lns allspoclol that hove bollll ·.,t • . , 

final suJdanco for uslsnins relative ·,· ·• relative prlorltlaii. 00 a d"""""diDs' · • . proposod for Ulllii8ond iW!aa. tho '::·;.; . priodtioi to Uoting ac:tloni amdui:tod. buls, to ac:tloils to be carried ou,t under spodos' lilllns priority l!llignman'" · 

under 18C!lon 4 of tho Blidangen!d · · • section 4 of tho Act. Tho various typos . accordingly. l1tooe with tho highost 

Species Act, to romaiD In elroct until , of octlons within each liM (such as now Uoting priority wiD be procoSoad llrst.· September 30, 1996, unlau extended. pn>pnaod Jiatlnp, adminlllrstive . To 1\irther prioritize among tho Tier 2 

This guidance supplements, but d001 petition findings. etc.) wlll be aca>rded octlons, proposed Ustinp thet cover not replace, tho currentlilliDg priority roughly oijual priority, but thal983 multiple spocloswlll be procossad 

guidolln01 (48 FR 43098; September 21, listing priority gUidellnas will be used based on tho moot urgent listing priority 

1983), which era silent on tho matter of 81 appllcable. The Service emphaal%01 of the componantspocios and niulti- prloritizing amons dllreNDttypos of· that thll suJdance 11 elfoc:tive unlll species packagse wlll hove priority over 

li•till!l activities. l1to Ierma .Of. thll ·. · . September 30, 1996 (unlaa extended by sinslo-spocios propnaod rules with equal 

guidance are olfoc:tive only cin the lilting future notico) and the agsncy Iooka priority unl010 tho Service hos rooson to 

priorities of the Service. Usting octlons forward to Nlumlnsto a mora typical believe that thelinglo-spodeo pn>posal .. under tho juriodlction of the llaperlm'!ftl lmplemantetion of tho Act'e lillllng ohould be procoaaod to avoid posaiblo of Commorco, National Marine Fliabarias mponsibillliaa, to conCIU'nlntlyproceu extinction. 1'\uthennore.ln thoiO C8l8l 

Sen( ice will be procossad aa:oilllng to petition &dings; pn>pnaod and llnal ' where a pn>pcoed UllinJI for a 'hlghprlorllttl Olllbliabod by that-.· listings, n!clusllicalions, or dolllllngs;- priority spodoa also includes other · Section 4(b)(1) of tho .>,i:l roquireil tho and critical hobitat dotennlnationa, after spodos with lower lllllng prloritios, the Service to uoo the "bollav.Uiabla. · · · tho bocl:logs hove boon n!duood. listlflll packasa will not be cll ..... mbled sdontlfic and commercial iDfonnation" · · · · · to deal only with the high priority ·. · to datermino those IJiocios In need of Tier 1-Emorgsncy i.lsting Actions spocioo. . : .. ·.. · . .. . . 

tho Act's protectiono: It baa bolllllong- . l1te Service will !Jnmodlltely proceu Duo to UDn!SOived quaatlons or to the 

standiflll Service policy that the order In emergency listings for opocios thet face · Jongl,b of tlmo o1nce propooal, tho · which spoclos should be procossad for · an Imminent rlllt of extinction under Service may dotonnino tbatadclltional lisUns II based primarily on tho tho omOfll"'lCY llating provllllona of ·· public comment or haarings are 

immedllcy and magnitude oftha l~b ·section 4lb){7) of tho Act and will · necosaary boforel11ulng a ftnar decillion they face. Givan tho Jarsa bocklos of · . pn!paN a propnaod lilling lmmodlltoly {or some Tier 2·act1ons. lftha lllling . propooed spodas, tho bockloilof : upon loemlngofthonaod to emergency priorltleoare.equal, propnaod listings 

pending petitions. and tho 1111 of · . lloL l1to 5ervice will.,._ all petitiODS ·that can be quickly completed (bosed on candidate apocin awaltiDs proj>osal,it . anlf other ototuslnformatioo It rocolYM factors ouch ao faw public comments to 

wSeirvll bo

108extmn10 ~"..Jytslmportan00t ~~~ . to detormina !~an emergency situation addreu or linal docllions that WOn! . 

·~~ fforU -u- oxllls. · . . . . ' . · olmoll complete prior to tha 

thot will prvvida tho....,._ ·. .. ' ·.. Tier z-PiOce.IJn',. Final Deci•i.o n• on. moratorlwnl will have higher priority co010rvation bonollll to lmporilad ·. :· ,., Pro--' Ullfin:.."' . . . IbiD propoeed rulos for spodos with 

species iD tha moot oxpodilioua ·nWiner. · ,........ ·- equivalent listing prioritiaa that .Ull l1to Service will bale dadolono . ·· ,,.. In~ thO pending propnaod · require exmwve wor1t to complete. : 

~tho order In which apeclao llltlDgs. the Service found that the vall Given spodao .with equivaloiltlllling will be Pfopo..d or listed oil the 19113 maErtty of tho propnaod opocl4oo r.c.d prloriU.. ODd tha r.cton previously · 

lilllns priority suJdolintl and_tha· .. ·; hi -map!tudo thiwta. 1bo Servicewl cll...-dth tho-~da~o' ~..'lllild.nbegs . prlorltysuJdancolnthlanOI~ be· thatfocualngolrortsonmaklng , ..,._. _ fill-....,.. 

$~;.~1FS~ ==:rf~>i~tato'j~· ~':-~l:r0iiin,~~. l1to Service allocataolta llllin8 ; ... .,.: . .:.- . opedaothet ·era In ptoet noec1 Of Ilia.' . • .' lndudlng ~"' B.lld daalficiJ!ion• tho --• •- ,._,_., Slnclo oo1 and ~ilgs. New PropDMid Ulllngs, appn>priationamong ._,· ' ~••,.--ona. y-rsoncy . l'IIUilonFfndlnp,andCritlca/HobltDt omcao hued primarily on mililllor or llnalllstlngs pri>vl!lo aubolanli.. ..·.. Del. I-. tlono · . · .· · of propnaod and candidate opodos for· protoctlon the Service II of tha otrons ..-·- which the Region boa laad · , . · . belief that'thll octlvlty ohould toke • While thO 'bocklos Of C...clldoto 

""ponslbility. Thlo anaureo that th-.. pftcedonco over DOW c~ IJotings, . &poclaa boa bollll.raduood aubetontially area• o.fthecountry with tha NclllliftcotiODO orda ,petition : Iince 1992, tho Serviceboadetormlnod porcontage of known lmporilad 6iota llndings, and critic:al Ul:lltot · ..•• · •. : . that.ll2 iipocleo worrant ~uanot of · · will nocoive a .corraapondlnslY hJsb : dooiptlono, wlllcb i1> compiarllca to ·· . propcoad llltlngs. Tbo Act dincll tho 
74 

24728 Federal Jtesiller I Vol. ~1, No. 96 I Thursday. May 16, 1996. I Rules aod Regulations 

Service to make "oxp8dlUoos prognoss" ltul .. ud F'mdinpCwftntly Near · · 

in adding new species to the lists and Completion · 

thereby necessitates stosc!y work ln .;, Tho Hoadquorton.ciffice will roducingthonumborofoutstaiulills · II •-A fino! ,. · candidate species.lssu.OO. of new ; ... · promp y process any""'" .ru .. to add species to or remove species &om proposed listings .js the first frinnal slap tholista, drsft propoosd listings or· : • 

in tho regulatory piocess for listing 8 delistings, drsft petition findings, dreft · 

species. However, this step provides propoSed or final critical habitat 

only limited conservation benefits and determinatiolll, and draft withdrawal 

the Service believes that issuance of notices that. were in the Washington 

new proposed listiv.gs, even for spades Office prior to the date of this notiCe but facing imminent, high-rc; ·l.?,nltude r..o•lld n~ b:~ ~l.-c·-::essed because of the 

thruats, should ttiere:Oie be afforded · funding r.-•n:;irair:ts or the moratorium. 

lower priority so long as a large backlog These actions -will require little 

exists of prop~ listings for species additional Work to conlplete and the facing high-magnitude threats. · Service believes it to be cOst-effective to 

The Service will conduct a · finish uP these 8ctions that were . : preli~lnary review of any· petitio~ to inadvertently delayed by the funding 

list a species or change 8 threatened . constraints. The anticipated number or species to endangered 5titus to ·.._ • such actions is fewer than ten. det rmiite if an emergenCy situation . exists or if the species would probably 

be assigned a high listing priority upon completion o( a status Teview. If the 

initial screening indicates an emergency 

situation the action will be elevated to 

Tier 1. The historical T8COrd on listing 

petitions reveals that fewer .than 25 

percent of all petitions are found to 

warrant listing. 

Processing reclassificatioits and delistings can provide welcome 

regulatory relief. The Service regrets that such activities must be accorded 

Tier 3 priority due to the limited 

appropriations provided by Congress 

and the need to devote scarce funds to 

carry out the overall protective purposes 

of the Act. 

Designation of critir.al habitat 

consumes large amounts of the Service's 

listing appropriation and. generally 

provides only limited conservation benefits beyond those achieved when a 

species is listed as endangered or 

threatened. Because critical habitat protections apply only to Federal 

actions, situations wh8re designating 

critical habitat provides additional .. 

protection beyond that provided by the 

jeopardy prohibition of section 7 are rare. It is aitical during this period to 

maximize the c;:onservaUon benefit pf 

every dollar spent in the listing activity. The relatively small amount of . · 

additional protection that is gained by 

designating critical habitat for·.~pecies 

that are already listed j;) gre~tly . . . . 

outw ighed hy providing the.. · 

protections included in Sections 7 and 

9 to qewly~listed species. Th"erefore, tliB 

Service will place. higher priority ori . 

addressing species that presently have no protection under the Act rather than ~ 

devoting limited resources to the 

expensive process of designating aitical 

habitat for species already protected by 

theAct. · 

Notifying the Courts on Mallen in 

Litip.tion 

The Service will assess the relative 

priority of all section 4 petition and 

rule--making activities that are ~8 

subject of active litigation ushig this 

guidance and the 1983 listing priority 

guidelines. In many cases, simply 

identifying the tier in which an activi~y 

falls will suffice to determine whether 

· the Service will undertake that action 

during the. time this priority guidance is 

in effect. The Service, through the Office 

of the Solicitor, will then notify the 

Justice Department of its priority determination and request that · 

appropriate relief be requested from 

each district court to allow those species 

with the highest biological priority to be' 

addreSsed first. To the extent that the 

courts do not defer to the Service's 

priority guidance and tho 1983 listing 

priority guidelines, the Service will of 

course comply with court orders despite 

any conservation disruption that may , · result •. 

The Service will not elevate tbe priority of proposed listings for speCies 

simply because they are subjects of 

active litisation. To do so would let 

litigants, rather than expert biological 

judgments, oontrol the setting of listing 

prioritieS. The Regional Office with 

responsibility for processing such · 

packages will need to detennine the relative priority of such cases based 

upon this guidance and the 1983 listing 

priority guidelines and furnish r , 

supporting documentation that can be 

submitted to the relevant Court to · · 

indicate where su~ species fall in the 

overall priority scheme: 

Authority -

The authority for this notice is the ·. 

Endangered Species Act of 1973, as . 

amended, 16 U.S.C. 1531 el seq. 

~ted: May 10, 1996. · 

.MollleBaanto. · 

Directot'. Fi.h and Wildlife ~tviett, . 

IFit ~ O&-i2243 Filed 5-15-96; 8:45am) 

-..uNO 00011 -~ 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Admfnlatratlon 

50 CFR Part 8sa 

(I.D.0508MB) 

Shrimp ·Fishery of the Gulf of M.,xrco; . 

Texas Cfosu,. .. 

. AGa.c,.: N8ti0nai Ma"l'iu"8 FiSheries 

Service (NMFS), National Oceanic aitd Atmospheric Administration (NOAA). 

CommerCe. · 

ACTION: AdjUstment of the beginning 

date of the T8xas closure. 

SUMMARY: NMFS announces an 

adjustrrient of the beginning date of the 

annual closure of the shrimp fishery in 

the exclusive economic zone (EEZ) off 

Texas. The closure is norinally from 

May 15 to July 15 each year. This year . 

the closure will begin on June 1. 1996. 

The Texas closure is intended to 

prohibit the harvest of brown shrimp 

during the major period of emigration 

from Texas estuaries to the Gulf of 

Mexico so the shrimp may reach a 

larger, more val\l&ble size and to pievent 

the waste of.brown sJ:lrimp that would 

be discarded in fishing operations 

because of their small size. 

. EFFECTIVE DATE: The EEZ oft Texas is 

closed to trawl fishing from 30 minutes 

after sunset. June 1, 1996, to 30 minuteS 

after sunset, JUly 15, 1996, unless the 

latter date is changed through notification in the Federal Resister. 

FOR FURTHER tNFOAMAT10N CONTAcT: 

Michael E. Justen, 813-570-5305. 

SUPPLEMENTARY INFORMATION: Tho Gulf 

o( Mexito shrimp fishery is p1anaged 

under the Fishery Management Plan (or 

the Shrimp Fishery of the Gulf of Mexic:o (FMP). The FMP was prepared 

by tho Gulf of Mexico Fishery 

Management Council and is . ·implemented by regulations at 50 CFR 

.part 658 under the authority of the · Magnuson Fishery Conservation and Management Act. The FMP ~ :.- · · · 

implementing regulations at 50~~ ·. 

658.26 describe the Texas closure and 

provide (or adjustments to the beginning 

and ending dates by the Director. 

Southeast Region, NMFS, under 

specified aiteria. Biologica1 data collected by the Texas 

Park~ a.nd Wildlife Department indicate 
75 

STA'l'BMDI'l' OF JOJDJ G.· ltOGDS; ACTING DIRECTOR, U.S. FISH AND 

WILDLIFB SBRVICE, 1ID'OU '!liB BOOSE RZSOORCBS COMMI'!TU, REGARDING 

TD LIFTING Of TD LISTIRG M>M'l'ORIOM 

JONB 25, 1996 

Thank you, Mr. Chairman, for providing the Fish and Wildlife 

Service the opportunity to provide testimony on the procedures 

which the Service will follow as we restart the endangered 

species listing program. I emphasize that my testimony reflects 

only the Fish and Wildlife Service's efforts to restart the 

endangered species listing program. 

During the last three years, the u.s. Fish and Wildlife Service 

has been striving to implement the Endangered Species Act to 

conserve species, recognize the rights and concerns of property 

owners and achieve the greatest conservation benefits in the most 

cost effective manner. This has been a challenging goal, 

·especially in light of the extreme budgetary constraints and the 

imposition of a moratorium on final listing decisions and 

designations of critical habitat. It has been made even more 

challenging by the highly litigious nature of this issue: the 

Service is currently faced with several hundred Notices of Intent 

to sue, as well as 159 lawsuits filed against the Service on 

endangered species issues. 

The Service has continued its efforts to improve the 

implementation of the ESA: 
76 

The number of Habitat Conservation Plans approved and 

under development has dramatically increased. In 1992, 14 

HCPs had been approved. By the first of March 1996, 141 had 

been approved and 300 more are in the works; 

We are seeing incredible enthusiasm from private 

landowners for new "Safe Harbor" and "No Surprises" 

agreements; and 

Our emphasis on multispecies conservation efforts is 

beginning to take hold. 

Nevertheless, the double-barrel blast of the listing moratorium 

and funding cuts essentially moth-balled the listing program for 

most of the last year. As a result, the Service currently faces 

a backlog of 242 proposed species awaiting final listing 

decisions, and another 182 candidate species that await proposals 

for listing. The Service must also deal with pending court 

orders to designate critical habitat for 7 species and unresolved 

petitions for 56 species. 

As the Members of the Committee are aware, on April 26th, 

President Clinton, exercised his authority under the 1996 Omnibus 

Budget Reconciliation Act and waived the-moratorium on final 

listings and criticai habitat designations. The Service fully 

supported the President's action and is in the process of 

restarting the liiting program. In light of the backlog 

mentioned above, it became critical that the Service develop and 

2 
77 

follow an orderly plan and a priority system for resuming listing 

activities. This guidance was published in the Federal Register 

on May 16, 1996 and I would request that a copy of the guidance 

be placed in the record. I would like to focus the remainder of 

my testimony on the policy that the Service will follow in 

restarting the listing program. 

As we are all aware, the primary purposes of the ESA are to 

conserve species and the ecosystems upon which they depend. It 

is a long-standing Service policy that the highest priority be 

given to those species believed to face the greatest threat of 

extinction. In light of continued budgetary constra~~ts it is 

especially important that the Service continue with this policy. 

In restarting the listing program, the Fish and Wildlife Service 

is committed to four guiding principles: 

1) Riqhest priority will be given to those species that 

are in greatest need of the protections of the ESA 

based on the priorities established in the recently 

published listing priority guidance and the 1983 

Listing Priority Guidelines (which I will outline later 

in my testimony); 

2) Bioloqical need, not the preferences of litigants, 

should drive the listing process. The Service will 

work closely with the Department of Justice to seek 

relief from listing cases that divert resources away 

3 
78 

from providing protection to the highest priority 

species; 

3) Sound acience, including peer review, will form the 

foundation of all listing actions; and 

4) Public comment and participation in the process will be 

enhanced to ensure that the States, other Federal 

agencies, and the ~ffected public are provided with 

complete explanations of any listing action and are 

provided every opportunity to comment on or submit 

information relevant to the decision making process. 

Under the listing priority guidance, where such a need exists, 

the Service will provide immediate "life support" to those 

species that might otherwise become extinct. This category has 

been designated as Tier 1 and highest priority will be given to 

those species believed to face an imminent risk of extinction. 

The next highest priority (Tier 2) will be for making final 

listing determinations on outstanding proposals. Priority will 

be given to those species that are facing imminent, high 

magnitude threats. These are species that can be saved if we 

simply make the effort to attend to them now. The Service will 

gather additional information before issuing final rules where 

the records on the existing proposals need to be updated. 

Our third priority (Tier 3) will be to conduct other listing 

4 
79 

actions, such as review petitions; propose new listings, 

delistings, or reclassifications; or designate critical habitat 

for species that are already listed. While Tier 3 actions are 

certainly important, they simplY. do not have the same urgency as 

species that fall within Tiers 1 and 2. For those that truly are 

in urgent need, we are fully prepared to elevate their priority 

to Tier 1. Unfortunately, the Service will not be able to 

undertake the other actions until we can reduce the backlog of 

existing proposed rules addressing species that have already been 

determined to merit the protections of the Act. These provisions 

will only be in effect through September 30, 1996, unless a 

backlog of priority species and funding constraints makes it 

necessary to extend the provisions further . 

The resumption of an effective listing program has required a 

variety of actions. First, the Service had to return biologists 

that were moved out of the listing program due to previous 

budgetary interruptions. We are still working to complete the 

restaffing . All listing packages are being reviewed as quickly 

as possible to determine their priority placement. The proposed 

listings are in various states of completeness and the rates at 

which these packages will move through the process will vary. 

Each proposal will undergo rigorous review to ensure they are 

based on current and accurate information. Those requiring 

additional public comments or peer review will require more time. 

Packages will then be reviewed by both the Regional and 

5 
80 

Washington offices prior to being finalized. 

The Service must also deal with numerous lawsuits involving 

petition findings, critical habitat designations and missed 

statutory deadlines. These lawsuits are diverting considerable 

resources away from our efforts to conserve species. The listing 

priority guidance was developed to help the public and the courts 

know precisely how we should use our limited listing 

appropriations for maximum effect. The Department of Justice 

and the Department of the Interior's Solicitor's office have 

argued in the pending cases that courts should defer to our 

listing priority system as a rational, biologically based method 

for dealing with the backlogs created by the moratorium and 

funding constraints of the past year. We are very hopeful that 

courts will accept this argument, and we have had some success 

already. In the Central District of California, for example, the 

court has stayed a case requiring us to make a decision regarding 

critical habitat for the western snowy plover until next fiscal 

year and the plaintiffs in the Klamath River fishes case have 

agreed to defer to our system. 

As I mentioned earlier, the Service is still in the process of 

restaffing the program, as well as completing the review of 

listing priorities. The actions we have taken since the 

moratorium was waived by the President, the listing of the redlegged frog and marbled murrelet critical habitat _designation, 

6 
81 

were in response to court ordered deadlines imposed prior to the 

listing moratorium. 

In summary, I want the Committee to understand that the 

management and policy foundation of the ESA are as strong. as they 

have ever been. We have spent the past several years buttressing 

that foundation with sound scientific guidanc e, clear prior i ties 

founded in conservation biology and clear and open communi cation 

with the public. At this poi nt, our ability to deliver further 

improvements will be determined by the avail abi lity of adequate 

funds and a clear statutory framework. 

7 
82 

Testimony of 

Rolland A. Schmitten 

Assistant ~nistrator for Fisheries 

National Marine Fisheries Service 

National Oceanic and Atmospheric ~nistration 

U.S. Department of Commerce 

Introduction 

Before the 

Committee on Resources 

U.S. House of Representatives 

June 25, 1996 

Mr. Chairman and members of the Committee, I am Rolland 

Schmitten, Assistant Administrator for Fisheries, National 

Oceanic and Atmospheric Administration (NOAA), U.S. Department of 

Commerce. It is a pleasure to be here today to discuss the 

implementation and administration of the Endangered Species Act 

(ESA), and in particular, procedures that will be used to restart 

the listing process. 

As you are aware, since last year, there have been several 

laws and continuing resolutions that have suspended funding and 

imposed moratoria on most ESA listing activities by the Fish and 

Wildlife Service (FWS) and the National Marine Fisheries Service 

(NMFS), with certain exceptions. NMFS staff that were directly 

affected by the moratoria were reassigned to other efforts 

designed to promote state and private conservation initiatives. 

These efforts include habitat conservation planning, stream 
83 

restoration projects, watershed analysis, and development of a 

regional decision making framework. The delay caused by the 

moratorium increased the number of NMFS ESA listing actions that 

are currently outstanding. 

NMFS, along with the FWS, is now proceeding with all 

previously pending listing actions, many of which are subject to 

statutory deadlines and court actions. Following the President's 

waiver of the moratorium, I issued guidance to the NMFS Regions 

on restarting the program as well as the following principles 

upon which to base listing priorities. 

The first principle is the biological risk to the species; 

the degree of risk may be measured by the immediacy of the threat 

facing that species (considering the risk of its extinction, 

based on the numerical status and imminently expected harm to the 

species, etc.) and the mitigation measures already in place. A 

listing action that is necessary due to an emergency that poses a 

significant risk to the well-being of a species is, by 

definition, of highest priority. Next are final listings that 

will provide maximum benefit to a species when there are no 

concerted efforts already in place to protect that species. In 

such cases, the listing itself will trigger the substantive 

protection of the ESA. In some cases, if the risk to a species 

is s ubstantially high, although not sufficiently h igh t o warrant 

2 
84 

an emergency listing, it would be appropriate to give higher 

priority to completing a proposed listings than to completing 

certain final listings. In some cases, a proposed listing action 

would provide new incentives for protective actions by Federal 

and non-Federal entities. 

The second principle is the biological benefits from taking 

the pending action; and in general, listing actions are a higher 

priority than critical habitat designations unless the critical 

habitat designation is deemed essential to the conservation of 

the species. In addition, listings are a higher priority than 

reclassifications. All threatened species receive substantial 

protection under the ESA through the section 7 consultation 

process and section 10 incidental take permits, and virtually all 

threatened species receive further protection through section 

4(d) rules. 

In some instances, proposed listings are expected to provide 

substantial benefit to species even if the requirements of the 

ESA would not take effect. Such instances exist when a proposed 

listing would shape and encourage commitments from both Federal 

and non-Federal entities to protect such species even before 

their listing. For example, conferencing under section 7(a) (4) 

and habitat conservation planning under section 10, while no t 

nece ssaril y mandating protection a s a statutory requiremen t , 

3 
85 

nevertheless can result in binding commitments from Federal and 

non-Federal entities that will benefit proposed species. It is 

NMFS' view that aggressive Federal-state-local conservation 

. initiatives can significantly reduce the risk to species since 

they will influence activities on non-Federal lands. For 

example, a large portion of Pacific salmon will benefit from such 

initiatives because a substantial portion of their distribution 

occ urs outside Federal jurisdiction. Consequent ly, to provide 

high- risk species with these protections, it may be necessary t o 

proceed with some proposed listings before some final listings. 

This d e cision will be based in part on the third princ ipl e, whi ch 

is the amount of agency resources required to take the pending 

action. In other words, actions that are nearly c omplete will 

h a ve a high priority. 

The principles give the highes t priority to those s pecies 

most in need of protection. Support for conservation planning is 

built into these priorities because NMFS believes that 

preparation of conservation plans is critical to reducing the 

ris k to most species and potentially reducing the amount of 

Federal regulatio n. This s trategy a llows for o p t imum use of 

staff r esources and t i me ly c ompleti o n o f mandated ESA 

respon s ibilities with other c on servation goa ls. 

4 
86 

Pending ESA Determinations 

Each NMFS Region is resuming the listing program for the 

species for which it is responsible based on the above 

principles. Except as noted, each Region's listing activities 

will proceed independently of the priorities in the other 

Regions. The one exception is for salmonid listing activities 

being coordinated in the NMFS Northwest and Southwest Regions. 

The highest priority in the Northwest and Southwest Regions 

is to complete a final determination for Umpqua River cutthroat 

trout, located in southern Oregon. This species was proposed as 

endangered on July 8, 1994 [59 FR 35089] and available 

information indicates that the species remains at high risk of 

extinction. Prior to the moratorium, staff had prepared a draft 

final determination; therefore, little additional Regional effort 

is required to complete this determination. Presently, no 

Federal or state recovery efforts specifically take this species 

into account, although the species does benefit from the Aquatt'c 

Conservation Strategy of the President's Forest Plan. A listing 

would significantly benefit this species. The NMFS estimates a 

publication date in early September. 

Next in priority is to complete a proposed determination for 

west coast steelhead. On February 16, 1994 [59 FR 27527] NMFS 

accepted a petition and initiated a status review of west coast 

5 
87 

steelhead. On July 17, 1995, NHFS completed an extensive review 

of all stocks of steelhead residing in the states of Washington, 

Oregon, Idaho, and California. The Biological Review Team 

identified fifteen Evolutionarily Significant Units (ESUs) or 

populations, of which ten were identified to be at some degree of 

risk. Due to the geographical and biological complexity of 

steelhead, considerably more scientific, administrative, and 

policy work needs to be done. NMFS estimates a publication in 

December 1996 of the determination of th~ status of t he se ESUs of 

west coast steelhead. 

The third priority is to complete a final determination for 

west coast coho salmon. Three ESUs of coho were proposed as 

threatened on July 25, 1995 [60 FR 38011]. In the upcoming 

months, new scientific information which has been gathered during 

the moratoria will be evaluated. During the delay in the final 

determination, the states of Oregon and California have indicated 

that they will be moving forwarded on their state ini tiated 

conservation efforts for coho salmon. NMFS is working closely 

with both states on those efforts. 

Due to the moratoria, wo rk on the coho lis ting has been 

delayed for several months . The Regions need the full ye ar 

p r ovided in the ESA to cons ider s cientific and con se rvation 

information and to make a f inal lis ting dec isi o n. Ac c ordingl y , 

6 
88 

NMFS considers that the one-calendar-year deadline (July 25, 

1996) is extended by three months to one working year, i.e., 

October 25, 1996. The Regions will use the available time to 

solicit and analyze new information. I would like to note that 

the ESA provides for six-month extension for this process to 

resolve substantial disagreement over the data on which the 

listing decision is based. As the October 25 deadline 

approaches, there is a possibility that NMFS may need to 

recommend this extension of time . 

Concl\lsion 

NMFS has devised a logical strategy to carry out its ESA 

listing responsibilities. This vigorous schedule is partially 

driven by court directives to complete certain population 

assessments and listing determinations. By using these 

principles, NMFS believes that it can best protect imperiled 

marine and anadromous species with available NMFS resources. 

In addition, our stewardship efforts will continue to 

concentrate on non-Federal conservation initiatives and regional 

consensus-building. It is NMFS' view that, in the long-term, 

aggressive Federal-state-local conservation initiatives have the 

potential to significantly reduce the risk to species since they 

7 
89 

will influence activities on non-Federal lands. Further, NMFS is 

making an effort to coordinate its science based management 

actions with other Federal, sta~e, tribal and local stakeholders. 

Mr. Chairman, this concludes my testimony. I would be happy 

to answer any questions the Committee may have. 

8 
\TE 

90 

List of Proposed Species in Chronological Order 

as of April 30, 1996 

P •. .;POSED STATUS COMMON NAME (SCIENTDlC NAME)· HISTORIC RANGE 

OS/11/91 

OS/11/91 

OS/11/91 

OS/08192 

OS/08192 

·osto8192 

OS/08/92 

OS/08192 

OS/08/92 

OS/08192 

OS/08192 

lll30/92 

11/30/92 

lll30192 

11/30/92 

11 /30/92 

lll30/92 

11 /30/92 

11/30/92 

12117/92 

03/23/93 

03/24/93 

'H/93 

vo/OS/93 

08/0S/93 

08105193 

08/0S/93 

08/0S/93 

08/0S/93 

08/0S/93 

·o81ost93 

08105/93 

08/18/93 

08118193 

09/24/93 

10/01193 

10/01193 

10/0 1/93 

10/01/93 

J_0/01/93 

10/01193 

10/06/93 

11129/93 

01/06/9.4 

02/02/9.4 

02/04/9.4 

'104/94 

• .t/04/9.4 

02117/94 

03/23/94 

03/28/94 

o.a. no,~ _. 

U4 l~ 94 

PE 

PE 

PE 

PE 

PE 

PE 

PT 

PE 

PT 

PE 

PE 

PE 

PT 

PT 

PT 

PT 

PE 

PE 

PE 

PE 

PE 

PE 

PE 

PT 

PT 

PT 

PE 

PE 

PT 

PE 

PE 

PE 

PT 

PT 

PT 

PE 

PE 

PE 

PT 

PE 

PT 

PE 

PT 

PT 

PE 

PE 

PE 

PE 

PE 

PE 

PE 

PE 

PE 

Addax (Addax nasoma<Uialus) • Nonh Africa 

Gazelle, dama (Gazella dama) • Nonh Africa 

Oryx, sctmitar·homed (Oryx dammah) • Nonh Africa 

Bighorn sheep, Peninsular Ranges population (Ovis canadensis crcmnobates) • CA, Mexico. 

Lane Mountain (=Coolgardie) milk·vet<h (Astragalus jaegerianus). CA. 

Coachella Vall<y milk·vet<h (Astragalus lentiginosus var. <oachellae) -CA. 

Shining (ashiny) milk-vet<h (Astragalus lentiginosus var. micans) • CA. 

Fish Slough milk·vet<h (Astragalus lentiginosus var. pisctnensis) ·CA. 

Sodaville milk·vet<h (Astragalus lentiginosus var. sesquimetralis). CA. NV. 

Peirson's milk-vet<h (Astragalus magdalena< var. peirsonii) -CA. 

Triple-ribbed milk-vetch (Astragalus tricarinatus) ·CA. 

Braunton•s milk-vetch (Astragalus brauntonii)- CA. 

Conejo dudleya (Dudleya abramsii ssp. parva) ·CA. 

Marcesc:ent dudleya (Dudleya cymosa ssp. mar<esc:ens) ·CA. 

Santa Monica Mountains dudleya (Dudleya <)mosa ssp. ovatifolia) • CA. 

Verity's dudleya (Dudleya verityi) ·CA. 

Lyon's penta<haeta (Pentachaeta lyonii) ·CA. 

Hartweg's golden sunburst. (Pseudobahia bahiifolia) • CA. 

San Joaquin adobe sunburst (Pseudobahia peirsonii) ·CA. 

Wahane (a flawane or lo'ulu) (Pril<hardia aylmcr-robinsonii) ·HI. 

Amaranthus brownii (Plan~ no <ammon name)· HI. 

Loulu (Pritchardia remota)- HI. 

Schiedea \'Cnicillata (Plant, no common name)- HI. 

Fleshy owl's-clover (Castilleja campestris ssp. SUC<ulenta) • CA. 

Hoove(s spurge (Chamaesyce hooveri) • CA. 

Colusa grass (N<ONpfia colusana) ·CA. 

San Joaquin orcutt grass (Orcuttia inequalis) • CA. 

Hairy ("Pilose) orcutt grass (Orcuttia pilosa) ·CA. 

Slender orcutt grass (Orcuttia tenuis) • CA. 

Sa<rarnento orcutt grass (Orcuttia visada) ·CA. 

Grtene's orcutt grass (Tuaoria greenei) ·CA. 

Dugong (in Palau) • PW (Palau), East Africa to southern Iapan 

Snake. nonhem copperbelly water (Nerodia erythrogaster neglocta) • n.,IN.KY,MI.OH. 

Snake, Lake Erie water (Nerodia sipedon insularurn) • OH, Canada. 

Ccx:coloba rugosa (P~ 110 common name) • PR. 

Del Mar maDZ311ita (Amostaphylos glandulosa ssp. <rassifolia) ·CA. 

Enc:initis bacc:haris (aCoyooe bush), (Bac<haris vanessae) ·CA. 

Orcutt's spinellower (Choriz.anlh< orcuttiana) • CA. 

Del Mar sand aster (Comhrogyne filaginifolia var. linifolia) • CA. 

Short-leaved dudleya (Dudleya bloclunaniae ssp. brevifolia) ·CA. 

Big-leaved crownbeard (Verbesina dissita) • CA, Melti<O. 

Winkler ca<tus (Pediocxtus winkleri) • UT. 

Lizard, Oat.Wled homed (Phrynosoma mcallii) • AZ,CA, Mexico. 

Splinai~ Sacramento (Posotlicbllrys macralepidotus) • CA. 

Frog, California red-legged (Rana aurora draytoni) • CA, Mexico. 

Whipsnake. (=striped racer) Alameda (Masticophis lateralis euryxanthus) ·CA. 

Butterfly. Callippe silverspol (Speyeria callippe callippe) · CA. 

Butterfly, Behren's silverspol (Speyeria zcn:nc behronsii) ·CA. 

Salamander. Barton Springs (Eury<ea sosorum) • Tl(. 

Talussnail, San Xavier (Sonorellaet<mita (Pilsbry & Ferris. l91S)) • AZ 

Parish's alkali grass (Puctincllia parishii) • AZ,CA,NM. 

SlcVJt, .. r ."! ,ming-~f.;; . .- r~tystt .gi r st ;bb;i, · il) • CA 

Pine HiU -.t."";...nuthu.c ( ·~ btotlu .s l•;,K:r. :i.:f · CA. 
\TE 

P•-~POSED STATUS 

04/20/94 PE 

04/20/94 PE 

04/20/94 PT 

05/10/94 PE 

05/10/94 PE 

05/10194 PE 

05110/94 PT 

06/27/94 PE 

07/ ll/94 PE 

07/14/94 PT 

07/14/94 PE 

07/14/94 PE 

07114/94 PE 

07114/94 PE 

07/l4/94 PE 

08103/94 PE 

08103/94 PE 

08/03/94 PT 

08103/94 PT 

08/03/94 PE 

08/03/94 PE 

08/03/94 PE 

13/94 PE 

llo/04/94 PE 

08/04/94 PE 

08104/94 PE 

08/04194 PE 

08/0M94 PT 

08123/94 PE 

09/09194 PT 

10/04/94 PT 

10104/94 PT 

10/04/94 PE 

10104194 PT 

10/04194 PE 

10/04194 PT 

10/04/94 PT 

10/04/94 PE 

10/04/94 PE 

10/04/94 PE 

10/04/94 PT 

10/04/94 PT 

12/12/94 PE 

12/12194 PT 

12/15194 PE 

12/15/94 PE 

'15/94 PT 

•• !l5194 PT 

12119/94 PT 

12/ 19/94 PE 

12/ 19/94 PE 

12/!9194 PE 

Oli2b!9S PE 

91 

List of Proposed Species in Chronological Order 

as of April 30, 1996 

COMMON NAME (SCJENlmC NAME)- HISTORIC RANGE 

Pine Hillllamldbusll (FmDODiodcndron dccurnbens) - CA. 

ElDorado bcdsllaw (Galium califomicum ssp. sierrae)- CA. 

Layne's -er'I><Od (Seo<cio layneae) - CA. 

Grasshopper. Zayante band-winged (Trimerotropis infantilis) • CA. 

Beetle. Santa Cruz rain (P1eocoma conjugcns conjugens) - CA 

Beetle, Mount Hennon JUDe (Polyphylla baJhata) - CA. 

Golden paintbrush (Castilleja levisecta)- OR, WA, Canada (B.C.). 

Delissea undulata (PlauJ, oo common name) - ID. 

Jaguar, U.S. populalioo (PantheR onca) - AZ,CA,LA.NM,TX 

Eider, Steller's (AK beeedin& pop.) (Polysticta stelleri) • AK, Russia 

Elktoe, Cumberland (Alasmidonta atropurpurea (Rafinaque. 183 l))- KY,TN. 

Comhshell, Cumberlandian (Epiohlasma b..,idens (I. Lea. 1831)) • AL.KY.TN.VA. 

Mussel. oyster (Epiohlasma capsaeformis (1. Lea, 1834)) - AL,KY,TN.V A. 

Rabbitsfoot. roush (Quadrula cylindrica strigillata (B.H.Wright, 1898))- KY. TN, VA. 

Bean, Purple (Vdlosa perpwpurea (1. Lea.l86l))- TN,VA. 

Shiner, Arkansas R.n...- (nati\1: pop. only) (Notropis girardi)- AR,KS,NM.OK. TX. 

Mussel, fat three-ridge (Amblema neislerii (!.Lea. 1858))- FL,GA. 

Slabshell. Chipola (Elliptio chipolaensis) - AL,FL 

Banltclimber, pwple (EIIiploideus sloatianus (1. Lea. 1840)) - AL.GA.FL. 

Pocketbook, shiny·ray<d (Lampsilis subangu1ata (l.lea. 1840)) • AL,FL,GA. 

Gulf moccasinsbell (Medionidus penicillatus) • AL,FL,GA 

Ochlockonee mocx:asinsbell (Medionidus simpsonianus) • FL,GA 

Pigtoe, ava1 (Picwohema pyrifonne (l.lea. 1851)) • AL,FL,GA. 

Butterfly, Quioo cbe<:tcrspol (Euphydlyas editlta quino (=E. e. wrighti))- CA, Mexico. 

Skipper, Lagtma Mountains (Pyrgus ruralis lagtmae) ·CA. 

Fairy shrimp, San Diego (BiaiiChinecta sandiegnensis) ·CA. 

Cuyamaca l.alce do1o'Dingia (Downingia concolor var. b=ior) ·CA. 

Parish's mcadowfnam (l.imDan1bes gracilis ssp. parishii) • CA. 

Spring Creek bladderpod (l.c:squerdla petforata) • TN. 

Eggett's sunflower (lldDmhus qgertii) • AL,KY,TN. 

Rawhide Hill onion (Allium tuolumnense) • CA. 

San Bruno Mountain IIWIZllllita (Arctostaphylos imbricata) • CA. 

Chinese Camp brodiaoa (Brodiaca pallidal • CA. 

Carpenteria (Calpeutcria califomica) • CA. 

Mariposa pussy1'8WS (Calyplridium pulchellum) • CA. 

Springville clarkia (Clarkia springvillensis) • CA. 

Greellbom adohe-lily (FritiJiaria -) • CA. 

San FraDcisa> lessiDcia (l.asUogia germanorum var. germanorum) ·CA. 

Mariposa lupillo (l.Ujlilms ci1riaus var. dellexus) ·CA. 

Kelso Creek ........,...-(Minudus she\'Odcii) • CA. 

Piute Mountains .........ua (Nn-.neria setiloha) ·CA. 

R<d Hills ><rWin (Vabena califnmica) ·CA. 

Pygmy-owl. caciUS tmaginous (AZ population) (Giaucidium brasilianum cactorum) • AZ,TX, Mexico. 

Pygmy-owl caciUS tmaginous (TX population) (Giaucidium brasilianum cactorum) - AZ,TX. Mexico. 

Munz'slllllmr (Allilw nmnzii)- CA. 

San Jacinto Vallcy crownscale (=saltbush) (Airiplex coronata var. notatior) -CA. 

Thr<ad·l""""' brodiaoa (Brodiaca filifolia) • CA. 

Navamlia, prosiDte (..............t (NaYaneria fossalis) • CA, Mexico (Baja California). 

Contra Costa &<>ldfidds (LasthoDia COI!juseas) • cA Navamlia, few.ftowond (NaYaneria leucoeephala ssp. paucillora) • CA. 

Navamlia, many·Oowcr<d (Na\-.neria leucoeephala ssp. plieantlta) - CA. 

Lake C'!?mty sttMW~ ·' (Puviscch~ll' !c\cearp,tm) CA. 

Tuata..ot. Br~s .aW'd (SphelkX.k..t g~,ru..;eri) . New Zealand-Brother's Island 
\IT 

p. /OSED STATUS 

0-UH/9~ PE 

o..s:03/IJ5 PE 

n..s u~N~ PE 

06."05/95 PE 

ll6 'll5 ~5 PE 

Otdl5 .' ~5 PE 

06." 1~ 95 PE 

06.' 11:'95 PE 

0~ .' 15 IJ5 PE 

0':".~5 95 PE 

07." :!5/1}5 PE 

o~ ZY95 PE 

tl- ·zs 95 PE 

o-·:s.95 PE 

~)- '25;95 PE 

0':" :5.95 PE 

(l- ::.5."95 PE 

l)- 25.95 PE 

o- 25.'95 PE 

tY>25i95 PE 

O':" i25i95 PE 

o-:- ·zsNS PE 

.. 5/95 PE 

,. ~5 95 PE 

07."25:'95 PE 

o- :.;:1)5 PE 

u- :.5:95 PE 

08.{12:'95 PE 

08 Ll2.'95 PE 

08.ll2.'95 PT 

os.o:::95 PT 

08:02/95 PT 

08.:01.'95 PE 

1)8.02:95 PE 

08!0:!195 PE 

os o~ 9s PT 

()8.0:!195 PE 

08.'02/95 PT 

08.02/95 PT 

08.: 02/95 PE 

08J02/9S PE 

08J02/9S PE 

08102195 PE 

08!02195 PE 

08102195 PE 

08i02/9S PE 

· ·o2195 PE 

• -.02/95 PT 

08J0219S PE 

08i02i9S PE 

08/09/9S PE 

08i00!9S PE 

O:s 0~ 95 PE 

92 

List of Proposed Species in Chronological Order 

as of April 30, 1996 

COMMON NAME (SCIENTIFlC N.UIEl • HISTORIC RANGE 

S31amandcr. Sonoran tiger (Ambystomatigrinum stcbbinsi) • AZ. Mexico. 

Huachuca water umbel (Lilacopsis scha.ffncriana ssp. recurva) • AZ.. Mexico. 

Cancio Hills 13dies'-trts.se5 (Spir.mthes dclitesccns)- .V.. 

Comal Springs riffie beetle (Heterclntis comalensis) - TX. 

Coma! Springs d~ opid beetle (S~ gopamus comalensisl- TX. 

Peck's t:a,·e amphipod (Srygobromus (""Stygonectesl pecki ) - TX 

Suisun ttllstlc (Cirsiure hydrophilum ,·ar. h~ drophilum) ·CA. 

Soft bird's-be.ak tCordylanthus mo11is ssp. motlis)- CA 

Hoffmann's Rock-cress (Arabis hoffmaruut) • CA 

SJJtta Rosa Island manzanita (Arctostaph~·los confertiflora)- CA 

Island barbcrry·tBerbcris pinruna ssp. insularis)- CA 

Soft-lcand paintbrush (Castilleja mollis)- C A 

CJtalirolsl::md mountain-mahogan~· (Cercocarpus traskiael· CA. 

S:1nta Rosa Island dudl~ atDudlt) a blochmaniae ssp. insularis) • C A 

SJJtta Cruz Island dudleya (Dudlt)·a ncsiotical · CA 

Island bedstraw tGalium bu.Xifolium)- C.llf.:" 

Hoffm:mn's gilia(Gilia tenuiflora ssp. hoffmanniil- C.-\ 

lsiJJtd rush-rose (Helianthcmum grcenei)- CA. 

Island alumroot (Heuchera maxima) - CA. 

San Clemente Island woodland-star (Lithophtagma maximum)- CA 

Santa Cruz Island bush-mallow (Malacothamnus fascirulatus \"at. nesioticus) -CA. 

Santa Cruz Island malocothri:<. (Malacothrix indecora)- CA. 

Island malacothrix (Malacothrix squalidal ·CA . 

Island phacclia (Phacelia insularis \"Jr. insularis)- CA 

Santa Cruz Island rockcrcss (Sibara filifolia)- CA. 

Santa Cruz Island lacepod (=fringe-pod) (Thysanocarpus conchuliferus) - CA. 

\lunclikin dudleya (Dudlt)·a sp. nO\·. lined. "East Point") - CA. 

Black legless lizard (Anniella pulchra nigra)- CA. 

Sonoma alopccurus (Aiopecurus aequalis var. sonomensis)- CA. 

Johnston's rock-cress (Arabisjoh.nstonii)- CA. 

Pallid manzanita (Arctostap~ylos pallidal · CA. 

Bear \'alley sandwon (Arenaria ursina)· CA. 

Clara Hunt's milk·,·etc~ (Asuagalus darianus) ·CA. 

Coastal dwtes milk-\"etch (Astragalus tener \"at. titi) • CA 

White sedge (Carex albida)- CA. 

Ash-gray Indian paintbrush (Castilleja cinerea) • CA. 

Vine Hill clarlda (Clarkia imbricata) ·CA. 

Go\\·en cypress (Cupre.ssus gO\;eniana ssp. gO\·eniana) • CA 

Southern mountain \\ild buckwheat (Eriogonum k.enned~i \"at. austromontanum) ·CA. 

Pitkin Marsh lily {Lilium parda.Jinum .ssp. pit.k.inense) - CA. 

Yadon's piperia (Piperia yadonii)- CA. 

Calistoga allocarya (Piagi~-. strictus)· CA 

San Bernadino bluegi3SS (Poa auopu!Jnuea) • CA. 

Napa bluegrass (Poa napensisl· CA. 

Hicltman's potentilla (Polentilla hickmanii) ·CA. 

Kenwood Mars~ checltermallow (Sidalcea ortgana ssp. valida) • CA. 

California dandelion (Taraucum califomicuml ·CA. 

Hidden Lake bluecurls (Tric~ostema ausuomontanum ssp. compacrum) ·CA . 

Showy Indian clonr (Trifolium amoenum) ·CA. 

Monterey (•Del Monte) clover (Trifolium tric~ocalyx) ·CA. 

San Diego lhommint (Acanlhominlha ilicifolia) • CA, Mexico (Baja California). 

l.a"1fl:t f\each lh-eforevt'-: (Dudkya stolor.Uer~) • CA. 

~~· .!~ ·• . • ~ :· ~· lemiz,:,r " ·-: -•l)Ugens) · CA 
·.n: 

93 

List of Proposed Species in Chronological Order 

as of April 30, 1996 

p, •• J'OSED STATUS COMMON NAME (SCIENTIFIC NAME) • HISTORIC RANCE 

08109/95 PE Willo\\-y rnonardella (Monardetla !inoides ssp. ,;minea) ~CA. 

09125195 PE Kuawawaenohu ( Alsinidendron lyc;hnoides) • HI. 

09t2Y95 PE 'Oha wai (Clermontia drepanomorpha) ·HI. 

09/25/95 PE ~tapele (Cyrtandra cyaneoides) ·HI. 

09/2li95 PE Hau kuahi\\i (Hibiscadelphus giffa.rdianus) ·• HI. 

09/2l/9l PE Hau kuahi"i (Hjbiscadelphus hualalaiensis) • Hl 

()9/25195 PE Koki' o ke ' oke· o (Hibiscus waimeae ssp. hannerae) - tO. 

09/ll/9l PE Kaua'i Kok.i'o (Kokia kauaiensisJ ·HI. 

0912ll9l PE Alaru (!l,!elicope zahlbruckncri) • HI. 

09125195 PE M~nine linearifolia (Plant. no common name) ·HI. 

09/25195 PE ~eraudia ovata (Plant. no common name)· HI. 

09125195 PE 'Kiponapona (Phyllostegia racemosa) ·HI. 

1)9125195 PE Phyllostegia velutina (Plant. no common name) - HI. 

09!25i9S PE Phyllostegia warshaueri (Plant no corrunon name)- J-U 

09/2l/9l PE Hala pepe (Pieomele hawaiiensis) - HI. 

09125195 PE Loulu (Pritchardia napaliensis) ·HI. 

()9125195 PE loulu (Pritchardia schattaueri)- HI. 

09125195 PE Loulu (Pritchardia \iscosa} -HI. 

09/25/9l PE Schi.edea membranacea. (Plant, no common name) • HI. 

1!9125195 PE · AnWlu (Sicyos alba)- HI. 

09125195 PE Narti wai'ale·ale. (Viola kauaiensis var. wahiawaensis) • Hl 

IJ9/2l/95 PE A'e (Zanthoxylum dipetalum \'ar. tomentoswn)- HI. 

'5195 PE AJsinodendron \iscosum (Plant, no common name) -HI. 

.,,.l5/9S PE Haha ICyanca plal)]>hylla) ·HI. 

09/ 2l/9l PE Haha (Cyanea recta) ·HI. 

09125195 PE Oha (Delissea rivularis) ·HI. 

0912l/95 PE Phyllostegia knudsenii, (Plant, no common name) ·HI 

09125/95 PE Phyltostegia wav.Tana, (Plant. no common name) ·HI 

fJ9/2l/9l PE Sch.iedea helleri, (Plant, no common name) • HI. 

fJ9/25/9l PE Laulihilihi (Schicdea stcllarioidcs) ·HI. 

09/25195 PE Haha (Cyanea remyi) ·HI. 

()9/25195 PE Hau lruahi~>i (Hibiscadelphus woodii) ·HI. 

09125/95 PE Kamakahala a.abordia tinifolia var. wahiawaensis) -HI. 

09/28/95 PE Cordia bellortis (Plant, no common name) - PR. 

09/28/95 PE Nogal or West Indian walnut (}uglans jamaicensis) - PR.. Cuba, Hispaniola. 

09/29/95 PE Least chub (!otichthys phlcBcthontis) • UT. 

()9/29/95 PT Atlantic salmon (Salmo salar) distinct pop. in 7 ME nvers - ME 

10/02/95 PT Guajon or rock frog (Eicutheroda<tylus cooki) • PR. 

I0/02/ 95 PE Nevin's barl>eny (Berberis nevinii) ·CA. 

IIJ/fJ2/95 PT Vail Lake ceanothus (Ceanothus ophiochilus) ·CA. 

10102195 PE Haha (Cyanca grimesiana ssp. grimesiana) ·HI. 

10/02195 PE Pu' uka' a (Cypcrus trachysanthos) • HI. 

10/02195 PE Ha · iwale (Cynandta subumbellata) • HI. 

10/02/95 PE Ha' iwa.Ie (Cynandra viridiflora) ·HI. 

10/02195 PE Fosberg's love grass (Eragrostis fosbergii)- HI. 

!0/02/95 PE Mexican Oannelbush (Fremontodendron mex:icanum) • CA, Mexic:o. 

'02/95 PE Aupaka (lsodcndrion laurifolium) • HI. 

, .,/02/95 PE Kamakahala (Labordia cynandtae) ·HI. 

10/02/95 PE · Anaunau (Lepidiurn arbuscula) • HI. 

10/()2/95 PE Kolea (Myrsinc juddii) • HI. 

10/02/95 PT Dehesa bear··grass (Nolina interrata)- CA, Mexico. 

)() '2/9~ PE La•, .J.vfJ.I·. ·~mniiht•.ense) · 1!1. 

10 fJ4. ?~ PE Pl(fta.J:lhc .. ·t .•\·1\ d•i, ... : ~ :Jnt. ~' ' ~· Jmmon name) - HI. 

26-566 0 - 96 - 4 
' TE 

Pa. jOSED STATUS 

10/02/95 PE 

10/02195 PE 

10/02/95 PE 

10102195 PE 

10102195 PE 

10/02195 PE . 

10/02/95 PE 

10102195 PE 

10/02195 PE 

_!9102/95 PT 

10/02195 PE 

10102195 PE 

10102195 PE 

10/02195 PE 

.1_0102/95 PE 

10/02195 PE 

10/02195 PE 

10/02/95 PE 

10102/95 PE 

~0 02 95 PE 

10102195 PE 

10102195 PE 

'12195 PE 

••• ~2 95 PE 

0102195 PE 

10/02195 PE 

10102/95 PE 

10/02195 PE 

10102/95 PE 

10/02195 PE 

-i0/02195 PE 

94 

List of Proposed Species in Chronological Order as of April 30, 1996 

COMMON NAME (SCIENTIFIC NAME)· HISTORIC RANGE 

Schiedea hookeri (Plant, no common name)· HI. 

Scttiedea nuttallii (Plant, no common name) · HI. 

Trematolobclia singularis (Plant, no common name)- HI. 

Viola oahuensis (Plant, no common name) .. HI. 

Achyranthes mutica (Plant, no common name) - Hl 

Haha (Cyanea dunbatii) -HI. 

Ha iwale (Cynandra dentata) - HI. 

"Oha (Delissea subcordata)- HI. 

· Akoko (Euphorbia haeleeleana) · HI. 

Aupaka (lsodendrion Jongifolium) · HI. 

Lobelia gaudichaudii ssp. koolauensis. (Plant, no common name) - 1-U. 

Lobelia monostachya (Plant, no common name)- Hl. 

Alani (Melicope saint-johnii) ·HI. 

PhylloS1egia hirsuta (Plant. no conunon name)- HJ. 

Phyllostegja parviflora (Plant. no common name) - HI. 

Loulu (Pritchardia kaalae)- HI. 

Sanicula purpurea (Plant, no common name) - Hl 

Ma' oli' oli (Scttiedea kealiae) - HI. 

Kamanomano (Cenchrus agrimonioides) -HI. 

Haha (Cyanea (•Rollandia) humboldtiana) - HI. 

Haha (Cyanea (~Rollandia) st-johnii) ·HI. 

Lysimachia maxima (=tenntifolia) (Plant, no conunon name) -HI. 

Schiedea kauaicnsis (Plant, no common name)· m. Schiedea sarmentosa (Plant, no common name) ·HI. 

· Akoko (Chamaesycc herbstii) - fU. 

· Akoko (Chamacsyce rockii)- HI. 

Haha (Cyanea koolauensis) ·HI. 

Haha (Cyanea acuminata)- HI. 

Haha (Cyanea longillora) - HI. 

Nanu (Gardenia mannii)- HI 

Phyllostegia kaalaensis (Plan~ no common name) · HI. 

P~ 5 
A.ttachlftent 7, £ndan;ered or threatl!ned U.S. apeciea listed u distinct population seqment a . 

Statu& Common Name !Scientific Namel Where Listed 

Wolf, gray (Canis lupus) 

Welt, ;ny (Canis lupu5) 

Rice nt (•allver rice ratl (Oryzomy.s palu.stris 

nata tor) 

Bat, Mari ana fruit (Pteropu.s mariannu.s 

mariannus) 

Caribou, woodland (Rang!fer tarandu.s caribou) 

Bear, gcizzly ( (JriJUIJ arc:tos) 

Warbler, ni;htingale reed (Acrocephal u.s 

lu.scin1al 

Murrelet, marbled (Brachycamphu.s marmoratu.s 

marmoratu.s) 

Plover, western snowy (Cilaradriu.s a1exandr1nu,. 

niV08U.I' ) 

Plover, piping ICbaradriU..I' melodu.s) 

Co~or, California (Gymnogyps californianu.s) 

Eagle, b•ld (Haliaeetus leucocephalu.s) 

Stork, wood (Mycteria americana) 

C•racara, Audubon • s crested ( Polyboru.s plancus 

audubon!J.) 

Rail, light-footed clapper (Rallu.s longirostri.s 

levipe.s) . 

Rail, Yum• clapper (Rallus longiro.stris 

yumanensis) 

Kite, Everglade snail {Ro.strhamus .sociabili.s 

plumbeu.sl 

Tern, least !Sterna antillarum) 

Tern, roseate (Sterna douqallii dougal lii) 

Tern, roseate {Sterna douqallii douqallii) 

Turtle, green sea (Chel onia mydas) 

Turtle, green sea (Chelonia myda.s) 

Tortoise, gopher (Gopherus polyphemus) 

Turtle, o U V@ (•Pacific} ridley .sea CLepidochely.s 

olivaceal 

Turtle, olive (•Pacific) ridley .sea (Lepidochely.s 

olivaceal 

Turtle, flatt@ned musk (Sternotheru.s depre.ssu.s) 

Salmon, sockeye (•red, •blueback) (Oncorhynchu.s nerJca} 

Silllmon, chinook: {fall Snake R.) (Oncorhynchus 

t.shawytsch.t) 

U.S.A. , conterminous (lO'Wer 481 St

and where listed as an exp

U. S . A. {HN) 

Lower FL Keys {west of Seven Mile 

Guam 

U. S.A. (ID, HAl, Canada {that part 

Colurnbh bounded by the U.S. -CI.n. 

R., Kootenay R. , Kootenay L., and 

U.S.A., conterminous (lower 48) St

U.S.A. (Mariana Islands) 

U.S.A. {CA, OR, WA) 

U.S.A. (CA, OR, WAJ, Mexico {Withi

Great Lakes watershed in States of 

NY, OH, PA, And WI and CanAdA (Ont 

u.s.A. only 

U.S.A. (conterminous {lower 481 St

U.S.A. tAL, FL, GA., NC, SCI 

U.S.A. (FL) 

U. S.A. only 

U.S.A. only 

U.S.A. (FL) 

U.S.A. (AR, CO, IA., IL, IN, KS, KY 

and tribs. N of Baton Rouqe, MS H

NO, NE, NJ-1, OK, SO, TN, TX excePt 

of coast) -

U.S . A. (Atlantic Coast s outh to NC

Western Hemisphere 1.nd adjacent oc

not listed as endangered 

Wherever found except where listed 

Breeding- colony populations in rL 

Wherever found west of Mobile and 

Breedin; colony populations on Pa

Wherever found except where listed 

Black Warrior R . .system upstream f

U.S .A. (Snake River, ID stock whe

Snake R. (U.S.A. :ID, OR, HAl mains

Tuc~onnon R •• Grande Ronde R., Imna

run, natural popula.t i ons(s), where 
s_t...a.t..u.s___comrnon Name _ _lScienti!ic Name__L____ _ ___Hhe_r_e_______Li.s_ted 

Salmon, chinook (spring/sumrn@r Snake 

R.) !Oncorhynchus tshawytscha) 

Salmon, ch1nook (wint.ec Sacramento R. I 

· (Oncorhynchu.s tshawytschal 

Topminnow, Gila (incl. 'iaqutl ( Poe:ciliopsis 

occidentt~li.s ) 

Snilke R. !U.S.A. :ID,OR

Tucannon R., Grande Ro

nat.ural population(s), 

Sacramento R. (U.S.A._C

u.s.A. onl y 
~ ·• ••14QIM!. ===Monday, Jooe 24, _!_9~ ~ 

107 species lose ESA c

\ 

alange doesn't signal 

mass recovery but new 

way of compiling list 

llr Jo"au,.., lttM:IImM 

1Mtct.-aa•-.. 

~'==\~~o::,: 

~.;.:..a=~="w:: der the loodaoc"od S,.Cioo M. Today, l"" - plule ...t ooi· ~~&allremaia 

't'he~lt..,.notrtfl.c:lan· 

mut.aW. ~ ol Wabo'• ,..,, ci-Htnra a.Uw, it • tN , .. wt .r, 

r:t"~:t:ct o;= t.::::L.t isten U..ln~ s,.ciri Act. 

\ 

»» 

Jlkh .... WUdlit• ..w *• cbarc• nll-reolitr. B"'l!'" ...._thai 

~,:!. *j=\t:"!:" Jain '!': the lhnate.l ortndupl'~ B"' bioloci•LI, iacludlq 101111 

widdn tM ..,..... llJ' \ba druti.c C\11 wiD .,_.,, .a'ort. to prolecl 

plutllnll u.i&MJL .. Jl .._D •• Out ...,_..amine lp• 

'-." oald 1\d .ltodo. a Tub aNI WiWU.s-lce ........ !Ja;oo. 

CI.DIIWate.ped• ~ 110 fii"G" 

lectioa Ulllkr .. ..W act. StiD. 

!'..~·:c.~~=~=: ler, a .....,.. ... -- ol the Woho N-Pl•t IJoe;.,y. ......... ;. trwwlatioc lnlolaa .on.y J:ar..,....to ,.., ta.en,..... 

ioo. ..;tk Weral l\lodinr "' ~ .. Dit.ori.h, in Idaho ttroppina ~~oootao<..,.,~oS8,ClOOIIWI 

, . .,.. 

AJ.o,betaid.reCDCI"WiJ:sa~ 

= :i'•;:r.: 1!.:~":! !i:.. ':=!~.~ ra:i:t i~l:::t 

u:: u.s~,~:t·~~ ~:x:,m;:: ••rw lhe lllftd. wb.a it Uva. "n ~.,.u. .. th., abUitJ to h. pto-ecti.-. and ...... CONe"ntion 

=k..:c~.!-N~ay ~~~ will t.. Nrinr. 'WII.r do .,. have to 

~1 altention to tbue tbinfs at all il t ... r.'a oat a pouibiUtr tbat lhq llriU 

••klid.d!''" 

WaJ1M Ow-., a botani.ri .. Boil• N.tioulfwest.ecr ... "A• M)OQ ..... b 8NI WUdlitt SAJI 

::: .;:',':~ ~~~ 1: s .. uAIP~•SA 

Sill 011 the l

, ......... ~~.,.... ..

..................... 

--.:.....,_.......

....................

s,;,.. 

-· .. ,.,. 

, .. ,:. ' .. .... 

fl .- f •• t .' . ~ 

~~·, ...

-

Ia 

-

==~c~ 

peftCINw .. Gnlltlat

...... fllaouthHsltifft1dllh

....... lnd &II ... Ortp

,...__,..Tedlitocti,R 
ESAFMm Page lA 

rco.u or J...And Mana~:ement Rart1 

putti1:11: 1 ... .tlort ia.ta ~t.eeQnc Lhflsl)ecies." Owen .u.Wi ''Wa nut 

blowin!;' them ott" Tlw Fish n.ncl Wildlife SG'Yice 

:~.~ ~iati::Urhi~~~ ba- of specie, - ra~: liiOH thaa woulcl evv p iu a pla'* 011 the 

mdancoand l.att - l"el"C rec:otded ucsrtdidare:s. · 

Th• r.moval of 101 Idaho Jpeeta. from the e~~.ndid:~ote li•t. ,.. .. 

pe.rt or an. ac:tioa &nnaUnced bt tha ae:rvi01 earllirr uw- ye;u' that. 

partd. the c:and.idate li•t nat:l.on- , from nu.rly 4,CXXl ~cie» to .p«:i.ro::s. 

It was never true that all thoM c:andld..te apaein we:r~ :Cine to be 

added to the cndcmgered apeci• list,.. said Megan Durham, a 11p0kawoman for thll FlSh and Wildlife Service in Wuhington. D.C. "This was a ecienti6c ecNb- bing of thll! c:andidate Wt that was 

lone oveniWI." 

Foes of the £ndan~ Sped. Act sa,y thii!:y UU\'t i.aapre..ad by 

the- move. They IQ,J' it does not prevent the ESA !torn impxill; 

draconian rw:rictioca on lORing. mining and othar .ouunl ruource indll&trics. 

"I th.ink it'a mon a politieal action than e.n~ng. It doesn't 

:Jt~auidy~tll~~=~e= ~ !)Iacer mininr op!'l"ation in rdaho'• Ner: Puca National FotcS' and a ludtt in the AUiluc.e Q{ mdepeo. den' Mitln1l, which 1'9pr41SI!Ilb 36,000 mm.r. in 39 states. 

'1! they were deli.c:inll' lipid• that have already been li.ltod, rd do soma cartw>w~·· 

The move ~boli.ahed a ay.tcn 

that put etndid&le aped.M into tbrea c:ategoriu. Catecory one .-pccies wue thOM £or which the 

1\gency had ~noueh inCorm.atioa. to support liaunc at end.anpred or thntiltoD.ed. :fO!' C..t.cw>' two species. the Ml'Yie. bad 10m• Wor- • - ~i on lndic:atinc Cbe epec:i• IC. b. in trouble bu.t not 

.... _ ..~ugh to ~ant liltinc. C.r.eco- ry three ~c:i• were no lonpr c:Of1.!.idered 10uitsble £or li.tinc. The al(ency NIDOV1!d. ftll specie& 

98 

.::" 
99 

Testimony of 

Steve Paulson 

of the 

National Association of Home Builders 

Before the 

House Committee on Resources 

on the 

Endangered Species Act 

June 25, 1996 
100 

Good morning. My name is Steve Paulson and I am a member of the 

National Association of Home Builders, also known as NAHB. I am here to 

~s tify on behalf of NAHB's 185,000 mcmher firms, who employ over seven 

million people. I have been asked by NAHB to testify on their behalf for two 

reasons. First, I have extensive hands-on experience with the implementation of 

the Endangered Species Act in Austin, Texas as well as in other areas of the 

country. As a principal with SWC A. Inc. my job is to help hui lders comply with 

the Endangered Species Act. SWCA has prepared more habitat conservation plans 

than any other group in the country. We have also conducted extensive research 

on many endangered and threatened species. Second, I have spent the past two 

years on NAHB's Endangered Species Act Working Group. The mission of the 

Working Group is to become the industry's experts on the ESA and, as such , 

understand the relationship between the legislative language Congress enacted and 

federal agencies' interpretations of this language as embodied by regu lation and 

agency guidance. 

I believe that the listing process is the vulnerable underbell y of the 

Endangered Species Act. Currently, controversial decisions taint the listing 

process. Until Congress and the Fish and Wildlife Service can design a listing 

process that is based on sound and reliable scientific data. and carefully 

established guidelines, the entire Act will be vulnerable to attack from all sides. 

The listing of the Golden-cheeked Warbler as "endangered" illustrates some 

Testimony of Steve Paulson on Behalf ofNAHB 

.June 24. 1996 

Page I 
101 

of the flaws of the current listing prqcess. The Act's language is insufficient to 

guide the Fish and Wildlife Service in their listing decisions. Accordingl y, the 

agency routinely renders questionable listing decisions with little basis in science. 

The listing process also does not provide adequate public notice and participation 

opportunities. 

The December 1990 emergency listing of the Golden-cheeked Warbler as 

"endangered" exemplifies the sparse and questionable data upon which FWS 

routinely relies. In the Federal Register listing notice for the warbler, the agency 

stated that it had conducted a "thorough review of all information available." In 

reality, the Service's listing was based on a single report by Wahl, et. al. which 

was commissioned by the Texas Parks and Wildlife Department. The Wahl report 

theorized that habitat modification and fragmentation was causing warbler 

populations to decline. However, during the listing process, biologist Warren 

Pulich, a pre-eminent scholar on the warbler at the time, raised serious questions 

regarding the validity of the Wahl report. In a letter to the Fish and Wildlife · 

Service, Dr. Pulich stated that the Wahl research countered "sound ornithological 

practices" and that the petition did not provide sufficient evidence to determine the 

warbler's status. 

Dr. Robert Benson, a professor at Texas A&M University, also believed that 

the scientific data presented by Wahl was insufficient to indicate that the warbler 

was endangered. The analyses used by Wahl and accepted by the Fish and 

Wildlife Service were based on preliminary extrapolations of data from other 

Testimony of Steve Paulson on BehalfofNAHB 

June 24. 1996 

Page 2 
102 

species in other habitats and simple population models based on many untested 

assUI!lptions. Dr. Benson concluded that habitat fragmentation alone did not have 

a significant impact on the warbler. Dr. Benson's research indicated that sma ll 

patches of habitat are not inferior to large patches as suitable warbler habitat. 

Consequently. habitat fragmentation would not have a significant impact on 

warbler populations. The Fish and Wildlife Service, however, relied exclusively 

on Wahl 's contention that the Golden-cheeked warbler did not occupy patch sizes 

of habitat which are less than SO hectares ( 123.5 acres), a contention we now know 

not to be true. 

The agency cited "habitat loss and fragmentation" in the listing rule as the 

primary threat to the species' survival. The agency even listed the warbler on an 

emergency basis because of habitat loss. An environmental organization invoked 

the Act's emergency listing procedures through one sentence, added post-script. to 

a letter written to Austin's Fish and Wildlife Service office. According to the 

letter, an unidentified source close to the environmental group expressed a belief 

that the warbler's existence was jeopardized based on a single landowner's attempt 

to clear his property. This was enough to spur Fish and Wildlife Service into 

action. The agency determined there was an emergency "posing a significant risk 

to the well-being of the [warbler]." The warbler's listing became effective 

immediately under the Act's emergency procedures, thus suspending normal rulemaking requirements and the opportunity for public comment. There were 

actually only two instances of habitat clearing, totaling 220 acres. This accounted 

for less than one-hundredth ofthe estimated habitat within the range of the 

Testimony of Steve Paulson on Behalf of NAHB 

June ~4. 1996 

Page 3 
103 

warbler. It is highly doubtful that a negligible loss of habitat could constitute an 

imminent threat warranting the warbler's emergency listing and ju tit · the 

abandonment of normal rule-making procedure. 

The listing of the warbler also exemplifies how the public, especially 

impacted landowners, are excluded from the decision-making process. The Wahl 

study used by the Fish and Wildlife Service to j ustify the emergency listing was 

not available to the general public prior to either the emergency or the proposed 

rule, despite the fact that the study was funded by ESA Section 6 funds. Several 

environmental organizations, however, had the opportunity to read and review the 

report. 

Although I have focused on the example of the Golden-cheeked Warbler. 

there are many more illustrations of the problems with the listing process. In 

Austin alone, we face the specious listing of the Barton Springs Salamander and 

the procedurally defective and scientifically deficient listing of the cave bugs. 

Congress must ensure that the Act's significant protections are extended 

only to those species which are truly in danger of extinction. There are several 

means of accomplishing that goal. 

First, Congress should direct FWS to establish specific criteria for listing 

species which contain consistently applied guidelines. The first step in this 

process should be to develop a more specific and useful definition of endangered 

Testimony of Steve Paulson on Behalf ofNAHB 

June 24, 1996 

Page 4 
104 

species. As currently written, an "endangered'' species is defined simply as "a 

species in danger of extinction throughout all or a significant portion of its range. " 

This definition gives the FWS far too much latitude. It is so vague that virtually 

any species could be considered "endangered." 

Second, Congress should improve the scientific data upon which listing 

decisions are made. A petitioner should bear the burden of proving that the 

species is endangered or threatened. Congress should require a listing petition to 

contain "substantial scientific or commercial data." Further, the Act should detine 

specific standards and requirements for what constitutes "substantial information ." 

Field testing should be required to verify the data used in the listing process. It 

should not be sufficient to list a species by theorizing the historical loss of habitat. 

Congress should also direct Fish and Wildlife Service to arrange for independent 

peer review of the data and rationale used in the listing process. Fish and Wildlife 

Service claims that many recent listings are subject to peer review. Closer 

examination of that peer review indicates that the original petitioner can be one of 

the reviewers, and that the peer review is limited to the information presented in 

the proposed listing rule. 

Third, Congress should open the listing process to public review and 

participation. The general public does not read the Federal Register. Even if they 

did, once a listing is proposed there is insufficient time for interested parties to 

evaluate the biological data in any meaningful way. Congress should require the 

Fish and Wildlife Service to provide public notice of listing petitions to local 

Testimony of Steve Paulson on Behalf ofNAHB 

June 24. 1996 

Page 5 
105 

officials within the speci es· range. Congress should also require that the raw data 

and research submitted as "proof' that a species is endangered is avai lable to the 

public . This could be accomp lished by requiring Fish and Wildlife Service to 

establish a public docket with all of the information on a particular species. It is 

insufti cient that Fish and Wildlife Service merely provides a sum mary of the data 

in the Federal Register. The resu lts of the peer rev iew process should also be 

published in the Federal Register. 

The case study of the Golden-cheeked warbler dramatizes the sc ientificallyhaphazard and publicly-exclusive listing process. Unfortunately. in my extensive 

experience. it is not a dramatic or isolated inc ident. Much of the negative 

publicity and sentiment surrounding the Endangered Speci es Act arises out of the 

faulty listing process. Failure to correct the flaws in the listing process may 

eventually turn the public against the laudable goal of endangered species 

protectio n. However, the legislative reforms that I have outlined can help 

transform the Act into model and efficient legislation. 

Testimony of Steve Puulson on Behalf of NAHB 

June 24. 1996 

Page 6 
106 
2 

107 

Amendment of the U.S. Constitution: 

a week'S. 

·nor shall private property be taken for 

public use, without just compensation.· 

Sam Hamilton 

FWS, Atlanta, GA 

P"'" building homo., 

trees, planting erop$ and in 

cases, even walking on their prop-

. Furthermore,laodowners who lose 

use or au or part of their property due to 

the ESA h3\-e rarelr receiVed 

compensation. 

UnforoJnatcly, mostAmt:ti<:ans ha\'e 

liu.k: knQwledge of how~ or even if, the 

ESA works. Nor are they aware that pdv.ne: property owners ruwe been com- pelled to pay the lion's >hare of 

expenses associated with pf'Qtectjng 

spectes. &~til,Uy, in the 23 years since 

the: Act was pa.~. ~}X"CiCS protection has been privately, not 

publicly, Jinanced. 

•The incentives are wrong here. If I have 

a rare metal on my property, Its value 

goes up. But if a rare bird occupies the 

land, Its value disappears. We've got to 

turn It around to mal<£ the landowner 

want to have the bird on his property.·· 

Manr of the protected 'sp<'Clcs' 

are in fuct, subspecies. Often, 

they are i~'tlated populations tOOl 

difft:r i.n minuscule ways from 

their more prolifer:ne cousins in 

other areas of the country or 

wortd. 

To m3.ke m<ltters won;e, there are 

many e<amples of spc<:l<'> being 

added tO the t,·ndangered or 

The ESA's puniti'~>'e natUre puni.Ws 

good Stewards of wildlife by lhrcat<ning 

to take aw.l)' the use of tbeir land if a 

tlut.o:·;nened or end:u1_gerc.'d Species l"i dis· 

<.:overed on their property. Now. as 

Congress debates hoW to reauthoriZe 

threatCI)Cd liSts not on the basis 

of scientifi.c evidence, but as a w.ty to 

Stop growth. 

In short, the ESA is being used either 

ineff..,tively (few species hein~ "'"d) or inapproprtucly {I.e.. to stop growth). 

TIIC U.S. FISh and Wutllife S<-rvice l:i 

queuing up species !Or a federal agency 

list, but not ponying up t11e dollars and 

taking care of the problem. 

Sooner or later we Will have to ask 

Olusch'eS: are we tru.ty getting lhe most 

species protection for our money out of 

lhe ESA? 

aearty, refom1 is nt..."«led if the Act is 

to be suc::cessfuJ in saving species.lf pfi. 

"-ate propeny is dev.l.lued for the public 

good, the l'iS""-. of compensat.km must be 

addressed. Other solution.~ to make lhe 

£SA \\.--ork btuer indude: 

• f"'CUSing :mention and resout'(."(;S on the sp<:<.ies that are t:ru)y endangered. 

• Using sound, defensible sctentili<: 

rescarcb to make Spet.."ies listing 

decisions. 

• SlreamUnlng the pemlining process. 

lf the administr.ttive time invested by 

:1 landowner is shortened, financial 

resources <:ould be freed up and u..cd 

for habitat preservation efforts. 

• Oesisnati.rl$ the ctiticallu.bitat of an 

endangered spedes wt:U in advance. 

so that landowners know what areas can be dt-'V(:Ioped. an<l what 

areas can·L 

I.lk't$)' ('.arpe,nu.:~ ~ lkst·L2id 

Plans• tJ.S. New$. and WorkJ RepOrt, 

VoiiiS.No.13 10/4/'13 
• Defining what COnMitutes -rake'" under 

the Fish and Wlkltif<: Sen-ice's definition of~h:tml"to a ~p<..'Cies,so that 

landowner,; will not run the risk of 

viol:uing the law unknowingly. 

• RCCJuiring the U.S. fish and WUdlife 

Service to develop :mel implement 

rcco\·cr-y plans on a timely basis. so 

that species do not languish on the 

end.mgcn."CC and thre uem-xllists. 

• Allowing l:md cxdu.ngc.."S so that valuable habitat can be preServed without 

SlCriftcing econoO'l.k: dc"·clopment. 

Ultim:ncly, m:tking :a rcfonnt-"<1 

E.11<bngcn:d Spt.'CicsA,:t work will 

require a nationwide public-priv·.ue joint 

,·cmure nevcr sct.'O before in the annal'\ 

of cnvironmcmal problcm-sohing. 

Undt.'1" the current :t<.'t. landowners ha\'e 

lx-en singled out to comply with rcstric· 

tive land usc:..• rt."gUlations for a progr.un 

th:lt has sa'"-ed a haU'..Qozcn charismatic 

Spt::(.'iC" and little else. 

Justice Holmes in PA Coal v. Mahon 1922 

"while property may be regulated to a 

certain extent, if regulation goes too far 

it will be recognized as a taking. • 

'I'hi.o; is no reasonable way to prm:c.:ct 

the habitat of plants, ft'lh, wildlife or 

hum:ms. 

As for the tmth about the F.nUangc:rt.'d 

Species Act, du.• trutJ1 is that there are no 

easy an."t"\vt..·rs.\VIth this publi<.."ation, thc 

National Association of I lome Builders 

(NAliU) hopes to focus the ESA debate 

on facts rather than fiction and move 

tow·.t.rd a solution that ke<..':ps the original 

i.mcm of the ESA, but does not run 

roughshod over the constitutJonal right'l 

of Amerka's l:utdowncrs.A. 

108 

Michael Bean, Environmental Defense Fund 

"Despite nearly a quarter century of protection as an 

endangered species, the red<ockaded woodpecker is 

closer to extinction today than it was a quarter century 

ago when the protection began• 

COVER PHOTOS: A. Bald Eagle 

B. Special Agent Badge 

C. Fairy Shrimp' 

D. Delhi Sands Flower Loving Fly 

E. Red Hills Salamander 

F. Green Pitcher Plant 

3 
4 

109 

Major Provisions of the Act . .. 

Saving Species Or Stopping Growth? 

In theory, the FSA is simpl~. Species determined by the Fish and Wildlife St-rvice 

to be in danger of extinction arc placed on a list 10 be protected, moniiOred, 

recovered,then removed from the list. Despite its good intem,Lhc law has become 

a lightning rod fur controversy and has caused huge problems for primte 

property owners. 

As more and more spedcs are added to <he list and few arc removed, the intent of 

the law is becoming obscured. Disagreement over how the listing process works, which sp<:cies or subspecies should be indoded and the validity of the st.ience used to determine listing eligibility are at the center of the dehate. 

Private property owners charge tha< th<.-y are left out of the proccs., but counted on to foot tbc hiD for 

what is a common good. Rather than enlisting landowners' help in sa•ing spedt-s, the Act pits specie. 

against landowners. II is a law that can affect anyone who owns or plans to own property. particularly if you 

want to build on or otherwise alter your property. 

'l11c teeth of the law are the: three main legislative sections whid1 tend to he: the fOC'.tl poims of debate. 

(Sec illustration).Adherence to t11esc legislati'-e sections makes t11c law absolute and innexible. huliviuuals 

can use the FSA to stop any development project by petitioning to have a plant or species listed as endangered or threatened. 

Usting (Section 4) 

Section 4 mandates that 

species be listed as endangered or threatened "solely 

on the basis of the best 

:t'".tilablc sdentific and com- mercial infom1ation regard' 

ing a species' starus, 

without reference to po&ii--

ble economic or other 

impacts of such determination ... lhe cost of protecting 

sp<..ocies may not tx: 

considered. 

Take (Section 9) 

Jeopardy Prohibition (Section 7) 

Section 7 requires federal agcndes to insure 

that the actions they 

authorize, fund, or 

carry out neither jeopardize the continued 

cxhtence of a species, 

nor modify habitat that 

is criricd to its survivaL 

Section 9 states that no person m.1y take an endanger<-d anin1al species, where "take" may ~·an "to harass, 

harm. pursue, hunt, shoot, wound, kill. trap, capture, coUect, or to anemptto eng.1ge in any such conduct." 1luas 

property owners who alter their property and disrupt the behavior patterns of specie. li.-ted as endangered or 

thre-Jtened are guilty of"taking" such species and are in violation of the FSA. 
Why should 

an average 

landoWnef be 

concerned 

about the ESA? 

1b# \!vrtbfflf S{J<.U.ni Ou~ u'hi<h <'imhill} c:lo<id 

do<m t/m/Wf banwlfng m tlw Paajk v-.,...,, 1< 

,.,_.,)'a >fl~> cftl,.lfJolln/ W'i tt'fff"" 

laruktu~le'N~I'f!i/UitwlkJJeiRSidt 8tJtk.Tft~ 

tttl<h puir <if mrls. 

.....,.....,.,"-",..,... '"" ..... ~ ........ ~-,.·~~ ........ 

110 

Landowners should be concerned because 

the L'IVI' can restrict what thC) can do with 

their land if an endangered or threatened 

species is c:liscml!red there or if their land is 

declared habitat. Once a species i~ listt.>d. the 

ESA. as interpreted by the FL~h and Wildlife 

.&nice (FWS), calls for FWS biologis~ to 

control bow land is used any time they 

consider it important foe listed '!X'<.ies.The 

FWS decides wbether t.uming, Jogging, 

building or even walking will be allowed. 

On such land, private or public, the FWS 

biologisb become, in effect, land managers 

on behalf of the listed spe<.,es. (1hc 

ational Marine Fisheries Service has 

responsibility for ocean-going Jhh.) 

Landowners who want to use their land 

IUU.'t fuot the bill for habitat COil..'l't'Vation 

dfon:s. Current law does not pro\ide 

compen<oation for the affected landowner. 

What's Endangered 

Currentty Protected 

Spea<:< 

-\<!. ul N!"''(.:ll\b: r IV"i"i 

Proposed FutuN! 

Protected Spectes 

-\,.t.lf:\:o»\tlth.:t: I J'cri I 

5 
How costly 1s 

the ESA to 

adm1n1ster? 

111 

ln 1990 tht· ln.~pector Gen<:r.d of the 

Departmt:nt of the Interior <.:~timated the 

cost of rccovt.nn~ all pres..: Ill I~ known 

pede~ at <1.6 htlhon.ihis liKurc rna} he 

cxtrcmd) low fi>r two ft'"J."(lOS. l'W.t, it 

assume. a 2 m•llion rcc<>VU) cost per 

spedt.--s' estimate. (Oht c-,umate~ lor recovering the north.:m 'lxlllcd o I alone ~wrt 

at 21 bilhon) l·urthc·rmoR', the 16 

billion t.-,;tirnatc is for rt'cll\ crv co~ts alone. 

However. th~ mon.:v spt.-nt h} the fcdcml 

1(0 ·emment '' O\ c·r-hadow~.:d h) thc· huge 

t.'Conomic 1mpa t of a few endangcn·d 

spede. on th~ pm .uc· secto~ 

FWS Spending On 

Endangered Species 

--------------------------------, 

"Top Ten" Most Expensive Recovery 

Plans Instituted Under The ESA· 

I) Atlantic Green 1\Jrtle 88.236,0()() 

2) Loggerhead Tunle 8) 9~" 000 

~) Blunt· 'osed Leopard Uurd -o.m.ooo 

~) Kemp\ Riille) Se:11\Jrtl 63.600 ()(~ 

'i) Colorado 5qtuwf1Sh } (l) Humpback Chub ;-.-o.ooo " ) Bon)tail Chub 

8) Ra£orhacl \ocler 

9) Black-Cap~ Virro 'i3, 'i38.00<Y 

10) s"amp Pink 29.026.000 

I 

I 

I 

I 

--------------------------------J 

6 

"fK'Jld.., on 

n:·t.'n\c:t) it 'fX"Olh .!.16 on 

n,n,ulwtKHl, rx:rmtttinR l.tw 

c..'tlfnn.·t:m nt and fi,ling 
a. 

b. 

c. 

Who decides 

which species 

will be hsted 

on the threatened or endangered list? 

TNfK* ,_, llonmp '"illin¢W f!)t:!l{, 

IM1Io:h pl1cQ dl;lict- c:ll:lr.rn'rcJj to 

be"""'* pools (lhlllow pools d-lhl( 

-•l:ln!ufirll-mallalheblllll) 

farthtflliy~byf'lliS? 

~~\J 

~~ ··"<t. 

" . 

112 

Any individual can petitios the U.S. FC.h And 

Wildlife Service to lc.1 a species. Once a 

spedes (or subspedes) has been proposed 

for listing, the Secretary of the Interior (or 

Secreta!) of Commerte) has 90 days to deter· 

mine whether the petition indudes enou~ 

information to warrant a formal review of the 

species' smtu.s. Althou~ the statute calls for a 

decision whether or not to list within a year, 

the law is rarely foUowed.lf a species is deter· 

mined to be at immediate risk. an ctnergency 

lc.ting may be authorized. 

19,._-1990 

- AlJbwg/ltlw 

lf1C!ftf'tl1tM:rft 1NIJ $fJmd fbofuwub f/ dQI/an 10 

/1lf't)C8t tilpi1ttloll. no itt:'ientiftr budtgttmnd/ji11«f'WU)'/W ~ M/Jitl,/tron a 

IIJthtl. AAdmlnlmal~ion h #'6/UIIJ.!ttlbt .oot• k>ffl!r «* oJJ ~ ~ 

~ 

w "'Bin U.. fWl>NOII/ .. Iisr<~l/1 lhi:Jidrr ibrlmp, ·-~-11/PJ"'I ,,. ,)fjii;Qn.toftltolkln oj}t}q #W'f.w.u#jlf'kl»>MHL'HIM.. 7 
8 

Has the 

Endangered 

Species Act 

been successful In savtng 

speoes from 

extinction, thus 

protecting and 

preserving 

biodiversity? 

---

113 

If the Act were truly aimed at prc:.<."t"Ving 

possible sdentific benefit. from biodiversity, then it would be implemented to 

provide equal protection for aU species, 

reg.mllcss of their popular appeal. In 1990, 

O\er half of the 100 million spent b · Mate 

and feder.d go,emment.'> to protct·t endangered spcctcs went to on!) 1 l pccie.,, less 

than 2 percent of the species li,ted These 

charhmatic species tended to be w.trm and 

fuzzy animal that are fayored by the 

American public, including the grizzly 

lx:ar, the northern potted owl. the bald 

eagle and the Florida panther 

smc" 1966. 1.520 sp«jcs, 9'16 nati\'c: to the l .and '561 foreign >pc~ie..h.we lx-.:n lt,t<-d a,, <cn<Llngcred or thrc:uc:ned Of these, on!) 19 p<:etes haH: brtn dc·lbt<-d: ><>vc:n. heedu'><: the~ lx-camc extinct; 

eight becau.sc of listing ttrors; and four due to I'CC<l> ry. 
MARTESIA PlANNED COMMUNITY & THE FlORIDA 

SCRUB mt USTING 

•Jt was bell on """'· \111: were up against Jlnandal ruin, wbh no rules to play by. The only thing we were sun: of was !bat we couldn't build. 

That's how Brewtd C.QU~Jty.Fl,home builder and dcv-dopee11m M<:Wiliamo deo<'ribes the ordeal be went tlu'ou8h wbeo the land be ,... d<:w:loplns - witb n•my bomes 

under <'011111Nl:Uon--babi1aJ b the rhteat· tncdl'loridaScnlb}llybylbel'.S.FI6handWildlikSctvicc. 

TbeScnlb}lly-- a$ tlualmedby tbeiJ.S.FI6h and 

W1kllk 1987-on• 

114 

wen: 

Equally lhNrating - - wa• the lold< Of <'VIdence on how many birds. if an,y. wcre being imf"'Cred by the 

development. "We spent $2(),000 to ha'" 3 biologist use 

taped mating ca.U.1 to sun'"C)' our 50 ocn:.-s and we round tbat 

6 birdot "'Cf'C' using the propeny, but not I)C(.'t"SSaritr living on 

il. 1 bad 80 k)t OWJ:lCtS and a dt'\-elopet invol\'ed in dlC i.:ssUe 

wilo had no idea what was necessary. and f'WS didn't knoW 

what it w-.uued to do either!' 

Bre>'3J'd COunty tried to addP.'SS FWS' U.Sting concerns by 

drafting a Scrub Jay ordinance, but the IDC'ASUre met With stiff 

oppositiOn fJ'OJ'fl buikkrs and enl'-iroomcntal.i$ls alike. Then a 

ta;;k force that inducted Jocal home builder reprc.~ltation by 

McWilliams spent four )'eat'5 trying to craft 3 habitat conser· 

V>tion phin (HCP). 

llla.ny biuldeno and landnwners opposed one C'.uiy phm 

beC'ause it required hindnwoc'tll and builders to pay a $5,500 

one time as.~ fe<pcracre,plus$100ayearperacre 

for 30 Y"""' for nulntenance. even though that w:~> only 2S'> 

o( the actual miljg;Jtion cOSL "You ha\-e 2 big problem in that 

a Jot aeross the meet, withoot scrub habitat, would not have 

a ke while yow lot, wi1b scrub habitat, would So you have a 

discrepancy in the market and some landnwners would suf. 

kr accordingly." 

"The rality is It comes down to money. Once 

you get through the detlls and It's worked out, 

you stll'-1't answa'Cd the question of who 

Is going to pay the $100 11.-ort needed for 

ttisHO\" 
\1c\\illianl.lt cxpc.TK-nc::c "''th u.Uihurit.iin O'Kf the Unrida XTubj;t) b ... llfllt tu fO'C'O him a umque pt'Apetti\'C'Oil the 

n.."Cd b>r ~ 't<fonn.·udlCf th<J ..t.ou~.J k~ m< <~<wlop Ill} 

land. or u the .,.horitb tdl m< no& to ~<lop Lba lmd 

-h<>Ukl be pun.lm<d b) the .,...... or frd<r.ll panmmt • 

hc:1.U: ..-. at.:t. ht- ) "Utdd t.~ public bnd tion 

·u ltl(• bnnc ..,twta.l rl the: e-A loog-tC'tm ~Wl of 

habit..tt V.h) notbe~:Ahoatv.haant t tv00th.at 1 

Our bot "hoc at prntcw."tlllfC ~"Cit':5 cs b\ btnin« the lanU fbr 

the pc1)Jlk 1 nw1u:t '~from lbt' bntk....,. antJ "'-1ting u 

a.~ lfl pc:rpttw ~habitat for tlx-sp: :in 

"'"The cum-nl act timply ha< oo..,q;;ud iw cconnmx: 

i.mf'r¥1,"\f~,.\\ .~ (lncllllftUlelm~hofnb 

""'' h<lpitqc t.unlll<>""""' th<Arocrican dt=n u( hi >me' 

fMOt"t"'<hip the nt."Xt miJlutC l m 4ua dovr11111-.l wnn•.k~ if 

lm<"ttiO"'ll<IUbc>hlcto~lloom<> A 

115 

Wm\.iflJ( tl1t1ntgh ~ f'li\-!lt<; -.a·u, c.:u<IJjttHJ1 ll.mm n ;.CJ UK.• 

onh '\,uuma l..atlU&Mf'IC't"'A'~~ttnn C\'\L\.),WtniKn.""-t 

lfonx-shdpcdr.u l ntiOinn 10 liM,fu the h-.tlflKOt tht 

~t ·Ia hcd ~ trut\ sucntifk lqd1t on the ~HWIOI\. 

I hin.'d:~ t'l:"f"C'(.'tt'\.lhiolort' o~6nn.Pot~o.dK 

E.ll\ln.nmmt.d. tv 0\t:~ "'lr.d '-'":L"' ~tcr OIJicd b) k'tckpmdcnt h."!'JC.'an.:~ lhc: ll'IV'>l thnmu~.h ~tc:nhii .,.ud\ nc:r 

dooc nn the ( rlOA.nt { •<lncr !'trult' "flt."'\:K:' 

Ilk btolt'JQC::af "-1:~ dua .JlvC\t"t.l 00 <.."'dcnu·tt) ~"\\ 

lhc nal.:t. ~ P.lflubiJOO v.~ lk limng.. II znythtng.c.."'\'ilk-oce 

~l'il the c;);;lt."t ~li!dlc" <x:CLWTUl~- th:u ~ 

'!«<~c.... thnvlnft. .wd thlt il raalfitl v. "'" 11 he. HJitd tht.: 

~nto n;Jtklll <:'-'t..1~ iotn Redding and ht"M\0. 

<:abhll't'lta 

t ntomul;IU:k. 'orth ar nta"' II'\,. lA "''tCOtifK' <bu leN 

«)Uf.lc• J&'"l.Tllnlt:tl( I'JlitllOfl < \illli11U 3k'K~ t.Jur dtl'i ltqt.ng 

dr:t.:i.'lat.ll\ ~hould hau· hc-c."f\ m:.aU.: MlllM nn l1k: ''1Tf11l'h ot 

~thl-""ICDlitk <.bb :Ylc.,~w 11 che.Jaudill noc: pn-.. 

tde "UffJocnr C\ ,cjcn( l' nf ~ffik.'flt. then the ruk Inc 

the pf'()fkY..c:'\1 IJ<of1ngoftht ~t ... ,.,,ukJ hone b<:ro '"lth 

dr.l'-'0 \\lno......U. Uutlh<- 11..Jland\\.1kllifc.: ~'t'\kl" ftdd 

-.u.JI ifl,O(K\:t.l out t.bu, Oll\d ,.UI18Ututtd tm"UPJ.ll)ftnl opuuons 

U ndll) <.:ril'lltml \\h;rl h;cpJx-nn.l f:umc...., ;.Jnd the; rule (,'J( 

iiC'Icnc'c' ~- ~ rOMC\J a .. tk· 

rth thcduf)IOU~ li"~o"tUlf:cllt~ (tiot.nt (o;utcr '"""'1:1' ;~ 

dlrt'2.k'nc.'d ft~t'Ot: \l trtlh ~ bncJ u<c; problnm wt't't' Ju .. t 

bqtinmng I nckr f. 1\ rq;ul;lhUfl)., tflt f."(JM~) h~ (0 

c.k:\"Ciop a tah11 1 om-.en-atton plotn ;mJ.tliil~ for the ht<:!liJW· 

CAl ltll2latxl « """""- rt"putt tt.u would ho. lhc- 1Jo, ' C)( the 

J1bn- 11>.-'< I~ "'" "!'<1ll I mlllioo t fij:hla qU<ot- apcck lbung.and then v.ficn efo.)Sl,v. had tc• ... pend 1 

rnft1l.;,m mort' tc) .Jt\Tic'l) .1 habnat ..:un~ pbn 

fuur \01'5 after tht.• !IIJ:lkr l'UfUn tx.pn. \l1nn and 

h '("()lltp;ul) otre Ill noc uut uf tht.· "-dOlb \ of l)t(; mhl.:r 

nl1995 chc: '-'Oillpam }t--:u-okl hahtt.tt ~·on-.c.TV' .. IIOfl pl.ut 

lwbtt:llrt"\icv.t-dt') thR'C'f.OtlRI bUDKfOU<iribrmg,rOups 

t,; Jt.U'It ('UO(ct'DC'ddtiLC'O$and ctl\-ln..~ould 

tn'bal thm: lime> \\idl no hope ulappn"':illn gill 

lootq Nd nn chc: etVIlN\ '\lmn the P'lo"ii' lru.1-

trJ.tilliJ, lhiOJt IOC' hD l."fll'llpul) during the: t-nurt• (rim! tr.~na 

mk.e listtn~ prubft.-nt ~~b th tact thJI \\lnnt.:rt 1 h.Jd httrt 

'¥1'tld:in,g with loc.Jl authorirn.' l \11:) tbc- r1ght th ng!'l JJI aJoug 

'1M ESA Is ~kot an otffotc t-<litch otffort that 

no-growth activists can USot as a wupon as ckvelopma1t IQChotslhot otntltfotment procns• 
the ~t "i(.:i<.-ntlfic evidence become the k"ading factor in any 

det..isioo to prott.'Ct a spedc::s. He also thtn.ks dear guidcli.ncs 

fix habitat coru.en.uk)Q planning a~ cssau:bJ in t.'fldmgcred 

species bw 

"'1bc Endmgcred ~At.1 w.-s fuJI of good intcruions 

when ftcst cnacted.\Vinn SOI\'S,"hut it's allowcJ butcaucr.us 

to gain comml.and get out Or t:ontrol. We ha\~ an emiroomeni.JJ law that is being uM!d to .. top responsible growth," 

he savs. 

nie result._.. somc:lhingWmn call'i•gret.·nltning·- a political 3Jld rqmbtOCJ manipulation of an environmcntal13w 

wb!':reby no-growth xtiviSb. through tN': L.S. Fl~h and 

Wildlife Service. willlli.1 a .;pecicS who!oe range and lubit:tt is 

in an area experiencing growth, whhout the scicntifK: data to 

back up thcdaim.A 

JESTER ESTATES AND THE GOLDEN-CHEEKED WARBLER USTING 

lnlCXa.'\. the! Endtngt.7C'd ~pecic:..-.Act {ES.\) hJ.s Ukc:n 

thou.\•nd., of OK.:to out of the- tu.nd .. of private' OV.IlCf'o._ ln 

Au~n. that i,o; c:~'ti) l\lh:lt h.;e.ppmal to dc\clopt:r '-bury 

Bc)(xl of J<•st('r t>c..·wklpmcnt f'.ompany 

)e-.tcr O..:u lopmt:nt wa~ :u ttw u·ntc...,. or an tm<.-rga:ncy 

Ji..,tingofthe(.okJen Chn:kc:d~:trbkt bv lhe l S fi,h and 

Wikllifc St.:ni~e (F'WS). The listing aw<d a bad u'ioC' 

naf4htman- thai (.'U'-1 Hood and hr panncrs $H -; nul lion. t."Ollskkrabk J:lm:18f to his t·on....UUC.'tiOn equipmu'lt h, C"mitofl.. 

mental .u.:'U\ ~~' mU the:" fon:c~~ of ht~ <k."\'t.:klpmcnt 

p!UJ<Ct b) bank• 

In l9R.\.}d!tt·r l>e\t:lopnK'nt hqcan "'-ork on )4.--st..:r E.'lato 

II l\ ~h COCW.'llt:d ot approxtmatd~ 1.100 W·clling uni~ on 

b.\t)ac.~ In Man.:h ol· 1990 floods t.urup;ul) ft01 a dcvc)('P' 

mcm permit from the C1t} of Austin to l;»qtin tnll! 1nK1km on 

'<ctoon ~ of jcoC<r II and bqc;in dc:ulng !he< tcrlinn of 

the 'tl't."CtS ;lOll MmK' ~1f the undt·rgruwth around a p:~rticulart) ~f>C'.'ta"-ular :!!tulU of Oaks The: 4,:k:al'ing ~t'\1 m 

immediate prott"">l1 fn>m emironmcntal jl;(1t\l-l...., 

On M;IY ~ 19')0 the FW. f'CIIltcd an et1,1d"gm<y I ing ~" 

th< <~"hed<cd \liodlk!: a u oongbitd wh""' critlal h:ihtur.tnducb H"n ~t:ount.Jn.1llc.·\\:;ttblt~brttd..'fm 

T=se\a\ l<>rfmmM.tn:b l~toJuly 1~.wd p<OO.th< 

n:ntlind<r ol'the \"cit In GUi\trn12b and McxkU 

~ 

lnadditkmtocomp~trl&"'ithUS ~ C<~uf 

S«tion oj{). J>cnniUirlg rt"qUin:men. k:St<T \\<L" 

(f;quuT:d t OhC:l:in a Ction - pcnmt frOc'n F\'1; pttr.Rliilnt 

to the ESA J•.,.erappli(d for the p<tmttln \ 1990 P.utial 

116 

rck..".&Se of tht prupeny was grnmed in lone Septemlx'r for 

some de\'cloped lots, but the undc..wloped lots were not 

rde'.a.or,ed. 

1n December of 1990,Jester mc1 "'it.h FWS and the Corps 

to ~i~te the Section ":' coru,uit.ation process and frt.."e up 

the remaining lots. fWS requested that Jester urKk..'tttkc two 

lcaTS of warb&er :!!UI'\-tys - surveys that were onty accept· 

abk: for review if the)' were conduCicd between March 1 s 

and M:ty 20 ofC'.teh year. due to mating habiL~ofthc bird 

ln an effon to Segjtim:nely pto\'C th:lt its dt•,-elopmcnr 

worlc was not harming the bird.}er.tt.T hired an independem 

btolog)- research flnn to survey tht· (.'R.'~ttu~·s habitat. In May 

of 1991 ,after condLK."ting a study that showed tb;u no war· 

biers c:xl.;ted within 500' of the subject property, ]ester ntade 

a fom:aal written rt'<)ltcSt for rek-..L<,(· of the: property (:lpproxim:ud)· 65 ::.<:res and 1351ots.) ln its request,Jester pointed 

out the SUI'\-"t')' results SUjir#.'Sted the bini didn't n<.'ed as 

much o;pgce to n<"St as ert\oirorunentalist~ \'\-"Ould le-.ad the public to bdic\- ln fuct.j(Stc.-r·~ sun-ey .showed warhl-..~ were 

Tl(!'qiflg wit.hm 150 ftt1 of fuur-year~ld hnmes tn )oitcr 

Estato; I, a prt:\·k)U~ Je-,ur Oe\-etopmcm conmlWlit}. 

When the relc-AM" had not bc:·cn n: . .-ccived h)' Ot:tolx'r of 

1991,)cslcr panners beg.:m mcctulgon a weekly has& with 

f\\ ro tf) to expedite a rdcase. FWS fmalty rek.--.bed tJw 

property on \Ltrch l, 1992 

1t had taken six months of Jester Development'' pla)ing 

by the rule-, tO rt."Ct'i\-C fmal appi'()\-aJ ror dc,."\-·eJopmcnt fnlm 

F\\ s. Hut in the total18 n100t11:<. the FL\h and WiltJUfe X'f'Vicc 

lud kx:kc."d up iL\ land and thu.\ shut off Income f'treams (rom 

the propcrt). the umlpan)- s financial oNigation~ had 

mourn.etl. On \1an.h l. the day FW·s n:k:-t!oetl theJ~er pro~ 

erty.Texa.., C..ommcrcr llank thn:c.:kht-.J on the Jantl 

The lx.lnk ha5 sim:c:: ~old the 6S Jc.-ro;. 1bc lot.' have bt.>en 

dC\-'CJoped b)' other <k..._·dopen and huildc:rs. and only ;a ft"W 

renuin wilhout hoftle't. lnjanuo.IC) of 19'J5.Lht: remaining 

ui'Kk\dopcd Jot~ \\ere .sold a-, a pn.-scrvt: for $S.i00 per 

""" rough)) $16,800 1cs> than what theAppru.al Dl triet 

vatucd t.he pl't,(l'('rty :tt in I~ 

"Some people win do whatever they can to stop 

you from developing your land,· Hood says. 

"We had demonstrated [to the f"ISh and Wildlife 

Setvice I that there weren't any birds or bird 

habitat on that land. And yet it still took them 

18 mon1hs to release the land. I don't think a 

single golden cheeked warbler was SCM!d by 

their withholding the pennit.. 

AI.Nin ' tax ba."iC sutft>n.-d as a ~It of the: J ccr JanJ 

ht..ing bcld h<l5'Ugc a.\ wt:U. The Jppraoc..J \-a.luc oo non· 

n:l<:a'it'\.1 OO't·lup:d lots plummt:ted frum $ -~';.000 to 

$0 ~and 1hc.: at.~ V'.t.luc from $14).0()(} 1~ acn: to 

$2 000 pc..T .actt: 

~flC:\Jpk·"\\dldowtutntrdryc-.uttOSIOJl)tlU 

from developing }'OUI' bntl Houd ..n'S. "c lull tkmc.lrtstr.ucd (to the J!ish andWI.kllift.' St."nK.e) that tht.'n: \\'Crcrt't 

anr btn.ls or htnllubitat on tlut bnd W )t.1: it still took 

them 18 mnm to 1\'feasc the.~ Llml 1 dorn think a ~ngk! 

ft()klrn dk."t'k.t-d \\arhiN w,t<i ~\t:d bv their Wtthhokling 

tbcpc.Tmll A 
117 

Navigating the ESA permit process 

• 

START HERE: 

if you want to 

develop prop. 

erty that may 

contain or be 

located near 

ESAiisted 

species or their 

habitat 

1--N"'"""O~-t ~-==~~~- 1--------! ~ and evaluate the poten· 

llal lor deYelopment to "take" 

ESA listed spede:s of fish or 

- YES 

Does FWS conclude 

applicabon meets Secbon 

10(a) and Secbon 7 stan· 

dards, comptoes wrth NEPIII, 

and w1l be implemented pursuant to the lmpkwnenting 

Agreement? 
-

118 

.WAUUHQJ 

I I'll! lll:l!J) WTnl (;AIJTitl'i' .\lth<•lflh S<..1•1f1 

IHfa} ~ lldl tt:quftt- tlut YOU COOI<k1 f'«.·~ 

to dct.enntnc: lbc nt'('d thr ~ pttnut. or th.U 

\uu follow the'.-nq :-. ill.h"M.:t:.fhuuttkt a 

liil<-d 'J'<CI<- ot ftltl"' .. lkllire .. ,. ...... a 

pmnlt. )00 t-ould be '!Uilj«lto illj\lnctiOOS 

:ond..,..,.WC. 

)our t011$ulrant!. wUI om! tllrii own ('<tT!Ilt 

ewn to !llealt.'b for lbccd sp&.-dd on ttl< prt>p-

<m'lf)-out<t"*>...,..lindliil<-d~ 

thty moybc"'<l'""" t, thclr.........:h prmm '-'f•K1ition!>toDOI:itrf1V lflistf'd~or 

thcir h>h;tu..., i;lUnd wldJin orne:artbc 

pn.,.,.,, No" .....a~) .. 111 a<hlolcth•u pnmn bc oiJalncd 

.\ Alti)oolth ~" Is n:qult<d to <Ohlinue 

pn,__,.,. .... applk:;Uiqfl. t.uJure ooqi>Wn dl< .,.., , <:uri<'Um:n<X' at <'ldy !l>lP oi the 

1"'~-l(mldy rtdurn th< ~ iJI ftn4 ""'-

1hiodmt -li>tth<,.._ul 

~~-"'"'""~~""' llSA Ill __ ......,.._ 

~-.me~oa~too~ r ....... 1Mldl~~ 

~ 

Wllbln d< ... 

lc:!Jro!he~atuf 

.......... ~llil1abitil<1:1reicr 

-~ .., L ;wfbi!l!>llnPO«_.... FWSditiddl ~intO k,...- __ 

tliol-~~-bc 

m<diumit~Jpoq, 

~ £i<l>ed r« sto err oo the >ide! uf the 

~ il'ld<t<tminlllfiWM isUkeaml 

bowmudll1abitilb-'CUI 

~-tuo:onll>cludepqnwocru 

11abitilld-or<>ff-<ilcpw-

~<""bc~lorop 

'!O)'dr<. 

li AhhottAh t¥:Jt\-kdt.T.Il prnJti.1~ •m 119nK 

~.llbndfl<lntlOIIIyoonot"''eou 

""*~ illjt..mg ll!ile<J rtuus,aml ~­ ~a~ do not t«'O\I'CJJff>t 

htlfl. UW;Illf F'\\ .""~ill JT(jlk.~ l.b;U !lt-"(110n 

u.-.a):.&~til.kiudt.: il(:;l~to 

prole:<! W<h 'J>I:<b 

u '~ Mthdh P«.Jj:rt;:·t, -m requttt onh ao<m1 ~eru.whk_.h 

t.:2n bf.ot.-onlhtned"'lth t,he tl< l'uttn<<IOt: 

• --lllc lmpkmc:n<.lbOO \gt<.'<met< ... 

~c<!lru'lt<'t,.;tUngbt.IJthc1l'f'l" 

ant•~>mlo<h<l~IW' 

~""""'""'"""""' ,......., .... L'.ill 

NocrthuPdthcf~ IO(~)otlbt t \oorlM~'s~oo~1ton H)(a)prnl1!bddiPt"Uflot1'mictt(lflprt"-'('\ittn: J'bl· flow dUt\ ll 

- ~ _.,.)-l't<:1imiNrytlnft ·-bllahbt ( ,....,...-I'Linnlrlllond lni;kk11Uifakt --.--.... ...,..,...._., ___ ol>t.ti•<d-1~) ........ 

13 
119 

Navtgatlng the ESA permit process 

WARNINGS 

I tillikclbrtli<~-ln-9dl< "~<>C~lOpP!IniOpl;aw,'f""-""' 

,\W(t ~'K.":!'> wbM.b A~ propo.:d lbrlbdrrtt .... bi::t:ttc~da bt1wem lhc-.1i00 •1ll.'f 

..tndt"\\:'Sft~f--.'St.~bnpa!rf~hiltd:inc:~~tbll~ 

,!, ~fOPMJ .. \\-'f'.')J(:k1 S«'OOO-d)lfqWI'nolhav.iK'D ..\a:joif....., ~A-imaal~ nt'itl.ct 

ilnorthc:a~~IJI',II(ai.'lb:lm-in't:'\~or~~Wn:.~ik'q 'hidl•'IJUkl 

l~d.,ab<101ol-Antu!Jbt..-b-lh<~IO ...... ~Ibcl \.It~ f\\) ~ubtfoari tliWC b.il tm:Ptl-and ~and ft:IIQAibk iMd prtidL'Ul ~2f'C <q~ 

(&ht.'n:ri1\ot'ir)lk~uftmf•'l. ~~bql::t-h2bil:;a:IIO~«Oilf'-*pwt~ 

OPl'ION Requoootlllal AA 

~\100··-·-al ~!Ne 

YES 

• lXPl. .AI'lATORY NOT£$ ts your prOteCt Gamed out. funded autnonzed, ot perN 

1 Sci:unn-l\~"i'cdnm.bt~~~ili'Rfo.'t'IIX'NiAa 

v!P)i<• - .. ...,or •• """"n~~~~oa -. ... u, 

·~-

STARTH 

if you want to 

develop pftiiiWty 

thld~ 

..... IIIMICiesOf 

E$AIIsted - ltMiir 

-by·-~ (known .. A<1lon Agency 

(M)? 
120 

15 
121 

Scmrt"e: 1k U Fish and 'S'iclrik Senice PrqwQJ ~ 

--~~-~ 

t.-~~cl~lhltd\II'KkTChc'CS.\~ 

C.Tht'1IJIPI~fUIIIbttol~ltQII -~-- U'lf~tObcao.JdNwd.rlftlol 

~or1~~undcr 

t'!).\..TbeA11uM~riV) behfhn 

N:ltloowidcThtals 

t...:d'f'o«M'W•'9""1J.n 

<"...-.....:~ .. 1()()-(JOI'l 

The 2tlorWA."<>Odalion of Home Builder:; (NAHB), 

the mia: ofAmcrio s housing industry. 

VISit usontheWorldWide~at hap:/twww.nahb.com 
122 

TESTIMONY OF ERIC R. GLITZENSTEIN 

ON BEHALF OF THE FUND FOR ANIMALS, DEFENDERS 

OF WILDLIFE, Am) THE BIODIVERSITY LEGAL FOUNDATION 

BEFORE THE COMMITTEE ON RESOURCES OF THE 

U.S. HOUSE OF REPRESENTATIVES 

(June 25, 199 6) 

I thank the Committee for this opportunity to testify 

regarding the implementation of the list ing provisions of the 

Endangered Species Act. In particular, as l ead counsel for 

plaintiffs in Fund for Animals et al. v. Lujan, Civ. No. 92-800 

(D.D.C .) --whi ch resulted in a settlement agreement with the 

Bush Administration to expedite listing decisions for more than 

400 animal and plant species -- I have been asked to address (1) 

why this lawsuit was filed in the first instance and what the 

settlement required of the government; and (2) how the recent 

moratorium on ESA listings, and the recent resumption of such 

listings, will affect the settlement. I will discuss each of 

those points in turn, and then offer some general 

recommendations, based on our experience with the settlement, 

regarding the process for listing endangered and threatened 

species. 

WHY THE l.AWSUIT WAS BROUGHT AND WHAT 

THE SETTLEMENT ACCOMPLISHED 

One of the principal problems plaguing implementation of the 

ESA since its enactment has been the large backlog of "candidate" 

species awaiting a final determination by the Fish and Wildlife 

Service ("FWS") as to whether such species must be listed as 
123 

endangered or threatened. 1 Prompt decisions on the l egal s t a tus 

of "candidates" -- i.e., species which FWS biologists have 

rec ognized as potentially warranting pro tec tio n under the ESA 

is essential to furthering the purpose s of the Ac t, and i s a lso ,. 

I 

of benefit to all persons whose interests may b e a f fe c t e d by such 

decisions. 

On the one hand, if a candidate spec ies doe s i ndeed warra Qt 

listing because it is biologically endange red or thre at e n e d, then 

prompt protection under the Act before it has reac hed a c ritical, 

"emergency room" condition affords fede ral and state d ec i sion -

makers much more regulatory flexibil i ty i n accompl ishing the 

conservation and recovery of the species. Conversely i f (as has 

often been the case) a •candidate" spe cies is allowed to 

deteriorate to the point where it is o n the brink of e xtinc tion 

before it is listed, then the options for conserving that species 

will be severely limited (if they exist at all). At that p o int, 

the potential for land use and resource conflicts is muc h higher 

than if concerted efforts had been made to conserve the species 

at an earlier stage. 2 

The National Marine Fisheries Service , which has ESA 

jurisdiction over marine species, has traditionally had a much 

smaller backlog of species awaiting listing determinat ions. 

According to a comprehensive analysis of the endangered 

species list performed by the Environmental Defense Fund in 1992, 

"most species, subspecies, and populations protected under the 

Endangered Species Act are not receiving that protection until 

their total population size and number of populations are 

critically low.• Wilcove, Mcmillan, Winston, What Exactly Is an 

Endangered Species? An Analysis of the U.S. Endangered Species 

List: 1985-1991, 7 Cons. Bio. 91-92 (March 1993). EDF's analysis 

further found that •protection under the Endangered Species Act 

2 
124 

On the other h ?'1d, if the FWS ultimately concludes that a 

candidate animal or plant does not warrant listing under the Act 

. because it is more plentiful than previously suspected, 

or because it does n o t actually qualify as a •species• -- then it 

is eqtlally obvious why prompt de isionmaking is of benefit t o all 

conc erned . Simply put, the rapid resolution of the status of 

candidates means a sho rter time frame in which all interested 

part i es. must be left in a state of regulatory limbo, uncertain as 

to whether the federal government · will indeed list the species. 

Unfortunately, for much of the history of the ESA, candidate 

spe cies - - and hence those state governments, private 

organizations, and individuals with an interest in them -- have 

been left in this regu latory netherwo rld f o r unconscionable 

periods of time. 

During the Bush Administration, the Interior Department's 

Inspecto r General, in a September 1990 audit report, conclude d 

that •[t ]imely progress has not been made toward officially 

listing and protecting endangered and threatened plant and animal 

species. • According to that report, there were approximately 600 

domestic species which FWS biologists had classified as •category 

1" species -- those species for which Service biologists believed 

that they already had adequate information to proceed with 

listing, but which had not yet been the subject of formal listing 

is coming much too late for most species,• id. at 92, and that 

earlier listing might provide federal agencies "with more options 

for protecting vanishing plants and animals at less social or 

economic cost") . Id . at 93. 

3 
125 

proposals. Of such species awaiting listing decisions, over 200 

were considered by the FWS to be facing both an "imminent" and 

"high" threat of extinction. 

The DOI Inspector General also predicted that, at the rate 

of listing then in effect , it would have taken the FWS between 38 

and 48 years for the agency to make listing decisions on just 

those species which FWS biologists, at that time, suspected as 

being biologically endangered or threatened with extinction 

i.e., without even taking into account any additional species 

that the FWS migh~ thereafter determine required listing. 

The Inspector General further found that dozens of species had 

already become extinct before they could even be listed, and that 

the FWS's ongoing delay in making listing decisions was "likely 

[to] result in additional extinction of certain plants and 

animals" in the future. 

Compounding the problems identified by the Inspector 

General's report, in January 1992, President Bush issued a 

moratorium on the promulgation of proposed or final regulations. 

As a result of that moratorium, the listing of endangered and 

threatened species essentially ground to a halt for four months. 

Eventually, the Administration concluded that its regulatory 

moratorium did not, and could not legally, apply to the listing 

of endangered and threatened species, but the rate of listing 

decisions continued to proceed at a snail's pace, thus 

exacerbating the very problems decried by the Interior 

Department's own Inspector General . 

4 

26-566 0 - 96 - 5 
126 

It was against this backdrop that The Fund for Animals, 

Defenders of Wildlife, the Biodiversity Legal Foundation, and 

grassroots conservationists from around the country, filed their 

Complaint in federal district court in Washington in May 1992. 

Shortly after the lawsuit was filed, the parties began intensive 

settlement negotiations, and an agreement was reached in December 

1992. 

The heart of the agreement was a commitment by the FWS to, 

by September 1996, propose for listing -- or make final, 

judicially-reviewable decisions not to list - - all of the 

"Category 1 " species existing at the time the parties entered 

into the agreement. The parties prepared as one of the Exhibits 

to the settlement (known in the settlement parlance as "Exhibit 

A") a list of all of the species which FWS biologists agreed were 

Category 1 species -- approximately 443 animal and plant species 

in all. 

The Service's obligation to make decisions on all of the 

Category 1 species in four years was not pulled out of thin air. 

In testimony delivered to the . Senate Subcommittee on 

Environmental Protection, the Bush Administration's FWS Director, 

John Turner, had committed that the Category 1 list of species 

would be •completely worked" by no later than 1996. The parties 

essentially took the Bush Administration's own commitment to 

Congress and embodied it in a formal, legally binding agreement . 

While the FWS agreed to an overall deadline by when it would 

resolve its backlog of candidate species, the parties did ~. 

5 
127 

within t hat general time frame, set forth any schedule for the 

agency to make decisions on specific species. Instead, the 

parties contemplated that the FWS would be free t o continue to 

apply its longstanding listing priority guidance, under which it 

is suppo sed to prioritize listing decisions based on the degree 

and magnitude of the threats facing the particular species. See 

48 Fed. Reg. 43098 (1983). The parties also agreed on a detailed 

"substitution" scheme, under which the FWS could replace Exhibit 

A species with new candidates of higher priority, so long as the 

agency was making adequate progress in proposing a total number 

of species for endangered or threatened status. 

The settlement accomplished other reforms in the listing 

system as well. ' For example, the FWS made an explicit 

commitme nt to pursue a "multi-species, ecosystem approach" to its 

listing responsibilities. Thus, the agreement embodied the 

Interior Department's recognition that an ecosystem- based 

approach to listing "will assist [federal officials] in better 

analyzing the common nature and magnitude of threats facing 

ecosystems, help them in understanding the relationships among 

imperilled species in ecosystems, and . be more cost-effective than 

a species-by-species approach to listing responsibilities . " 

When the settlement was signed and filed, it was applauded 

both by the conservation community and the Bush Administration . 

In particular, the Interior Department issued a news release 

A more complete description of all of the reforms 

accomplished by the Settlement is set forth in an article 

submitted as Attachment 1 to this testimony. 

6 
128 

(Attachment 2), in which it explained that the settlement's 

emphasis on an ecosystem-based approach to listing would be "more 

cost-effective," and would allow the Service to "focus on the 

needs of plant and animal communities as a whole, not 

individually." The Service also stressed that the •agreement 

supports the Service's existing priority system which ranks atrisk, candidate species based on the degree of threat faced by 

each candidate," and FWS Director Turner praised the agreement as 

"essentially giv[ing) a seal of approval to the Service's 

existing method for setting priorities for these species in need 

of protection." 

IMPLEMENTATION OF THE SETTLEMENT AND 

THE EFFECT OF THE MORATORIUM 

For the first several years following filing of the 

settlement, plaintiffs received annual reports (as required by 

the agreement) stating that the FWS was complying, and fully 

intended to continue to comply, with the obligations imposed by 

the agreement. For example, in February 1995 - - just several 

months before the Congressional moratorium on listing was imposed 

in April of that year -- plaintiffs received a report from FWS 

Deputy Director Richard Smith which stated that "we currently 

expect to meet all of the obligations of this settlement 

agreement in the allotted time frames.• The Service further 

reported that the Settlement had assisted it in taking a more 

efficient, ecosystem-based approach to its listing 

responsibilities, while still allowing it to prioritize listing 

decisions according to biological needs. 

7 
129 

A little more than one year later, the situation has 

completely deteriorated. Although less than 100 candidate 

species now remain for resolution under the agreement, the 

Service has made it clear that it will not meet the September 

1996 deadline. Moreover, it has offered plaintiffs no proposal 

for even modifying the schedule so that the status of the 

remaining candidates subject to the agreement - - which have been 

in regulatory limbo now for many years -- can finally be 

determined according to a date certain. 

There are several reasons why the Agreement -- once touted 

as a major breakthrough in implementation of the ESA -- has now 

completely broken down. Some of these reasons are obvious, 

others are less so . 

The Congressional Moratorium on Listing 

As everyone knows, the Congressional moratorium on final 

listing decisions, and the subsequent battles over the Interior 

Department's Fiscal Year 1996 budget, decimated the Service's 

entire listing program. As described by the Service itself in 

March 1996 -- shortly before the budget situation was finally 

resolved and funding was restored -- "the net effect of these 

legislative and administrative actions is that the Service's 

listing program has been essentially shut down." 48 Fed. Reg. 

9651 . 

The Congressional demolition of the listing program 

was one of the most shortsighted, mean-spirited, and 

counterproductive legislative actions in recent years. It 

8 
130 

accomplished absolutely nothing -- even from the standpoint of 

those who believe (wrongly) that endangered species conservation 

has stymied economic development. As suggested above, by simply 

delaying decisions on species protection, the moratorium merely 

ens ured that species eventually i n need of listing would be in 

eve n worse shape -- and hence require even greater regulatory 

attention - - than if protection had been afforded at an earlier 

j u nc ture . 

The Administration's Own Political Interference With 

the Listing Program 

At the same time, the entire breakdown in the listing 

pro cess cannot be laid at the door step of Congr ess. For s e veral 

reasons, t he Administration's wounds are, to a c onsiderable 

d e gree , self-inflicted . To begin with, while it deserve s credi t 

for ultimately insisting on the termination of the moratorium 

(after sufficient public pressure had been generated by 

c onservation groups) , the Administration failed to take a highprofile stand against the moratorium at earlier legislative 

stages when it c ould have been removed or avoide d altogether. 

Moreover, the Administration itself has greatly politicized 

the listing process -- by allowing political considerations to 

dominate individual listing decisions, by ignoring the scientific 

conclusions of its own field biologists, and by adopting general 

policies which are plainly reflective of political rather than 

biological imperatives. Sadly, rather than deflect Congressional 

criticism of the ESA -- as some Administration officials 

evidently anticipated -- these actions have merely served to 

9 
131 

reinforce the perception that federal protection of an imperilled 

species is a horrible evil to be avoided at all costs. 

As anyone who closely monitors the ESA listing process can 

attest, examples of listing decisions which are flagrantly 

motivated by political factors abound. Some of the most 

egregious cases include: 

-- the Alabama sturgeon: In June 1993, the Service proposed 

to list this species as endangered, since it may be the 

rarest unprotected native fish species in the United States. 

However, in December 1994 -- under enormous pressure from 

Alabama's Congressional delegation -- the Service withdrew 

the listing proposal on the grounds that the species was 

suddenly suspected of having already become "extinct" 

(despite the fact that no scientific expert had supported 

that conclusion and even though a live member of the species 

had been caught just a year earlier) . 

When the listing proposal for the species was withdrawn, FWS 

Director Beattie stated in a press release that "if Alabama 

sturgeon are found, the Endangered Species Act provides the 

Service the flexibility to list them on an emergency basis." 

However, although still another member of the species was 

caught in April 1995 on the Alabama River, the Service has 

still refused to protect this desperately endangered species 

under the Act. 

-- the Canada Lynx: Because this species has been eliminated 

from much of its range in the United States, and continues 

to face threats from habitat destruction and fragmentation, 

as well as trapping, in October 1994, FWS biologists 

prepared a draft proposed rule listing the species. Yet the 

proposed rule was never even published for public comment 

because the Service's Washington office overruled the 

agency's own field biologists and directed that the species 

not be protected . 

To make matters worse, the rationale proffered for 

overriding the conclusions of the biologists -- that Lynx 

are plentiful in Canada, although they are facing grave 

threats in the U.S. portion of their range -- could be used 

to strip grizzly bears, gray wolves, and other high-profile 

species of the protections of the Act. 

-- the Queen Charlotte Goshawk and the Alexander Archipelago 

Wolf: FWS biologists also concluded that these subspecies, 

which exist only in the Tongass National Forest in Alaska, 

10 
132 

should be protected under the ESA because of logging, road 

building, and other threats to their survival. Documents 

recently obtained from the Service reveal that these 

recommendations were ignored because of blatantly political c o nsiderations . 

For example , attached to this testimony is an extraordinary 

"briefing" doc ument which lists the "pros" and "cons" of not 

listing the wolf (Attachment 3). One of the "cons" is that 

failing to protect t he species is "[n)ot consistent with our 

analysis of the 5 factors in the listing regulations" --

~. that listing would be required by the law. On the 

"pro" side of the balance is that refusing to protect the 

species would be "least controversial with agencies, 

industry, and the Alaskan delegation to Congress." 

Predictably, as has now become commonplace, the "least 

controversial," politically correct decision is the one that 

took precedence over the legally and biologically correct 

one . 

In addition t o these and many more examples of politicallybased listing decisions, the Service has issued broad "policy" 

pronouncements that also set back the cause of endangered species 

conservation and appear to be motivated purely by political 

considerations . Fo r instanc e, in July 1995, the Service 

literally removed nearly 4,000 species from status as 

"candidates" by simply wiping out what was known as "Category 2" 

of its c andidate list. 

For more than fiftee n years, this category had been employed 

by Service biologists to monitor the status of species that mi ght 

e v entually warrant listing, but for which more informationgathering was ne cessary. In other words, as the FWS recognized 

in its own published "no tices of review," these were precisely 

the kinds of species as to which early warning signs of trouble 

might help avert the need for listing -- and hence invocation of 

full federal jurisdiction down the road. 

11 
133 

The Service has never offered any biological justification 

for its abrupt elimination of Category 2. Rather, the agency 

conceded that it was merely responding to the misconception held 

by some members of the public that the thousands of category 2 

species would invariably make their way onto the endangered 

species list within the next several years. Yet, instead of 

figuring out how to correct that misimpression while still 

carrying out the vital functions performed by the maintenance of 

"category 2," the FWS instead opted simply to sweep literally 

thousands of candidate species under the bureaucratic rug. 

Similarly, in February 1996, the Service issued a new policy 

adopting a far more restrictive definition of "distinct 

population segment[s)" that may be listed under the Act. 61 Fed . 

Reg . 4722 . The policy provides that "international boundaries• 

-- ~. between Canada and the United States -- ordinarily will 

not be employed to determine what is a "distinct population 

segment" for purposes of invoking the Act's safeguards. As longtime FWS biologists have pointed out, however, if this policy 

(which has already been invoked to deny protection to the U.S . 

populations of the Lynx, Wolverine, and other species which are 

disappearing in the U . S.) had been adopted following ESA 

enactment, the FWS might never have listed the contiguous U.S. 

populations of the grizzly bear, gray wolf, woodland caribou, 

bald eagle, and brown pelican. In short, in the form of this 

little-noticed policy, the Service has set the stage for a 

drastic curtailment in the coverage of the Act. 

12 
134 

The May 16 Guidance on Listing Prioritie. 

Most recently, on May 16, 1996, the FWS announced its 

"g uidance" on how it intends to spend the $ 4 million fina l ly 

made a vailable to it by Congress for listing actions during the 

r emainder of Fiscal Year 1996 . See 61 Fed . Re g . 24725 . Th i s 

"g uidanc e" d e clares that the Service's 1983 p r ior ity guidel i ne s 

- - which, as noted above, compel the agency to prioritize 

decisions according to the level of threats confronting spe cie s 

-- are no longer •sufficient• because of the "pre sent backlog o f 

pro po sed species" caused by the moratorium . 

Accordingly, the guidance, in effect, indefinitely 

subs titutes a new set of priorities for the purely biologically 

bas e d one which has existed for thirteen years and is widely 

regarded as one of the crucial cornerstones of the Act . In 

essence, the guidance provides that, other than any emergency 

listings', the agency will spend~ of its appropriated funds 

making final decisions on the 243 species for which the agency 

issued proposed rules but could not take final action while the 

mo ratorium was in effect. 

Hence , under this guidance, the Service will spend DQ time 

and resources -- zero - - through the remainder of Fiscal Year 

While the Service stated that it would make emergency 

listings its highest priority, it has yet to match that promise .with concrete action. To date, the Service has refused requests 

to emergency list species which are in desperate need of that 

protection, including the Alabama sturgeon -- whose plight I have 

already described -- and the Mountain yellow- legged frog . Only a 

handful of Mountain yellow-legged frogs still exist, and the 

FWS's own biologists have, to no avail, implored the agency to 

protect it as rapidly as possible. 

13 
135 

1996 on >illY listing activity other than finalization of proposed 

rules: it will not move forward on publishing a proposed rule for 

a single additional candidate subject to the multi-species 

settlement, or for that matter, any other candidate; it will not 

even respond substantively to citizen petitions for the listing 

of any new species (except, perhaps, for those seeking emergency 

listing) ; and it will not devote any time and resources to the 

designation of critical habitat. 

The Service makes no bones about the fact that this new 

"guidance" -- which essentially constitutes a self-imposed 

"moratorium" on most actions required by section 4 of the ESA 

represents a blatant departure from the agency's past emphasis on 

biological priorities in the expenditure of listing resources . 

Indeed, the Service flatly admits that, "even for [candidate) 

species facing imminent, high-magnitude threats," such species 

will be relegated to the back burner until the Service can plow 

through the 243 species awaiting final listing decisions -- ~ 

if those species face much lower threats and would not be 

measurably harmed by a brief delay in final listing. 

The Service's asserted rationale for this draconian policy 

is that, since "final listings provide substantive protection, 

the Service is of the strong belief that this activity should 

take precedence over new proposed listings," petition findings, 

and other listing-related activities required by section 4 of the 

ESA which will provide only "limited conservation benefits." 61 

Fed. Reg . 24727. That assertion has a superficial ring of 

14 
1~ 

plausibility but, on closer inspection, it makes no sense. 

As a practical matter, it is our understanding that there 

are regions -- including the New England region -- in which there 

are few, if any, proposals awaiting final rulemaking. Yet, under 

the FWS's policy, biologists in those regions are nevertheless 

prohibited from working on other listing activities so long as 

other regional offices are still clearing off the backlog of 243 

species subject to proposals. This means that the guidance will 

have a disproportionate effect on states like California, where 

many of the species subject to present proposals exist.' 

Thus, whatever the theoretical merits of the Service's 

emphasis on finalizing proposed listings, there is no sound basis 

for applying it to regions which do not have large backlogs of 

proposals. Accordingly, we respectfully suggest that the 

Administration be asked whether this is indeed the case and, if 

so, why FWS biologists in New England should do nothing to 

implement section 4 of the ESA, while their counterparts in 

California work feverishly on pending proposals. 

Moreover, there is no legal or rational basis to the 

Service's policy pronouncement that issuing final listing rules 

should invariably-- i.e., regardless of biological needs --be 

placed on a higher priority tier than the development of proposed 

This concentration of proposed species in California is 

largely due to a separate settlement of a case brought by the 

California Native Plant Society. That settlement set deadlines 

for listing activities on a large number of California plant 

species. See California Native Plant Society v. Lujan, No. 91-

0038 (E.D. Ca.) (Settlement Agreement Approved August 22, 1991). 

15 
137 

rules for candidates species or responses to new petitions. 

Obviously, if a particular candidate or petitioned species faces 

a far graver threat of extinction than a spec ies already subject 

to a proposal, it is far more important that the candidate at 

least begin the process leading to ESA protection. In addition, 

a proposed rule at least brings the species some consideration in 

the section 7 consultation process . 

Yet, under the Service's policy, even where all FWS 

biologists agree that a particular candidate, or a species 

subject to a new petition, should take precedence under the 

agency's longstanding priority scheme, the biologists are 

foreclosed from spending any time or effort on that species until 

every single one of the 243 proposals is subject to a final rule . 

_Especially with regard to species that have been languishing in 

candidate status for many years - - such as the nearly 100 species 

still subject to the 1992 settlement agreement -- this policy 

makes no sense whatsoever and subverts the Service's purported 

commitment to a listing process based on biological priorities. 

Indeed, as demonstrated by Attachment 4, many of the 

remaining settlement species are considered by FWS biologists to 

be extremely high priorities for listing -- because of imminent 

and serious threats to their continued existence -- yet under the 

May 16 policy guidance, no effort will be made to protect any of 

them for the foreseeable future. Such species include the 

Mariana Fruit Bat, of which only a maximum of 200 individuals 

remain; the Northern Idaho Ground Squirrel, whose population is 

16 
1~ 

estimated at 600-800 individuals and declining; and the Riparian 

Brush Rabbit, which has a single population of as few as 170 

individuals in Caswell Memorial Park in California y e t is 

presently being hunted. The Service has no legitimate 

justification for not spending at least some of its FY 1996 

appropriation on these and other desperately imperilled candidate 

species, whose numbers may already be lower than the minimum 

considered necessary by biologists to sustain a species in the 

wild. 6 

In addition, this self-imposed moratorium undermines the 

settlement agreement's emphasis on a multi-species, ecosystem 

approach to listing activities. Indeed, even if a FWS biologist 

working on a final rule encounters several candidates which are 

in the same ecosystem, and face exactly the same threats to their 

survival, he or she must ignore the plight of the similarly 

situated candidates and instead revert to the single species 

approach to listing that the Service previously denounced. 

In short, the net effect of the moratorium, and the 

Servic e's unfortunate reaction to it, is a retreat to the 

intolerable state of affairs which existed prior to the 

settlement agreement - - a situation in which the number of 

candidates awaiting listing decisions multiplies exponentially; 

imperilled species remain candidates for years or decades and are 

close to extinction by the time they receive federal protection; 

Attachment 4 was compiled from Listing Priority Forms 

prepared by FWS biologists. 

17 
139 

the Service backs away from its commitment to an ecosystem-based 

approach to listing; and interested parties are left in 

regulatory limbo while they await word from the federal 

government as to whether it will move forward with a listing 

proposal. 

WHAT SHOULD CONGRESS DO NOW 

If Congress wants a listing process that is efficient, 

apolitical, and biologically sound, it must do the following: 

1. Particularly to compensate for the devastating effects 

of the moratorium, Congress must provide the FWS with the 

resources that it needs to both efficiently list species and 

accomplish the other monumental tasks imposed on it by the Act . 

2. Congress should codify the Service's obligation to take 

an ecosystem, multi -species approach to its listing 

responsibilities. This would not only make the process far more 

efficient, but would have the added benefit of focusing public 

attention on threats faced by entire ecosystems, rather than on 

the individual species versus development controversies that have 

often afflicted ESA implementation in the past. 

3. Congress should adopt an amendment to the ESA which 

requires the Service to propose a listing rule -- or formally 

decide not to list a candidate species -- within a specified, 

reasonable period of time. Only that approach -- which the 

settlement sought to implement -- would ensure that future 

candidate species do not languish unprotected indefinitely, and 

would provide interested parties with some sense of certainty as 

18 
140 

to when the Service will at least make decisions. 

Equally important is what Congress and the Administration 

should not do: 

1. They should not continue to play political football with 

the listing process while species continue to spiral towards 

extinction. Indeed, perhaps the most useful thing that both 

Congress and the Administration could do is simply leave FWS 

biologists alone to do their jobs in a professional and 

responsible fashion. The overwhelming majority of these 

biologists are dedicated, capable public servants whose morale 

has been needlessly ravaged during the past year. 

2. They should not add even more costs and procedural 

hurdles to what is already a lengthy, procedurally cumbersome 

listing process. For example, pending legislative proposals co 

mandate scientific "peer review" of all listing decisions are 

utterly unjustified by any empirical evidence; not a single 

decision to list a species has ~ been overturned by a Court on 

grounds that it was not supported by scientific evidence. Such 

an across-the-board requirement for "peer review," or any other 

new procedural hurdle in the listing process, could merely add 

further unnecessary delay, thus ensuring that species are in even 

worse shape once they are listed. 

As suggested above, instead of making the listing process 

more complex and costly, all efforts should be devoted to making 

it more streamlined and efficient. As the National Academy of 

Scientists' expert panel concluded in its recent, 

19 
141 

Congressionally-authorized report, Science and the Endangered 

Species Act, we are presently in the midst of a "major episode of 

biological extinction," and the "present cause of extinction is a 

single biological species that has become so successful and so 

exploitative that it threatens to destroy the very capital that 

is necessary for its own long-term survival ." 

In the face of this extinction crisis, the last thing that 

Congress should contemplate doing is making the federal 

protection of endangered and threatened species an even more 

arduous, difficult, and costly process than it has already 

become . 

20 

Eric R. Glitzenstein 

Meyer & Glitzenstein 

Suite 450 

1601 Connecticut Ave ., N. W. 

Washington, D. C. 20016 

(202) 5885206 
142 

On the USFWS Settlement Regarding 

Federal Listing of Endangered Species 

by 

One oflbe principal problems plaguing implementation of tbe Endangered 

Species Act (ESA) since its creation has 

been tbe enormous backlog of "candidate" species awaiting formal listing as 

endangered ex threatened. In an effort to 

expedite tbe listing of such species, a 

number of national wildlife groups and 

grassroots environmentalists from 

around the country-led by The Fund 

for AnimalsandJasperCarlton, Director 

of tbe Biodiversity Legal FoundationfLied a sweeping lawsuit in 1992 against 

then Secretary of rhe Interior Manuel 

Lujan and U.S. Fish and Wildlife Service (USFWS, or the Service) Director 

John Turner ('I'M Fund for Animals, et 

al. v: Turner, Civ. No. 92-800). On 

December 15, 1992, tbe parties to the 

lawsuit reached a comprehensive settlement in the case, wbicb, if implemenled, 

will greatly speed up the listing process 

for hundreds. and possibly thousands, of 

imperilled species. 

Schedule For Listing 

Candidate 1 Species 

1be heart oftbe agreement is acommianent by USFWS to, by September 

1996, propose for listing-or make fi. 

nal, judicially-reviewable decisions not 

to list---401 domestic"Candidate 1" species of plants and animals. Candidate I 

species are tbosc for wbicb the Service 

believes it already has adequate information to list tbe species as endangered 

or tbrealened. butforwhich it bas not yet 

issued formal Federal Register notices to 

that effect. 

Under the agreement, therefore, 

USFWS is required to issue approximately 100 listing proposals per year for 

tbe next four years. Since enacanent of 

tbeESA. USFWSbasaveragedlessthan 

forty listings per year and, in papers mcd 

in tbe lawsuit prior to settlement, the 

Service acknowledged_ that. in recent 

Eric R. Glitzenstein 

years. its ··goa1" "'·a.~ to list only about 

.. 50 specie~ per year on a nationwide 

basis." (Defendants' Answer to Complaint in The Furulfor Animals el a/. v 

Lu;an. at 'I 60). Thus. the scnlcmcm 

agreement will result in a subsLantiaJ 

increase in the pace of listings. 

Reforms Involving "Warranted but 

Precluded" Species 

Another significant aspect of the 

agreement involves the treaunem of 

species who~ listing has been deemed 

by USf"WS to be ··warranted but precluded" in response to citizen petitions. 

Under the ESA, when an individual or 

organization Connally petitions USFWS 

to add an animal or plant to the list of 

endangered or threatened species, the 

Service must. within 90 days. "make a 

fmding as to whelber the petition present'\ substantial scientific or commercial information indicating that the petitioned action may be warranted." Wilbin 

on~.: year of receiving a petition which 

USF\VS has determined may be warranted. lhe Service must make one of 

three findings: (1) that the petitioned 

action is not warranted; (2) lhatlhe petitioned action is warranted, in which case 

USfWS must promptly publish a proposal to list the species; or (3) that the 

petitioned action is warranted, but that 

the "immediate proposal and timely promulgation of a final regulation" listing 

the species is "precluded by pending" 

listing proposals, and lbal. "expeditious 

progress" is being made to list other 

qualified species. 

In The Fund for .4.nimals lawsuit, 

the plaintiffs argued that tbe Service bad 

placed hundreds. 

of species in the 

"warranted but 

precluded" category for many 

years, although it 

could not demonstrate, as required by the 

ESA, that it was 

maldng"expeditious progress" 

in listing species 

ascndangeredor 

threatened. In 

addition, the 

plaintiffs were 

concerned that 

many of these 

species bad not 

even been designated as Category I species, 

altbougbtbeService bad purportFor many, lhe bald ng .. aymboHz• American endangered apeci•. edly concluded 

Photo by New York Zoological Society. that their listing 

Attaclunent 1 Voi.10No.S 
is in fact "warranted." Rather, many of 

t,besc species bid been placed in "'Category 2. ·• a classification wbich is supposed to be reserved fot species for 

which lhc Service lacks sutncicnt evidence to make a definitive finding of 

..:ndangered or threatened status. 

lbe most important practical effect 

of this anomaly in tbe Service's ueatmcnt of ''w&rr.lnted but precluded"' species was thai many oflbc:se species were 

not being assigned. listing "priority" numbers in accordance witb the Service's 

Jong-Siallding listingpriorily sd>eme(sce 

48 Fed. Res. 43098 (1983)). Undel' !hal 

priori()' sy~tem, all Category 1 species 

are assigned priority numbers. wbicb 

are supposed co refiect lbe degree and 

magni1ude of lbe lhteaiS jeopardizing 

the spectes. Category 2 species are not 

ordinarily assigned formal priority numbers by USFWS . 

lbus, by making "wananted but 

precluded" fmdings foe numerous species year after year, and by placing sucb 

species in Catcgc.y 2 ratber than Category I. USFWS was effectively relegating such species to a form of regulatory limbo. From lbc standpolnt of lbe 

persons or organizations wbo had petitioned for protectioa of lhese species, 

tbe Service's placementoftbe species in 

Calegory 2-and concomitant failure lO 

assign a priority number-made it virtually impossible to even gauge wbcre the 

species stood in lbe queue relative to 

olher imperilled planiS 3Dd animals lacking protection under lhe ESA. 

To resolve plaintiffs' complaint of 

misuscoflbc "wanantedbut precluded" 

designalion, USfWS agreed w a number of tefonns. FU"St, tbe settlement 

agreement provides lhal all species lhal 

bad been classified as ••warrarued but 

precluded" asofSep«mberl, 1m, and 

for wbicb USFWS bad.COG'Ipletcdstatus 

SW"Veys within ooe year prior to dlat 

da~e-12species inall-lbe Service will, 

by October 1993.eilber (I) propose such 

species for listing as endangered or 

lhr<a1ened. (2) officially plac:e sucb spe· 

cies in Category 1 and assign lbe species 

a listing priority number in accordance 

willl lbe Service's pubtisbed priorily 

syslem; or (3) delamine lhal listing is 

not warranted for tbe species and publisb a Federal Register notice 10 dw 

Vol. 10No. S 

143 

effecl. Willi roprd 10 all such animals 

and pJanu dial on: asiped a Wtinl 

priorily number of I , 2. <X 3-i.e .. species or subspecies wbicb, UDder tbc 

Service' s priority sysaem, are fadng bodl 

an "immineol" and a "bigb" lhteal of 

extinction-the Scrvke must, by September 1996. propose sucb species for 

lisuns as endangcnd or lhtealened, or 

publiSh a Federal Register Dotice ex· 

plainiDg why tislinS of !be species is 1101 

wornJ~Jed. 

Secoad. as 10 all species lbat were 

classified as "wamnted but pReluded" 

as of Sepwnber I, 1992, and for which 

USFWS did 1101 cocnplcle a staeus swvcy within one year pricY llO thai. dalcapproximalely 800speciesofplaniS 3Dd 

.. imals-<beSema: ....... by OciOber 

1993, make aew fiodinss "bosed on lbe 

bestavailablescienlifiC3Ddcommercial 

infoanation." 1bcsc fmdings must eilhcr (I) cooclude lhallbe petilioned ac- tion is warranted (to be ronowed 

prompcly by publisbed notices !hal propose sucb species ror listiDg as endangered or linaleaed); (2)offiaally place 

any suc;h species that the Service con tin· 

ues lO classify as .. warranted blll precluded" in Ca~egory I and assign such 

species a listing priority DUmber in accoolance willl lbe Service's tistins priorily sySJem; or (3) conclude !hal lhe 

species sboukl not be listed, a decision 

wbicb muse: be explained in a published 

and judicially n:viewable Fedetal Regisrer notice. ODoc .,am, with regard 10 

any sucb species 10 wbicb USFWS assigns a priority number of 1. 2, or 3. tbe 

agency must, by Seplember 1996, propose lbe species for tisliDg as eodangered or lbrealeoed. or make a futal 

decision explainins why pnxection of 

tbe species under tbc ESA is DOt w•- ranled. 

lbitd, willlreganiJOallspecieslhal 

an: designal<>d as "wamnt<d bul pn:· 

eluded .. after September 1, 1992, 

USFWS has qreed 10 prompdy assign 

eadl such species a liSJina priorily number. Tbisc:ommiuneruisiObccmbodied 

in a publisbc:d SIJ.lell\eDt. wb.icb will 

infonn all memben of lbe public dial. 

ba>oefonll, aU species classified as "war· 

l'liDitd but pn:duded'' in response 10 

li.sti"' petilioos will 1101 be placed in 

Calegory 2 bu<, -.:., wiD be assigned 

lfec1 ...... ~ 

UPDATE 

Afo,....for ;,yo..-WR uc'-'1•"" •~Jrrrdsprt:i.uiuw.s 

M11~ 1993 Vol. tO No. 5 

Jwly T.usc .... ................ .......... EditOf 

Ono~l•t . ........ As.loei•~EdiaDf 

Tury R«H ... . ........ F.cuky Advi.sDf 

ltUtrvcUouforAwlson: 

The &.lJrMJt:rftl Speciu UI'OA.T£ 

w~komu vtidu rc.IMed 10 spe..ciru 

prorcctio•iaa..idcruseal-w 

iaclvdill& bu11101limH.d to: rmeatcb aod 

mau.scmeal -.:civitiu ud potiey -..l)'Mt 

toe c•daasaed sp:c::icJI, ~lic:al 

awo.ctteJ u~ .fPCC::tu coucrvaOoA, aod 

habiCM procealoll. Book rcvicwt, cdieorial 

c:ommeou, MCI ~~ QlttCOC 

c-wcDU ud publk.Uou ue abo -kolnt. 

Reader• iadude a bro.d RD&e oC 

p«<(eulooabiabod\K;clllific::-tpolic:y 

fttld.t. AIUda ..tlou)d be wriaca i• u 

e&&ilyu.t~ay\cfotabowt· 

eda,cabk Mic•c· For further ialotm~ · 

tioa,coaL.u::~I.Mccli or . 

Swbscription lnjorrrrtJIIOI$: 

The &Jatlrrfti Sprcia UPDATE i.r 

published appo:Umatcty tn time.r per yw 

by the SchoOl of Natlnl R~ &lid 

Eftviroa.mcnl a1 The UrU.vusity oC 

Michicaa. Auull rMU 11rt S13 fDJ rcplu 

~ou.aadSllfot_...aod 

scaiot QUUU (add $5 fot poRI&e CMSidc 

the US). SI...XDU pk.ue cad011c advi.Jot's 

JiiDal\ll"e oa u.Uvcuil)' letterhead. Scod 

check or moaey Ol"da- (payable 10 The 

U.Uvcni.ty ol MidU1aa) to: 

~lt:rcd Sprciu UPDATE 

Sdloolo(NauuaiR.cso....-ces 

aDd EaviroiiiJICDI 

The Ull.ivenily ol MidUcu 

Aaa Arbor. Ml48109-l US 

{31])763·3243 

Ctwer: Northcru b.ld eqlc (1/dliouDIJ 

l~rmxrp/wlbls), our u&ioeallymbol ud. u 

elldaosered spcc;Ks. Phalo b)' New Ycrk 

ZooloaK:aJ Societ)'. 

1bc vicliii".J upruHCI ia IN EM~M1•r.J 

S~ciu UPDAT£an&boleolcht&Ulhon 

a.od tNJDOtD«cu.ri1yrdkc::ttboleolche 

US Fish Uld Wildlife Service or The 

Ull.iven:ity of MieN,... 

Produc:tioa. ol this iNuc wu 1Mde pouible 

iD pan by ruppon from the CkVJOD 

Corpotal.ioa udsbc I~ 

Auoo:i.cioo d Fish aDd Wildlife Aeeecia. !;; 0 printed on recycled paper lliiiiiil 

End«t~red Sp.ci• UPDATE 2 
a listing pricricy nwnber and placed U1 

Caega<y I . In essence. lberel<n. tbe 

Service bas apeed to in&egraae its sys1<111 lor _.sing to tisting petitioru 

witb its inlanal process for pioritizias 

candidale spec:ies. 

Commitment To An Ecosystem 

Approach to Listing 

Tbe (mal noteworthy aspect of tbe 

scnJememqreementisanexplicitcODl· 

miunent by tbe federal government 10 

pursue a '"multi-species, ccosyssem approacb" 10 its listing respor.sibilities. 

According 10 tbe agreement. USFWS 

and tbe Depu1ment o( tbc Interior now 

ra:ognize tb3lsucban approacb-wbicb 

bas long been urged by a number of 

conscrvationists-"will assist [feder.ll 

officials] in beaer analyzing tbe com· 

moo naa.ure and magnitude of threaLs 

facing ecosys&ans. bclp lbcm in understanding me n:lationsbips among im· 

pcrillod species in ecosystems, and be 

more cost-effective than a species-byspecies approacb to listing responsibilities .' ~ Indeed, in recent years, tbc Ser· 

vice bas undenaken sucb a multi·s.pccies approach lO meet its obligations 

under two OIAc:r settlement agreements 

that require it lO list a large number of 

California and Hawaiian plant species 

(sec Cons«,..,alion Cotu~cilfor Hawaii v. 

Lujan. Civ. No. 89-953 (D. Hawaii) 

(Senkalent Agreement Approved May 

9. 1990); California NOJivt PlaN Socitty v. U.jan. No. 9HJ03g (E.D. Ca.) 

(Senlement Agreement Approved August22. 1991)). (For more on ecosysten.- awrootbes. see Endanget<d Species UPDATE Special l!sue. Voi.IO 

Nos.3&.4, "E:~tplorinc an Ecosystem 

Approacb to Endangcted Species Conservation" -Ed.] 

Expm&ly endorsin& Ibis approacb 

as a national policy, ~ Fwtd for ,4ni· 

mals settlement provides !bat lbe Service will .. dirca eac:b reaioD. wbere bifr 

lngically ~.to use a multispecies. C<lOSY.._-- ... (I) in 

lbe .._;taring of Clllldidale ...s -- nmted but prcducled species. iDclucliDs 

swus survey•. (2) in proposing species 

for tistin& as enclangcted and threatened; (3) iD adopting rma1 rules listing 

species as endangered and lhreateoed; 

144 

and (4J in designating critical habitat." 

Moreover, in a c:ocrunitment that sboukl 

an:atly streamline the llJUng process if 

fully impletnerMed, lbe qreement obliptcs tbc Service. in pursuiRJ tbis multispecies approacb. co "consider and rely 

on, to tbe maximum extent feasible, the 

commonality of threats faced by differ· 

cnt species in tbc same ecosystem.'' 

Simply stated.lberelore. ilUSFWS 

dctennines that a large number of spc· 

cies within a given ec:osys&cm are at risk 

because of tbe same problem-most 

obviously, babiwdncruction---(bc Ser· 

vice muse, under the scttlancnl agree· 

mcnt.list all of those spcc:ic.s lOg ether in 

a unified rulemaking proceeding, rather 

lhan repeatedly ceinvent tbc wbeel in 

case-by-case listing packaies. Sucb an 

approach, of course. will promOlC not 

only speedier prOte<tion of imperilled 

species. but will also allow a federal 

agency that is notoriously underfunded 

to get the biggest bang out of its few 

listinJ bucks. h should also have l.be 

added benefit of Cocusin& public and 

media auention on lbrcats faced by entire ecosystems, r.llbcr than on tbe individual species versus development conuovenies tbat bave often afflicted ESA 

implementation in tbc put. 

Implications lor Endangered 

Species Act RMut'-iution 

While the seulcment accomplishes 

a number of mucb-needed reforms. il is 

by no means a cure-all for wbat ails lbe 

listing process. Truly loog-term. systemic improvements in lbc process can 

only come &om CongreNional over· 

baul of lbe AC1 . To begiD with. assum- ing !.hal USFWS fulfills its obligation 10 

list all currtnl Candidale 1 species by 

September 1996. !be set dement does not 

ensure dl8l fuiUte Candidate 1 species 

donollansuisbunproleeledindefi.nildy. 

An amenclmeotto tbe ESA n:quiring tbe 

Service to J>'OIXlSC' a listin& rule-« 

formally decide not to lisu Candidate I 

specie>-witbin a specified period of 

time would belp ,....,.._ tbatUSFWS 

does not n:ven. tO its pi« llckadaisical 

pace. 

Moreover. tbcseulememagreement 

does ncx directly obligate tbe Service to 

make any cbanges in its treatment of 

Candidate 2 species. Olber !ban t1tose 

which have also been designated as 

"warranted but pn:cluded" ln response 

tocitizenpctitioas. Assuggcstcdabove, 

as a ~suit of tbe qreement, any individual oc organization convinced tbat a 

Category 2 species warrants listing is at 

least in a bcuer position to ensw-e that 

the species is placed in Category 1 and 

receives a listins priori()' number. Qlb.. 

erwise, l.be setlleUlCnt-and the ESA 

itself, as cunently drafted-alford no 

assurance Lbal. tbe Senice will. witbin a 

reasonable time fnrn<. perform tbe biological status reviews and galber otbcr 

inCormation tbat may be necessaJy lO 

initiate regulatory action for Candidate 

2 species. 

Finally, CongressionaJc:odifacation 

or certain features of tbc agreement 

woukl ensure tbat reforms agreed to by 

USFWS become a permanent fu:.ture in 

ESA implementation. Most notably, 

Congress should set in kgislative stone 

Lhe Service's oblisation to take an ecosystem, multi·species approach 10 its 

listing responsibilities, as well as the 

agency' scommiuncnlto, at a minimum, 

assian all "warranted but precluded" 

species 10 C3lega<y I. Virtually all 

students of the Act aa:ree that tbesc arc 

useful, if not vital. policy reforms. wbich 

c:an only assist in making tbe listina: and 

pctitionprocessmoreefficicnl,scnsiblc, 

and comprehensible to iDtcresled citi· 

zens and organizations. 

Of course, tbe single most belpful 

!bing tb3l Congress could do i5 provide 

lnlerior Secretary Bruce Babbiu-tbe 

fnt Interior leader wilb a genuine com· 

minnent to tbc ESA in more than a 

deade-wilb lbe resources tb3lbeneeds 

10 both cffteiently list species and accomplisb tbe otber" berculesn wks imposed on bim by lbe Ac~ sucb as dnllting meaningful recovery plaus and designating aitical babitat In tbc abscDce 

of sucb despentely-necded funds, lbe 

Act• s lofty promise lO "povide • pognmfor lbe cooservation of ... endan· 

get<d and-specieJ" ...s tbeir 

ecosystemS wiU cootinue to ring bollow 

fa<DIIIIy atimals and plaots iD din: need 

o( lbe Act'• proteCtion. 

Eric R. Gllt•DNia is a puuter iD 11M public::· 

imrut law f1n11 Meyer A. Gliua'uteiD, ud was 

ludc:ouuelforlheplaitWffsia1hoe..e4iKuuod 

iaW.IItick. 

VoL 10No. 5 
145 

DBP41TMINT of the INTBRIOR 

news release 

Fish and Wilcilire service 

For Release: D<!ce::>b<!r l,, 1992 Georgia Parham 202-208-5634 

AGREE~ENT SETS TIMEFBAME POR PROTECTING RARE PLANTS ~ ~IMALS 

The Interior Depar..ment's u.s. Fish and Wildlife serv:ice today 

announced it has reached out ot ·court settlement of a. case 

involving the agency's procedureS to reduce the backlog of plants 

and animals awaiting listing d~cisions under the Endangered Species. 

Act. The settlement aqre-ent was reached with The Fund for. 

Animals, Defenders of Wildlite, In Defense of Endangered Species, 

and other indi~iduals. 

The a~eement supports the Service's existing priority system 

which ranks at-risle, candidate species based -on, the deqree. ot 

threat faced by each candidate, ·as well as the taxon0111ic rarity of 

a species. 

"This agreement essentially gives a seal of approval ·to th~· 

Service's existing method for-setting priorities for these species 

in need of protection," said John TUrner, service Director. 

Onder the agreement, and based on the exis·\;inq ~rlurity 

system, the seryice will decide whether to propose for listing 

approximately 400 •category ·1" candidate plants and animals over 

the next four years. category 1 species are those for which tha 

best scientific information supportS. listing but, d.ie to other 

delllands, the Service ha~ been unable to develop a listin'I. proposal. 

Those species with the highest priority will be proposed.first. 

(more) 

Attaclunent Z 
146 

-2-

The Service has a;raed to decide whather to propose for 

listing approximately 95 category 1 candidate species each year 

through September 1996, a commitment comparable with the past two 

years, when the ~ervice proposed 215 plants and animals and listed 

144, In addition, the Service is to report annually .. · on ··its 

progress through 1997. 

The agreement also !o~alizes a Service commitment to 

emphasize, where possible, multiple species listings or proposals 

that address entire ecosystems, instead of a species-by-species 

approach. .In addition to beinq more cost-e!fective, these methods 

allow the Serv'rca to .focus on the needs of plant and animal 

communities as a whole, not individually. 

species peti tionad ! _or listing, that are determined by the 

Service to be warr·anted for listing but precluded by: speci;.-s 

CU..>-rently Of higher priority 1 Will ba cla~sified only as. ?tagoey_ 

J. species, instead Of eateqory l or 2. category 2 candidates. are. . . . . . . 

those for which insufficient in!ormation exists to conclude that 

listing is warrante.d but continued monitoring will be carried out. 

-DOI-
/1cr!QN 

Not Warranted 

ALTERNATIVES FOR LISTING DECISIONS- 

ALEXANDER ARCHIPELAGO W

P.RQ~ 

Least controversial option with 

agencies, industry, anu the Alaskan 

delegation to Congress. 

Gives the benefit of the doubt to the 

Forest Service that they will 

permanently anc..l effectively change 

their management practices to protect 

wolves. 

Will be opposed by petitioners and 

other environmental groups. ~'> 

Will be supported by congressional --:- . .._:;-

delegation. 

No

fac

Op

co

Al

Ma

eve
Warranted Consistent with our analysis of the 5 

factors in the listing regulations. 

Dave Person, A. A. wolf biologist, and 

Matt Kirchhoff, ADr&G wolf 

biologist, recognize the long-term 

problem with wolf survival and support 

the listing proposal. 

Continues to pressure Forest Service to 

recognize the need to change its land 

management practices to protect 

wolves, and the Forest Service could 

administrate changes before a final rule. 

Allows immediate legal protection of 

wolves and wolf habitat. 

Extre

dama

Docs 

to ad

mana

rule. 

Will not he supported hy congressional <--> 

delegation. 

Will he supported by petitioners and <.:._) 

other environmental groups. 
$ettl-nt. Agre-nt Specie• 

Appendix A 

Specie• 

t.. Gracia•• t hhtle 

Deli!JD&tion 

Pre•ent./P.alt 

Cl/Cl 

C'l/Cl 

Cl/Cl 

Cl/Cl 

Cl/Cl. 

Cl/Cl 

149 

Priority No . 

2 tpr..., . 51 

Attachment 4 

Mini ng .activicie• contlnue to destroy specie t h.&bl t .& t . Hlning 

h.a• e li.Unu.ed ••ver•l popul•ti.ons ain~t l,O . F.l.l""ftllng .&l"ld gu <r il"lg h•a deatroyed or degr.ade d •pee: ~•• .a b~u.t . C1 e.a"E"ing f o r develop.nt, both r elidel"lt l•l .and lnduatri.a !. thre.atens the h.a.b i.t• t . Speclea gro" • on very unicrue aoil wh ich i.a unu•u.al i n U. S . Due tO soil type. ,....)'be cHt! !. eu:.t to reest•blilh speci e~ on ILM hnd. Unidentified fungAl p.athogen 

h.as caused .. jor dUI·bAck of pArtlAl o r entire st.ands of 

•pecies. Specie s not li.ned by st.At.e teAl . Under CA Mining t•w• only pr-otact.lon received by apeeiea ie a t d i acrat.ion o f 

lead. I.'Jef'Cy . ape-cia• 11 c-••tricted to 15 occurr .. c ee . TreDI! 

te4otclia.1..- . 

Pri-ry t hre• t• include • illtary activitiee , pnd• tion tJy 

c• ttle iiOIId r abbits, c~tition with a lien g-rasses, •nd ro»<S gra41"9 activit.hl . Mi.l it.ary ac:tivit.iee include tank ope:ratioa. and hu-n a cc ivl.t.y. One populet.ion o[ only Coo.or 

in ewiatenc'! -e ••vee-ely d~ed by • t•nk in U'4 . CUor t.l eo reduce •llit.• ry i...,.cta h-Ive bt>en, tor •11 i :'ltenta .and 

purpoaea, WIIII.Cce•eful . Biologiat. aurveyi ng phnt • tte""ted to fl•g off popu l•tion to deter t.•nk u·•Uic but efforts Wi!re ignored . Spec ies ia eligible f or a t•t e Hati ng !CAl, but. h-1.1 not ~n lhted . liVen if lt•te li.ated, a t ate ll.w does 

not appe•r to p rotect pl•nc• tr0111 hAbit ac 1110c1U1cat 1on or l.and. t.~ la ch.lnge• . l.rJI!y clirectivel tor -n•g-nt of san1 i tiva natural reaources have not been suU iei anc to provide adequate prot.ection to 1peciaa . Specie• ia vulnerabla to ••tinction 

due to l ow 0\llllben o l l n4ivi<hlah •nd populat i or.l . to.et.•• la 

reaulct.S to t popu..lat.lo.~~ all - tM Pore •-t•r·Lin•n az.,. ba.H . f'ap\llati- a1se eat~t•• are appro• ly 1,000 

per pop..lau-. s.-i" t.reacl 11 uabo-. 

Pri-ry tbre•t• include off -highw•y ve hicle ... ae, pred.ati.on by 

c •tt le a:D4 rabbi u , CC~A~petiti.on with a lien gnue1 , and rt:o•d 

gr~ing aetivit.iea . one population of lpeciu locitte4 on 

Lo1 Padre• ... tional Poren . Until ua•. n.abitat ~or plant wu u 1ed •• eta<Jint •re• Cor OKV •cchrity. Pol"tion of h.itbitat fetlced. in 1'14 but Ce ncl.ng never CO!ftllleted . a.ecentl)' seen OKV t.rad:a llldlc..ces thl.t d.a~~~age still oc:c:un . C.ctle grazing occur• within tl.abit.l.t , Herbivores (i . e . cattll , rabbit•. other 

... u -u h.l.va been eati~~~ated to conau- "'5 percent o f l eave• and f l ower a of 1pacie1 . St..ate !0.1 listed aa rate in 

u.,.. State law, hoWever, •ppean to •~t taking of pl• nu v ia Nobitat .adUica tion or lend use c:Mnge by the l andowner. 

Current f"9"l1tion1 gu id.in!J -~nt Of lena i t. i va :"eiOUrCII 

on OSPS hnd• h.lw been i.nwU:lcient to avoi<l.s-ge to 1peeie.s. Liaite<l ~r of popdat. iona a.oc1 individua l• incra••e threa t o f ertU.Cti on f r- atochl.• tic aventa . 0... popv.latt- ot apeclOC:C1LZ"I - tM LIM •alka• .. t1a.al •or aat. . & ltn 1~ 

eat.s.-t<lo<lpgpu.lat1- 11"11 at 1 ,000 . lkla- e• ....-.yllt.aa ba.-dalta. 

Spaeiaa u·-c 11 u.obowa . 

All populations ot epecies ere on priv• te lancl . Pr i~tary threat.• 

inc lude !Jroundvete.r pw~~Ping. ORV uae, end ca.sul devtloponent. 

Thiat.lea 1.r1 conaiclere4 t.O tM! egric:ultur• l pe1t1 .and at le••t ona population ia believed t.o tt.ve been ewtirp•tecl t hr01.1gh 

herbicide uH . Only one of s even population• h•• 1\I))St•ntia.l I"IUIIIbar of planu (fluctuating betwe.t~n 4i,~OO and 54,0001 but 

h.a.bitet i l u,n.tenad by propoaed c~rc1al lone opantion •net port . U'5 wi nter at.Or:-8 el i!Unate4 occupied habit-c . 

St•te tCAJ Uat.ed aa threacened. St.•te l •ws, howavar. •ppe•r to be i M4eqvate t.o prot.ect. ag"a inlt. t.M taking" of s uch pll.nt• 

v ia habit.at .adUlcation or land uae ch.l.ng-1 by l•ndownar . CSQAdeter.l-tlona .ada by at ate a..gencieshava or will Mvanely 

aUect the babit•t of t.M •peclea . Mlt.itation - awra a an<l 

reloc•tiOA effort• b• ve fe iled. St•r:e _,..,_9-IIC pl•n [or 

s pec:i el, tbo\19b only con•i •tlng o f re<:~nct.tiona , has not ~n 

i -.pl...-ntfld . ftflr• a~:e ooly '7 popu.lati-.. ol t.taia apaciea , flTe 

of t.M•• 11r.a- 1••• t.Ma 50 pl-t.a -ell. lpac1ea ia -lowlllle to atOC ... It.lc -uaeu- ftfl to t.be 1- oWilNo1:a ot 1A41•1<1uoah aa4 populaUOUI . ap.ciee t.1: ... h llac:llai ... 

Spe:c:lea h highly apecialhecl pl..nt reatt'ict.ed co •n extra-ly 

li•ited habitat c:ona11ting of •trip of l•n4 bat.-en wind bloom 

be1.cb .net etabilir.ed cWnu . St.dp of ba.tliut il only & t'ew -cec-e "ide f or - .1ority of diat.ributi.on . 10 percent. of pl•C!otl occur on Vendenbu.rg Air For ce &aae . PEL-ry threat• to popu.l•tion• on aM off Air Porca &aae incl ude oil production activities , tr&~~~p li ng by beac:tl. u1er a , ORV t.~ae, e nd d.e,.l~nt. 

of CO.at C\la;r<l f•c11 ity . St.•te teAl li a t.ed aa th.ra•teDed. St•te law, boweYI:r, inadequate co protect againlt the takiAg 

of auc»'' plant• vie hl..bita t IIOdi.fieaci.on or land. uae cban<Ja• . 11o lafo-t.1- t.• pro..-LG& ~:.,.a«iag a_...r of pop.a.l•tl- or l-.dl•J.-...1•. _.ciaa tr_.s ta ta Melli-. 

Pa•t all.aep ~asiDg aJCt.irpatecl epeci ee in $on- CO\U\ty . Clarrent t hre•t• to a;pac i ea include over collection and road ..,.int.en.ance 

a ctivit iea. only popula-=.ion of •peciea i a located on a ateep road beak a long a count y righc-of-wa.y . $ta t e and fec!enl 

regulatory ..c:Mni- are i ne<leq!ut.e . CJOA 11 Aad~te. 

Low llUIIbotr of lnc1ivi4ueh in population thre•ten• t.he s pecie• wit.b es.thpa.tlon . C.ly-• popolat.l- wttll ~t lS ia4t•J.1hell ie mo.a c. -let. ap.ci- tr.-4 11 61cUat.9 . 
Settlecqnt Agre-nt Species 

Appendix J\ 

Spt!Ci .. 

J:r&grostis fosbergii 

Irhh Hill buckwheat 

Desigonation 

Present/ Past 

Cl/C:Z 

Cl/Cl 

Cl/Cl 

Cl / Cl 

Cl / Hone 

Priority lfo . 

Species listed in Appendix A ot: settl-nt as 

priority 5 yet listing priority fon~, datltd. 

l/19/U, indicil.tes that species h&d no prior 

design&tion . 

Gentner• 1 111ission-bells Cl/Cl 

Kigh Rock Springs tui chub C1/Cl 

Cowhe&d r..ake tui chutl Cl / Cl 

Gil.viot& tar-plant Cl/Cl 

Kua kuahi wi Cl/ Cl 

Kau kuah.ivi Cl/ Cl 

150 

c~nts 

Prirwry threats include advene habitat moditic&tion by pigs 

and go.~~u. predation by goAtl, trarapling, overcolhction, 

cooapetl.tion wit h •hen pl~nts. Stolte !II%) does not UC09f!-i:.e species as endo~ngered untl.l listed by federal govef'MIIent. 

Stochastic extinction .. ;or threat. Olllly !our popv.lat.ioas 

co.tsiaiGt" ' liWli•lctu.la a:re lul.o- to .. ist. . Species t:r-.d ii...UO-. 

Species "-liev.cl to be extinct until 1910 . Pri.-ry threats 

inc::lude ur~nhation and intensive &gric:u l tur&l prii.Ctices, 

herbicide spraying f or roadside sites, de elo~nt for priv&te 

l&nd IJ.tel , ~ing of f:t.ll -terial, road constrvction. and 

livestock grazing and f arw.ing pr&ct ices . One poflul.u i on 

C• pt~rox . 6 , 000 indivld~lsl w•s plowed ln 1916 . MCKher 

pos~Uhtion and • p&n of ~ third popul&t.ion w;u CS.stroyed. by 

roac! grsdin9 in 199) . Ito existing re'J1ollltory -chani_. 

protect this species. J:p.eies is a- U• .. 1st 11 11 sites 

•itb • ca.ttt ... popt~latiOII. o! 1. t14 pl-u . Species treAd 

is dec:l111lD9 . 

Prirwry _threats include el ay 111ining, cle&cing tor fatming, 

and gTili:Ung, ch1•ring for "sJ.dentl.&l Mid cC~rN~Crciil.l devwlop~~U~t. 

M&bit&e fr&9'lft'lftt•tion assochted with 111ining •nd r-o.d building 

&lso thn&tena SIHICies. Stil.te leAl listed aa end.il.~rcd. but 

C£QA ptocesa inadequ&te tor protection. ~1- le ~ frt poovw.latlooa . S,.ci .. t..r....S t.s -t illd.t.cate-4 . 

Thre•ts are ••- as for tone buckwhe&t . Speet.•s le a-tr-

-ly t.vo popoalatiOII.I . tpeelea trsad ls sot. iiWI.ieat.ed . 

Pri-ry thre&ts tnclud111 habitat loas to agri culture •nd 

utb&nh•tion. and. -t illlpOn&nt.ly. c~tition witrl ali.n snail. 

Alien an&il species 11 c&p~la of C:OII'Ipletsly extirpatif\9 puy. 

incluchng s peciea in quc1t1on . Murric •n•• c:&n also cSa-ge 

Species occurs in American S•moa. Pevec tllaa :z . ooo ia41Yidu.ah 

arc kao- to be allYl. Speciaa tr-d is deelillllllg , 

~rilll&ry threats include hOusing developn~~~:nt. woody pl•nt s~cies 

1nva.111on a.s1oc:i•ted with fire suppression, •nd collcctlon. 

r..argest known population destroyed in 1990 by construction of 

drivew•y . ) ot ' fhggcd popuhtions p&rtiall y destroyed .by 

c:le•ring •nd .bulldozing between 1986 and 1 918 . s.,.cies 

attr•ctive to collac:tora tor horticultur&l p.~r-posaa. »ot 

protected b y State COal but proposed for listing i n 11 / 94. . Species threlltened. by atoch.il.stic events. Species r&"ly produces 

seed . Spe-cl•• is 1aaova tc- 19 sites -c~aeiq 1' ICI"IIIS -d 

co11taiaiq l'S pl-ta . Spec:ies tread la dlllclialag-. 

Intire popul•tio n of s ublpecies is on privately ovne<t unch and , 

the r efore , eatr-ly vulnerable to destruction, lftOdiUc:ation. 

or curt•ilnwnt of habitat . Afric:&n tilaph· sc aped ft"OI_'I a.quacultur" pond on ranch and ch•nnel Cllt.Ush 1ntroduced 1nto 

system resul ted in compat it ion with •nd prcdil.t ion on the s pecies 

evidently leading to its extirpation in 1919 . Subspecies enjoys 

no regula.tory protection . Specie$ is considered extinct but 

will relll&in a c•ndidate unt~l survey confil:'lls sp•cie l ia gene. 

Prilll&ry thre •t• include diversion of v•ter e s peci&lly during 

()flri ods ot drought , l ivestock grazing, pred• t i on by sn•kes •nO 

birds, pest control p:rograiiiS, and intention•l vandalh"lll. by 

priv•te l•ndovners. Pro longed drought i n e& rly 1990s resulted 

in the d es.iC:C:&t ion of II>UC:I'I ot spec i es hAbitat . Livestock. gr•z.i ng 

ha~ renooved .-.ost of r i psri •n vegetation reducing cover for 

species and lllol.ki ng them. e10re vulnerabl e to predation by _ e:n.kes 

~~h~~~ ~· e~pe~! t!~ . ~~n~:~~.~o~ ~c~!~~;:;,. ~~t:~ to 

protect t he species . speel•• is lui.OVIl r.--. oa• sit• c-t•il•iDil• 

b••..S oa e 1911 ••"'..Y• • aiD~ of aix cb\ill, LaclvcUil9 

jllVCDilll . $l)o.C:ila ts·-d. 11 dee11111119 . 

Land on which species ia found is either owned or le11aed by 

T"'aaco or Chevron. 40 percent of h&lli t&t within ktiO"'ft range 

o! species has been d e stroyed •. alt~red, or fragmented by 

construction of oil anCS 9111 t&cl.litl.es and pipelines . P'Uture 

projects wil l l i k• ly •dve-ra•ly affou:::t species • nd increase 

likelihood ot extinction . Ke•vy gra.:r. in9 o r s pecies ~y •lso 

•Uect survival .by reducing stil.ture 11nd seed product~on . 

Stoeh&atic: events i ncluding tire and oil spills thre&ten thi.s 

specie& .,i th extinct iOfl . Sp.ei•• is lul.o- f:r- :10 eolosi•• 

-ca.peasl119 •o ac:r•• ot two.bitat:. Xu.b•r ot 1a41Yid.ua.ls iD 

"eb. eol-y tluet~~atea d:rast.Leally d.peactLag - a a~ar o! 

Ya:riablaa . ~•ci•e tr-d is decliDiav. 

Pri~Mry threatl inc l~e •dverse h•.bitat IIIOdificationl caused 

b y fer-al pigs. cattl•. •nd sheep. r•t predation on 1?-.-k. flower, •nd fruit , insect. da~~~&ge , and cOI'IPO!tition _vl.th 

alien pla~~ta . State (Kll does not rec:ogni :e specl.el •• 

endangered until hde:ral Hating is COIIIPleted. Species 

threatened "ith stoch&sti c extinction and/or reduced 

reproductive vigor due t o small numbers , OD.ly pl-t lmOWZio 

or apaciea d..t.ad 1• 1110, z1...,._ pl-t:s eu1tl•ete4 r.-- tb.ls pa:r-t repl-ted. 1o ort.~Jl:Q.Il babitac. -..b•:r o! pl-ts 

lu:rTiTllll' la Wlluaovll . Spec:iaa t:r-.d is iadicetecl as pcuibly 

.. til>e:t. 

Thre•ts ..- 11 for spaeies &bove . Spee1- ltD- tr- ooa populati~;>G C:OIIlllatill• of :Z:Z i11diYid~~all , Spec i•• ueBd. is 

illdicatecl 11 possibly -tiBet.. 
Satel-ne .r.gre-nt Speciea 

Appendix A. 

DeaigMti Oft 

Presene/ hat 

Cl/Cl 

Cl./Cl 

Cl/Cl 

Cl /Cl 

Cl/Cl 

Cl/Cl 

151 

Pri o riey lkl . CC~r~t~~tnts 

Populati.o ne froM San Pr~nci.aco a rea h.ava bean aJ<ti.qtat!ad . Monterey County populat1on a lao axti.qtated . t..aat 

naturally occ:urring popuhotion in l!lay Area destroyed in 

199) when habitat was converted into &hopping center. 

OC U r ... lning nati ve pop11l a tiona, I are on pE"iva tely owned 

lands currently o r anticipa ted for devalopMnt. Wa taonvi.lla 

a irport population c:urrently being -•d. diac:ad, a nd grazed . 

r~ad airport expansion will e li .. ina ta h-.bitat . or r-inint lour habitat• .<oo individua ls on p~rope~rty 

donated to CA. Poly . univ .• )000 individuals on \lftlandacape4 

portion ot CJOlf cvu~: aa , one pa.rt i.ally p11:0tactad by conaervatiOfl 

.,r-nt, an4 l<~~a t ia on CA Dept . ot Pa rka land: "hich -y be 

OJI'l'ft t o oav uaa . State ICAI lincH aa endangered in 19.,9 . 

Agricul tural uae an4 gra d.ng l"lnaita invaa ion o t •lie• p lant 

tU.. •hich out c~te apeciaa . ..,._, .. a- fr- 10 a itaa , U .. ti"nll , 1 --..r'-tal ••••U ... a . "'-bar of ia&.hi .... la 

r-i.al ... •c:._,t for • ....,..,.. prct"'l'id.ad abo .. a . ara lloGt. 

Uate4. ap-t .. tr-c ia Mcliai 119 . 

Clu4ahll"l Ounea , private land, contains all o f the re.aining 

ra o! thh apeciea . Pri-cy thr e•ts inelude highvay 

reali~nt . OIIV i..,.cu. int~roduced v...:Sy p lants, continued 

ei"M'rgy related <Se-lopa~ents, c~rctal cSevalopment, piradation 

Dy pocket gophers and invan:abratea , na tunol disane~:. and 

hcility c ataatrophe . Cuadalupe dunes h•a bean extendvaly 

developed and altered for l"ltroleu.-. extraction . Pocket gophers 

t\ave been docu-nted to consu- vhole colonies of specie& . 

Sta t e teAl listed a s e n<lan<Je r ed. t hou.gh state l aw appears 

inadequate to protect such plants tram h-.bitat IIIOdi.tication and 

land u.s e changes . Specie• kilo- ! r - fiwe oc:c\Ur&Dcaa wit.b 

c:._r u..a 100 1D4iwidu.ala. Spaciaa t.r-d ia ct.acliai119 . 

Significant po1rti.on of species ha.biUt in City of Yreka teAl 

i s t hreatened by future dava o~nt ! or hornas and infra· 

structure. 'a acres of hab itat tot appro•. 2 70 1 C•lls within 

subdivision . Seven of eight p•rcela that support species 

have species on over 75 percent of lot. Species is State 

lilted as end.angered . CI!:OA ~n~. y not be effective in addresaing 

apacies protection needs on p~rivate l ands . Stoch4asti-: eve-nts 

and b.abitat f rag.entation !My thre• ten epaciee. Sfi:ond pop· 

ulati.on outside Yreka is undistur-bed . Specie411 1a ao- frtwo eit.-. '11M au.ber of auz-wiw1DI iad:iwidu.ala ia aot mo-. Spad- t..:-Md ie dac:lia1Dt . 

Wetland tu.bitat is at ~risk due to fill i n<J . This t hn:at ia 

partleularly pronounced on pri v.at e l ands. Of ni ne sitcts, 

sewm •~re c:u~rre.ncly being or Alre likely teo be ~npacted b y 

f 11ling or e art le grAzing . At one site. sultable ~i.t.at 

has been cut in halt by de ·~e opooent . Ac anocher. so percent 

ot the plant n~rs due t o ti ll d i. rt duMpin<J . Highway 

-incenance accLvt:.ie s by OOT threatened t~on nea11: highvay . 

Catt l e, sheep. and horse gr•:. i "'J resulted Ln direct loss 

of habitat at four sita& . S1nca l9tl the nUII"Ibar o f 

indiv id\lals a~:: e1c:h of these sites has been hAlved due to 

spring grating . State lOitl listed as end•nge~red but l aw 

onl y pr-ovides protection for spaci as on Ianda -naged by 

Oft Dept . ol TransportatLon . Sl)e<:las 1& ltao- tr- alaitae c-.te1D1Dif l eas t b&a 1., tOO iDCihidu.ale . 

Pri .... ry thr-eats include devel o pA&nt , natun l disasters 

ftyphoonsl. poaching , •nd p~redat ion by brown tree snake . 

Populations o n Sai..pan, Tinian and ll.giguan i slands hava 

diropped fr0111 tena o f thoua anda h iator ics lly to 50 or tewer 

i nd ivid11<11lS on Saipan , SO or fewe~: on Ti nian, and 100 or 

!ewe ll: on Agiguan through hunting •nd habitat destruction by 

typhoons. Hunting is now illegal but po•ching is c0111110n . 

Poachin9 is expected to increase with recent ~nd of legal 

!Nit b.J.t imports tr0111 Palau . Introduction ot bira<om tra e 

snAke tr0111 Gua111 could daci-te population . lxtll!.Ction du.e 

to stochastic events is a risk . Ollly • -..:t.-. of 100 

io41•1411ala ara bal:l.awad. ~ eaia t - tu .. i al....ta . IDac:iaa t i'&D4 ia 4ec:linlDV . 

Habitat o f species coonpletely on priv<~~te lands i n an area o C 

&ttive reso1rt a nd housing develo~nt . threa t fr0111 develO(XMnt is i-inent and it conservation meaauns a re not b~l-nted. . 

thia apec:ie a will be exti. qtated. due to ba.bi tat l oss . Uae of 

i n&ecticides • nd biological contr-ol agents on golf course 

a nd reaidential ~re a• pose s eri ous threats to apa,ciea . Species ,..,.. pn:opoae4 to be listed as endanger-ad and critical habi tat 

wea pn:!pO&ed in June 1971 a a a raault of petition s utaitted. in 

1977 . In June l'SO, the two yea r ti.- li•it on p~:opoaed. n~les 

eq~l.red tor this spac1 sa and t h.a propoaed rule vas wit.Mravn . 

Jpaci- ie lllaowv - ly fr- (INS' l&"nll tU. ... 1'-aat--. ICaYM 

- •-tbeoeet c -•t or Kau.ai . lfo r e Uebla -tllo4 for aat.'--ti-09 

popwlati,. sise ea.l•U . 8p;Kiaa tr~ ia dec:l .l.•i-09 · 
Sect 1-nt Agre-nt Species 

A~ndix A 

Spechs Dea i <;rnation Present/ Past 

Northern Idaho Ground Squirrel Cl/Cl 

Cl/Cl 

Mowell' 1 spectacular the lypody Cl / Cl 

152 

Pri ority No . 

•-ininq h.stlitat is extr ... ly .-11 and i.Unent.ly threolt.ened 

by agricultural lf.tld conversation, me.ctow invasion by conUera fcaus..:l by tire suppression), grazing by dcnestic livestock, golf course develos-nt, oav use, and CatJpJround expQiion. 

According to USDA {199,.1, r.-ining populations are likely to bee- extinct . One site Cor species converted intogolC course. Plinking or recreationoll shooting -y contribute to decline oC 

species. Scient Hie collecting -Y advenely i.~~p&ct social lti"\I.Cture oC population . No Cor...l protection currently available to population on USPS lands. auon;a to develop a with USPS have tailed.. Largest known population h on private l&cld .and landoomar has boNn unwilling to enter into CA. 

Stoc~tic events thuaten population . -...etas 11 aow. ln. 

- s,._.la laq.e ___. c~l- wi.tJl -llal' pop.laUoas 4i.atl'lhtad .,....., 10 01 lO a II'-· •pact-, --.al', aa.-~ra 

to act-lly oc~ 1 .. 1 tllaa SOO -..et&l'aa . '!'ot.al ~~ ot ..,act .. aat~tld at tOO•IOO i.Q :Z:d&M, ~taa r..r-4 il decliAiag. 

90 pe1rcent or original habitat destroyed. Riparian babit.at .x!Uied or eli111in.ated by urban, agriC1.1lt.ural, and Uood control activities. Remaining retN~.ant habitat. along atre&IIIS 

provicM little or no nfugia Cor apeciaa, p.anicularly during floods. When Hooding occurs sa.~e individuals -y drown while others .a1re forced to high, &lOra open land , .,hicb iocraasas 

risk of predat i on . Habitat bas also ~en clear.d for housing, Uood control activities, .and hfllling . l'\ltura babitat 

loss•• are expected .,ith a propos•l to clear tl -.ilea of l'i.YSI' VS!It&tion for flood CDntirOl purpolll . LiV<Ritock gr.a:ling, ORV usa , and construction of rUle l'anges also destroy 

or dS9rade hal:)itat . c.tUornio~ perw~it• hunr.ing or tlru•h r&btlit. 

froa July 1 t.hrough .January lO with a ct..Uy IMg oC five an.i-11 . St.ate ngvlat.ions do not disting~.~ ah bet-en the •ubspecies in 

question ti'OIII ot. he1r •utlspecies thus ac-e individuals lillY be 

vulnerable to hunting . RodenticicMs used for rodent control -y also affect allbapeciea. Inbreeding depression is also a 

concan~. Population is vulnerable to stochastic events. Spaciea 

h 1aaowa f:n. a aiDI'l• popolatioas illo C••-11 ._rial •uta ••rk (C!I.I. ~ of ladi'f"idu.al tlUClt-tas drastically flf10 o~r l••• -•urad to lttS-tt att.a1r ..... are flood.iag g • r.c-t 

peak popv,lat.ioo eatt-.t .. raagiag lr- 170-101 i:Adi'f"i41aala oee~~pyi.Dg a ltt acre ar... Spacial tread ta listed 11 atable. 

Moat of to~l' ~itlt haa been deatroyed thl'ougb convel'lion 

into iiJIIIrowed pasture or hr.land. Little ning habitat is .al11101t entirely uhd for cattle grating . R.-ining sites 

have been 9'1'ated lightly or nee at all largely by accident . 

Moat of h.a.biut dest.royad at Rodeo ground• when parking area was paved i n 1U4 . State lORI lilted as tbr-tenad, 

but state l•w i s la1'1jaly ineffective in providing protection for species on private land . lpec1ea 1• UO.O f~ 

I eltes IOiilca-p•••t., 144. S acrea cootaiaia<J 14, )00 pl-tl. 

Spac:iaa traad h de<:lioiD9. 
153 

TFSfiMONY OF ROBIN L. RIVETI' 

PRESENTED TO THE COMMITI'EE ON RESOURCES, 

UNITED STATES HOUSE OF REPRESENTATIVES 

Hearing on Endangered Species Act and 

Lifting the Moratorium on Listings 

June 25, 1996 

Washington, DC 

ROBIN L. RIVETI 

Pacific Legal Foundation 

2151 River Plaza Drive, Suite 305 

Sacramento, California 95833 

Telephone: (916) 641-8888 
154 

INTllODUCTION 

On behalf of Pacific legal Foundation and the Fairy Shrimp Study Group 

(FSSG), thank you for the opportunity to present testimony today on the Endangered Species 

Act (FSA). I am Rob Rivett. I am a lawyer and the Director of Environmental Law for 

Pacific legal Foundation. I have also worked during the last year and one-half as an advisor 

to the FSSG. Over the years, I have had considerable experience with BSA which is 

probably the most powerful as well as uncompromising environmental law in this country .. 

Because of these characteristics, it is very important that BSA be administered in a fair, 

ethical, and scientifically accurale manner. I am graieful you asked me here today to recount 

some of my experiences with the administration of the Act especially with the listing and 

delisting process and to offer suggestions on how to improve decisions made. 

ESA contains few features that landowners, tax payers, or economists would 

embrace. Enacted in 1973, ESA is well-intentioned in its aim to prevent the extinction of 

important plant and animal species. However, after some 23 years, the results have been 

mixed at best. More and more species continue to be classified by the government as 

threatened or endangered yet few species ever listed have been removed from the list due to 

their recovery. Additional listings based on bad or paltry science have caused great concern 

and undoubtedly contributed to Congress' decision to impose a listing moratorium in April, 

1995. Now that the moratorium has been lifted by the President's April 26,- 1996, waiver 

action and Congress' has appropriated nearly $4 million for the Fish and Wildlife Services 

(FWS) listing program, it is useful to examine FWS' past record and present strategies to 

meet its BSA responsibilities. With increased listings, America experiences ever escalating 

restrictions on how and even whether certain private properties can be used by their owners. 

PLF and FSSG are very concerned about these seemingly endless restrictions, many of which 

are apparently designed to control land use rather than protect species and rehabilitate their 

habitat. PLF and FSSG are pleased to share with the Committee examples of such BSA 

misuse and suggest ways to avoid these problems in the future. 

Pacific legal Foundation is a nonprofit, public interest law organization with 

over 20,000 members, contributors, and supporters throughout the country. Since its 

establishment in 1973, the same year the BSA was enacted, PLF has engaged in research and 

litigation over a broad spectrum of public interest issues. PLF supports the concept that 

- 1 -
155 

governmental action should be limited to a legitimate scope of authority, and that 

governmental decisions should reflect a careful assessment of the social and economic costs 

and benefits involved. 

One of the basic philosophies of PLF is that the development of governmental 

policy for environmental and land use issues should include concerns for the economy, 

employment, property rights, and general welfare of the public as well as concern for the 

environment. In short, PLF advocates a broad view of the public interest and seeks to 

ensure that balance and common sense are the bases on which laws and regulations are 

adopted, interpreted, and administered. 

PLF has litigated numerous cases from state courts to the United States 

Supreme Court in order to fight for the constitutional rights of property owners. For 

example, PLF attorneys represented the Nollan family in Hollan v. California Coastal 

Commission, 1 one of three landmark property rights cases decided by the United States 

Supreme Court in 1987. PLF participated in the other two 1987 cases as amicus cUJiae2 just 

as it did in the two most recent Supreme Court cases in 1982 and 1984 which further refined 

the interpretation of the Takings Clause of the Fifth Amendment of the United States 

Constitution.' The Foundation has also participated in numerous cases involving the 

implications of endangered species: wetlands, 5 and other environmental regulations 

including several cases where millions of dollars have been awarded to property owners who 

I 483 U.S. 825 (1987). 

2 Keystolll! Bituminous Coal Associarion v. Ddknedictis, 480 U.S. 470 (1987); and First 

English Evangelical Lulheran Church of Glendale v. Couruy of Los Angeles, 482 U.S. 304 

(1987). 

3 Lucas v. South Carolina Coastal Council, 505 U.S. _, 120 L. Ed. 2d 798 (1992); 

Dolan v. City of1lgard, 512 U.S. _. 129 L. Ed. 2d 304 (1994). 

• Pacific Legal Foundolion v . .A.ndnu, 657 F.2d 829 (6th Cir. 1981); Sweet Home Chapter 

of Communities fora Gmll Oregon v. Lujan,_ U.S._, 132 L. Ed. 2d 597 (1995); 

Bennell v. Pknen, 63 F.3d 915 (9th Cir.), cen. granted, 64 U.S.L.W. 3635 (March 25, 

1996) (No. 95-813). 

5 Ocie Mills and Carey C. Mills v. Uniled Stares of America, 36 F.3d 1052 (11th Cir. 1994). 

-2-
156 

were denied Section 404 dredge and fill permits by the Corps of Engineers. 6 Because of our 

long held interest in a reasonable, balanced response to national environmental concerns and 

in the protection of private property rights we appreciate this opportunity to submit 

testimony. 

The Fairy Shrimp Study Group is an organization of California businesses and 

statewide associations who organized to reevaluate the endangered status of four listed 

species of California vernal pool shrimp. FSSG includes the California Chamber of 

Commerce, the California Cattlemen's Association, Western Growers Association, and 

several private property owners. FSSG formed at the end of 1994 in response to the United 

States Fish and Wildlife Services's listing of three species of fairy shrimp and one species of 

tadpole shrimp as endangered or threatened. Our group suspected, as did many members of 

the scientific community, that at the time of listing at least two of the four species of shrimp 

(Branchinecta lynchi and Lepidurns parkardl) were not endangered. Our principal task was 

to gather more information and, if our suspicions were correct, to initiate delisting 

proceedings. As a result of that effort, the FSSG filed a delisting petition on February 29, 

1996. To our knowledge, it has not been acted upon by FWS. 

CALIFORNIA EXAMPLES 

The citizens of California have been asked to shoulder substantial EsA 

protection costs due to California's unique status. Because of its climate and favorable 

geography, as of 1994 California provided a home for 128 federally listed species and had 

nearly 1,000 candidates for listing. 5 Endangered Species Blueprinr, NWI Resource, 

Issue J.1 A United States Fish and Wildlife Service' regulation protects endangered species 

habitat on private property and, as applied in this state, forbids many types of otherwise 

permissible, ordinary land use activities on millions of acres of private land. 8 Numerous 

6 Fonnanek v. United States, 26 Cl. Ct. 332 (1992) ($933,921 awarded) and Loveladies 

Harbor, Inc. v. United States, 28 F.3d 1171 (Fed. Cir. 1994) ($2.6 million awarded). 

7 That number has changed. The FWS recently stated that the current national backlog 

entails 243 proposed species waiting final ruling, 182 candidate species identified, and 57 

petition findings pending. 61 Fed. Reg. 24722-23 (May 16, 1996). 

8 50 C.F.R. 17.3 (1992). 

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examples exist detailing the enormous costs and administrative burdens private landowners 

have been forced to bear. 

For example, the California timber industry has suffered staggering losses as a 

result of FWS' regulation protecting endangered species habitat at the expense of private 

property owners. The Wagner Corporation, a small family owned timber company 

established in Stockton, California, in 1895, owns and manages 3,400 acres of forest land 

near Garberville, California. During the 1993 and 1994 forest season, Wagner found a pair 

of nesting spotted owls (protected under the ESA) in the middle of an area then scheduled for 

logging. To prevent a "take" by modifying habitat Wagner could log only 45% of the trees 

selected for harvesting. As a result, the company's revenue losses approached $200,000. 

Since the area is on a 17-year rotation, Wagner will not be able to harvest the area again 

until the year 2012. 

Eel River Sawmills, Inc. (ERS), is another small timber company located in 

Fortuna, California. Founded in 1948, ERS also has been economically injured by USFWS' 

determinations regarding the habitat needs of the spotted owl on private lands. Specifically, 

ERS has been required to leave untouched and standing several million feet of old-growth 

Douglas fir because according to USFWS any amount of harvest would harm habitat and thus 

result in the "take" of resident owls. The inability to properly manage its timberlands, in the 

name of species protection, has caused ERS to suffer considerable economic loss. 

Schmidbauer Lumber, Inc., located in Eureka, California, has consulted with a 

small private property owner who also has suffered severe financial loss. Even though the 

property owner had completed all permitting requirements including all surveys for protected 

spotted owl and marbled murrelet necessary to proceed with a harvest under a state NonIndustrial Timber Management Plan, the property owner was told not to proceed because it 

was discovered that a neighboring property contained murrelet sightings. In order to 

proceed, a 300-foot no-harvest buffer and a seasonal harvest restriction (April !-

September 15) of one quarter mile buffer were required to be set aside to protect the 

murrelet. 

Salmon Creek Corporation of Humboldt County, California, owns about 6,000 

acres, 3,000 of which are a contiguous parcel of old-growth redwood and fir. The trees are 

past maturity and are no longer putting on additional volume, Consequently, they should be 

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26-566 0 - 96 - 6 
158 

harvested. Salmon Creek sought a timber harvesting plan from California Department of 

Forestry (CDF) for an eight acre road system to allow a wildlife survey and to facilitate 

future harvesting and removal of timber. Because CDF concluded, in consultation with 

FWS, that the property is suitable habitat for the marbled murrelet, a species recently listed 

as endangered under ESA, and might contain nests, no harvest will be allowed. The direct 

cost to Salmon Creek as well as the indirect costs to the local community will be in the 

millions of dollars. The company has filed regulatory takings cases in both state and federal 

courts in response to the denial of a permit to harvest. 

And, in Sacramento, California, Sares-Regis Group, Inc., spent over seven 

years attempting to get approval to develop a I ,225 acre planned community. The planned 

community meets current and future area needs and is completely consistent with the 

Sacramento County General Plan. The Sunrise-Douglas project concentrates badly needed 

residential housing near both a major employment area and public transit, and is expected to 

bring badly needed new jobs to the Sacramento economy. The project contains some 85 

acres of vernal pools9 and other marginal wetlands. 

Unfortunately, in September, 1994, three varieties of fairy shrimp and the 

vernal pool tadpole shrimp were listed by USFWS as protected species because of USFWS' 

unverified belief that habitat for the species is in jeopardy. Fairy shrimp are prolific and 

found in vernal pools, man-made stock ponds, drainage ditches, and even tire ruts. One of 

the three fairy shrimp listed as endangered and the one that is considered threatened are 

found on the Sunrise-Douglas property. Sares-Regis was required to modify its wetland 

mitigation plan to provide additional habitat for the fairy shrimp. The mitigation plan 

already called for setting aside 30% of the property as an open space and vernal pool 

preserve and for creating vernal pools offsite at a rate of 1.3 acres for each acre filled by the 

project. For a time, the only question was whether this important project could be kept alive 

in the face of increased habitat demands by USFWS. Fortunately those demands were met 

by Sares-Regis and the project is going forward but, of course, the increased regulatory 

9 Vernal pools are shallow depressions in the ground that fill with water during fall and 

winter rains and then evaporate in the spring. The water does not percolate downward 

because of an impervious subsurface layer such as clay, hardpan, or volcanic stratum. Thus, 

vernal pools are seasonal water bodies that generally do not exist in the hot and dry summer 

months. 

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costs, believed to be around $6,000 per new home, will be passed on to future home buyers. 

What is particularly unsettling is that the Fairy Shrimp should never have been listed in the 

first place. 

UNINTENDED TOOL TO CONTROL LAND USE 

The Act has turned into a mechanism to stop land use activities rather then 

protect species. The 1994 listing of Fairy Shrimp could be the most egregious example of 

such a misuse of the Act. Fairy Shrimp are very small freshwater crustaceans that have 

relatively short life cycles. They live in vernal pools and other ephemeral water bodies that 

appear only after it rains. Vernal pools form in areas were that are indentations and 

impermeable soils that retain water. In the spring and summer months, the pools dry up and 

appear to be dry open fields. When it rains in the winter, the pools form and remain for 

several weeks and then dry up after the rainy season. The shrimp hatch after the pools are 

inundated and lay eggs that survive through the dry season only to be hatched during the 

rainy season. A single pool can actually contain hundreds of thousands of eggs. 

The listing of the California Fairy Shrimp has had enormous impacts on many 

sectors of the California economy. Because the potential range of these species of shrimp 

extends throughout the Central Valley from Redding to Bakersfield, approximately 400 miles 

long and approximately 200 miles wide, Californians have experienced a wide variety of 

economic impacts, including increased housing costs and increased cost to or termination of 

many infrastructure projects including road and bridge construction, drainage improvements, 

and water projects. Other impacts of the listing have included the delay or termination of 

plans to build elementary schools, mining projects, development projects, power cogeneration facilities, and military base reuse projects. The listing also poses a serious 

economic threat to California. s agricultural communities, both cattle ranchers and farmers, 

through disruption of routine practices for food and fiber production. An agriculture 

wetlands research project, as well as other biological research projects being conducted by 

agricultural farm advisors and university researchers have been terminated due to the listing. 

The Fairy Shrimp Study Group spent considerable resources examining the 

issues surrounding this listing and found many problems in the Fairy Shrimp listing decision. 

The two most significant of these problems are: (1) a complete absence of c:redlble 

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scientific bases for tbe original listing decision and (2) no independent objective peer 

review of data underlying scientific studies and conclusions. 

FWS relied heavily on two studies to support the listing of the four shrimp. 

One of these studies, a 1978 unpublished unrefereed paper; estimated that 90% of vernal 

pools had been destroyed and the same author estimated in 1988 that the estimated loss of 

pools was 2-3% per year. Although these figures were somewhat discredited due to 

mathematical errors, their underlying message--that vernal pools had been decimated in 

California--was believed. In fact, the stated "90% loss" was so widely accepted it appeared 

in published articles and in many letters and reports supporting the listing. A number of 

these documents were prepared by well-respected, knowledgeable scientists. According to 

the _!!~ting record, none of these scientists reviewed the data nor the six page paper that 

presented this unsubstantiated hypotheses. At the time of the listing, there were no other 

studies reviewing the extent of the habitat nor the extensive range of the shrimp. 

Surveys and reviews of soil data since the listing indicate that the historic loss 

is probably closer to 50% with most of that loss occurring many years ago when the valley 

was first converted to agricultural uses. Losses in the past few years appear to be minimal 

with little impact on the total remaining vernal pool acreage--approximately 1,000,000 acres. 

The second study, along with its author's comments, was cited more times 

than any other study in the final rule (a record 41 times). It was a study of a utility pipeline 

right of way that was described as a "random 200 mile transect" in California. The authors 

of this pipeline study wrote to the service supporting the listing and suggested that, because 

the shrimp were found only on small portions of the transect, the shrimp were endangered. 

The final rule adopted this position and indicated that, because only a portion of the 200 mile 

pipeline survey contained shrimp, these invertebrates were rare. 

The FSSG discovered several problems with the claims associated with this 

study. First, the pipeline survey missed the most significant portions of the habitat. 

Attached is a map that graphically demonstrates the most glaring problem with drawing 

species-wide conclusions from this study. We plotted the original habitat estimates on a map 

with the pipeline right of way. As can be seen, the pipeline does not follow the habitat. 

Thus, the pipeline study clearly should not have served as a basis for scientific conclusions 

about the rarity of these species of invertebrates. 

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The pipeline study surveyed only 14 sites and a grand total of 60 vernal pools. 

Ten ef the 14 sites are located within one Northern County--Tehama County. These sites 

were arbitrarily selected by the utility company yet no effort was made to develop a 

statistical link between these sites and the rest of the habitat. 

Nevertheless, after submitting the study the biologists who conducted the study 

made some outrageous claims. Despite the irrelevance of the fact that the pipeline was 200 

miles long (most of the 200 miles missed the vernal pool habitat), one of the researchers 

went so far as to write FWS a letter in which she used the 200 mile figure as a denominator 

in estimating the frequency of which these animals were found. She wrote that because 

/ynchi and parkardi were found on only 10 out of 200 miles that they were found only S% 

of the time. Despite these outrageous claims, a careful review of the study suggests that 

/ynchi J<~ere found at 3S% of the sites and parkardi at 43% of sites. 

·A second troubling aspect of the FWS' September, 1994, listing of the four 

Fairy Shrimp was FWS's unquestioning deference to the views of particular fairy shrimp 

"experts. • Because vernal pools, and therefore fairy shrimp, are ubiquitous throughout the 

Central Valley and other parts of California, the failure to properly utilizC the best scientific 

evidence in the listing process could have devastating economic impacts on the state. For 

example, because farming is by definition a land modifying activity and because Fairy 

Shrimp are very small species difficult to detect, there exists a strong possibility that routine 

farming activities could result in the accidental "taking• of the fairy shrimp. Thus, in order 

to avoid violating ESA, necessary farming activities such as plowing may have to be 

avoided. 

Because of these potential impacts, it goes without saying that this data must 

be credible and verifiable to ensure a valid listing. The only way to adequately provide this 

insurance is through independent peer review. Apparently, FWS now recognizes this peer 

review prerequisite but, unfortunately, FWS did not apply it at the time of the fairy shrimp 

listings. 

On July 1, 1994, prior to the listings the FWS announced an "interagency 

policy to clarify the role of peer review in activities undertaken by the Services under the 

authority of the Endangered Species Act. • S9 Fed. Reg. 34,270. The peer review policy 

was implemented to ensure that the best biological and commercial information was being 

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utilized in the decision-making process. 59 Fed. Reg. 34,270. With regard to the listing of 

a species the policy provides that FWS should: 

(a) Solitit the expert opinions of three appropriate and 

independent specialists regarding pertinent scientific or 

commercial data and assumptions relating to the taxonomy, 

population models, and supportive biological and ecological 

information for species under consideration for listing; 

(b) Summarize in the final decision document (rule or notice 

of withdrawal) the opinions of all independent peer reviewers 

received on the species under consideration and include all such 

reports, opinions, and other data in the administrative record of 

the final decision. 

59 Fed. Reg. 34,270. 

In a letter dated March 19, 1995, to the Honorable Richard Pombo, Assistant 

Secretary for Fish and Wildlife and Parks, George T. Framptom, Jr., stated that FWS had 

sought scientific peer review in compliance with these guidelines. However, this has turned 

out not to be true and is no longer claimed by FWS. Instead FWS now argues it did not 

have to follow the guidelines because the public comment stage of the Fairy Shrimp listing 

process had concluded by July 1, 1996! Nevertheless, FWS still claimed they engaged in 

adequate peer review. In actuality, the peer review process followed was woefully 

inadequate. 

The final rule failed to specify three experts whose opinions were solicited 

regarding the scientific justification for the conclusion that the fairy shrimp are endangered 

and in need of federal protection. 59 F~. Reg. 48,136. Nor did this rule summarize the 

opinions of independent peer reviewers on population models or supportive biological and 

ecological information that resulted in the fairy shrimp listing. Testifying before this 

Committee's Task Force on the Endangered Species Act, Dr. Denton Belk, probably the 

leading scientific expert on fairy shJjmp and one of the scientists FWS claimed had reviewed 

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the listing of the fairy shrimp, stated that FWS had not provided him with any maps 

regarding the fairy shrimp, nor had they asked him any questions about the mapping of 

populations. When asked if he had received a complete package of scientific conclusions, 

recommendations, and supporting data on which listing conclusions were based for the 

purpose of peer review Dr. Belk responded that he had not. Obviously, failure to provide 

the reviewing scientists with the data utilized in the FWS listing process pretty well 

forecloses "independent peer review. • 

In the Final Rule listing the four invertebrate species, FWS placed great 

reliance on the comments of Dr. Marie Simovich, Dr. Richard Brusca, and Jamie King. 

59 Fed. Reg. 48,136. These are three of the scientists FWS claimed were involved in the 

"independent peer review" process. However, these individuals did not "review" the 

scientific studies and data relied on by FWS nor the conclusions reached by FWS; instead, 

they submitted their own scientific data and opinions as comments on the propriety of the 

listings. Nowhere in the Final Rule is there any indication that these individuals reviewed 

the adequacy or accuracy of or the support for FWS's conclusion that the four species were 

in need of federal protection. 

Biologist Paul Sugnet noted the shortcomings of the fairy shrimp peer review 

process in his testimony before this Committee's Congressional Task Force on the 

Endangered Species Act. According to Mr. Sugnet, reviewers should consult with all those 

who have contributed significant data and peer review should not be conducted behind closed 

doors, as it was in the case of the listing of these species. 10 

10 The 1993 study submitted to FWS by Sugnet & Associates demonstrated a vernal pool 

habitat survey by Dr. Robert Holland which FWS had relied upon in its Proposed Rule, 

contained arithmetic errors in the estimates of historical vernal pool habitats. 59 Fed 

(continued ... ) 

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Many of the problems associated with this listing's lack of science can be 

attributed to the secretive nature of FWS' decision-making process as well as the obvious 

underlying goal of FWS to control land use in the Central Valley. An example of this 

problem can be seen in the Fairy Shrimp population maps relied upon by the FWS to 

delineate known populations. 11 FWS claimed in the final rule that, although the 

invertebrates were found in 350 and 180 separate locations for 2 of the species, these 

locations could only be described as 18 populations and 32 populations. No explanation of 

its definition of population was provided nor did the maps provide an explanation. 

Furthermore, FWS claimed that all but 4 of the 18, and 4 of the 32, populations were under 

threat. Again, no explanation for these conclusions was made. 

10 ( ••• continued) 

Reg. 48,144. The Sugnet Study also led FWS to the conclusion that the California 

linderiella, the fifth shrimp species proposed for listing, was not likely to become either 

threatened or endangered in the foreseeable future. 59 Fed. Reg. 48,136, 48,141. In 

addition, the Sugnet Study shows there is a sharp divergence of scientific authority on the 

question of whether the other fairy shrimp are in need of federal protection. It was based on 

a survey of 3,092 vernal pools located throughout the California central valley, the study also 

included a literature review and compiled field surveys which had been conducted by others. 

The findings of the Sugnet Study stand in stark contrast to the conclusions reported in the 

Proposed Rule. For example the Sugnet Study found vernal pool fairy shrimp in 178 vernal 

pools, swales, and railroad ditches, as opposed to the 30 vernal pools and swales, reported in 

the Proposed Rule. In response the Final Rule criticized the Sugnet Study for overestimating 

the actual population numbers for the fairy shrimp, but this was done without any 

independent peer review. The process of peer review is designed to evaluate all scientific 

data put forth and to determine which study, or studies, represents the "best scientific and 

commercial data available." Unfortunately, in the fairy shrimp listings, there was no 

independent scientific judgment as to what data contained the most accurate and reliable 

information. 

11 The base maps for these populations were developed by Sugnet & Associates and 

submitted to the FWS to demonstrate the extensive range and numbers of three of the Fairy 

Shrimp species. Although the Sugnet Study was criticized by FWS in the final rule because 

it drew conclusions based on individual location data points instead of on what FWS 

characterized as populations, it nevertheless served as the basis for FWS' calculations about 

populations. 

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165 

There are several problems with the maps. Although the population 

designations are key to the listing decision, there are no studies in the record that support 

FWS' population delineations. FSSG repeatedly asked for such information and have been 

told it does not exist. The base maps for the populations show detail only to township level. 

One cannot determine by these maps where, within 1 of these 36 square-mile boxes, shrimp 

were found. In some cases, the shrimp were found in a variety of areas throughout the 

township and, in some cases, in only one discrete location. FWS' population boundaries do 

not take these differences into consideration. In fact, no population line ever crosses a 

township boundary. This fact would suggest that no river, mountain, valley, watershed, or 

other population defining geographic feature ever crosses a township boundary. We know 

this is not the case and that the designation of these population boundaries has little scientific 

support. 

With these major flaws evident, the FSSG decided to be completely open about 

what it was doing and share its information with FWS and the Department of the Interior. 

FSSG truly believed that, with cooperation, it would never have to get to the point of 

submitting a delisting petition. The listing mistakes are so glaringly obvious and the science 

is so poor that FSSG naively thought someone from FWS would step forward with some 

academic integrity to clear up the problems. 

What has actually happened is NOTHING. Although FSSG received a 

November, 1994, letter from the Secretary of the Interior's office stating it would 

commission a special science panel to review the status of the shrimp, nothing happened. 

FSSG presented its information to the Department of the Interior, met with the assistant 

director of FWS, and met with the head of FWS Region IX. FSSG met with the Deputy 

Secretary of the Interior three times and was told the listing problem would be corrected. 

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When nothing happened, FSSG filed its February 29, 1996, delisting petition. We are still 

waiting. Clearly, our experience shows it is time to improve administration of the .ESA to 

avoid similar problems in the future. We must avoid listings based on inadequate, deficient 

science; we must require honest, timely delisting petition considerations; and we must forego 

management by litigation. In short, we must return some balance and reason to species 

preservation. 

RECOMMENDATIONS 

PLF and FSSG believe there are many changes which must be eolllilhrwl 

before the .ESA can ever effectively accomplish its goal of protecting and conserving wildlife 

species. For example, should the criteria for listing species be expanded to include 

consideration of: 

a. the recoverability and cost of recovering a species; 

b. the economic and social benefit of a species; 

c. the social and economic harm from listing a species; 

d. the increase for loss of employment as a result of listing a species; 

e. whether there are reasonable alternatives to a listing, such as a captive 

breeding prograin, that will preserve the species from extinction; 

f. whether the scope of critical or essential habitat is definable thus allowing 

private property owners reasonable expectations as to how they can use their property; and 

g. whether species should be broken down into subspecies and distinct 

population segments for listing purposes. 

12 

12 Currently under the ESA, the term species includes any subspecies of fish, wildlife, or 

plants and any distinct population segment of species of vertebrate fish or wildlife. 

16 U.S.C. § 1532(16). Species is a term generally used to identify those individuals actually 

(continued ... ) 

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167 

Likewise, should Congress consider altering the Act to give private property 

owners positive economic incentives to provide species habitat as a better, more efficient, 

and cost effective way to protect threatened species? 

All these issues are worthy of serious consideration but, because the focus of 

this hearing is on listings, we will address our recommendations to that issue. Species 

listings must be based on better scientific evidence. Evidence must be scientifically valid, 

which means it must be peer reviewed and statistically significant. A minimum level of field 

studies and surveys should be conducted by federal personnel or other nonvested interests 

prior to listing and scientifically valid public input must be considered. If public input is not 

considered scientifically valid, the basis for this determination must be fully and openly 

explained. Additionally, all administrative records of the listing process must be open to 

public review and comment to ensure above board and professional decisionmaking. In this 

12 ( ••• continued) 

or potentially capable of reproducing among themselves but incapable of reproducing with 

other organisms. The ESA allows species to be broken down further by "subspecies" for 

listing purposes. Unfortunately, the act of identifying subspecies is highly subjective. Some 

scientists recognize significant variation in a species without fmding a subspecies. Others 

look for subtle differences in coloration, markings, behavior, and range to establish a 

separate taxonomic unit and thus subspecies. As an illustration of this methodological 

conflict, some scientists recognize 74 species and subspecies of the Grizzly Bear while others 

recognize only one. 

Regarding distinct population segments, as the ESA is now written, a separate 

population can be listed even if the species as a whole is flourishing. This provision allows 

the ESA to be manipulated to stop unwanted economic activities rather than to protect truly 

jeopardized plants and animals. The absurdity of such listings was underscored by the 

humorous filing in 1994 of a petition to list as endangered the Amish and Mennonites. The 

petitioner argued that these groups of people (animals) meet the criteria of the Act because 

they each compose a distinct population of mammals with a gene pool that is maintained in a 

fairly pure state by isolation accomplished by their traditions, culture, customers, and habits. 

The petitioners compared their eligibility for listing to the Winter Run Chinook Salmon in 

the Sacramento River which has some genes mixing with the late Fall Run Chinook Salmon 

but is nevertheless listed as an endangered distinct population segment of a subspecies. Of 

course, the listing of the Winter Run can cause significant economic harm to agriculture, 

limiting water diversions for crop irrigation. 

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168 

way, there would be fewer chances for biased, unsupportable listing or delisting decisions 

based on little meaningful evidence. Although the present level of acceptable evidence-"best 

scientific and commercial data available, • 16 U.S.C. § 1533(b)(l)(A), may permit a lower 

administrative standard, what is "available" is not necessarily adequate or valid! To ensure 

public trust, a higher standard must be maintained. 

FWS' May 16, 1996, listing priority guidance13, and its July 1, 1994, peer 

review policy guidance14 purport to recognize these needs with regard to the listing process. 

However, it remains to be seen whether adequate, independent peer reviewed, statistically 

significant, publicly available data will guide FWS in future listings. Certainly our 

experience with the Fairy Shrimp listing process raises doubts. 

With regard to species delisting, as can be shown from our experience, the 

FWS places this activity in a very low priority position--the lowest. We were told by Deputy 

Secretary of Interior Garamendi during the moratorium on "new listings, • that it would be 

illegal at the time for FWS personnel to do any work towards processing FSSG's delisting 

depetition. He urged us to support Congress' full funding of ESA so aU ESA activities could 

go forward, including our delisting petition. Now that the funding has been provided, we 

stiU find our petition ignored with FWS admitting it won't even get to it this fiscal year. 

Quite frankly, such prioritization demonstrates that FWS continues to be committed first and 

foremost to controlling land use. FWS seems to have little interest in demonstrating that, 

under the current ESA, when mistakes are made, they can be corrected. This attitude needs 

to be changed. We would recommend that the best way to ensure such commitment to a 

13 61 Fed. Reg. 24,722. 

14 59 Fed. Reg. 34,270. 

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169 

fair, even-handed processing of delisting as well as listing petitions is to (1) require that the 

above-suggested standards are met, and (2) allocate separate appropriations for listing 

activities and separate appropriations for deli sting activities. Moreover, delisting criteria and 

standards should be the same as for listing. Simply put there should not be a higher standard 

for delisting than for listing. Either a species is in need of protection or it is not. 

In closing, PLF and FSSG thank the Committee on Resources for this 

opportunity to offer their concerns about the ESA listing and delisting process. The ESA is 

an important Act. However, without changes in the way listing and delisting petitions are 

administered, ESA's important goals won't be reached; rather this country's citizens will 

continue to view the Act as unbalanced and unfair. For this Act to succeed, this Nation's 

private property owners must view species and habitat preservation to be in their best 

interests. This will only happen when the Act and FWS recognize that not all species can or 

should be saved; that the social, economic, and land use consequences of listings are relevant 

to the listing process; that litigation should be eschewed as a driving force behind ESA listing 

and management decisions; and that private property owners must not be economically 

disadvantaged by FWS administratively turning their lands into preserves for listed species. 

If this country wishes to protect its sensitive species, it must find a way to spread the cost of 

protection to those who are benefitting--everyone. 

Thank you. 

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170 

• Holland 1978 Study 

(2,654 Sections containing 

vernal pools) 

PGT/PGE Pipeline 

Transect 

(Surveyed 14 or 2,654 Sections) 

PGT/PGE Pipeline Route vs. Vernal Pool Areas 

Identified by Holland 1978. 

Fairy Shrimp Study Group. 1995 
171 

Testimony of Dennis Hollingsworth, representing Riverside County Farm Bureau 

to the Committee on Resources, US House of Representatives 

Honorable Don Young, Chairman 

June 25, 1996 

Section 4 (b)(3)(A): To the maximum extent practicable. within 90 days after receiving the petition 

of an interested person under section 553(e) of title 5, United States code, to add a species to, or 

to remove a species from, either of the lists published under subsection (c), the Secretary shall 

make a finding as to whether the petition presents substantial scientific or commercial information 

indicating that the petitioned action may be warranted. If such a petition is found to present such 

information. the Secretary shall promptly commence a review of the status of the species 

concerned. The Secretary shall promptly publish each finding made under this subparagraph in 

the Federal Register. 

- Tbe Endangered Species Act of 1973 as amended 

Thank you, Mr. Chainnan, for the opportunity to speak to your committee today. I am 

representing the Riverside County, California, Fann Bureau as their Director of Natural 

Resources. We represent the interests of over I, 700 member families from throughout the 

county. Riverside County Fann Bureau is affiliated with the California Fann Bureau 

Federation and the American Fann Bureau Federation. Together we represent the interests 

of over 4 million of the nation's fanners, ranchers, and rural communities. 

I would like to tell you about experiences over four years in the preparation and 

submission of a petition to delist a species that has never been in any danger of extinction. 

As you know, the endangered listing of the Stephens' kangaroo rat has caused severe 

problems in our county. Since its listing in 1988, many of our fann families have suffered 

economic loss, restrictions on the nonnal use of their properties, and diminution of the 

value of their most important asset, their land. You are well acquainted with the terrible 

injustice done to the Domenigoni family, and the devastation of29 homes caused by an out 

of control wildfire, exacerbated by Stephens' kangaroo rat restrictions, in the Winchester 

area of the county in 1993. 

A few years ago, members of our board of directors began to wonder how a species that 

was supposed to be so rare, could be causing such widespread upheaval throughout a vast 

portion of our county. After the listing and the imposition of a regional Habitat 

Conservation Plan effort, Stephens' kangaroo rats began popping up all over the place. It 

seemed anywhere an economic activity or new land use was about to occur, kangaroo rats 

would be found, and extensive surveys would have to be perfonned, and expensive fees 

paid. 

In March of 1992 I was hired by the Fann Bureau to investigate the status of the k-rat. 

Based on this research, I prepared a delisting petition, (asking for the Fish and Wildlife 

Service to remove the species from the list.) They had no idea what the scope of the effort 

they were taking on would entail. With little experience dealing with federal agencies or 

kangaroo rats, I had no idea what I was getting into, either. 

The first item of business the petition was to find out what was known about the 

species and discover under what circumstances the species was listed. To do this we first 

requested the files and reports on the species from our local office of the Fish and Wildlife 

2 
172 

Service, in Carlsbad, Califomi". The result was a handful of reports and documents handed 

over, reluctantly and sporadically. After a several months of requests, and despite 

assurances that we had received the entire file on the k-rat, we felt there had to be more in 

the Service's files on the species. In order for our friendly request to be taken seriously, we 

had to file a Freedom oflnformation Act request. 

Our request was received at the regional office in Portland on August 13, 1992. Shortly 

thereafter, we received a reply assuring us they would quickly assemble all of the records 

and make them available to us in the Carlsbad office for review. 

After months of waiting, prodding and appeals, and despite statutory requirements in 

FOIA requiring adherence to strict response deadlines, we fmally received the last of the 

materials we had requested on May 13, 1993. This was nine months after the Service had 

received our request. However, we were not finished battling the Service over what we 

should be allowed to see in the k-rat reports. 

Central to our argument that the species is not endangered is not only finding out how 

many populations of the species are known to exist, and also where these populations are. 

Answers to questions such as: Are the k-rats using habitat that is different than what was 

once thought to be unsuitable? Are the populations on lands that are government owned, or 

otherwise safe from urban development? And, most importantly, are populations of this 

species being discovered far outside what was thought to be a small, localized range? were 

essential to our case. (Incidentally, we were eventually able to learn that the answers to all 

of these questions are yes.) 

The Service wanted to heavily censor all of the reports that indicated the presence of 

the species. Among the information they sought to censor were any references to the 

locations of Stephens' kangaroo rat populations. As a result, the first reports we received 

from the Service were essentially useless in developing a picture of the status of the species 

for a delisting petition. After some protest, we were able to get the Service to only censor 

the exact locations of the populations, and information about who the private landowners 

were that had k-rats on their land. These reports are still highly censored, and made it very 

difficult to find the information we needed to make our case. I have included examples of 

these censored reports with this testimony. 

Interestingly, the Service was extremely concerned about protecting the privacy of 

landowners when it came to letting us know if they had endangered species on their land. It 

seems the federal Fish and Wildlife Service, sought to protect the privacy oflandowners 

from their local association offarmers and ranchers. Yet, most landowners were, and 

remain unaware that each and every time there is a survey performed on their land for an 

endangered species by a private biologist who holds a scientific study permit under section 

I 0 of the act, a copy of the survey automatically goes to the local office of the Service. 

Often, we found that the copy got to the Service long before the actual report got to the 

private landowner paying for it. 

Another stated reason for not releasing the exact locations of the k-rats was that their 

disclosure might endanger the safety of the populations. In other words, we might go out 

and destroy k-rats and their habitat if we learned of their locations. While this is carrying 

national security concerns to new heights, it also points out the inherent problem with the 

ESA itself, and it shows that the Service is well aware of the disincentives to conservation 

presented by the current Act. 
173 

By so zealously protecting the locations of endangered species, the Service admits that 

the Act has created powerful disincentives to conserve species. No law that depends so 

heavily on the goodwill of the nation's private landowners can ever succeed without the 

support of those landowners. The fact that the Service fears for the k -rats' safety if 

landowners knew they lived on their land shows that the incentive in this top-down, 

command and control ESA is for landowriers to destroy, rather than conserve species and 

their habitats on private land. This is the unfortunate adversarial situation landowners and 

America's wildlife have been placed in by this ill conceived Jaw, and is a testament to its 

failure. 

I could spend several hours just telling you some of the interesting and shocking things 

we learned through this process. Let me discuss only a few. 

Our investigation has revealed that the Stephens' kangaroo rat is not now, nor has it 

ever been in any danger of extinction. The Service's assumptions that the species' range, 

habitat requirements, population size, population density, protected populations, 

reproductive ability, ability to persist in small patches, coexistence with human 

disturbances, and colonization capability were all substantially underestimated. Likewise, 

the Service's analysis of the threats to the species were grossly overestimated and 

purposely exaggerated. For your convenience, I have included a copy of our petition with 

my testimony. 

As the implementing agency of the laws you make, the public places a great amount of 

trust in the Fish and Wildlife Service not to abuse the large amount of discretion in their 

hands. Unfortunately, we discovered that incidences of abuse of this discretion were 

frequent throughout the record for the k-rat. 

One such example was the method by which the species was determined to be 

endangered, rather than threatened. In the entire record presented to us through the 

Freedom oflnformation Act, only one, single page document was all that we could find 

that provided any clue as to how the Service determined to list the k-rat as endangered 

rather than threatened. This was a record of a telephone conversation that I would like to 

read for you. 

It is a record of a conversation between the biologist in the local Service office who 

was preparing the listing package, and someone named Ron Nowak in the Office of 

Endangered Species. 

The record says: "Ron called and asked some questions about the 

Kangaroo Rat package. He said that in general/ had presented a 

good case. He wanted the acreage figures clarified and some place 

names clarified as well. He wanted to know how much habitat is left. 

"I as best as I could came up with some acreages. 

"We then discussed whether threatened or endangered status 

would be more appropriate. We decided upon endangered " 

In an entire record of over 20,000 pages and hundreds of surveys, reports, meeting 

records, agendas, and documents of all types, this is the only evidence we can find of any 

analysis as to why the species should be listed under the more onerous status of 

endangered, rather than threatened. 

26-566 0 - 96 - 7 

4 
174 

After this research and several months of writing, the Riverside County Farm Bureau 

submitted its delisting petition in April of 1995. Let me quickly recount to you what has 

happened or, maybe more appropriately, what has not happened since then. 

• March 1995: Secretary of the Interior Bruce Babbitt announces his ten point 

"reform" initiative for the implementation of the Endangered Species Act. Included are 

points calling for scientific peer review, and a commitment to greater responsiveness and 

cooperation on the part of the US Fish and Wildlife Service with those who have to deal 

with the Act. 

• Apri126, 1995: The Riverside County Farm Bureau files a petition with the Fish and 

Wildlife Service to delist the Stephens' kangaroo rat. On May I2, I 995 a foot high packet 

of scientific studies, biological surveys, internal memoranda, and other documents obtained 

from the Service through the Freedom oflnformation Act, and used by the Farm Bureau in 

the preparation of the delisting petition, is hand delivered, by me, to the Carlsbad office of 

the Fish and Wildlife Service. 

• August 1, 1995: After inquiring about the status of the delisting petition and 

informing the Service of their failure to comply with the 90 day fmding obligation, I was 

informed by the Carlsbad Field Supervisor that the Service ''will soon be publishing a 

finding" in the Federal Register. The following day, the Farm Bureau is contacted by a 

Service biologist who claims not to have received the background packet of scientific 

information (obtained by the Farm Bureau from the Service's files) that was hand 

delivered, by me, to the Service in May. 

• October 31, 1995: With a cover letter signed by you, Mr. Chairman, and our 

Congressional representatives Ken Calven and Sonny Bono, along with several other local 

congressmen, the petition and background packet are resubmitted to Mollie Beattie, 

Director of the Fish and Wildlife Service, on behalf of the Farm Bureau. Beattie 

acknowledges receipt of the petition and background packet. 

• October 1995 through April1996: Fish and Wildlife Service claims that the 

moratorium imposed legislatively by Congress on listings under the ESA also prohibits the 

processing of delisting petitions, though the moratorium specifically exempts (allows) the 

processing of permits and other actions which result in less regulation, (including delisting 

petitions.) 

When informed of this, the Service responds that federal government shut downs and 

operating under Continuing Resolutions prohibit them from processing delisting petitions. 

"We are under a strict moratorium not to process any listings or delistings while operating 

under these CR's." says the Field Supervisor of the Carlsbad office. 

• May 1996: Fiscal year 1995-96 Federal Budget is approved and signed by the 

president. Over one year after submission of the petition to delist, the Service is still unable 

to provide an estimate as to when they will publish their 90 day finding, other than "soon." 

On May 8, 1996, Secretary Babbitt appeared in Riverside at a press conference to sign 

the section I O(a) permit for the long term HCP for the k-rat. After his remarks, I was able 

to remind him of his ten point "reform" initiatives of a year ago, including greater 

responsiveness by the agencies. I informed him of the lack of the lack of compliance by his 

agency, and asked whether he could provide us with an estimate as to when the Service 

might be able to process our petition and finally provide us with a 90 day finding. 
175 

The Secretary's somewhat irritated response was that I should be not be speaking with 

him, that I should be speaking to my congressman; and ask for more money for the ESA. 

When I asked if that meant he was saying that there was money in the budget for 

processing listings, but no money for processing delistings, his reply was "absolutely." 

When I reminded him that the Act didn't appear to differentiate the processes, that the two 

were to receive the same processing priority, he became very irritated, and stormed away 

from me and a group of friendly reporters waiting to ask him questions. 

As someone with no formal education in law, perhaps I was presumptuous to engage in 

legal arguments with a former attorney general and someone occasionally mentioned as a 

possible Supreme Court nominee. But the law seems pretty clear on this point. 

The Secretary's reluctance to process delisting petitions is not only, in my opinion, 

contrary to the law, I also think it is bad policy. After all, the whole point of the ESA is to 

list a species in trouble, get it recovered, and then delist it. When the public loses 

confidence in those who enforce the laws, when they clearly see that the one portion of the 

law is being implemented unjustly or unfairly ov~ another, they begin to mistrust the 

application of the whole law. In time, the mistrust spreads to other laws. 

When a law such as this creates perverse incentives, in that it actually encourages 

landowners to go out and destroy habitat for all species, not just endangered species, it 

must be rethought. In Riverside County, where people have been so severely impacted by 

this listing, farmers, ranchers, and small property owners are actively working their lands, 

disking, dragging, whatever method it takes, to make sure no species that might even be 

remotely sensitive takes up residence on their land. They are doing this, not out of hostility 

toward the species, but in efforts at self preservation. The presence of a listed species on 

private land has come to mean financial ruin, and possibly the loss of one's livelihood. 

These reactions by property owners show that this law is a complete failure. 

The Secretary's priorities, rather than showing that the current ESA is workable and 

does not need reform, and the blatant disregard for the sections of the Act that are 

distasteful to his administration, coupled with the fact that the Act is working at cross 

purposes for wildlife on the nation's private lands, show that the Act must be totally 

reworked and rethought before it can be successful. 

What is needed is an Endangered Species Act that conserves species, by allowing and 

encouraging landowners, farmers and ranchers to be good stewards of the land. It should 

also be an Act that is so simple as to be immune to the bureaucratic evils that so often do 

not become apparent until years after the bill has left Congress and become law. In order to 

have an Endangered Species Act in which the agencies can no longer twist, ignore, subvert 

and use both the scientific evidence and the statutory processes to further a political or 

ideological agenda, it must be a law that is simple, incentive based, and non-regulatory. 

Our experience has shown us that, given the regulatory power and the wide latitude of 

discretion by the courts, the agencies will be sure to abuse and ignore the intent of 

Congress to make a law that is successful for conservation of wildlife, and also upholds the 

rights and freedoms of the people it affects. 

While it has been a few days since I've checked the Federal Register, which, 

incidentally, arrives on my doorstep everyday, like most all members of the regulated 

public, I don't think the Service has published a 90 day fmding yet, after having our 

petition for 425 days. 

6 
176 

DearIn order to JUike a bio_logically valid dec1.aion, we need your 

research, expertise end coaaenta on the following questionS: 

<1> Do past and recent <1988-1989> trapping surveys show a SKR 

population on any of these parcels outside of the current park 

boundaries? 

<2> If so, where? I! not. is trapping planned for this area? 

<3> Stolertgrttr, ar: t:e:~a:~=a~ ~~~=~~ark !~e~h: v!~~~!~ty of 

habitat or aa critical buffer? ~hat is the biological 

basi 5 / research for that conclusion? 

<4> Is the viabi~ oftlll as a SKR preserve critical to the 

overall HCP? If~ails, will the Fish and Wildlife Service 

reject the interia HCP ? Without-how •any viable preserve s 

are left? What is the habitat size of each one? 

<5> What about the option of increasing the preserve aree only 

part wey tol • of including the ten cere strip elong 

<6> Can you 

•itigation 

HCP inllllllllllll 

·.: .. ~-
177 

C7> Aa to the corridor fro• the park aouth acroaa to 

connect with the -land aouth of~· ••••• 

--Will March actually be a preaerve ? 

--If not guaranteed, what'a the point of a corridor? 

--If i& guaranteed, whet ia the biological baaia for the 

placeaent of the corridor at ita praaant location and aiza aa 

oppoaed to any other location and aiza? 

(8) Whet ia the aatiaatad currant coat of each of the parcels 

unde r conaideration above? Including the coat analyaia of the 1111 property, conaidaring ita quasi-public atatua ? 

Aa you can aae, the diacuaaion canters around three unknown& 

which era critical to any further conaidaration of restoring any 

particular parcel, or part of a parcel, to the study area around 

the park: 

<1> Ia it good SKR habitat or buffer? 

<2> Ia it neceaaary? 

Thea• three question• ahould be addre aaed to the following 

optiona : 

< 1 l All of the private and- land indicated on the encloaed 

•ap. 

<2> • proper-ty . 

<3> The private and- property bordering the park which ia SKR 

habitat. 

Thank you again for your help. I will be happy to aeet you at 

the pork and walk over the parcels in que stion, aapecially with 

aoaaona you conaider qualified to identify Stephana• and Pacific 

habttat. Pleaaa call •• if I can be of any £urthar aaaiatanca. 

i 2 

cc:Bob Wal e a, Rivaraide City ftanoger 

Bil l Hova rt, Sierr• Club 

Steve Whyld, Rivaraide City Planning 

Randy Hall, 8IA 

Lisa Boahn, Tierra Madre 

Paul Selzer, Beat, Beat and Krieger 

'P<:~.:r St-ine, US ;: ~h f t.t..':t f~~ ~:-v c~ 
~~'' l ... j I .~t· : ~ . :. Oaobcr 23, 1989 

Mr. Perer Stine 

US. Fish and Wddlife Service 

Enhancement Field Station 

Federal Building 

24()()() Avila Road 

Laguna Niguel California 92617 

Dear Mr. Stine: 

178 

··.· ...... . 

•'lioiperf•o•rm•altrlapplliiin 

Miehael Brandman 

.. 

Associares. 

g program 

lDc. 

lor !he 

(MBA) 

Stcpbcm' 

is UDder 

kaogat110 

conaaa 

rat 

,.;d- (SKR) propooea aevc:U>pmenr sire locat~ , Diagnostic kangaroo ra1 sign has been located by MBA oo !his projea sire. 

Tbe purpose of the trappWg program is to determine if the SKR is prcscnt on the site. The trapping wiD be 

performed under the guidelines set by the General Permit Conditions that accompany our Trapping Permit. 

I would like to begin the trapping program fCK the sire on the evening o( October .30. 1989. 

Thank you for your prompt auentioo to this matter. Please FAX a written response to me as soon as possible 

.. (714) 889-0152. 

Sincerely, 

MICHAEL BRANDMAN ASSOCIATES, INC. 

~!!>~../_ 

Philip R. Behrends. Ph.D. 

Staff Ecologist 

Enclosure 
179 

FIGURE 1 

,_ PROPERTY BOUNDARIES 

SCALE: 1•. 2000' 

MAP SOURCE: USGS 7.e· 
TQ: 

FROM : 

I 

180 

TELEPHONE CONVERSATION RECORD 

DEPARTMENT OF THE INTERIOR 

US. FISH AND WILDLIFE SERVICE 

ROUTING 

FILE REFERENCE : 

ORGANIZATION AND TELEPHONE NUMBER 

f'•H•: CHilO"' I'" IL£ CQ~'r 
181 

Riverside County 

FARM BUREAU NEWS 

Published by Qlverside County farm Bureau. Inc. 

A private, nonprofit organization serving farmers throughout Riverside Count)r since 1917 

Farm Bureau 

petitions to 

de/ist the 

Stephens' 

kangaroo rat 

Citing original data errors in the 

"endangc!M" listing of the Stephens' 

kangaroo rat, Riverside County Farm 

Bureau has submitted a petition to the 

U.S. Fish and Wildlife Service 10 remove 

the kangaroo rat from the endange!M 

species list and expects a decision by 

USFWS by the end of July. 

However,a Farm Bureau spokesman 

said the Farm Bur=u isn't sure when 

USFWS will respond or what their 

decision will be. "Our petition is 

supported by hundnodsofpagcsofstudies. 

rcportsandolhcr information which may 

take some time 10 review." 

"While we arc confident that the 

petition proves beyond any doubt that the 

Stephens' kangaroo rat was never in 

danger of e.xtinction, we don't know if 

the Selvice will admit its mistake.·· 

Farm Bureau said a Jarppart of the 

acicntiftc evidence it found 10 support its 

delisting was known 10 USFWS prior 10 

the 1988 listing. Farm Bureau said 

USFWS disleprded and even concealed 

information showing the kanproo rat 

was far more prolific and widespread 

than the listingindicaledandthat enough 

habitat was protected to guarantee the 

species survival. 

The petition waa written by Dennis 

Hollingaworth. dircciOr of natural 

ConrinwdinM oo PM 2 

Petition to Delist the 

Stephens' kangaroo rat 

Following i• the tert •ubm/1/ed by Rl1•ersitk County Fann Bunau to the U.S. 

Fish and Wildlife &n•ice. 

Riverside County Farm Bureau, Inc., hereby petitions the United States Fish and 

Wildlife Service to dclist the Stephens' kanproo rat (Dipodomys stcphensi) under 

the Endange!M Species Act of 1973 and its amendments. 

The petitioner requests thisdelisting because of original data errors in the listing 

of I 988. Investiption by the Farm Bureau has revealed a significant amount of 

scientifiC evidence that SKR is DOl now and never has been in any danger of 

e.xtinction. Assumptions by U.S. Fish and Wildlife Service reprding species range, 

habitat requirements, population size, population density, protected populations, 

rcp!Muctive ability, ability 10 persist in small patches, and colonization capability 

were all substantial underestimations. Assumptions by U.S. Fish and Wildlife 

Service regarding threats to SKR, including percentageoflost historical habitat, rate 

ofloss ofhabitat. impacts from rural development and agriculture, and urban growth 

patterns, were all substantial cxa88Cf8tions. 

U.S. Fish and Wildlife Service incomctly staled that many new data supporting 

listing became available after SKR was listed as a candidate species, when in fact the 

onlydatatobecomeavailabiewaabiologic:alswveysfordevelopmentswhichactually 

indicated that SKR was more widespread and abundant than previously thought and 

that the habitat was safer from destruction than previously thought. 

U.S. fish and Wildlife Service relied on the flawed method of only returning to 

sites where SKR was historically found rather than analyzing the full rangcofhabitat 

ThismethoddisregatdedtheknowndynamiccharacteristiesofSKRhabitatutilization, 

and a Jack of any comprehensive search for new inhabited sites represents a failure 

to obtain the best scientific information available. 

Acreage figures in the proposed rule arc questionable based on an example nf a 

ftlllior mathematical error. The proposed rule stated that small patches of SKR 

populations arc about 40 acres in size or 100 hectares. One of these numbers is 

incorrect, in that40acrcsequalsabout 17 hectares and tOO hcctaresequala247 acres. 

The author divided 100 hectares by the conversion factor of 2.41, rather than 

multiplying. It appears the author sought to minimize the actual size nfsmall patches, 

Continwd on P., 5 ... 

U.S. Fish and Wildlife Service falsely stated that it had determined 

from careful review. that SKR should be listed as "endangered," 

when in fact the decision was an arbitrary determination arrived at 

in a telephone conversation between (two U.S. Fish and Wildlife 

Service employees.) 

Rlwtsklt County F•m Bu,.au IWws • 1 
Farm Bureau 

petitions ... Continued from Front Cover 

resources for Farm Bureau and an owner 

of Golden State Resource Management 

Group. Since starting to prepare the 

delisting petition three years ago. 

Hollingsworth has reviewed more than 

20.000 pages of biological information 

and internal documents obtained from 

USFWS under a Freedomoflnformation 

Act request. 

"The conclusions that Stephens' 

kangaroo rat numbers and habitat were 

dechning and that the kangaroo rat faces 

extincti<?n were never supported by the 

best a\'ailable scientific evidence.·· 

Hollingsworth said. 

The complete delisting petition is 

reprinted in this issue and additional 

copies are available on request from Farm 

Bureau. 

Statement by Bob Perkins, executil'e 

manager of Riverside Counlv Farm 

Bureau: . 

The listingofthe Stephens· kangaroo 

rat as .. endangered" was a fraud. 

perpetrated on the citizens of Riverside 

County b)· the U.S. Fish and Wildlife 

Service. The Service was given 

remarkable power under the Endangered 

Species Act. They abused that power and 

broke faith with the citizens and Congress 

that entrusted it to them. 

The fraudulent listing of the 

Stephens' kangaroo rat has undermined 

efforts to protect species which may be 

truly threatened. It has also fueled a 

national effort by farmers and private 

property owners to reform the Endangered 

Species Act and rein in the power of the 

U.S. Fish and Wildlife Service. 

Farm Bureau estimates the 

fraudulent listing of the Stephens' 

kangaroo rat has cost the economy more 

than $100 million. The true cost: which 

may never be known because so much of 

it is hidden. is more than just the 

approximately $30 million in mitigation 

fees collected by Riverside County 

governments for the unnecessar}· 

Stephens· kangaroo rat program. Other 

Riverside County Farm Bur~au Nt!ws 

182 

costs are: 

- Direct costs to private citizens for 

biological studies and for changes in 

projects to accommodate restrictions. 

-The cost for alternative mitigation 

such as land donations and consen-ation 

easements. 

- The lost value of land which is 

restricted either directly by habitat 

regnlations or indirectly by adjacent 

habitat lands, a cost which is largely 

hidden as property owners are unable to 

sell or use their land. 

- The lost economic opportunities 

fora recession-plagued economy brought 

to a halt by unnecessal)' restrictions. 

where development and jobs have gone 

elsewhere to avoid Riverside County's 

problems. · 

-Higher prices for home buyers and 

businesses. the end-users who ·actuallv 

pay mitigation fees. · 

- Higher costs for roads. sewers. 

pipelines. power lines. schools. and other 

public projects which also fall into the 

regulatory quagmire of the Endangered 

Species Act. 

-Higher water rates and standby fees 

to water users and property O\~'ners 

throughout Southern California to pay 

the millions of dollars in mitigation done 

by Metropolitan Water District. 

-Theincreasingtaxpayerburdenfor 

the cost oflocal government while habitat 

plans take more land off the tax rolls. 

- The growing opposition to ta:o.:es 

and fees from voters angered b\· 

unjustified habitat costs and rcgnlation~ 

which faces local governments. 

The sad thing is none of these costs 

were justified. because the Stephens· 

kangaroo rdt never was and nC\·erwill be 

in any danger of extinction. 

Green? 

The Endangered Species Act should 

be repealed. saidmorcthan two~thirdsof 

newspaper readers who responded to an 

Earth Da)· phone SUf\'C\' 1>1· the San 

Bernardino County llC\\'SPa~rThc Sun. 

Of 1.122 readers who called in. 69 percent · 

said ESA should be repealed. while just 

31 percent s.1id no. 

Qiverside County 

Farm Bureau 

News 

Published by 

Qiverside Counly Farm Bureau Riverside County Farm Bureau is a private, 

nonpn).fit organization serving farmers 

throughout Riverside County since 1917 

21160 Box Springs Road, #102 

Moreno Valley, California 92557. 

Board of Directors 

Pr~sident 

MukDr~r 

Vice Pr~sidents 

Stephen J. Coron.a 

Andy Domenigoni 

Jeff Percy 

Directors 

Lee Anderson, Jr. 

linden Anderson 

Don Bean 

Howard Cherniu 

John Demler 

Cindy Domenigoni 

Ben Drake 

John Gless 

Dan Hollingsworth 

Neil Huether 

Charles R. Johnson 

Rkhoud c. Kelley 

041veMarlowe 

Larry Minor 

Joe Rheinpns 

Rodger Siems 

Tr~asur~r 

Anton Schmidt 

Ex«utive Manager 

BobPeriOns 

For information, 

Telephone 9091684-6732 or 

Fax 909 782-0621. 

Riv~rside County Farm Bureau assumes no 

r~sponsibility for statements by advertlsers or 

for products advertised in •Riverside County 

Farm Bur~au News• Of "Riverside County 

Agricultur~," nor for stat~ments or expressions 

of opinion other than in editorials or articles 

showing authorship by an offic~r. dir~or or 

employ~ of Riv~rside County Farm Bure<tu. 

Printed by Hocar Publishing, 

Cohon, California. 
Committee 

hears 

agreement 

NCCP isn't 

working 

Very different views on 

how to fix it 

Farming. business. government and 

environmental representatives have said 

the state 's Natural Communities 

Conservation Planning program is n good 

concepl that has failed tom>rkas intended. 

Whilcthevariousinterestsgcncrally 

agreed that the NCCP hasn't been 

successful and that I he\' would like to see 

it changed, thcydisagn..Ulonthcdirection 

of change. with farming. business and 

government wanting less regulation and 

en\'ironmentalists and regulators \\'flnting 

more regulation. 

NCCPcameunder fire from all sides 

May 18 al an oversight hearing of the 

state Senate Natural Resources and 

Assembly Water. Parks and Wildlife 

Committees. 

Riverside Count\' Farm Bureau 

Manager Bob Perkins called for a 

complete revision of the program to 

divorce it from all regulator,· measures 

under the Endangered Species Act. to 

make it entirely voluntary for land owners. 

and to de\'elop positive incemives ror 

land owners to conserve habitat. 

He also repeated criticisms or the 

NCCPwhichwcredctailedin 1993lcucr 

from Farm Bureau to Go,·crnor Pete 

Wilson. which was entered into the record 

or this committee hearing. 

San Diego County Farm Bu~IU First 

Vice President Eric Anderson verified 

Riverside's criticisms. telling the 

committees that eYe~· problem Ri\·ersidc 

predicted has come to pass in San Diego 

County. 

EnvironnlCnlal witnesses called ror 

more stringent regulation or land usc. 

An Endangered Habitats League 

spokesman said. ··A \'Oiuntary program 

183 

alone \\ill not work. ·· a \'icwlater repeated 

b\' the Natural Resources Defense 

Council. The League spokesman said 

NCCP agrccnlCnts should be limited to 

local governments and not indi\'idual 

land owners. 

An Audubon Society representative 

said the societ\' had refused to enroll its 

.t.UOO·acrc O.rangc County ranch in 

NCCP because doing so would validate 

the process. 

Audubon noted that the California 

gnatcmcher. whose coastal sage scrub 

habitat is the target of the first NCCP 

program. docs not occupy all of the 

a\'ailable habitat. "'That's an issue that 

must be dealt with or there will be a huge 

backL'ISh." 

Senator Tom Havden. who chaired 

the h~1ring. comme~tcd that. ··Train 

wreckSO\'Cr(listing ofindi\'idual) species 

might be replaced by train wrecks O\'er 

(protection ol) habitats." 

Many of lhe witnesses mentioned 

inccnth·es to encourage land owners to 

conserve or restore habitat. Hayden said 

it "would be helpful to ha\"e a full page 

or those incentives ... 

Perkins listed nine possible 

incentives and told Hayden that land 

owner organi;r.ations including Farm 

Bureau had agroed to dc\·elop a more 

extensive list ofincenlh'es. He said local 

governments and individual land 0\\1ters 

need a list or inccnth·cs from which to 

chose. 

In tel lingthc commiuccsthat rarmcrs 

in Ri\·crside Couni)· oppose NCCP. 

Perkins contradicted testimony many or 

the environmental and regulalory 

witnesses who said land owners like the 

program. 

Dr. Dennis Murphy. director of the 

Center ror Conscn•alion Biology. said if 

other areas or the state which arc 

considering habilatconscn•ation.lookcd 

at the Southern California program. 

" they would have round it quite 

attracti\"e. · · He also said NCCP ··could 

be at its bcsl in areas with more 

agricultural interests. · · 

Perkins also contradicted the view or 

environmental rcpresentati\'Cson the U.S. 

Fish •md Wildlife Service ~(d) rule that 

says California gnatcatchcr permits can 

onh· be issued within an NCCP. 

Em;ironmentalists said this has been 

successful and should be the model for 

ruturc conservation programs. Perkins 

said it was a major mistake by the Service 

because it makes NCCP regulatory rather 

than \•oluntary. 

A Mctr~politan Water District 

representative said a law providing for 

ecosystem protection should be offered 

as an additional alternative to the 

Endangered Species Act's individual 

species prolection but would need to 

provide cenainty to panicipaling land 

owners. 

Editor sees ESA as 

revenge for wrongs to 

Indians 

Now we fond out that the Endangered 

Species Art is supposed to be the vehicle 

for righting history's wrongs to the 

American Indians. 

That interesting discover)' comes 

hom Robert Kahn, city editor for 

Temecula's The Californian newspaper. 

In a fascinatingly vitriolic May 1 

editorial. Kahn rips the Domenigoni 

family ror "whining" about being 

stopped from farming 800 acres oftheir 

own land. 

Quoting a 19th century description 

of how Indians in the Temecula Valley 

were foroedoiTtheir land, Kahn implies 

that the Oomenigoni family has no light 

to complain when tbc land is taken away 

from them . by the same federal 

go\"ernment. Wiih this logic, mostoflhe 

residents of the United States--that 

decidedly includes YOU--have no light 

to their homes and land. and the federal 

go\'crnment should be free to take it 

whenever the government wants. 

Apparently it's okay for the 

Domcnigoni family to pay property taxes 

to the go\'emment. bot they shouldn't 

complain when they are stopped from 

making a living. Would Kahn whine too 

iflheb'O\·emmcnt told him he couldn't go 

to work or earn a paycheck'? 

K~thn isn 't interested in whether tbe 

Domcnigoni family is being denied its 

Constitutional right todueprooess, private 

propcny and just compensation. Would 

he squawk ifthc government tried to take 

away his rightlo freedom of speech and 

press'! 
The Manager's 

Report 

/J.li Bob Perkim· 

Farm Bureau Exrcutiv~ Manager 

Property rights 

gets a voice 

Proper[)' rights finally got some 

recognition. as a congressional task force 

brought hearings on the Endangered 

Species Aceto California and co Riverside. 

Farm Bureau members and other 

property owners held rallies before each 

ESA Task Force hearing in Riverside, 

Bakersfield and Stockton to call for 

sensible changes in the law. They far 

outnumbered environmentalists who 

called for an even more regulatory ESA. 

Who owns the land? Environmental extremists don't 

believe in ownership of private property 

They ha\'C absolutely no sympathy for 

land owners whose property is taken 

through regulation and no underst.11\ding 

of the Constitution's privme property 

protections. 

Environmentalist at the ESA Task 

Force hearings made their views clear. 

How can any group so thoroughly thumb 

ils collective nose at the Constitution? 

Patriots Environmentalists were offended 

when Farm Bureau supplied miniature 

nags to propeny owners at the Riverside 

and Stockton property rights mllies. At 

least one environmentalist picked the 

wrong person to argue with. 

ButtonhoJing a Riverside resident. 

the environmentalist asked if all the nags 

meant property owners thought they were 

more patriotic than theenvi ronmentalists. 

''Yes., . said the Riverside property 

owner. He showed the emblem on the 

back of his jacket. recalling his 35 years 

of service in I he 251h lnfantl)· Division 

from Pearl Harbor to Vietnam. 

"That was your duty ... replied the 

environmentalist. 

·'Did you do yours?'· 

"Well. no. " 

'·case closed ... 

.J - Riverside County Farm Bur~au N~ws 

184 

Thanks for the recognition A Oyer handed out by environmental 

groups at one or the ESA Task Force 

hearings complained that ''In California. 

once again. corporate farm groups. 

building associations and timber inlerest 

groups are well represented at the hearings 

and behind the scenes.·· 

And. they said. the hearings were 

being held· 'just whercoontroversy about 

the ESA is most heated." 

Or course. Farmers and propeny 

owners think it is time for Congress to 

lislcn to farmers, property owners and 

other\'ictimsofESA. Farm families who 

turned out for the hearings. exercising 

those Constitutional rights to free speech 

and peaccrul assembly, can be prond that 

the)' helped get their message to Congress. 

Intellectually dishonest One thing was clear at the hearings: 

en\'ironmentalleaders are intellectually 

dishonest. and their movement is doomed 

to rail unless they face reality. Farmers 

know the Endangered Species Act is 

causingtrcmendouseconomicandsocial 

harm. and it is spending money 

unnecessarily without· helping species 

that may actually be endangered. 

Protections for the Stephens· kangaroo 

rat. California gnatcatchcr and. now. the 

fairy shrimp are costing the Calirornia 

economy hundreds of millions of dollars 

and none of these species are in any 

danger of extinction. 

The stories lold by witnesses at the 

ESA Task Force hearings about how 

species arc liSied followed a similar 

pattern: 

• Listings were proposed with little 

or no scientific evidence. (For example. 

the fail)· shrimp listing petition was a 

one·paragraph letter.) 

• U.S. Fish and Wildlife Service 

concealed information and stonewalled 

requests for the administrative record. 

• U.S. Fish and Wildlife Service 

almost always approved listings. despite 

o,·cn,·hclming evidence listing wasn't 

warranted. 

- U.S. Fish and Wildlife Service 

made no effort to determine the scientific 

Yalidit)· or listing proposals. 

• Species populations were assumed 

to be almost extinct before listing. but 

later proved to be widespread and 

ablllldant,justiJYingrestrictionsoverwide 

areas and weighing down the local 

economy with huge new costs. 

This is the same pattern whlch Farm 

Bureau found as it prepared a petition to 

dclistthe Stephens' kangaroo rat. 

Attacking the victims Environmentalistscontinue seeking 

to discredit the victims of the 1993 

California Fire. They cite a General 

Accounting Office report as "proof' 

that k·rat restrictions had nothing to do 

with the fire. 

Not so. said Riverside County Fire 

ChiefMike Harris al the ESA Task Force 

hearing in Riverside. He told the panel 

he couldn't understand how the GAO 

reached its conclusions. A group of 

senators and congressmen are ·calling for 

a review of the GAO repon. 

Chief Harris' testimony directly 

contradicted the GAO report statement 

that. ··overall, county officials and other 

fire experts believe that weed abatement 

by any means would have made little 

difference in whether or not a home was 

destroyed in the Caliromia Fire." Chief 

Harris said. ·' 1 do not agree'' that there 

was no connection between the 

restrictions and the fire. 

Private studies··and the common 

sense understanding of farmers and 

residents in the area--leave no doubt: 

restrictions imposed at the direction of 

U.S. Fish and Wildlire Service were major 

factors in the speed, intensity and extent 

of the fire . 

Endangering species Listing may be-th~ bigtestthreat to a species. 

Privat~ propeny own~rs don't want list~d 

species to sprud to their land 

U.S. fish and Wildlife Servic~ does mor~ 

harm than good. Aher prohibiting farming on 

land n~ar Winchest~r wher~ k·rats flourished, 

U.S. Fish andWildlif~ allowed bruah to build up 

<andfu~l th~ California Fir~. U.S. Fish and Wildlife! 

s~rvic~ th~n claim~d the k-rats w~r~ driven out 

by the heavy brush rather than ~ing burned in 

th~fir~. 

In K~m County, k·uts w~r~ "rescued" 

from a landfill wh~~ they thrived ar'\d e\'~ntually 

transported to new habitat (at gr~"' ~xp~ns~) 

wh~r~ they drowned in a flood. 

R~strictions on cl~<aring "habitar· in brushchok~d flood channels across the state r~lted 

in Hoods that wiped out the habitat, resident 

speciH, and considera~e private property . 
Petition ... 

Continu«i from Front Ccvrer 

substituting 40 acres for the more correct 

figure of 100 hectares or about 2SO acres. 

thereby exaggerating the threat to the 

species. It has been proven by current 

knowledge that the SKR populations are 

in much. much larger contiguous patches. 

many an: measured in the thousands of 

acres of contiguous occupied habitat. 

(RCHCA IO(a) EIR by RECON. 

Montgomery (Anza. 1992,) O'Farrell 

(Lake Henshaw. population known at 

time oflisting). RB Riggan (Alessandro 

Heights survey. 1989.) 

U.S. Fish and Wildlife Service 

misrepresented federal agency response 

when it stated in its summary ofthe firnil 

rule that federal agencies other than the 

Air Force indicated no opposition to the 

listing. In fact. the Air Force was the only 

federal agency to provide comment on 

the listing, filing a statementofopJX)Sition 

(see comments. included.) U.S. Fish and 

Wildlife Service offered a patently 

misleading statement in characterizing 

non-response by other federal agencies 

as ''no opposition. ·· 

U.S. Fish and Wildlife Service 

misrepresented all other comments as 

.. neutral. .. when in fact comments by the 

Vista Irrigation District. included herein. 

could hardly be called neutral. the U.S. 

Fish and Wildlife Service count 

breakdown does not make any sense. and 

other supporting comments aren't 

itemized in the final rule. 

U.S. Fish and Wildlife Service failed 

to acknowledge the true situation with 

regard to the California Department of 

Fish and Game and the California 

Endangered Species Act. While CDFG 

submitted comments supporting the SKR 

listing. U.S. Fish and Wildlife Sen·ice 

U.S. Fish and Wildlife Service 

failed to note or consider the 

significant fact that CDFC had 

failed to persuade its own 

California Fish and Came 

Commission that SKR was 

endangered,, 

185 

failed to note or consider the significant 

fact that CDFG had failed to persuade its 

own California Fish and Game 

Commission that SKR was endangered 

and required upgrading from its state 

"thn:a1e1lCd" status. The Federal Record 

indicated CDFG provided a copy of a 

recent status update, yet U.S. Fish and 

Wildlife Service failed to mention that it 

got almost all ofits SKR information for 

the listing fon•-arded to it from just one 

CDFG employecaf\ertheCalifornia Fish 

and Game Commission voted not to 

upgrade the species to endangered. 

U.S. Fish and WildlifeSeniceclearly 

disregardedtheimponanceofdefinitively 

delineating the range of the SKR and 

relied on inadequate and incomplete 

research. U.S. Fish and Wildlife Service 

limilcd consideration to a specilic area 

within the political jurisdiction of 

RiversidcCountywhiledisregardingSan 

Diego Coun~· and failing to discover 

SKR in Anza. Aguanga. Oceanside. and 

the Corona-Norco area. Inadequacy of 

U.S. Fish and Wildlife Sen,ice research 

information is underscored by expansion 

of known occupied SKR habitat and 

population in Riverside County study 

areas. in Temecula. in Ranchita. (as per 

Dick Friesen personal communication. 

1/93.) U.S. Fish and Wildlife Service 

bosed iiS listing decision on inadequate 

information about SKR habitat and 

populations outside its historic range and 

lack ofknowledge of exiSicnce ofSKR on 

poblic and pri\'ate property. {l.S. Fish 

and Wildlife Service relied on nawed 

and inadcqu.1tc methods for locating SKR 

outside ofhistoric range. discovering the 

extent and abundance of SKR on I\' after 

a de\'elopmentland usc activity is pianned 

that requires biological surveys. 

U.S. Fish and Wildlife Service 

selecti\'ely used scientific information to 

suppon its listing decision and to suppress 

facts which would have raised doubts 

aboulthe need lo liSI SKR as endangered. 

Price and Endo 1988 was cited without 

reference to the positive aspects of this 

Sludy. which re\'ealed SKR population 

could increase tenfold in just one year of 

high rainfall. 

U.S. Fish and Wildlife Service again 

overSialed the threat to SK.Rasoccurring 

rangcwide. when this is clearly not the 

case. and disregarded the large amounts 

of protected SKR habitat on public lands 

which were and are safe. 

U.S. Fish and Wildlife Service 

inaccurately contended that lands held in 

public ownership were not suffiCient to 

ensuresurvivalofSKR, when in fact U.S. 

Fish and Wildlife Service had failed to 

correctly assess the extent of occupied 

and potential habitat protected on public 

lands. 

U.S. Fish and Wildlife Service 

grossly underestimated the viability of 

SKR populations on public lands and 

greatly overestimated the threat to SKR 

on those lands by implying that SKR 

habitat needs close monitoringand active 

management. They funher imptied that 

because most of the federal agencies using 

the land had no such active management 

plan. SKR was therefore imperiled. 

However. this implication ignored the 

fact that the land use aclivity and 

diSiurbancescharacteristicofthe mission 

of the particular federal agencies are 

likely the ver)' reason SKR is present. 

U.S. Fish and Wildlife Service 

admitted that the activities of the agencies 

with occupied SKR habitat an: compatible 

with the species, yet this was never stated 

in the proposed rule. It isfunherevidence 

that the species is more abondantand less 

threatened than U.S. Fish and Wildlife 

Sen•ice indicated in its proposed rule. 

The system of permanent preserves 

that has been subsequently proposed by 

Riverside County Habitat Conservation 

Agency mainly comprises public lands 

which were already conserved at the time 

of the listing. RECON. the consultant to 

RCHCA which has developed much more 

extensive information about SKR, 

concluded that public lands are more 

than enough to sustain the species. 

Predictions of SKR survival have been 

hascd in pan on a computer model, the 

Gilpin Model, which fails to take into 

account ··sman dispersion.·· the ability 

ofSKR 10 migrate 1osuitablenew habita~ 

U.S. Fish and Wildlife Service 

selectively used scientific 

information to support its listing 

decision and to suppress facts 

which would have raised doubts 

about the need to list.... 

Riwrside County Farm Buruu Ne'NS · 5 
to sun·i,·e and expand in a habital 

em·ironmcnt that historical!~· is in a 

constant state of change. Both U.S. Fish 

and Wildlife Scn·icc projections and the 

Gilpin Model arc overly pessimistic and 

contribute to the underestimation ofSKR 

populations and sun·ival and lhe 

overstatement of the threat to SKR. 

U.S. Fish and Wildlife Service 

dismissed the issue of compatible land 

uses because it failed to obtain complete 

and accurate information about SKR 

habitat requirements and in fact discarded 

information about the positive aspects of 

compatible land uses that was available 

in the same reports which U.S. Fish and 

Wildlife ScrYice used in its proposed 

rule. U.S. Fish and Wildlife Service 

fni lcd to recognize that land disturbances 

associmed with compatible l;md uses 

caused increases in SKR populations. 

This is demonstrated by the decline in 

suitable habitat by coastal sage scrub 

encroachment as a direct result of U.S 

Fish and Wildlife Sen·icc restrictions on 

farming. f1rcbre<1k cle:~ring ;md othe r 

acaivities. 

U.S. Fish and Wildlife Service falsely 

stated that it hild determined from careful 

rc,·iew thm SKR should be listed as 

··endangered.·· when in fact the decision 

was an ilrbitrary determination arrived at 

in a telephonccotwersation between Karla 

Kramer. author of the proposed mlc. and 

Ron NO\·ak oft he U.S. Fish and Wildlife 

Service Office of Endangered Species in 

Washington in which the two indiYiduals 

discussed whether to propose SKR for 

listing as ··thre:ucncd'" or · ·cnd:Jngcrcd·· 

(phonccou notes. included.) 

The U.S. Fish and Wildlife Service 

statement that SKR habitat and range 

had been greal ly reduced is inherently 

false. because U.S. Fish and Wildlife 

Sen·ice dcmonstrilbly lacked complete 

and m·a ihtble information about the 

historic range of the SKR and about the 

current range of the SKR. U.S. Fish and 

Wildlife ScrYicc k1cked range infornmtion 

The statement that 95% of 

original SKR habitat is gone was 

incorrect and based on 

incompatible assumptions for 

historic and present range. 

6 . Riv~rsidt! County farm Bureau News 

186 

ncccss.1ry to make comparisons to reach 

a conclusion I hat range had been reduced 

;md also failed 10 investigate repons of 

habitat (i.e .. thcOrangcCounlycoastlinc.) 

··rounded ofr · occurrences on maps and 

otherwise disregarded a,·ailablc 

information which indicated the SKR 

was more widespread and not under 

threat. 

The range of the SKR was not 

known at the time oft he listing. and it is 

still not prcciscl~· determined. This is 

amply demonstrntedby: discoveryofSKR 

at numerous local ions not included within 

the .. historic ra nge' ' and the 

corresponding mitigation ree area in 

Ri,·ersidcCounty designated by Riverside 

Coumy Habital Conscn--ation Agency. 

such locations as Anza. Potrero. Diamond 

Valley. Sage. Tucalota Valley and the 

Corona-Norco area: requirements for 

SKR biological sun.·cys at location-s 

outside the prc\'iously assumed range. 

such as at Ontario International Airport 

in Ontario: local go,·crnment concerns 

about gelling penni IS to lake SKR outside 

1he prc"iously assumed range. such as 

Beaumont and. the plai nly obscrYilble 

access to cxtcnsi,·e areas of potential 

habila t adjacent to known SKR 

populations. such ns nonh <md west from 

Ri, ·erside County into San Bernardino 

County. cast into the Banning Pass. and 

southeast 1owardAn1.a-Borrcgo National 

Park 

The proposed rule inaccurately 

described I he Stephens· knngaroo rat. in 

pan. as haYing an c.1r measurement 

:1\·craging 15mm. After the listing was 

fin:1li:t.cd. the SKR working group or biologists published c1 document through 

U.S. Fish ;md Wildlife Scn·icc intended 

to aid in differentiation of SKR from 

PKR. that stated SKR had an car crown 

of 13nun or less. and the PKR had 

measurements of Dmm or greater. A 

lette r dated No\'Cmbcr 7. 1989. from the 

field supervisor of the Carlsbad office of 

the U.S. Fish and Wildlife ScrYicc. to an 

SKR pcnnitcc. stated thai SKR has a 

typical car-crown measurement of less 

than 12mm. and PKR generally have a 

measurement of Dmm or greater. 

The range was described as being 

limited to the Perris. San Jacinto Vallcvs 

of Ri\·crside County. and the San L~is 

Rcy and Temecula Villlcys of San Diego 

County. (Note that the Temecula Valley 

was incorrectly described as being in San 

Diego County.) Subsequent discoveries 

of the species. both hefore and after the 

proposed rule was published, reveal this 

statement to be not only inaccurate, but 

also mislead,ng. The proposed rule 

contradicted this statement later in the 

text oft he rule. At the time the proposed 

rule was published, the SKR was also 

known to be present in the Riverside, 

Lake Mathews, Estelle Mountain, and 

Sycamore Canyon areas, as well as the 

Moreno Valley, Canyon Lake, and Lake 

Skinner areas. U.S. Fish and Wildlife 

Sen·ice was also aware ofSKR localities 

ranging as fa r nonh as the Cajon Pass 

a rea in San Bernardino County, to 

Bautista Canyon cast of Hemet, in the 

~st. and south to Oceanside. A very 

large. well-established population that 

occurs far to the southeast on the Warner 

Rnnch around Lake Henshaw was ignored 

in the proposed rule. (O"Farrell, 1986.) 

PopulationsofSKR, including those 

at Anza. Potrero. Aguanga, Tucalota 

Va lley and the Corona~Norcoarca , have 

been disco,·ered: in area·s previously 

thought unoccupied within the presumed 

historical range: outside the presumed 

historical range: and. in well-established 

populations in areas that are not only far 

outside the presumed historical range but 

also in areas and at elevations thought to 

be uninhabitable for the species, 

(Montgomery, 1992_) 

The proposed rule slated a habitat 

assoc iation of SKR with Artemisia 

cal ifornica and Erigonium fasciculatum. 

twobmshy plant speciescharacteristieof 

coastal sage scrub habitats. However, the 

SKR working group later stated, when 

discussing habitat of the SKR. ''there is 

a strong correlation between the 

proportion of annual forbs to annual 

grasses wilh lhe probability of presence 

or i'lbsence of the Stephens' kangaroo rat 

and the densities found.' ' While this 

sUltemcnt is more accurate than the rule. 

discussing the habitat preference of the 

species. it is not complete. Current 

information indicates SK.R inhabits a 

wide variety of vegetation types; native 

and non~n ti\'C grasslands. sandy washes 

and drainages, agricultural fields, 

distmbed chap.11rnl. din roads, and coastal 

sage scrub. 
U.S. Fish and WildlifeSen•icefailed 

to adhere to the Endangered Species Act 

because it has failed to initiate a recovel)' 

plan for the SKR. 

Species range 

The known range of the Stephens 

kangaroo rat was described as being 

limited to the Perris and San Jacinto 

Valleys. and San Luis Rey and Temecula 

Valleys. This range description cites only 

four researchers as sources. when many 

more sources were available to U.S. Fish 

and Wildlife Sen·ice at the time. 

A study dated 3 June 1983 by an 

unknown author. included in the 

administrative record. helped to create 

many false impressions and perpetuate 

factual errors concerning SKR. Two key 

aspeclsofthis study point to the fallacious 

logic used to create the argument that the 

species required Endangered Species Act 

protection. 

The study cited the work previously 

done on SKR by researchers who 

attempted lo perform ··range-wide·· 

status reviews of the species. HowC\·er. 

those researchers· studies were often 

merely re .. in\'estigations of historical 

locations where SKR were found. and 

seriously lacked in any new inn~stigalion 

or attempts at locating new SKR sites. 

Therefore. when a particular researcher 

looked for SKR at a site known to harbor 

SKR some 20. 30. or 60 years before. and 

the site had been developed. or for some 

other unknown reason the species was 

absent from the site at the time. it was 

assumed that the species would soon be 

e.xtirpated (rom all of its known sites. 

(Thomas. l975.) Thearg>mrentwasthcn 

made thai the species was threatened and 

later the argument was given grcaler 

urgency by saying the species was in 

imminent d;mgcr of extinction. due to 

the county's gr0\to1h. 

This t~-pe of flawed thinking is 

exemplified in this statement from the 

introduction to the study: ··sKR ,Vas the 

topicofthrcc mastcr'stheses in J 973 that 

involved review of Grinnell"s sites 

(Thomas 1975)and investigation of range 

limits of rodents (Bleich 1973 & 19H. 

Bontrager 1973). ·' Though the 

introduction does state that. ··the Bleich 

study resulted in the publication or a 

major range extension for lhe species 

(Bleich & Sehwanz 1974)." the repon 

187 

does not specify where thisdisco\'ery was 

located. 

The known range of the Stephens 

kangaroo rnl has greatly expanded since 

the publishing of the proposed rule. 

Information now shows thai SKR is 

endemic to the foothills of the Lake 

Mathews area. Estelle Mountain. the 

areas around Lr.ke Skinner and Bachelor 

Mountain. the foothill areas between Lake 

Elsinore and the Perris Valley. the Norco 

Hills and pans oft he City of Corona. the 

Anza Valle)·. Lake Henshaw and Warner 

Springs areas of nonhem San Diego 

County. and the military bases of Camp 

Pendleton and the Fallbrook Naval 

Weapons Station. Recent sun'eys have 

shown substantial populationsofSKR in 

the Tucalota Valley. Sage area. and 

Diamond Valle)·. These latter discoveries 

were part of a Section 7 consultation and 

biological sun·"C)'S for prescribed burning 

activity by the California Oepanmcnt of 

Forestry and fire Protection. 

SKR populations at Camp Pendleton 

were cited in the final rule without am· 

explanation as to why they were omitted 

in the proposed rule. Omission of these 

significant SKR populations on federal 

lands indicates SKR is more widespread 

and abundant and the threat to SKR is 

less than originally stated. 

The statement in the final rule that 

.. Vista Irrigation District. MWD. and 

State of California have large blocks of 

suitable habitat .. was not included in the 

proposed rule. Omission of these 

significant masses of protected habitat is 

another indication that the habitm range 

and abundance ofSKR were understated 

and the threat to SKR was OYCrstmed. 

The inclusion of new information in the 

final mlc. indicating less threat to SKR. 

should have caused a rccx;mtination of 

the need to list. 

The Anl".a Valley discovery is an 

inlercsting case for discussion. In 1992 

SJM Biological Consultants was 

commissioned 10 perform a trapping 

sun'~' of an approximately 800~acre site 

of a proposed country club on the Cahuilla 

Indian Resen·ation in the An:t.a Valle)". 

This sun·~· found SKR inhabits at least 

-&00 ocrcsofthc site. Momgomcry stated. 

··No attempt was made to determine the 

distributionorthcspecics throughoulthc 

propeny.'· (Montgomery 22 February 

92.) However. he also stated in the 

rcpon. ··Although all suitable habitats 

on the site were not searched for kangaroo 

rat sign, it is very likely that most or all 

extant grasslands are occupied by 

Stephens· kangaroo rats.·' He estimaled 

-100 acres of grasslands on the site. 

Montgomery went on to state in his 

reponthat he believed the Anza Valley 

harbors a large population of SKR. 

·'These results verify that a sizable 

popolation of SKR exists in the Anza 

region. which suggests funher that this 

species occurs elsewhere in this broad 

valley." (Montgomery ibid.) 

This assumption was confirmed by 

Montgomery and U.S. Fish and Wildlife 

Scr\·ice personnel through subsequent 

investigation. Atthe requestofU.S. Fish 

and Wildlife Service.thede>·eloperofthe 

country club retained Montgomery to 

perform a helicopter survey of the entire 

70.000·acre valley. Montgomery found 

suitable habitat and/or evidence ofSKR 

in se\'crallocations throughout the valley. 

Widespread occupation by the species 

was also confirmed through trapping by 

Montgomery. According to a map of the 

area gi\·en to the developer by 

Montgomery after the sun·ey. SK.R was 

confirmed through tmpping at areas as 

widespread as the source of Coyote 

Canyon in the southeast portion of the 

n1lley. to ncar the Raanona Indian 

Rcsen•ation in the north. and other large 

areas on the Cahuilla Reservation in the 

central ponionofthevalley. The map has 

written in the margin (presumably by 

Montgomery.)· ·Potential SKR habitat is 

abundant in the area ." In all. 

Montgomery'smap(Montgomcry. April 

92) showed SKR (confirmed through 

Ih·c trapping.) SKR habitat. or suitable 

SKR habitat fragments on all or pans of 

JK sections of land throughout the Anza 

Valley. This habitat is on Indian lands 

and pri\·ate range lands. near 

The U.S. Fish and Wildlife 

Service disregarded the extent of 

SKR populations on military 

reservations (and) ... also 

disregarded the significance of 

BLM lands... (and) other nonfederal public agency lands. 

Riwrsi~ County Farm Burrau News • 7 
checkerboard BLM ownerships and the 

San Bernardino National Forest. 

The subsequent investigation by U.S. 

Fish and Wildlife Service personnel was 

part and parcel of a Freedom of 

Information Act request by the petitioner. 

The petitioner was verbally told that U.S. 

Fish and Wildlife Service had surveyed 

the area. and that • 'it didn't appear there 

was that much really out there ... (U.S. 

Fish and Wildlife Service biologist John 

Bradley personal communication.) U.S. 

Fish and Wildlife Service biologist John 

Bradley indicated the survey consisted 

solely of driving and walkovers of the flat 

river valley only on the Cahuilla 

Reservation. Notes and diagrams of this 

survey were requested in petitioner's 

Freedom of Information Act request. but 

the petitioner was told they did not exist. 

When the petitioner was able to view the 

SKR file in the U.S. Fish and Wildlife 

Service Carlsbad office. there n·ere notes 

of a private meeting on the Anza Valley 

discovery between U.S. Fish and Wildlife 

Service. BLM. Bureau oflndian Affairs. 

the Riverside County Habitat 

Conservation Agency. and SKR scientific 

collection permit holders (including 

Montgomery.) These notes were 

requested to be included in the materials 

to be fonvardcd to the petitioner. but they 

were ne,·er provided to the petitioner by 

U.S. Fish and Wildlife Service. 

The spccles was discovered in 1990 

in another location in Riverside County. 

northwest ofthe previously defined range. 

Before the discovery ofSKR in the Corona 

and Norco areas. it had not been found 

north of Highway 91 (Montgomery 29 

September90.)ln this study. Montgomery 

found SKR inhabiting 196 acres of a 235-

acre parcel. The researcher captured 33 

SK.Rand 1-t Pacifickangaroorats(a nonlisted species) at the site. in habitat 

described as ''dense grassland or dense 

scrub vegetation, on most extremely steep 

slopes .... '· Montgomery estimated one 

hillside where SKR were captured at 

60%slope. Thisfindingiscontrarytothe 

proposed rule's statements that SKRonly 

188 

inhabits nearly level to moderate slopes. 

The proposed rule erroneously cited 

the habitat as limited to level or low 

rolling terrain. but both Montgomery 

and O'Farrell foundSKRonslopes up to 

100"/o. 

The statement in the proposed rule 

that SKR is confined to low rolling hills 

and level ridge tops is refuted by current 

facts of occupation. 

Montgomery also speculated in the 

same study that SKR may exist in the 

additional unde\-eloped and relatively 

undisturbed lands to the north and 

possibly, thewestofthis new discovery in 

Norco. 

There is further indication that SKR 

inhabits large areas around Norco. In 

1992 U.S. Fish and Wildlife Service 

biologist John Bradley indicated at an 

Advisory Committee Meeting of the 

RCHCA that. "Perhaps the Norco Hills 

should be added as an additional reserve 

study area.·· 

Overall. an updated range map does 

not give a complete picture of the 

tremendous change in the amount of 

assumed suitable habi~1t and also the 

amount of actual occupied habitat. A 

more complete picture would show that 

U.S. Fish and Wildlife Service apparently 

assumed in 1987 that the habitat suitable 

for the species was limited to the valle) 

floors of the San Jacinto. Perris. 

Temecula. and San Luis Rey Valleys and 

not the entire area contained within the 

shaded area of the range map. An 

accurate. updated range and occupation/ 

habitat map would include those new 

areasoullincdabove. plus areas that were 

contained in the original map but assumed 

unsuitable. This is evident in the large 

amount of known occupied habitat in 

areas that were previously ··holes·· of 

thought-to-be unsuitable habitat in the 

map. 

In aiL SKR is now known to occur in 

an area much larger than the 717.000 

acres stated in the proposed rule. The 

figure of717.000 acres was considered 

by U.S. Fish and Wildlife Serviceatthat 

time to ha\'C been the maximum range 

historically covered by the species. even 

SKR was found an average of before th~~~:;;;:/ ,%::::~::~.man. 

2 7. 3 meters or 89. 6 feet from Habitat of the Stephens· kangaroo 

rural residential housing. rat was incorrectly identified in the 

Ri~rside County Farm Bureau News 

proposed rule as limited to· "level or low 

rolling terrain. It is not found oil extremely 

hard or sandy soils." 

We now know that SK.R inhabits 

annual grasslands, sandy washes, coastal 

sage scrub to 50% cover, agricultural 

fields. and a wide variety of soil types 

including alkaline soils (Montgomery 

1989.) 

The proposed rule disproved its own 

assumption that SKRdo not occupy sandy 

soils when it stated SKR may be found in 

"adjoining sandy washes of Southern 

California.'' 

The proposed rule cited Army Corps 

of Engineers activities in flood channels 

"where the species has been found .. as a 

threat to SKR. conflicting with the other 

statement that SKRdoes not inhabit sandy 

soils. Sandy soils such as flood control 

channels were not included in the list of 

habitats available to SKR. 

There are numerous surveys, by 

several biologists, that have shown SKR 

occupation in such varied habitats as 

washes and drainages, sandy soils, in 

alkali soils. and other types of soils. 

Montgomery, in 1990 in Temecula, 

O'Farrell. Friesen. and other researchers 

have found SKR persisting in both hard 

and sandy soils. 

The proposed rule stated that gravel 

was a common component necessary to 

habitat. but findings ofSKR ina range of 

soils and habitatconditionsdisprove this. 

The habitat requirements for SKR 

are much more varied than the proposed 

rule made them appear. In a report dated 

April 2. 1992. Dr. Michael O'Farrell 

described an area ofSKR occupation that 

indicates the species' ability to withstand 

significant impacts from urbanization, 

agriculture and isolation. 

In describing the site O'Farrell 

wrote 

'"The ca. 104 acre tract is bordered 

on the north by citrus orchard, on the 

west by Mockingbird Canyon Road and 

housing. on the south by Harley John 

Road and housing. and on the east by 

Washington Street and housing and was 

surveyed for occurrence of SKR in April 

1989." 

Apparently the occupation of the 

site was relatively unchanged from the 

earlier study. as O'Farrell indicated in 

the report summary where he wrote 
·'Sign ofSKR was found over the majority 

of the site similar to that found in the 

original survc~ . · · 

O'Farrell also indicated the site had 

been heavily impacted byoff·rOad\'ehicle 

activity. something which was cited in 

the proposed rule as a factor threatening 

the SKR ·· Although posted. the site is 

impacted by off·road vehicle acth i~' 

which is particularly concentrated in the 

eastern portion of the site.·· This docs not 

appear to have had negative affects on 

SKR because o ·Farrelllater wrote that. 

·' SignofSKR was foundovcrmostofthe 

project site.. .. 

Another O"Farrell studv dated 16 

July 1989. showed thepresen.;.,orSKRat 

a site nearly surrounded by either housing 

or other thouglit·to«·unsuitable habitat 

and land uses. O "Farrell described the 

site as follows: ··The tract site is bordered 

on lhe north by current housing 

construction and El Nido and El Mineral 

Roads. by citms orchards on the eas1 and 

west. and steep relatiYely undisturbed 

hi11sides to the south. The entire area is 

crossed by a network of dirt roads. 

including the northern extension of Bull 

Canyon Road directly through the middle 

of the property. Scauered rural housing 

is present throughout adjacent lands.·· 

O"Farrcll round SKRoccupiedarcas 

along and adjacent to dirt roads on and 

adjacent to the site. Further. O' Farrell 

reponed. ··A large flat ridge in the western 

half of the site has been burned in I he 

past. This area is currently occupied in 

high abundance by SKR. The only thing 

limiting a more widespread distribulion 

on the site is the current presence of 

dense shrubs on most of the propcrt,y ... 

This passage suggests SKR is able to 

utili ze a vmiety of habitats in an 

opportunistic nwnncr. either after 

disturbances or manipulation b\' 

mechanic.1l. animal or fire changes. ThC 

evidence supporting this is apparent from 

the surrounding land uses that arc thought 

to be unsuitable for the species. These 

include the citrus groves. the steep 

hillsides, and housing. This repon and 

others also indicate the ability for SKR to 

disperse and colonize new areas through 

the use of man-made ro.:lds and trails. 

This characteristic of SKR is found 

repeatcdl~' in reports by va rious 

researchers. 

189 

The abilitr ror SKR to inhabit and 

colonize both gra7.cd lands and farmed 

f~elds has 1101 onl~· been demonstrated 

through the increased research attention 

focused on the species since the federal 

listing. but was C\'Cn known at the time of 

the listing. There is also evidence that 

U.S. Fish and WildlifeScf\·iccpersonnel 

\\'Oilting on the listing package knew or 

the positive errccts or grazing on SKR 

habitat and the ability roc SKR to persist 

in and around agricultural fields, yet the 

rules proposing and listing the species 

ignored this data and even implicated 

grazing as a factor causing its 

endangerment. This assumption 

overlooks the U.S. Fish and Wildlire 

Sen•icc sunnisc that prehistoric herds of 

deer and antelope (ungulates) provided 

habitat for SKR as they graT.Od in the 

presumed historic range. 

A comprehcnsh-c study by RECON 

for the Rin~rsidc Count~' Habitat 

Conservation Agcn~ . published in 1991. 

focused on the subject of buffer areas for 

prcsc..,·csrorSKR. In the study. RECON 

examined fi\·e sites for the presence of 

SKR all of which had dC\'Ciopment in 

closeenoughproximi~ tocxpcct impacts 

on I he species. 

The researchers attempted to 

measure the necessary distance to avoid 

impacts to SKRby measuring the average 

distance between development and the 

occupied habitat. The result was that 

SKR was found an a\'erageof27 .3 meters 

or89 .6 feet from n1ral residential housing 

(defined as lots of one-half acre or more 

in size). 

In 1982Montg""""'·roundthatSKR 

can pcrsisl · · ncxl to human dc\'Ciopmcnl 

indefinitely if the ground rema ins 

undislurbcd. · · This statement was in a 

study. ponionsofwhich were used iu the 

proposed rule: yet. this favorable 

statement to the abilit~· to coexist with 

de\'elopment was omiucd from the 

proposed. 

In se,·cra l other surveys. Dr. 

O'Farrell indicated e,·idcncc of lhe 

species· ability to persist in small. 

rragmcnted habitat patchesonincar shape 

for a period of years. The sun·cy·. 

(O"Farrcll 19'J2. ror S.I.C. Corporation) 

found 17.8 acres of occupied habitat in a 

linc:arfaY!ion.borderingagradcdhousing 

tract. The site had been sun·eycd by 

O'Farrell in 1989 with similar results of 

occupied acreage, providing evidence of 

the species· persistence over a period of 

three years. Thesur\'ey isevidenceofthe 

apparent adaptability of SKR of 

successfully persisting. even colonizing, 

small linear patchesorhabitat. O"Farrcll 

and other researchers performed 

additional work providing further 

evidence of this characteristic. 

SKR has been round to exist in coastal 

sage scrub with densities approaching 

50% aerial cover. This statement was 

made in a U.S. Fish and Wildlife Service 

letter to the U.S. Forest Service regarding 

the possible presence or the species on 

National Forest lands. The statement is 

qualified by explaining that occurrence 

in coastal sage scrub of high densities is 

usually when there is a large component 

orEncclia. orbrittlcbush. in the habitat. 

Due to Encclia being deciduous, U.S. 

Fish and Wildlife Service theorized that 

the habitat is essentially more open most 

of the year. This was supported by 

observation of Montgomery at a site near 

Riverside in 1990 

Numerous studies indicate SKR is 

able to successfully inhabit coastal sage 

scrub of various densities. Montgomery 

round SKR ··to be resident in all open 

grasslands as well as sage scrub stands 

ranging from sparse to (in several areas) 

moderately dense.·· Subsequent surveys 

by this biologist round SKR to be present 

in coastal sage scrub habitat that was 

.. moderately dense" He also observed 

SKR to inhabit pockets or· "denser·. sage 

scrub when it was near open areas or 

composed largely of Encelia. 

Researchers often prematurely 

disanissed the possibilityofSKR presence 

in ,·arious densities of coastal sage scrub 

e\·cn when kangaroo rat sign and burrows 

were obscn ·ed. This practice often 

occurred when SKR presence was 

documented in open habitats directly 

adjacenl to the coastal sage scrub h.1bitat. 

Many biologists dismissed the presence 

of SKR in CCKistal sage scrub without a 

U.S. Fish and Wildlife 

Service ... ignored evidence that 

SKR immediately reoccupies 

plowed fields. 

Ri~rsirh County farm Bureau fkws • 9 
confirming trapping effort to positively 

dctenninc the species -of kangaroo rat 

prescnl. These circumstances have 

unquestionably led to cases of 

misidentification ofSKR presence as the 

presence of the non·listed Pacific 

kangaroo rat when habitat types overlap. 

An underestimation of the amount of 

available habitat. and the amount ofSKR 

occupied habitat has occurred throughout 

the species range. 

Population size 

U.S. Fish and Wildlife Service 

obscured and misrepresented the size of 

habitat needed for a viable population of 

SKR. According to estimates allhe lime 

oft he liSiing proposal, "'low·· abundance 

ofSK.R was less than fi\·e indi,•iduals per 

hectare (O'Farrell phonccon notes w/ 

U.S. Fish and WildlifeScrvice.l/21!186.) 

The minimum viable population sit.e 

stated in the final rule would mean that a 

small patch of 100 hectares occupied in 

··Jow·· abundance would be characterized 

as viable. U.S. Fish and Wildlife Service 

then made a huge extrapolation. not cited 

as based on any biological information. 

lhal. because SKR docsn 'l usc all of its 

suitable habitat. it would take several 

square miles to support a more viable 

population. U.S. Fish and Wildlife Sen ic-c 

did not indicate whether it is referring to 

occupied habitat or sui~1blc habitat. This 

assumption was purely speculation 

unsupplrtcdbyanyscK!ntificinfonnation. 

U.S. Fish and WildlifcScn·iccf.1lscly 

presented a summary of comments 

rccci,·cd thm fnilcd to rcpor1 informmion 

which had been provided to U.S. Fish 

and Wildlife Scr\'icc indicating tim! SKR 

\\·as much more widespread and therefore 

less threatened th.an U.S. Fish and 

Wildlife ScrYice indicated Petitioner 

found many c:xamplcs in matcnals 

received from U.S. Fish nnd Wildlife 

Service under a Freedom ofln.fonnatiou 

Act request sho\\'ing that U.S. Fish and 

Wikilife ScrYiCC had rccci,·cd infomtation 

about how widespread SKR is but U.S. 

Fish and Wildlife Scavicc failedtoinclndc 

this infom1ation in its summa~·. 

U.S. Fish and Wildlife Service 

underestimated SKR population 

densities by ten-to-one. 

70 • RMrside County farm Bureau ~ws 

190 

Populo/ion densi(~' 

The proposed rule cited densities of 

21110 ~~~ SKR per hectare (which would 

be 8 to 20 SKR per acre.} when Slndiesat 

Aless.1ndro Heights (RB Riggan. 1989} 

ncar the City of Riverside showed 

densities of Ol'Cr 80 SKR per acre (which 

would be 198 SKR per hectare.) Thus. 

dcnsilics cited in the proposed rule arc 

about one-tenth of actual known 

population densities. U.S. Fish and 

Wildlife Service underestimated SKR 

population densities by ten-to-<>ne. 

The proposed rule staled that"'mOSI 

of occupied range probably has low to 

moderntc density populations. • · However. 

th\s assumption is entirely unsupported 

and disregards the high densities found 

in numerous locations. during and 

follo\\i ngycmsofnorm.11to high rainfall . 

Population densities can nuctuatc 

grcmly from year to ye.1r depending on 

amounl and timing of rainfall. Research 

by Mary Price in 1984 on the Motte 

Reserve showed a tenfold increase in 

populations or Pacific kangaroo rats (D. 

agilis) in one year with high rainfall. 

Protected populations 

In proposing the species for listing. 

U.S. Fislwnd WildlifcScn·icccomplctely 

ignored SKR populations protected on 

federal lands :ll Camp Pendleton and 

f.:1 ilcdtodocumentthcnumbcrofoccupied 

acres there. 

Not onl~· did U.S. Fish and Wildlife 

Service disregard SKR populations in 

numerous areas mentioned abo,·e. U.S. 

Fish and Wildlife Sen·ice failed to 

ClCknowlcdgc protections that were in 

place in these areas. where habitat is 

secure from de,·elopmcnt 

L:&kc Mathews lws been a protected 

ccologicnl preserve since before the SKR 

listing. and U.S. Fish and Wildlife Scl'\·ice 

railed to im·estig:llc SKR populations <tl 

this Metropolitan Water District land 

prior to listing. U.S. Fish and Wildlife 

Sen·ice claimed that agricultural and 

urban development around Lake 

Mathews and Estelle Mountain c.1uscd 

loss ofSKR habitat but failed to document 

how much habitat was losl. how much 

rcnt.1in.s and how agricuhural acti\'ity 

;: 1~ hm·e benefited SKR. 

LakcM;:uhe\\'S is now nnSKR rCSCI'\'C 

study arc.1 and is proposed as a permanent 

core prescn·e. 

U.S. Fish and Wildlife Service was 

entirely incorrect in ils statement that 

March Air Force Base and Moreno Valley 

no longer support viable populations. 

There have been new populations 

disco\'ered. more than l,OOOacresshown 

to be occupied and a reserve study area 

designation on March Air Force Base. 

Moreno Valley also supports SKR 

populalions, as numerous biological 

surveys have indicaled. 

The U.S. Fish and Wildlife Service 

Slalementlhal federal lands form only a 

small part of the range of the species 

disrcgardedlhee,tentofSKRpopulalions 

on mililary reservations and the various 

environmental protection policies of the 

military services. specifically the Marine 

Corps .11 Camp Pendleton, the Navy at 

Fallbrook Naval Weapons Station, the 

Air Force al March Air Force Base. 

Protccti\·c policies extend even to 

nonlisted species, such as the burrowing 

owl at March Air Force Base. The 

statement also disregarded the 

significanceofBLM lands (Montgomery 

1989.} Whilediscountingthe importance 

of federal lands. U.S. Fish and Wildlife 

Scrvicealsodisregardedothernon-federal 

public agency lands such as the State 

Recreation Area at Lake Perris. the San 

Jacinto Wildlife Area. Metropolitan 

Water District land holdings, Vista 

Irrigation DiSirict lands. and lands held 

by the City of Riverside Parks 

Department. 

U.S. Fish and Wildlife Service was 

equally incorrect in its statement that the 

area from Lake Skinner to Temecula has 

no viable population. Occupied habitat 

was documented throughout the area. 

Lnke Skinner was designated a reserve 

study area and enjoyed protection from 

de\'elopment. Temecula required more 

alloc.;&tion of take under the RCHCA 

IO(a) permit because of additional 

population discoveries. and Shipley 

Ranch is hca,·Hy occupied and protected. 

The U.S. Fish and Wildlife Service 

Slatemcnt in the proposed rule that SKR 

was not recorded at Lake Perris since 

1973 simply underscored the inadequacy 

ofpre-liSiing surveys which did not look 

for SKR at Lake Perris or many other 

locations subsequently found to be 

occupied. SKR occupied stale park lands 

at Lake Perris and habitat in the ncmt~ 
San Jacinto Wildlife Area. OOth protected 

areas. 

U.S. Fish and Wildlife Service 

overstated the threat to SKR populations 

around Lake Elsinore. disregarding the 

protections provided by BLM parcels. 

The area is characterized by off-road 

vehicle use. which O'Farrell. Price(l991) 

and other researchers have shown to be 

beneficial in disturbing the soil and 

providing dirt trails to encourage 

population movement within the habitat. 

U.S. Fish and Wildlife Sen•ice 

incorrectlY stated that the California Fish 

and Gam~ Commission listed SKR as 

"'endangered.·· when in fact the 

commission \"Oted not to list the species 

as endangered and indicated that the 

California Department ofFish and Game 

did not present enough information to 

wammt listing SKR as endangered. 

California had listed SKR as ··rare"" in 

1971. and by virtue of the California 

Endangered Species Act of I 986. rare 

designated species were automatically 

classified as· "threatened'' with very little 

new information and nocvaluationofthe 

accuracy of information used to support 

the earlier ··rare" designation. SKR 

remains listed as ··threatened·· in 

California. 

U.S. FISh and Wildlife Sen·ice stated 

that California Department of Fish and 

Game consultations under the California 

Endangered Species Act are inadequate 

to protect SKR because they result in 

prescf\·ation or lands in another area 

while allowing ··take" or SKR. U.S. 

Fish and Wildlirc Sef\'icc indicated this 

is an unacceptable situation for 

prcsef\'ation of SKR. HowC\'er. the 

Section IO(a) permit of the Riverside 

County Habitat Conservation Agency 

results in the same situation. where land 

is preserYed in another location while 

allowing ··take"" ofSK.R. 

Reproductive abili~\-· 

The proposed rule inferred. from 

statements that pregnant female SKR 

were found in Spring. that reproduction 

is restricted to Spring. However. Price 

(post mortem and 1991 report on 

reproductive rates after rains.) O'Farrell. 

and others found that SKR are capable of 

producing litters year round. 

The reproductive ability ofSKR was 

underestimated. The rules published for 

191 

the species indicated that the species was 

thought to only reproduce twice each 

year. Subsequent studies have indicalcd 

that the species will reproduce year round 

and ha\'t documented up to fi\"e litters 

per year. The same studies showed 

infonnationsuggestingthefrequencyand 

the size of the litters increased with the 

amount of rainfall in a given year. and 

with rainfall that occurred later in the 

year. A necropsy by Dr. Patrick A. Kelley 

(May 2. 1991) found a female. which 

diedinthecoorseofthetrapping,pregnant 

with fi,·c fetuses. 

Colonization capabili(v 

PupulationsofSKR were erroneously 

considered isolated. but there was no 

basis for assuming this. 

In stating that SKR docs not occupy 

all suitable habitat. U.S. Fish and Wildlife 

Service discounted the fluid 

characteristics of SKR populations. the 

fact that SKR populations can reco,·er 

very quickly. and SK.R's persistence in 

recolonizing previously unoccupied 

habitat. 

A 1984 study by University of 

California. Riverside. graduate student 

Narca A. Moore-Craig found SKR 

recolonizing a field within eight months 

after agricultural cultivation had ceased. 

The Domenigoni family was 

restricted from using an 800-acre fallow 

field when SKR occupied it within one or 

two years (depending on the specific area 

in the field) after agricultural cultivation 

had ceased. 

The Domenigoni family was also 

restricted in their cultivation activity on 

another. leased field. Even though a 

grain crop had been harvested from the 

field just live months earlier. SKR were 

present. 

There are numerous other studies 

showing the coloni7.ation capability of 

SKR in disturbed areas. 

1/islorica/ habitat• 

The proposed rule assumed that the 

historic range of the SKR was 717.000 

acres. but this figurewasjustaguessand 

excludes ··mountain tops." which arc 

not defined. This statement docs not 

allow valid comparisons between 

historical and present population ofSKR 

because U.S. Fish and Wildlife Service 

apparently did not exclude non-level 

terrain from its historical estimate. and 

then later. when calculating the amount 

of habitat remaining, U.S. Fish and 

Wildlife Service did exclude non-level 

terrain. U.S. Fish and Wildlife Service 

failed to explain what parameters it used 

to come up with its figures and failed to 

apply consistent parameters. 

By limiting the soil types identified 

as suitable for SKR during mapping of 

suitable soil types, U.S. Fish and Wildlife 

Service inaccurately extrapolated a 

historical habitat that was too restrictive, 

incorrectly illustrating the historical 

habitat as smaller than it actually is. 

Numerous examples show that SKR 

inhabits many more soil types than Price 

indicated in her soil type study, which 

was cited in the final rule. 

The statement that 95% of original 

SKR habitat is gone was incorrect and 

based on incompatible assumptions for 

historic and present range. The large 

number was used as historic habitat in 

order to artificially raise the percentage 

of habitat gone, which, combined with 

discounting of present habitat which was 

incorrectly assumed unsuitable, resulted 

in overstatement of the threat to the 

survival of the species. There is no 

supporting information given to explain 

or define the ··visual'' inspection of this 

fanner range. if it was by aerial photos. 

walkovers. or Agricultural Stabilization 

and Conservation Service or other maps. 

Human development and 

agricultural uses were already present in 

the early part of this century when the 

first studicsofSKR were done. Dry-land 

grain rarming and grazing were 

widespread on the valley floors since at 

leastthelate 1800s. U.S.FishandWildlife 

Sen•ice has failed to reconcile opposing 

assumptions. that agricultural activities 

which reduce invasive brush are also 

offensive to SKR but that SKR are 

displaced by invasive brush. U.S. Fish 

and Wildlife Service argumentsthatSKR 

thrive in open grassland suggests that 

grazing and agricultural practices 

introduced by European man enhanced 

U.S. Fish and Wildlife Service 

obscured and misrepresented 

the size of habitat needed for a 

viable population of SKR. 

Ri~rsid~ County Farm Bureau News . 11 
SKR habitat. There i5 inadequate 

evidence that great herds of deer and 

antelope roamed the region· s valleys and 

curtailed brush invasion. as the proposed 

rule surmised. U.S. Fish and Wildlife 

Service wants it both wa~·s. that brush is 

harmful but agricultural activities which 

remove brush and create habitat are also 

harmful. ignoringSKR'sabilityto utilize 

a wide range of habitats. 

U.S. Fish and Wildlife Service 

referred only to eight general areas where 

SKRisconcentrated, which are{ I) March 

Air Force Base to Moreno Valley. {2) 

Lake Perris to eastern San Jacinto Valley. 

{3) Lake Mathews to Estelle Mountain. 

{~) Lakeview Mountains. {5) Lake 

Elsinore. (6) Lake Skinner to Temeeula. 

{7) Fallbrook Naval Weapons Station to 

San Luis Rcy Ri\·er. and (K) Lake 

Hensh<1w. This list overlooks other areas 

where SKRare found. including CoronaNorco. Tcmescal Canyon. Sycamore 

Canyon. Alessandro Heights. Potrero 

Canyon. Steele Peak. Camp Pendleton. 

Oceanside. Aguanga. Bautista Canyon. 

Hemet. Murrieta. Winchester. Menifee. 

and An7.a Valley. 

The U.S. Fish and Wildlife Sen•ice 

statement that only three oflhe referenced 

areas contain substantial amounts of 

habitat is proven grossly inaccurate by 

current information. with SKR 

populations found in abundance in 

numerous additional areas previously 

ignored b)· U.S. Fish and Wildlife Service. 

The U.S. Fish and Wildlife Ser\'ice 

statement th;1t Lake Henshaw had 12.600 

acres of suitable habitat omits the fact 

that more than 10.000 acres. or nearl~, all 

of the acres. is actually occupied. 

(O'Farrell. 1986.) 

The U.S. Fish and Wildlife Sen·ice 

statement that SKR was extirpated from 

4.940acresofsuitable habitat at Fallbrook 

Naval Weapons Station and to the San 

Luis Rcy River is not supported. 

Montgomery (1989. Guajome Park.) 

indicates SKR arc present 

The reproductive ability of 

SKR was underestimated. (SKR) 

will reproduce year round and 

have ... up to five litters per year. 

12 - Riverside County Fa1m Burtau News 

192 

Hate of loss of habitat 

The proposed rule assumed that 

present or threatened desuuction. 

modification or curtailment of SKR 

habitat or range poses a threat to the 

species. but this cannot be proven or 

dispro\'en. There is no knowledge of the 

historical abundance or range of SKR, 

and the errors that are now apparent with 

todav's information confirm that lhe 

SKR\ range and abundance in 1987 

were gre.1tly underestimated. 

Jmpnctsfrom rural development 

and agriculture 

The ability for SKR to inhabit and 

colonize both grazed lands and farmed 

fields has not only been demonstrated 

through the increased research attention 

focused on lhe species since the federal 

listing. but was even known at the time of 

the listing. U.S. Fish and Wildlife Service 

stated that SKR is restricted to insular 

patches at edges of plowed fields but 

offered no citation and ignored evidence 

that SKR immediate!~· reoccupies plowed 

fields. 

U.S. Fish and Wildlife Service is 

entirely inaccurate in its statement that 

grazing. off·ro.1d. vehicle use_ and rodent 

control programs all reduce habitat 

suitability. Grazing has been well 

documented to improve the open 

grassland habitat of SKR and in fact is 

cited by U.S. Fish and Wildlife Service as 

the pre-European-man basis for SKR 

sun'ival. OfT-road vehicle use has 

likewise been shown to promote 

migralion and spread ofSKR populal ions. 

with SKR documented to tra\'el distances 

bywa~ ofdin roadsandtrails. andda)1imc 

usc ofORV trails has liule impact on the 

nocturnal SKR. Rodent control programs 

ha\'c been reduced and refined to limit 

the tlucmto SKR Rodent poison would 

han~ to be used illegally (according to 

current labeling regulations. independent 

of the federal Endangered Species Acl 

listing) in most cases to harm the 

nocttunal SKR. 

There is also evidence that U.S. Fish 

and Wildlife Service personnel working 

on the listing package knewofthe positive 

effects of grazing on SKR habitat and the 

abilil)· for SKR to persist in and around 

agricultural fields. Yet the proposed and 

final rules ignored this data and even 

implicated grazing as a factor causing 

the species' endangennent. 

An example of either an 

unwillingness to look at infonnation 

objectively, or an indication of complete 

misunderstanding of the facts as 

presented. is evident in the following 

passage from materials in the 

administrative record: 

.. An importantaspectofSKR habitat 

is its seral or successional nature. Most 

SKR sites are open, somewhat distwbed 

areas. Grazing, past agricultural use or 

infrequent fires keep the habitat at a state 

usable by SKR. Sua:ession to denser 

shrub growth apparently exclndes the 

small mammal from the site. This 

relationship of SKR habitat with 

vegetation dynamics may explain the 

local and shining nature of SKR 

populations. Calculation of acres of 

habitat are. hecause of this aspect of 

changing vegetation, rather ephemeral 

in nature. Also, the management ofSKR 

habitat must address the need to keep the 

habitat open. The alteration of past 

management practices which have kept 

the habitats open might well result in 

elimination ofhabitat after a brief period 

of time.·· 

The telling evidence that u.s. Fish 

and Wildlife Service personnel ignored 

or did not understand this crucial bit of 

information that did not fit their 

preconceived notion about the pristine 

habitat requirements of a species is the 

handwritten word "huh?" appearing in 

the margin next io the preceding 

paragraph. The handwriting appears to 

be consistent with other noteS throughout 

the documents used in the listina package 

for SKR by the U.S. Fish and Wildlife 

Service staff person preparing the listing. 

In any case. there were no references to 

this passage made in either the proposed 

or final rule on SKR. There are other, 

similar notes that reveal this bias on 

other documents in the listing package. 

A bias against any informatioa 

presented that did not fit the U.S. Fish 

and Wildlife Service position that SKR 

should be listed as endangered is also 

illustrated in another passage contained 

in the above referenced study: 

''Preservation of what appears to be 

many hundreds of additional acres of 

potential SKR habitat at Lake Henshaw 

is fairly well assured since watershed 
protection. grazing and SKR habitat 

preservation are all compatibleeffons in 

this instance.· · This paragraph had a 

large question mark ne:\-t to it and was not 

included in the proposed rule. 

Another study by L.F. LaPre 

indicated the prevalence of 

misinformation about SKR before the 

increased scrutiny brought about b)• the 

federallisling. lna biological report dated 

August 31. 1983. LaPre made sever11l 

comments about the ability for SKR to 

recolonize disturbed areas. 

The study focused on a parcel of 

property. portions of which had reeentl)' 

been disked for agricultural purposes. In 

a general assessment oftheenvironmental 

impact oft he cultivation. LaPre indicated 

his opinion that the damage done to the 

SKR habitat was significanl and would 

require active rehabilitation measures 

along with years of regrowth and repair 

LaPre wrote . ·' In my experience. 

repopulation of a cultivated area by lhese 

rodents requires about ten years.·· 

Later in the same study. he made a 

statement that is on both sidesofthesame 

subject. He stated. "In previously 

uncultivated areas. signs of kangaroo 

rats are abundant. whereas there is 

virtually no chance of occurrence of these 

rodents on lands plowed within the past 

five years.·' This statement contradicts 

his earlier assertion that it would take ten 

years for SKR to recolonize the site. 

The inaccuracv ofLaPre'sasscrtion 

was re\'talbd in a t9!J.I study b)· Uni, e~ty 

ofCalifomia. Riverside. graduate studenl 

Narca A. Moore-Craig. Studying a 

population of SKR on the San Jacinto 

Wildlife Area ncar Lake Perris. MooreCraig found that. among other things. 

SKR will recolonize an agricultural field 

in as little as eight months of cessation of 

cuhivation activities. 

Moore-Craig found that. ··Both one 

stephensi and three agilis were captured 

on the site. within 8 months after 

cultivation ceased. The released rats all · 

entered burrows within the disturbed 

area." 

Another case of the ability for SKR 

to quickly inhabit agricultural fields is 

illustrated by the Domenigoni family's 

experience with SKR occupying a fallow 

field of more than 800acres within one to 

two years of cessation of culth·ation. 

193 

U.S. Fish and Wildlife Service rcstriclcd 

the Domenigoni family from farming 

this property until Nm·ember 1993. 

immediately after the devastating 

California Fire. U.S. Fish aud Wildlife 

Service biologist John Brndteystated SKR 

had left the field prior to the fire because 

of the overgro\\1h of brush and litter ~ 

which was a direcl "'suit of the U.S. Fish 

and Wildlife Service restriction on 

clearing or cultivation. 

SKR has also been shown to inhabit 

grain fields during the crop year. The 

Domenigoni family also leases propert)· 

where they were restricted in their 

cultivation activity on a field that had 

been han·csted only five months earlier. 

The Domenigoni family was ordered to 

stop their farming activity because of the 

presence of SKR within the acti\·e grain 

field. 

Statements that SKR were found in 

abandoned \·ineyards and citrus gro\'es 

recently acquired by Riverside County 

Habitat ConscrYation Agency have also 

shown the ability ofSKR to inhabit more 

intensh·ely-farrncd agricultural lands. 

Encroachment by heavy, weed~· 

undcrgro\\1h presenls lhc greatest threat 

to SKRasa direct result ofU.S. Fish and 

Wildlife Service restrictions on human 

acth·itics such as agricultural practices 

and firebreak clearing. 

U.S. Fish and Wildlife Service 

reference to a Stale Recreation Area rodent 

control program as a threat to SKR 

disregarded the opportunity. through 

government agcnc~ cooperation. to 

rnan.1ge this program to minimi7..C risk to 

SKR through a diurnal treatment 

schedule. The U.S. Fish and Wildlife 

Sen.-ice statement suggests that it was 

purel~· a guess. 

Consultants" obsen'ation of the 

unexplained disnppearnnce of SKR sign 

and !he unsupported hypolhesis that this 

was a result of rodcnticides is 

unsupported. appears on the face of it to 

be merely a guess. has been shown to be 

incorrccL and appears to be a weak attempt 

to convey an over--exaggerated threat to 

the species. Subsequent research shows 

the SKR to be dynamic in its habilat 

utilization. and disappearance of SKR 

sign \\ithout Olhcr supporting C\'idence 

is inconclusi,·c 

Urhan growth patterns 

The proposed rule presumed that 

rapid urbani7.ation in the range has 

resulted in elimination of entire 

populationsofSKR. However. U.S. Fish 

and Wildlife Service has failed to show 

linkage or pro\·e fragmentation. Despite 

the rapid urbanization, SKR managed to 

survive and thrive in elongated patches 

and supporting dirt roads, and they have 

generally managed to have gene flow 

O\·er hundreds of generations and years 

of this supposed isolation since the 

presence of agricultural development 

occurred before the turn of the century. 

U.S. Fish and Wildlife Service 

greatly 0\·erstated development pressure 

in the Lake Mathews area when it argued 

thm SKR is likely to be extirpated from 

theentire area because of planned housing 

and agricultural development except for 

the 2.500 acres in the Lake Mathews 

ecologicHI preserve. In fact. there has 

been an expansion of SKR and new 

diSCo\·cries of occupied habitat in that 

area 

U.S. fiSh and Wildlife Service 

concern about infrnstructuredevelopment 

is dispro\"en by 1he experience with the 

Dc,·crs-Scrrano power line right-of-way. 

where populations increased around 

disturbed areas. and by research by 

O' Farrell and others showing linear 

characteristics of SKR populations 

throughout history. 

The proposed rule made several 

incorrect assumptions regarding loss of 

populations. It wrongl~· assumed that. 

because 78 percent of the sites where 

SKR had previously been found were 

now zoned for "incompatible uses," 78 

pcrcclll of I he SKR population would be 

eliminated_ This assumption ignored the 

fluid characteristic of SKR habitat 

occupation U.S. Fish and Wildlife 

Scn·ice assumptions about compatible 

uses h<t,·c been disprovcn. 

U.S. Fish and Wildlife Service 

pro\'idcd no explanation or definition of 

compatible and incompatible zoning in 

the proposed rule. 

U.S. Fish and Wildlife Service 

greatly overstated development 

pressure .. 

Riverside Cou nty Farm Bureau News . 13 
The U.S. Fish and Wildlife Sen·ice 

assumption that 7-0ning c.1n be ch.1nged 

is an inconcklsi\'eproposition. U.S. Fish 

and Wildlife Service always says 

protccti\'e zoning is not a strong enough 

indicator of protection of species. By the 

same argument. land use agcnc;;ies have 

been known to ' 'down-zone' ' lands in 

sensitive areas. providing increased 

protection of species. 

U.S. Fish and Wildlife Scn·iceonly 

cited zoning in Riverside County to 

support lisling c\·cn though 

approximate!~· 50% of the SKR 

populations (RCHCA short-term IO(a) 

EIR) were already protected. 

The U.S. Fish and Wildlife Sen•ice 

statement thou Riverside County's open 

space zoning is not adequate is 

unsupported. U.S. Fish and Wildlife 

Service incorrectly assumed that all 

human activities arc incompatible with 

SK.R when it stated that .. only a small 

fraction of the im·oh·cd land is current)~· 

zoned for uses compatible with the krat. 

Condusion.\· 

Petitioner disputes the U.S. Fish and 

Wildlife Scn·ice contention that it 

assessed the best scientific and 

commercial informationa\'ailable. when 

in fact U.S. Fish and Wildlife Service 

omitted numerous specific examples of 

favorable infonnation, information that 

subsequently appeared in files made 

available to petitioner in resp:mse to a 

Freedom of Information Act request 

(Friesen. TMC and O 'Farrell. Warner 

Ranch. and solar facility.) 

Pclitioncrdisputcs the legitimacy of 

the U.S. Fish and Wildlife Service 

decision 10 list SKRasendangcrcd. based 

on ··phonccon notes .. of Karla Kramer. 

principal author of the proposed rule. 

and Ron NoYakofU.S. Fish and Wildlife 

Service office of Endangered Species. in 

which the two persons casually and 

indi\'idually made an arbilrary and 

unsupported decision to Jist SKR as 

endangered rather than thre.1tcncd. 

Petitioner disputes U.S. Fish and 

The described range in the 

proposed rule (to list SKR) was 

incorrect and incomplete. 

14 • Riwrsick County F.Jtm Burtau t*ws 

194 

Wildlife Sen'ice assumption that all 

human acti\"ity is detrimental to SKR. 

when in fact various human acti\·ities 

ha\·c been well documented to be 

beneficial or to have negligibleefTccts on 

SKR, These activities include gra1.ing, 

ofT·road vehicle use. cenain agricuhural 

practices including disking,. and some 

rural devcloponent. By assuming all 

human activity is detrimental . without 

defining the type of human activity, U.S. 

Fish and Wildlife Service hasm·erstated 

the lhrcat to SK.R. inaccurate!" analyzed 

the history of SKR habitat a~d fail~ to 

dcmonslrate that SKR population is 

significantly declining: in fact. 

restrictions on human activity imposed 

b~· U.S. Fish and Wildlife Service have 

conlributcd loa decline in suitable habitat . 

Petitioner disputes U.S. Fish and 

Wildlife Scn·ice assumptions about the 

extent of development acti\·ity and the 

threat which development poses. when 

U.S. Fish and Wildlife Service has 

disregarded important porlions of 

scicnlilic information available to it and 

h.1s f:tilcd locorrec&ly analy-.tc the impacts 

of human acti\'it)·. 

Petitioner disputes U.S. Fish and 

Wildlife Scn'ice reasons for not 

determining critical habitat for SKR. 

where the issues outlined b)· U.S. Fish 

and Wildlife Sen·ice have been refuted as 

not being significant threats. U.S. Fish 

and Wildlife Scn·icc assumed land onner 

disking would e~tii'J)I1te SKR. when in 

fact disking bas been shown to maintain 

snilablc l141bit1t agninst coastal sage scrub 

cncroachmenl and to encourage 

populcuion expansion. No land O\\ncrs 

with SKR~upicd habitat were notified 

of SKR presence until after suspected 

Section 9 ,·iolations. U.S. Fish and 

Wildlife Service accepled as fact an 

unproven hypothesis that rodenticide use 

\\CJsrcspollSiblcfordisappcaranceofSKR 

sign in ccnain areas whHe disregarding 

known facts about the dynamics of SKR 

habilat usc ;:md migration. 

Petitioner disputes that U.S. Fish 

and Wildlife Se!\·icc has adhered to the 

Endangered Species Act. because U.S. 

Fish and Wildlife Service has failed to 

initiate a species recovery plan for SKR. 

Petitioner finds that information 

developedsincetheoriginallistingshows 

lhere were gross errors on the pan of the 

U.S. Fish and Wildlife Service in 

underestimating the population, range, 

and persistence of the species. 

Petitioner further finds that the U.S. 

Fish and Wildlife Service erred in 

exaggerating the threats 10 the species' 

existence. 

Because of the evidence presented 

herein. Riverside County Farm Bureau, 

Inc .. submits this petition to delis! the 

Stephens' kangaroo rat under the 

Endangered Species Act of 1973 and its 

amendments. 

Asking for bankruptcy 

What almost ho~pt:>enl!d in Dewit Hot 

Splingsoughttogiv~50fl'WotherciltninRiv~ 

County som~thing to think o~bout. 

OtsertHotSpringswo~swonderingwhtther 

it would be bankrupcl!d by .J ~it. There .Jre 

nine cities in western Rrverstde County that mo~y 

.tlso be wondering how deep their pockets .tre. 

The issues are different, but the rHUit could 

be similar. 

Oe~rr Hot Springs f.Jced a coun decision 

tho~tcoukt havecostthe-cityupto$6million. The 

cue still isn't resolved, o~lthough tht court 

subst.iln1~!ty .eWced a S3 mi\Noo penalty fOf 

violation of theftdenl Fair Housing Act. Interest 

and other costs would have doubaed the penatty, 

o~possibilityth~h~OesertHotSprinpresidenrs 

talkins of b.lnkrupecy or disincorporation. The 

ca~ could go back for another trial. 

The othtr cities that have re01s0n to worry 

01re tht ttn western Riverside County cities that 

jointd tht Riverside County Habitat ConMfVation 

Agency. A lawsuit has been filed by Tom and 

Janict Merger SHkins ~ .. m,.es bec.JUse of 

property restrictions imposed to protect the 

StepMns' bnproorM. This one lawsuit, for the 

value- of their pmperty, asks fOJ more money 

th;m ftCHCA currentty has in the ~nk, and there 

could br more- l~;cs cornin& 11 must have 

occUf'redto tMRCHCA·~r cit~ thatthqcoukl be stuck with 1he bill if couns find 

tndangered species restrictions to be improper 

o~nd RCHCA can't pay. Farm Bureau has 

rtpeatedly reminded loc.ill governmtnts th.i!t krat restrictions, from denying gr.i!din& permits to 

telling citizens they can't disk firebreaks, are 

cre tedby loc•ls~rnment TheCityofMUtriet.l 

just fo ~n lime topMt of the pendin& lawsuit. 

The cl«y representatives who sit on the 

RCHCA boa.rd mo\y be much more ~nsitive to 

property rights issues in the future. 

Biological survey request 

miselt~ds property OWMrs 

Property owntrs are being mislead 01bout 

thepossibletffectsofthtCa.chellaValleyMultiSpeciH Habibt ConSt!rvatton Plt~~n, which ls 

bein& devel~d by the Coachella Valley 

Assoc:i.ahon of Covernmt"nts. 
195 

Political Power Intoxicates 

By .)enn/or llnymond .\'. fln.yne.\ 

Political power intoxicates people. 

especiillly bureaucrats. When a man is 

intoxicated by alcohol. he can recover. by 

stopping his consumption. but when 

bureaucratic agencies are intoxicated b)· 

political power. they seldom recover 

without massh·c curtailment 

Each week a new abuse of political 

power by an agency comes to my auemion. 

just when I thought goYemment abuse 

could not infringe any further on propert~· 

righls. 

This time. in the name of the 

Endangered Species Act. statcbureaucralS 

from the Depa rtment of Fish and Game 

haYe run amok against the Cameron 

Baptist Church in El Dorado CountY. 

The bureaucrats determined to force the church to spend $~5.000 on 10.5 acres of 

property at S-t500 per acre and deed it 

oyer as a --rare plant prcsen·e .. or the 

church would ha"e to set aside a portion 

of the church ra,·e~acre site i'IS a ··rare 

plant preserve.·· Of course. to set aside 

property meant the church could not 

build. 

The County Board ofSupen·isors. in 

an effort not only to appease the 

Department offish and Game. but also to 

keep the abuse from impacting small 

building projects like the church. set 

aside rour plant reserves and charged 

taxpayers $4.7 miiJion in 1993. 

Unfortunalcly. this was not enough 

to satis(vthe )lO\\Cr grab by the bureaucrats 

of Fish and Game. which sought yet 

another presen·e. The new Cameron Park 

Baptist Church just happened to be next 

to an area the bureaucrats wanted as an 

additional ··rare plant preserve.·· 

Cameron Park Baptisl Church is 

now a victim. because the bureaucrats at 

Fish and Game were intent on obtaining 

a foothold in the area surrounding lhe 

church. Theultimatumbv Fish and Game 

for the land is bette~ described as 

·'government e~1ortion ··because ''ithout 

acquiescence to the strong~arm tactics. 

the church could not complete their 

construction project. 

The church site is not even located 

on the propert\' the bureaucrats want to 

take as a .. ra;e plant" prescn•c. but is 

some HKJ yards away from it This. of 

course. still docs not prerenlthc egregious 

over~rcachofFishandGameburcaucrats. 

Those who oppose this abuse of power 

arc accused of raping the land and 

opposing rational environmental 

regulation. 

This is bv no means an isolated case 

of Fish and Game bureaucratic abuse. 

nor arc their actions about the pretext of 

sa,·ing I he '"emL1ngercd nowers·· of Fl 

Dorado County: it is lhc unchecked. 

unrestricted abuse of power b,- the 

Department of Fish and Game.· II is 

unconstitutional and in same cases 

shocking. 

This power misuse. as described 

above. is onl~· one example of the 

hundreds I am aware of in California. 

Another example of this unrestricted 

abuse by the Dep.1rtment of Fish and 

Game in Murrieta led me to author 

senate Bill S.B . .JXJ to reign in burc.1ucra1s from the Department of Fish 

and Game. Pri,·ate property protection 

has lo mean something in this country if 

we 'rc going to preser\'e freedom. 

Hidden agendas: Babbitt 

gets it wrong again 

l~v Uoh Perl.:ins 

Farm Burr.x1 Exrcutivr Manager 

In a May 25 statement 

unintentionally dripping with irony. 

Interior Secretary Bruce Babbitt charged 

that Republican spending cuts are a 

· 'dclibcrateassaulton the environment'· 

and are .. ideolog_v masquerading as a 

budget ... 

B-abbitt's Wnpliutiott tlwt there is some 

othef purpose to the cuts b@yond tfle need to 

~'-ce the fede-r~ budset echoes past charges 

from l.,w;t Cl'vnet' intefnts that many regulatory 

prorrams ~ B.lbbin's MJtho.-ity •e ass.MJits 

on pfvMe property ritf1ts and ¥ e Jbout inlp()Sing 

fedeu:l Llnd ~ controls r.1thet- 11\an about 

const'fVin& ~ed species Of ptoteccing 

the~onment. 

Orpniz:•Kxts likrfarm Bur-eau which h.we 

deWndecl pr~ righcs fl"e long criticizfli 

feeler~ rep~ory procrm~Ssucfl ~endangered 

species restrictions for fai&ins to achieve their 

intended purposes while Nrming the economy 

and lakin& away basic property rights. 

Salton Sea solution 

could cost billions 

IJoh 11oh Perkim; 

Farn\ 8u1 e.au Executive Manager 

"' Sa\'ing '' the Salton Sea from 

becoming a de;ad sea or a dry lake bed 

could cost more than S2 billion a \'ear 

The problem is very simple. About 

one million ;acre·feet of virtually pure 

water cvapor;ates from the sea every year. 

lea\'ing behind salt and minerals. The 

water lost to e''<tporation is replrtced by 

runorr carrying salts and minerals from 

the surrounding desen. Without an" 

outlet from the below-sea-level sea. th~ 

salt and mineral content continues to 

collect and concentrate. 

Just keeping the sea from becoming 

any saltier would require purifying one 

million acre-feet of water per year 

RC\·crsi ng the sea · s salinity would require 

purifying more water per year than is lost 

to evaporation. 

One million ac re~fect is almost as 

much water as Southern California 

rccei,·cs each year from the Colorado 

River Aqueduct. At average wholesale 

water rates of around $250 an acre-foot 

in Southern California. the equivalent 

water cost is at least $250 million a year 

just to maintain the sea in its present 

condition. If water purification is 

undertaken by desalination. at current 

costs upward of$2.000 an acre-foot. the 

allllll<ll cost to maint.:1in the sea jumps to 

$2 billion or more. 

There arc n~· ways to manage the 

Salton Sea. including some less costly or 

Jess comprehensive alternatives. 

One concept is to build dikes and 

separate areas oft he sea. such as around 

the shoreline. where water quality could 

be maintained while allowing the bulk of 

the sea to become a dead sea. water filled 

with concentrated minerals where 

OOlhing can live. 

Another concept is to exchange less~ 

s.11ty ocean water from the Gu•f of 

California for Salton Sea water. One 

,·ersion ofthis idea considers a ship canal 

using locks to bring commercial sea uaffic 

inland. 

Riversitk County f.Jrm Bureau News - 15 
196 

Qiver&de Counly 

Farm Bureau New. 

l'tJbliiiNdbylliwnide Counry f•m Bcnuu, lrrc. 

A privoOt, nonpmllt .,.,.iution seMns ,.,,." thtoughout RMnitk County si~ 1917 

21160 Box Springs Road, Suite 102 

Moreno Valley, California 92557 

Sarita Margarita Watershed 

planning resumes 

ahead, Farm Bureau recommended 

dela)ing the contract approval until after 

the May 18 meeting of the watershed 

policy commiuee and also supported 

making the Flood Control District the After lead agency. lengthy discussion among 

county. supervisors and from property 

owner and environmenlal groups, the 

Board of Supervisors decided to resume 

the Santa Margarila River Watershed 

planning effort. to designate the county 

Flood Control District as the lead agency, 

aDd to approve a contract fora watershed 

study. 

The contract apprm'81 included a 

proposal by Supervisor Roy Wilson to 

involve Farm Bureau and Building 

lndusuy Association· in county agency 

oversight of contract performance. 

Supervisor John Tavaglione was the 

lone •·no" vote against approving the 

contract. although Supervisor Tom 

Mullen .expressed reservations about 

funds provided by EPA and about Coastal 

Conservancy's oversight involvement. 

The environmental side almost made 

the case for rejecting the contract. The 

CoaSiat Conservancy aclmowledse that 

$100,000 of a $270,000 grant to pay for 

the watershed study comes from the EPA 

and that the conservancy has an interest 

in seeing that the money is spent the way 

they want. The conservancy's Prentice 

Williams said she likes to ''takca handson approach.·· Tavaglione said he could 

not support the contract. Mullen asked 

why the conservancy couldn'tjust offer 

the funds and then step away ,leaving the 

county to supenrise thec::ontractor·s work 

on the study. 

Mullen said the conservancy's 

involvement appeared to be " not only 

oversightbutintrusion. Forastatcagency 

to _operate that way is irresponsible.'· 

Supporting contract approval. a 

16 • Riwrsit:* County F.m 8u~.1u News 

Temecula resident told the supervisors 

"there's more involved than just the 

Hood control issue." That was a point 

that property owner groups, including 

Farm Bureau and the Building IndustrY 

Association. also pressed, telling 

supervisors they feared the study would 

lead to unwanted land use regulation. 

Farm Bureau spoke in opposition 

both to resuming watershed planning 

activity and to approving the contract 

with Coastal Conservancy funding. 

Acknowledging that the county might go 

Supervisor Kay Ceniceros defended 

the planning process, saying 110 one is 

beingleftoutandcriticsaren'tpresenling 

accurate information. 

Supervisor Bob Buster talked about 

the need to plan growth. At one point he 

gotintoanargumentwithBIAspokesman 

Soon Woodward about a development 

project which Woodward had represented, where the developer later went 

bankrupt. 

Farmers side of endangered species 

problems told at museum_meeting 

"Imagine being told you couldn't go to your office or earn a paycheck." 

That was how Farm Bureau Manager Bob Perkins explained Andy and Cindy Oornenigonl's 

plight to a non-farm audience at the San Diego Natural History Museum on May 20. 

He told the snqll group of about 20 people how the OomtnigonifamitywustoppedfTom 

farmin&800 acrH of tMir land. Perkins was a p;anelist for the museum's presentation, "Stayin& Alrvel AueNin& the 

Endanpred Species Act." 

CharacWrltir\sthe ESA a a comP'ftef.W..e virtuaUy guaranteed to .timinatt spetin and 

-·· K. ~ Smith of tho Compotitiv< Entotprile lno!IMo in W.........,, O.C., pv< n pone! SOrM contrcwersy to stimulate disaJssion. 

Panelists included Craig Adams of the Sierra Club, Karen Scarborough rep,...,..tin& San 

Diego Mayor Susan Coldins. Ed Saufs repr..enting the Building lncllstry Alsoclation, and 

Miehael Beck of the Endangered Habitats Leap. 

•The audience looked like it mi&htlean toward the environmental aide of the issue: Aid 

Ptrltina, •but .. dience memben wt-re polite and cracious and SHmed genuinely interested in 

............ - of tho Mlbject.. 

TM IYliJJfUm also showN rhe Nature ConwrvJnq" film, "The Coac:hetl.t Solution, ~ 

the #ringe-toedli:zard preseNe. Sauls commented that this conservation effort worked becaust 

it hadacleartyldtntifledpl andwas IUpportedbyfundnsfrom pern~Mnt.Kt l'fW'irormmta 

orpnizat~• .as ~I as private land OWJWrS. 

PnkmtaiQdibouthowhHMtMconwrvationfsputtingundisturiwedbndofflimb.ltMn 

farmlandaatheonlywptfornewdevetopment. HtpointedoutdW:rMmuHUm'atrw:Sanpre 

specintxhibitincluded an interactfveexhibitsayinschat, from amongadnert, abandonedCOJ 

field, wettandt and forest, the com fMtd is the best place to put a new development. 

Heatso n:plaintdsugestions formakinsNaturaiCommunitinCOftMfVItionPbnninsar 

similar habitat plans voluntary, inc8tivt"-~ prosrams, a concept he had offered at tl 

Senate-Aswmbly Marins on NCCP IWO dlys btfoft. 
DON YGUNG, CHA<RMAN 

SMUD and the ESA 

197 

11l.~. Jlnu.st nf i!\tprt.stntattuts 

([ommittrr on 1Rr!iourw3 

imallbmgton. Iii! 20515 

The Sacramento Municipal Utility District (SMUD) is the nation's 

fifth largest publicly owned electric utility. It provides 

service to the greater Sacramento, California area. 

SMUD is in the process of developing four cogeneration plants 

which will provide electrical power for its service area. These 

projects will replace, in part, electricity which was generated 

by the now closed Rancho Seco nuclear power plant. 

The four plants are located in the Sacramento area at the Procter 

& Gamble manufacturing facility, the Campbell Soup Company 

facility, a regional wastewater treatment facility, and an 

ethanol and power cogeneration plant which is being constructed. 

SMUD is constructing a 64 mile natural gas pipeline which will 

serve each of the cogeneration plants. SMUD was required to complete a lengthy and expensive licensing process with the 

California Energy Commission (CEC), and pay $100,000 in 

mitigation fees. It was subsequently required to complete 

further negotiations with the U. S. Fish and Wildlife Service 

(USFWS), and spend another $400,000 to set aside 200 acres to mitigate impacts to the "endangered" fairy shrimp. 

Pictures one through four show some of the habitat where the 

fairy shrimp exists along roadways in industrial parks. Picture 

five shows the tire depressions where this species also exists. 

Pictures six through nine show railroad right-of-ways strewn with 

trash which were also considered habitat. USFWS required SMUD to 

mitigate this 2/10ths of an acre area. 

A total of 25.5 acres was required for mitigation of the areas 

pictured. However, SMUD was required to set aside a total of 200 acres. The remaining 174.5 acres are to be used for future 

mitigation of SMUD projects, with no guarantees of mitigation 

ratios. 

Suppose you were forced to pay $250 for a traffic ticket on a trumped up charge, and then the judge ordered you to pay $2,000, 

of which $1,750 could be applied to possible future traffic 

violations? You would be dealing with the Fish and Wildlife 

Service and its abuse of the Endangered Species Act. It's time 

to restore some common sense to this conservation law. 

ATTACHMENTS - FOUR PAGES OF PHOTOGRAPHS 
Figure 2 

198 

Depre.ssinn at Procter and Gamhk which ponds waw in sprin~ Br,m<"hi•l<'<'llllm,"/u 

located here 

Same site as ahove in summer months B lvn chi eggs are ahundam at site 

R'prt>Jl'ntanw sues from SML'D ·s Procter and Gambit 

Cn~nuranon Sitt and Natl.ir:J.l Ga.~ Pipt>lin t 
199 

Figure J Other depressions at Procter and Gamhle which a1S1' rkl!ld I) ;-;icr 1n >llri:1}: 

BranchineCfa lynchi also identified hc;re 

Figure 4. Same site as above in summer months 

R~pr~sentativ~ siles from SMUD :S Procter aru:i Ga.mbl~ 

Cognuraflon Site and Natural Ga._t Prp~bn~ 
Figure 5. 

Figure 6. 

Tire depre~sions a.t Procter 

and Gamhk which p1mJ water 

in spring. Branchinecta lvncht 

also identified at r.hese 4 sites 

Railroad nght-of-way 

where Lepidurus packardi 

and Linde riel/a occident alt.\ 

were identified during spring 

rains 

Represenrari~e sites from SMUD 's Procter and Gamble 

Cogeneration Sire and Natural Ga-1 P1pehne 

200 
Figures 7, 8, 9. The Sacramento Muni cipa l Utilities D

(SMUD) was r equired to set aside 200 acres of land at a 

$400,000 t o mitigate .2 acres (two-tenths of a single a

the fairy shrimp habitat pictured. 
202 

United States Department of the Interior 

Honorable Don Young 

Chairman 

Committee on Resources 

OFFICE OF THE SOLICITOR 

Washington, D.C. 20240 

July 17, 1996 

U.S. House of Representatives 

Washington, D.C. 20515 

Dear Chairman Young: 

At a hearing in late June before your Committee, Congressman 

Pombo and Congresswoman Chenoweth asked me for information about 

the position of the United States in the Bennett v. Plenert (no~· 

Bennett v Sp~) case, which the United States Supreme Court 

will review next term. I responded that the government's brief 

was in preparation and offered to provide interested members with 

copies once it was filed. 

Attached is a copy of the brief the government filed July 15. 

Its basic thrust is that the plaintiffs in the case did not 

structure their lawsuit in a way that met either constitutional 

standing requirements articulated by the Supreme Court or 

established principles of administrative finality. Most 

important, they have llQt sued the federal agency taking the 

action that they complain of (the Bureau of Reclamation, which 

operates reservoirs in the Klamath basin), but rather have sued 

only the federal agency (the Fish & Wildlife Service) which 

prepared a biological opinion on the impact of reservoir 

operations on endangered species. 

The brief is even-handed in acknowledging that all categories of 

citizens may obtain review of governmental action concerning 

protected species, but only if they structure their lawsuit 

appropriately: 

Decisions made by an action agency in reliance upon a 

biological opinion may be challenged either by persons 

asserting an interest in listed species or by persons 

asserting a competing interest in the resources in question. 

In either type of suit, a reviewing court may scrutinize the 

Service's biological opinion and may vacate the action 

agency's decision if it concludes that the biological 

opinion is arbitrary and capricious. (Brief, p. 14) 

The rule that a biological opinion may be challenged only 

within the context of a suit against the action agency 

imposes no special disability upon plaintiffs, like 

petitioners, who assert an economic interest in the use of 
203 

natural resources. Rather, that rule applies equally to 

environmental plaintiffs alleging that the opinion is 

insufficiently protective of listed species . (l.d..._ at 16) 

[A]ny actions taken by the Bureau in reliance upon the 

biological opinion are subject to judicial review at the 

behest of persons injured by them. Persons whose requests 

for water are denied as a result of the Bureau's adoption of 

the Service's reconunendations would be appropriate 

plaintiffs to challenge the BOR's actions. And in the 

course of reviewing the Bureau's conduct, the court can 

examine the biological opinion and the evidence on which it 

was based. In reviewing the scientific judgments embodied 

in the biological opinion, moreover, the court would employ 

the same arbitrary- and-capricious standard applicable to 

suits brought by environmental plaintiffs conc:ending that 

actions taken in reliance upon a biological opinion were 

likely to jeopardize listed species . (I.Q__,_ at 46-47) 

Thus, the scientific judgments embodied in a biological 

opinion may be challenged in court within the context of a 

suit against: an action agency, either by plaintiffs who 

allege that the opinion is insufficiently protective of 

listed species, or by plaintiffs who allege that the opinion 

recommends unreasonably severe constraints on the use of 

natural resources. The timing and standard of review would 

be the same in both contexts .... (~ at 47) 

Thank you for the opportunity to inform you of the position of 

the federal government in the Bennett case. 

cc: Cong. Pombo 

Cong. Chenoweth 

n~!)LL hn D. Leshy 7 

icitor 
204 

·t:,:O o_.,;,,,.,,.,j,,·l'' .)1 ;,.; -., f ·' . I . - ·• .t~ ..¥9\:~ ,· .... , ... ,.f•:rlJ·· - (' {! ·~· .. . : 

rJJn\,tlje~~iiprcnte qtourt of the Wlnitrb ~tntrs 

OCTOBER TERM, 1995 

BRAD BENNET!', ET AL., PETITIONERS 

'. ·''' v. 

l'.·:) ' . 

' MICHAEL SPEAR, ET AL. 

ON WRIT OF CERTIORARI 

TOiTHE UNITED STATES COURT OP APPE:M.S 

FOR THE NJN1'1/ CIRCUIT 

: ' .. 

BRJEF 'FOR THE RESPONDENTS 

WALTER DELLINGER 

Acting Solicitor Gen eral 

LOISJ. SCHflo'FER 

Assistant Attorney General 

EDWIN S. KNEIWLEH 

Deputy Solicitor General 

MALCOLM L. STEWAHT 

Assistant to the Solicitor 

• General 

ANNES. ALMY 

ROBERT L. KLAHQIJIST 

EVELYN S. YJNI; 

Attorneys 

Department uf Justice 

Wash ingtou, D. C. 205:10 

(202) 514-2i17