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THE DANGER OF DECEPTION: 

DO ENDANGERED SPECIES 

HAVE A CHANCE? 

OVERSIGHT HEARING 

BEFORE THE

COMMITTEE ON NATURAL RESOURCES 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

Wednesday, May 21, 2008 

Serial No. 110-72 

Printed for the use of the Committee on Natural Resources 

( 

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html 

or 

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

(II) 

COMMITTEE ON NATURAL RESOURCES 

NICK J. RAHALL, II, West Virginia, Chairman 

DON YOUNG, Alaska, Ranking Republican Member 

Dale E. Kildee, Michigan 

Eni F.H. Faleomavaega, American Samoa 

Neil Abercrombie, Hawaii 

Solomon P. Ortiz, Texas 

Frank Pallone, Jr., New Jersey 

Donna M. Christensen, Virgin Islands 

Grace F. Napolitano, California 

Rush D. Holt, New Jersey 

Rau ́l M. Grijalva, Arizona 

Madeleine Z. Bordallo, Guam 

Jim Costa, California 

Dan Boren, Oklahoma 

John P. Sarbanes, Maryland 

George Miller, California 

Edward J. Markey, Massachusetts 

Peter A. DeFazio, Oregon 

Maurice D. Hinchey, New York 

Patrick J. Kennedy, Rhode Island 

Ron Kind, Wisconsin 

Lois Capps, California 

Jay Inslee, Washington 

Mark Udall, Colorado 

Joe Baca, California 

Hilda L. Solis, California 

Stephanie Herseth Sandlin, South Dakota 

Heath Shuler, North Carolina 

Jim Saxton, New Jersey 

Elton Gallegly, California 

John J. Duncan, Jr., Tennessee 

Wayne T. Gilchrest, Maryland 

Chris Cannon, Utah 

Thomas G. Tancredo, Colorado 

Jeff Flake, Arizona 

Stevan Pearce, New Mexico 

Henry E. Brown, Jr., South Carolina 

Luis G. Fortun ̃ o, Puerto Rico 

Cathy McMorris Rodgers, Washington 

Louie Gohmert, Texas 

Tom Cole, Oklahoma 

Rob Bishop, Utah 

Bill Shuster, Pennsylvania 

Bill Sali, Idaho 

Doug Lamborn, Colorado 

Mary Fallin, Oklahoma 

Adrian Smith, Nebraska 

Robert J. Wittman, Virginia 

Steve Scalise, Louisiana 

James H. Zoia, Chief of Staff 

Rick Healy, Chief Counsel 

Christopher N. Fluhr, Republican Staff Director 

Lisa Pittman, Republican Chief Counsel 

(III) 

CONTENTS 

Page 

Hearing held on Wednesday, May 21, 2008 .......................................................... 1 

Statement of Members: 

DeFazio, Hon. Peter A., a Representative in Congress from the State 

of Oregon ....................................................................................................... 5 

Inslee, Hon. Jay, a Representative in Congress from the State of 

Washington .................................................................................................... 6 

Lamborn, Hon. Doug, a Representative in Congress from the State of 

Colorado, Statement submitted for the record ........................................... 7 

Rahall, Hon. Nick J., II, a Representative in Congress from the State 

of West Virginia ............................................................................................ 1 

Prepared statement of ............................................................................... 2 

Smith, Hon. Adrian, a Representative in Congress from the State of 

Nebraska ........................................................................................................ 3 

Statement of Witnesses: 

Black, Scott Hoffman, Ecologist/Entomologist, Executive Director, The 

Xerces Society for Invertebrate Conservation ............................................ 147 

Prepared statement of ............................................................................... 148 

Franklin, Dr. Jerry F., Ph.D., College of Forest Resources, University 

of Washington ............................................................................................... 118 

Prepared statement of ............................................................................... 120 

Grifo, Dr. Francesca T., Ph.D., Senior Scientist and Director, Scientific 

Integrity Program, Union of Concerned Scientists .................................... 123 

Prepared statement of ............................................................................... 125 

Irwin, Larry L., Ph.D., Principal Scientist, National Council for Air and 

Stream Improvement, Inc. ........................................................................... 165 

Prepared statement of ............................................................................... 166 

Response to questions submitted for the record ..................................... 175 

Kraus, Scott D., Ph.D., Vice President of Research, New England 

Aquarium ....................................................................................................... 109 

Prepared statement of ............................................................................... 111 

Laverty, R. Lyle, Assistant Secretary for Fish and Wildlife and Parks, 

U.S. Department of the Interior .................................................................. 46 

Prepared statement of ............................................................................... 47 

Response to questions submitted for the record ..................................... 50 

Luxton, Jane, General Counsel, National Oceanic and Atmospheric 

Administration, U.S. Department of Commerce ........................................ 66 

Prepared statement of ............................................................................... 67 

Response to questions submitted for the record ..................................... 69 

Nazzaro, Robin M., Director, Natural Resources and Environment, U.S. 

Government Accountability Office ............................................................... 7 

Prepared statement of ............................................................................... 9 

Parsons, David R., Carnivore Conservation Biologist/Science Fellow, The 

Rewilding Institute ....................................................................................... 156 

Prepared statement of ............................................................................... 157 

Shepard, Ed, Bureau of Land Management, U.S. Department of the 

Interior, Response to questions submitted for the record .......................... 65 

Additional materials supplied: 

MacDonald, Julie A., MacDonald Consulting, Letter submitted for the 

record ............................................................................................................. 73 

Manson, Craig, Former Assistant Secretary for Fish and Wildlife and 

Parks, U.S. Department of the Interior, Letter submitted for the record 189 

Robertson, Doug, Commissioner, Douglas County, Oregon, Statement 

submitted for the record ............................................................................... 191 

List of documents retained in the Committee’s official files ......................... 195 

(1) 

OVERSIGHT HEARING ON ‘‘THE DANGER OF 

DECEPTION: DO ENDANGERED SPECIES 

HAVE A CHANCE?’’ 

Wednesday, May 21, 2008 

U.S. House of Representatives 

Subcommittee on National Parks, Forests and Public Lands 

Committee on Natural Resources 

Washington, D.C. 

The Committee met, pursuant to call, at 10:06 a.m. in Room 

1324, Longworth House Office Building, Hon. Nick J. Rahall, II 

[Chairman of the Committee] presiding. 

Present: Representatives Rahall, Smith, Grijalva, Sarbanes, 

DeFazio, Scalise, Inslee, Baca, Duncan, Gohmert, Wittman, Young, 

Bordallo, Napolitano, Costa and Holt. 

STATEMENT OF THE HONORABLE NICK J. RAHALL, II, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF WEST 

VIRGINIA 

The CHAIRMAN. The Committee is meeting today to continue our 

strong oversight hearings on the implementation of the Endangered Species Act. 

One year ago, we convened to examine the mess created by 

former Deputy Assistant Secretary for Fish, Wildlife and Parks, 

Julie MacDonald. At the time, I, along with many Members of this 

Committee, had high hopes that the Interior Department would 

take a serious look at how that poorly-placed political appointee 

was allowed to tinker with the work of Agency scientists to the detriment of the Endangered Species Program. 

As a result of that hearing, the Agency undertook a review of the 

decisions that fell under MacDonald’s purview and pledged to work 

to correct any wrongdoing it uncovered. That was a good thing. 

Now, one year later, after MacDonald’s demise, we find that instead of cleaning up its mess, the Agency has merely swept it 

under the rug. 

Today, much to my chagrin, we are about to hear that the Agency’s well-published post MacDonald review, ostensibly designed to 

correct listing and critical habitat decisions, decisions tainted by 

politics, was a boondoggle. It is fixing nothing. It was too narrow, 

too fast and too sloppy. 

Among other things, our Government Accountability Office witness today will tell us that Agency reviewers automatically disVerDate Aug 31 2005 15:00 Sep 25, 2008 Jkt 098700 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 L:\DOCS\42492.TXT Hresour1 PsN: KATHY
2 

counted from scrutiny any decisions that could not be directly 

linked to tampering by Ms. MacDonald, yet her fingerprints may 

have been all over countless decisions that were given automatic 

immunity from the Fish and Wildlife Service’s review. Among them 

were decisions that scientists crafted not based purely on the 

science, but rather according to what they anticipated might gain 

Julie MacDonald’s political seal of approval. 

Worse still, GAO now reveals to us that there are other Interior 

officials who influenced ESA decisions, and those folks are still 

roaming the halls of the Interior Department unchecked. As a result, we can have no confidence that political tinkering with the 

ESA program is being addressed any better now than it was under 

MacDonald’s reign. 

Today, we will also hear testimony about the untenable delay of 

a rule designed to protect the severely depleted North Atlantic 

right whale from ship strikes, the latest public example of covert 

White House interference with endangered species. It has become 

abundantly clear that this Administration does not give one whit 

about the ESA. 

The strong-arming of Federal scientists, the slow walking of listing decisions, and the stonewalling of new rules has convinced me 

that every attempt to fix the management of the Endangered Species Program under this Administration is a lost cause. No matter 

how deeply this Committee looks or how hard we push to conduct 

real, valid oversight, we are hamstrung by secrecy and by deception. 

For example, I, along with Representatives Peter DeFazio and 

Jay Inslee, requested documents relating to the northern spotted 

owl, but of the boxes of documents sent to us in response to that 

request, we find barely any mention of the names of Agriculture 

Secretary Mark Ray, Deputy Under Secretary of Agriculture Dave 

Tenney, or Interior Deputy Secretary Lynn Scarlett, who all served 

on the ‘‘Washington Oversight Committee’’. 

Though it may be a bad pun, my true reaction is something 

smells fishy here. As Chairman of this Committee and as one who 

undertakes oversight responsibility seriously, I am forced to conclude that not only has the Endangered Species program been sorely politicized, but effort after effort supposedly designed to correct 

the mishandling of the program by this Administration and this 

Agency has also been badly bungled. 

At this point, in my opinion, the best hope for endangered species 

may simply be to cling to life until after next January, when this 

President and his cronies at long last will be on the unemployment 

lines. 

With that, I conclude my testimony and yield to the Ranking Minority Member. 

[The prepared statement of Chairman Rahall follows:] 

Statement of The Honorable Nick J. Rahall, II, Chairman, 

Committee on Natural Resources 

One year ago, this Committee convened to examine the mess created by former 

Deputy Assistant Secretary for Fish, Wildlife and Parks Julie MacDonald. At the 

time, I had high hopes that the Interior Department would take a serious look at 

how that poorly placed political appointee was allowed to tinker with the work of 

agency scientists to the detriment of the Endangered Species program. 

3 

As a result of that hearing, the agency undertook a review of the decisions that 

fell under MacDonald’s purview and pledged to work to correct any wrongdoing it 

uncovered. 

Now, one year after MacDonald’s demise, we find that instead of cleaning up its 

mess, the agency has merely swept it under a rug. 

Today, much to my chagrin, we are about to hear that the agency’s well-publicized 

post-MacDonald review, ostensibly designed to correct listing and critical habitat 

decisions—decisions tainted by politics—was a boondoggle; it is fixing nothing. It 

was too narrow, too fast, and too sloppy. 

Among other things, our Government Accountability Office witness will tell us 

that agency reviewers automatically discounted from scrutiny any decisions that 

could not be directly linked to tampering by MacDonald. Yet her fingerprints may 

have been all over countless decisions that were given automatic immunity from the 

Fish and Wildlife Service’s review. Among them were decisions that scientists crafted not based purely on the science but, rather, according to what they anticipated 

might gain MacDonald’s political seal of approval. 

Worse still, GAO now reveals to us that other Interior officials also influenced 

ESA decisions, and those folks are still roaming the halls of the Interior Department, unchecked. 

As a result, we can have no confidence that political tinkering with the ESA program is being addressed any better now than it was under MacDonald’s reign. 

Today, we will also hear testimony about the untenable delay of a rule designed 

to protect the severely depleted North Atlantic right whale from ship strikes—the 

latest public example of covert White House interference with endangered species. 

It has become abundantly clear that this Administration does not give one whit 

about the ESA. Its strong-arming of Federal scientists, slow-walking of listing decisions, and stonewalling of new rules have convinced me that every attempt to fix 

the mismanagement of the endangered species program under this Administration 

is a lost cause. 

No matter how deeply this Committee looks or how hard we push to conduct real, 

valid oversight, we are hamstrung by secrecy and deception. For example, I, along 

with Representatives Peter DeFazio and Jay Inslee requested documents related to 

the northern spotted owl. But of the boxes of documents sent to us in response to 

that request, we find barely any that mention the names of Agriculture Undersecretary Mark Rey, Deputy Undersecretary of Agriculture Dave Tenney, or Interior Deputy Secretary Lynn Scarlett, who all served on the ‘‘Washington Oversight Committee.’’ Though it may be a bad pun, my reaction is: something smells fishy here. 

As Chairman of this Committee, I am forced to conclude that not only has the 

endangered species program been sorely politicized, but effort after effort supposedly 

designed to correct the mishandling of the program by this Administration and its 

agencies has also been badly bungled. 

At this point, the best hope for endangered species may simply be to cling to life 

until after January when this President and his cronies, at long last, hit the unemployment line. 

STATEMENT OF THE HONORABLE ADRIAN SMITH, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF 

NEBRASKA 

Mr. SMITH. Thank you, Mr. Chairman. 

Today, we are holding an annual oversight hearing on the Endangered Species Act. This year it is entitled, ‘‘The Danger of Deception: Do Endangered Species Have a Chance?’’ While it certainly 

is an interesting title, under current law I believe the chance of recovery is almost zero. 

For 12 years the Republican House Majority not only reviewed 

the effectiveness of this Act, but we tried to improve this law for 

both wildlife and humans. While ultimately we were unsuccessful 

in gaining the concurrence of the other body, at least we tried to 

do something positive. 

It has been over 7,000 days since the last ESA bill was signed 

into law, 5,709 days since the last authorization expired, and 504 

days with the new Majority controlling Congress, and apparently 

4 

the Act is perceived to be working well. I find that a stunning conclusion, especially in light of the fact that the Director of the Fish 

and Wildlife Service has testified that they have not made a single 

listing or critical habitat designation on their own in over a decade. 

The Fish and Wildlife Service doesn’t run this program. It seems 

to be run by narrow special interests enriching themselves on taxpayer dollars by filing endless lawsuits. I can tell you that no one 

wins with litigation of this nature. 

This hearing will address a number of species. Let me comment 

on just a few. I am sure we will have an interesting discussion on 

the so-called recovery of the northern spotted owl. We know now 

that the population of this threatened species is declining by about 

three percent each year. This is remarkable because all of the socalled experts told us that if you shut down all the timber mills, 

destroyed the lives and futures of thousands of loggers and their 

families, then the northern spotted owl would thrive in the Northwest forest. 

Now the Fish and Wildlife Service has identified the barred owl 

as the single greatest threat to the continued existence of the spotted owl. In fact, their recovery plan states that the best action to 

protect spotted owls is to remove thousands of barred owls currently occupying its habitat. This may be difficult since barred owls 

are strictly protected under the Migratory Bird Treaty Act. 

While barred owls may now outnumber spotted owls, the fundamental threat to all wildlife in the Northwest forest is a failure to 

effectively address wildfires. They will sadly occur, and this Congress will do nothing to remove the fuel that makes these fires almost inevitable. In terms of spotted owls, apparently there is little 

chance of recovery, and the residents of the Northwest were clearly 

deceived. 

Second, we are likely to hear complaints that the Fish and Wildlife Service has failed to adequately protect the reintroduced Mexican gray wolf in Arizona and New Mexico. In this case, it is hard 

to believe that anyone was deceived because as a ‘‘nonessential experimental population’’ ranchers have a legal right to protect their 

lives and livestock from these wolves. The law is clear. If a gray 

wolf attacks a steer or a horse they may be killed. 

Finally, let me say to the Assistant Secretary of the Interior that 

we provided 39 months to review the listing petition for the polar 

bear, and still the wrong decision was made. It is the wrong decision because the worldwide population of polar bears is healthy. In 

fact, the population has almost doubled in the last 50 years. 

It is the wrong decision because there is no practical way to improve or retain the habitat for these species, and, most importantly, it is the wrong decision because it is an assault on sound 

science and commonsense. By listing the polar bear, the Fish and 

Wildlife Service has deceived the American people into thinking 

that this species is on the brink of extinction and that it can maintain or even increase its sea ice habitat. 

Mr. Chairman, after 20 years it is way past due to modernize the 

Endangered Species Act because the current one percent recovery 

rate simply perpetuates a cruel deception on the American people. 

Let us give these species a real chance to survive in the future. 

Thank you, Mr. Chairman. 

5 

The CHAIRMAN. The Chair thanks the acting Ranking Member. 

Mr. DeFazio? Before recognizing other Members, let me take a 

moment to recognize and welcome a new Member of our 

Committee, Mr. Scalise of Louisiana. We welcome you and congratulate you on your victory. Glad to have you a Member of the 

Natural Resources Committee. 

Mr. SCALISE. It is a pleasure. 

The CHAIRMAN. The gentleman from Oregon, Mr. DeFazio? 

STATEMENT OF THE HONORABLE PETER A. DeFAZIO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OREGON 

Mr. DEFAZIO. Thank you, Mr. Chairman. 

I know that the focus of this hearing is greater than the issues 

surrounding the northern spotted owl growth force and the Pacific 

Northwest, but since the gentleman just spoke who clearly knows 

nothing of my region or my forests—to tell the truth, I don’t even 

know where you are from, but I have to respond. 

We are back where we were in the Bush I Administration where 

you are trying to resolve incredibly complicated and difficult environmental problems with political science. It defies the law. It defies commonsense, and the losers are the environment and the 

people I represent. 

I represent a lot of those rural communities that have been devastated because of changes in forest policy in this country. I have 

tried to provide a commonsense direction, different than the Clinton forest plan, and way different than what this Administration— 

this Administration actually has kind of dialed back and dug out 

something called the ‘‘Jameson Plan.’’ 

Now, I like Sy Jameson. He was a fun guy, but as head of the 

BLM, he cooked up a plan to deal with what was then the entire 

closure of our forests to timber harvesting that had no support 

from any legitimate scientists. It was laughed out of court and 

brought an injunction on all timber harvesting, and this Administration has taken us right back to that spot under the guise of 

doing a favor for the people of the Pacific Northwest. For the 

people who live in rural communities and the timber industry, they 

are cruising us right toward a disaster again. 

It doesn’t have to happen, and I hope there will be some result 

from this hearing today to redirect this Administration in a more 

productive direction because if they follow through with their 

flawed science we are going to end up with another court injunction, and we will get even less timber harvest than we are getting 

today. 

I am working on a credible plan that could double the Federal 

timber harvest. Part of it is reflecting a little bit of what they propose on the east side, but on the west side they are just going after 

the habitat, the last vestiges of old growth. That is what started 

the whole controversy, and until you protect that old growth, you 

are not going to protect adequately the species, the environment, 

and you are not going to end the forest wars in the Pacific Northwest. 

Thank you, Mr. Chairman. 

6 

The CHAIRMAN. Do other Members wish recognition? Let me see. 

The gentleman from Arizona, Mr. Grijalva? The gentleman from 

Washington, Mr. Inslee? 

Mr. INSLEE. Thank you. I assume we are doing opening statements, I assume. 

The CHAIRMAN. Yes, we are. 

STATEMENT OF THE HONORABLE JAY INSLEE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WASHINGTON 

Mr. INSLEE. Thank you, Mr. Chair. I appreciate the Chair’s work 

on this issue. 

I think the Chair knows there are many of us who have been 

very concerned about this Administration’s failure to follow the 

best available science, which is required under the ESA and, in 

effect, they have followed the best available excuses time after time 

for inaction. It is most disturbing. 

Out in Washington State, it is not just one species that my 

grandkids may not get to enjoy as I did growing up in Washington 

State, but it is several. This has been something that has caused 

a lot of anger in the State of Washington that back in D.C. our 

grandkids are not getting the protection they deserve to enjoy nature’s bounty. 

I just want to mention a couple of them, most recently of concern. This alleged polar bear listing was not a listing of an endangered species. It was a listing of the things the Administration refuses to do to save that species. On that list is, number one, the 

refusal by the Administration to do anything to stop global warming, which is the existential threat to the continuation of the polar 

bears. That is number one. 

Number two, they have essentially, the second thing on the list, 

insisted on a business-as-usual approach on oil and gas development. Again, a refusal to act. 

Number three on that list of inaction is, they refuse to designate 

critical habitat for the polar bear, as far as I can tell, so what we 

have is a listing on the polar bear. It is just a list of what your 

Federal government refuses to do when this iconic creature of the 

Arctic is going to go extinct. I think people have a right to be very 

angry about that. 

On the spotted owl issue, we are going backwards in the State 

of Washington with this alleged draft recovery plan. It goes backwards in protection of old growth. It goes backwards in protection 

of habitat. It is not a recovery plan. It is just we haven’t had a 

chance to recover from multiple years of this Administration’s multiple failures on listing. 

I just hope that the next Administration, because I have just 

about given up on this one, will finally start following science. We 

don’t have a lot of time for these species, and I appreciate the 

Chair’s willingness to expose these multiple failures. Thank you. 

The CHAIRMAN. Any other Members wish to make opening statements? The gentleman from Maryland, Mr. Sarbanes? 

Yes? The gentleman from Nebraska? 

Mr. SMITH. I would submit for the record an opening statement 

by Mr. Lamborn. 

7 

The CHAIRMAN. Without objection. It will be made part of the 

record. 

[The prepared statement of Mr. Lamborn follows:] 

Statement of The Honorable Doug Lamborn, a Representative in Congress 

from the State of Colorado 

Thank you, Mr. Chairman, for scheduling this hearing today. 

Continuing difficulties surrounding implementation of the Endangered Species 

Act remain a clear problem for many in Colorado. From politicizing research to stopping property owners in their tracks, one ESA listing in my area has become very 

contentious. 

The Preble’s Meadow Jumping Mouse. This and similar mice are located throughout half of the North American continent. 

The scientist who originally classified the Preble’s mouse as a subspecies, Dr. 

Krutzsch, has since recanted his original work and no longer supports the original 

classification. Numerous recent scientific studies have concluded that the Preble’s 

mouse is both physically and genetically indistinguishable from other similar mice. 

It should never have been listed. 

With scientific evidence to the species’ abundance and with the negative economic 

impacts on Colorado’s economy, this listing is a classic example of environmental 

activists’ abuse of federal ESA law to stop growth and development. 

I support delisting of the Preble’s mouse from Colorado’s Threatened and Endangered Species List. The Fish and Wildlife Service has already removed its listing 

in Wyoming, and rightfully so. But in defiance of common sense, the mouse is suddenly threatened when you cross the state line going south. 

The history of the ESA reveals an abysmal record of species recovery, less than 

one percent, at the great cost of loss of property rights, restricted access to public 

lands, and lawsuit abuse. 

To our colleagues joining us today and their constituents, I sympathize with all 

those who’ve been caught in the middle of the ESA’s crosshairs. It’s time for Congress to make serious reform of the Endangered Species Act a reality. 

Thank you, Mr. Chairman. 

The CHAIRMAN. We will now proceed to our first panel composed 

of the following members: Robin Nazzaro, the Director of the Natural Resources and Environment, U.S. Government Accountability 

Office; R. Lyle Laverty, the Assistant Secretary for Fish and Wildlife and Parks, U.S. Department of the Interior, accompanied by 

Ren Lohoefener of the Fish and Wildlife Service, U.S. Department 

of Interior, and Ed Shepard, Bureau of Land Management, U.S. 

Department of Interior; and our third panelist is Jane Luxton, the 

General Counsel, National Oceanic and Atmospheric Administration, U.S. Department of Commerce. 

Ladies and gentlemen, we welcome you to our Committee. We 

have your prepared testimony, and it will be made part of the 

record as if actually read. You are encouraged to summarize within 

five minutes, and may proceed as you desire. 

Ms. NAZZARO. I will go first. 

The CHAIRMAN. We will go with Ms. Nazzaro first then. 

STATEMENT OF ROBIN NAZZARO, DIRECTOR, NATURAL 

RESOURCES AND ENVIRONMENT, U.S. GOVERNMENT 

ACCOUNTABILITY OFFICE 

Ms. NAZZARO. Thank you, Mr. Chairman and Members of the 

Committee. I am pleased to be here today to discuss the Endangered Species Act decision making at the Department of the Interior’s U.S. Fish and Wildlife Service. 

As has been noted, recent controversy has surrounded decisions 

specifically over whether the Service bases its decisions on sciVerDate Aug 31 2005 15:00 Sep 25, 2008 Jkt 098700 PO 00000 Frm 00011 Fmt 6633 Sfmt 6602 L:\DOCS\42492.TXT Hresour1 PsN: KATHY
8 

entific data or on political considerations. Generally, Interior and 

the Service are required to use the best available scientific information when making key decisions under ESA. 

Given this recent controversy, Interior directed the Service to review ESA decisions to determine which decisions may have been 

unduly influenced. In this action, the Service identified eight decisions for potential revision. 

My statement today will address three issues: What types of decisions, if any, were excluded from the Service’s review that may 

have been inappropriately influenced; to what extent the Service’s 

May 2005 informal guidance affected the processing of petitions to 

list a species, which we refer to as the 90-day petition; and to what 

extent the Service has, before delisting species, met recovery criteria. 

In summary, we found that several types of decisions were excluded from the Service’s review of decisions that may have been 

inappropriately influenced. First, while the Service focused solely 

on whether former Deputy Assistant Secretary Julie MacDonald influenced the decision directly, we found that other Interior officials 

also influenced some ESA decisions. 

For example, after reviewing a petition to list the Miami blue 

butterfly on an emergency basis, officials at all levels supported a 

recommendation for listing the species. Citing a Florida state management plan and the existence of a captive bred population, however, an Interior official besides Ms. MacDonald determined that 

emergency listing was not warranted. 

The second criterion was that the scientific basis of the decision 

had been compromised. This criterion excluded policy decisions that 

limited the application of science. Under Ms. MacDonald, several 

informal policies were established that influenced how science was 

to be used when making ESA decisions. For example, a practice 

was developed that Service staff should generally not use site recovery plans, which contain important information when developing critical habitat designations. 

Third, the Service excluded decisions that were changed, but not 

significantly or to the point of negative impact on the species. For 

example, under Ms. MacDonald’s influence, subterranean waters 

were removed from the critical habitat designation for the Comal 

Springs invertebrates because the Service believed aboveground 

waters were more important habitat. 

Finally, we identified several other categories of decisions that 

were excluded, including decisions that could not be reserved, such 

as decisions that had already been addressed by the courts or 

where development had already occurred and the habitats had 

been destroyed. 

Regarding the May 2005 informal guidance on the processing of 

90-day petitions, concerns were raised that this guidance would 

bias petition findings against listing species. In our survey of 54 petitioned findings issued by the Service from 2005 to 2007, we found 

that biologists used information in addition to that cited by the petitioner for both support and to refute listing petitions. Thus, this 

guidance had no substantive effect on petition findings. 

The Service recognizes the need for guidance to eliminate confusion and inconsistency in the processing of 90-day petitions, but we 

9 

1The ESA requires that the law be implemented by the Secretaries of the Interior and Commerce, who have delegated implementation authority to the U.S. Fish and Wildlife Service and 

the National Oceanic and Atmospheric Administration’s Fisheries Service, (formerly the National Marine Fisheries Service) respectively. The U.S. Fish and Wildlife Service is responsible 

for implementing the ESA for freshwater and terrestrial species. The National Oceanic and Atmospheric Administration’s Fisheries Service is responsible for implementing the ESA for most 

marine species and anadromous fishes (which spend portions of their lifecycle in both fresh and 

salt water). 2Department of the Interior, Office of Inspector General, Investigative Report on Allegations 

against Julie MacDonald, Deputy Assistant Secretary, Fish, Wildlife and Parks (Washington, 

Continued 

note that the need to finalize this guidance is more urgent than 

ever with the Service’s recent receipt of two petitions to list 681 

species since we found that none of the petitioned findings we reviewed were issued within the desired 90-day timeframe. 

During 2005 through 2007, the median processing time was 900 

days, or about two and a half years, with a range of 100 days to 

over 15 years. Additionally, this Service faces several challenges responding to court decisions issued since 2004 in the processing of 

these 90-day petitions. 

Finally, of the eight species listed because of recovery from 2000 

to 2007, the Service determined that recovery criteria were completely met for five species and partially met for the remaining 

three species. Although the ESA does not explicitly require the 

Service to follow recovery plans when delisting species, the courts 

have held that ESA’s listing and delisting threat factors must be 

addressed to the maximum extent practicable when developing recovery criteria. 

In 2006, we found that only five of 107 recovery plans contained 

either recovery criteria to demonstrate consideration of these 

threat factors, or a statement about why it was not practicable to 

include such criteria. In January of this year the Director of the 

Service issued a memorandum requiring all new and revised recovery plans to include criteria addressing each of the five threat factors. Assuming successful implementation of this directive, we believe that future delistings will more likely meet recovery criteria 

and address ESA’s factors. 

Mr. Chairman, this concludes my prepared statement. I would be 

happy to respond to any questions you or other Members of the 

Committee may have at this time. 

[The prepared statement of Ms. Nazzaro follows:] 

Statement of Robin M. Nazzaro, Director, Natural Resources and 

Environment, United States Government Accountability Office 

Mr. Chairman and Members of the Committee: 

I am pleased to be here today to discuss our work related to Endangered Species 

Act (ESA) decision making and allegations that implementation of the act has been 

tainted by political interference. 1 Recent controversy has surrounded decisions by 

the Department of the Interior’s (Interior) U.S. Fish and Wildlife Service (Service), 

specifically, over the role that ‘‘sound science’’ plays in decisions made under the 

ESA—that is, whether the Service bases its decisions on scientific data or on political considerations. Generally, Interior and the Service are required to use the best 

available scientific information when making key ESA decisions. At Interior some 

of the controversy centered on whether a former Deputy Assistant Secretary, Julie 

MacDonald, improperly influenced ESA decisions so as to limit protections for 

threatened and endangered species. On the basis of an anonymous complaint in 

April 2006, Interior’s Office of Inspector General began investigating Ms. MacDonald’s activities and whether her involvement in ESA implementation had undermined species protection. 2 Ms. MacDonald resigned on May 1, 2007, and little over 

10 

D.C.: Mar. 23, 2007). The Inspector General concluded that Ms. MacDonald had violated federal 

rules by sending internal agency documents to industry lobbyists. The Office of Inspector General issued a second investigative report on Ms. MacDonald’s involvement in an ESA decision 

about the Sacramento splittail fish on November 27, 2007. This investigation concluded that Ms. 

MacDonald stood to gain financially from the decision and she should therefore have recused 

herself. Additionally, as of March 31, 2008, the Office of Inspector General was conducting a 

third investigation, concerning potential inappropriate political interference in ESA decisions for 

20 species. 3 Endangered Species Act Implementation: Science or Politics? Oversight Hearing before the 

House Committee on Natural Resources, 110th Cong. (2007). 4 16 U.S.C. §§ 1532(6), (20); 1533(a). 

5 16 U.S.C. § 1533(a)(1). 

6The Service’s candidate conservation program maintains a list of species for which listing 

is warranted but precluded by other higher-priority actions. According to Service officials, the 

candidate conservation program can support actions to reduce or remove threats so that listing 

may become unnecessary. Candidate species may be identified through assessments initiated by 

the Service or through a 12-month finding on a petition to list a species when the finding concludes that listing is warranted but precluded by higher-priority listing actions. Candidate assessments use the same ‘‘best available science’’ standard as used for a 12-month finding on a 

petition to list a species. 7 16 U.S.C. § 1533(b)(3)(A). 

8 50 C.F.R. § 424.14(b). 

a week later, the House Committee on Natural Resources held a hearing on political 

influence in ESA decision making. 3 After the hearing, Interior asked the Service to 

determine which of its ESA decisions may have been inappropriately influenced by 

Ms. MacDonald. 

In response to this directive, the Service identified eight decisions for further review, generally according to the following three criteria: (1) whether Ms. MacDonald 

influenced the decision directly, (2) was the scientific basis of the decision compromised, and (3) did the decision significantly change and result in a potentially 

negative impact on the species. The eight decisions selected for further review were 

out of a universe of more than 200 ESA decisions reviewed by Ms. MacDonald during her almost 5 years of employment at Interior. Upon further review, the Service 

concluded that seven of the eight selected decisions warranted revision. The Service 

has proposed revisions for three of the decisions and intends to revise the remaining 

decisions, as appropriate, in the coming years. 

On December 17, 2007, we briefed your staff on our findings related to our work 

on the Service’s review of ESA decisions that may have been inappropriately influenced. This testimony formally conveys the information provided during that briefing, as updated to reflect the most recent developments (see appendix III). In addition, this testimony presents the results of our work conducted since the December 

2007 briefing on two other ESA issues. 

The purpose of the ESA is to conserve threatened and endangered species and the 

ecosystems on which they depend. The act requires listing a species as endangered 

if it faces extinction throughout all or a significant portion of its range and as 

threatened if it is likely to become endangered in the foreseeable future. 4 Specifically, in determining whether to list or delist a species, the Service evaluates the 

following five threat factors contained in the act: 

1. whether a species’ habitat or range is under a present or potential threat of 

destruction, modification, or curtailment; 

2. whether the species is subject to overuse for commercial, recreational, scientific, or educational purposes; 

3. the risk of existing disease or predation; 

4. whether existing regulatory mechanisms are adequate; and 

5. whether other natural or manmade factors affect a species’ continued existence. 5

The process to list a species begins either through the Service’s own initiative or 

through a petition (referred to as a 90-day petition) from an ‘‘interested person,’’ and 

it is governed by the ESA, federal regulations, and other guidance that the Service 

may issue. The Service may initiate a review of species without a petition by conducting a candidate assessment to determine whether a species ought to be listed. 6

A species may also be listed through the petition process. The ESA directs the Service to make a finding within 90 days (to the maximum extent practicable) after receiving a petition ‘‘as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted.’’ 7 Federal regulations define ‘‘substantial information’’ as the amount of information that 

would lead a reasonable person to believe that the petitioned action may be warranted. 8 If the Service determines that the listing process should proceed, it issues 

a ‘‘substantial’’ 90-day finding, then conducts an in-depth 12-month review of the 

11 

9Seventy-two percent of the 90-day petition findings published in the Federal Register from 

calendar years 2005 through 2007 were on petitions to list species as threatened or endangered. 

According to federal regulations (50 C.F.R. § 424.14), petitioned actions may include (1) petitions 

to list, delist, or reclassify species (reclassification would involve ‘‘up-listing’’ a species from 

threatened to endangered or ‘‘down-listing’’ a species from endangered to threatened); (2) petitions to revise critical habitat; and (3) petitions to designate critical habitat or adopt special 

rules. The remaining 28 percent of the 90-day petition findings published in the Federal Register from calendar years 2005 through 2007 were on petitions to delist species, reclassify species, or revise critical habitat designations. 10 16 U.S.C. §§ 1533(f)(1)-(5). Recovery plans are not required if the Service determines that 

a plan will not promote the species’ conservation. 11 16 U.S.C. § 1533(f)(1)(B). As originally enacted in 1973, the ESA did not contain a requirement for recovery plans, see Pub. L. No. 93-305, 87 Stat. 884 (1973). A general provision on 

recovery plans was first added in 1978 by Pub. L. No. 95-632, § 11(5), 92 Stat. 3751, 3766 (1978). 

The general provision was amended in 1982 by Pub. L. No. 97-304, §§ 2(a)(4)(B)-(D), 96 Stat. 

1411, 1415 (1982). The detailed provisions that exist today on recovery plans were largely added 

in 1988 by Pub. L. No. 100-478, title I, § 1003, 102 Stat. 2306-7 (1988). 12See 16 U.S.C. § 1533(a)(1); 50 C.F.R. § 424.11(c). 13We excluded 13 petition findings from our 2005-2007 sample for the following reasons: 5 

had been overturned by the courts or were being redone as a result of a settlement agreement; 

Continued 

status of the species to determine if, according to the best available scientific and 

commercial information, the petitioned action is warranted. If the Service determines that the petition does not present credible evidence supporting plausible 

claims, it issues a negative, ‘‘not substantial’’ 90-day finding. A negative 90-day finding can be challenged in court. 

In May 2005, the Service distributed a guidance document via e-mail to its endangered-species biologists that could have been interpreted as instructing them to use 

additional information collected to evaluate a 90-day petition only to refute statements made in the petition. Concerns then arose that this informal guidance would 

bias petition findings against listing species, thereby reducing the number of species 

that could have a chance at protection under the ESA. 9

Environmental groups and the courts have also raised concern about the implementation of recovery plans for delisted species, specifically, that the Service has 

delisted species without fulfilling recovery criteria outlined in recovery plans. The 

ESA generally requires the Service to develop and implement recovery plans for the 

conservation of listed species.10 Since the act was amended in 1988, the Service has 

been required to incorporate, to the maximum extent practicable, several key elements in each recovery plan, including objective, measurable recovery criteria that, 

when met, would enable the species to be removed from the list of threatened or 

endangered species.11 Recovery plans are not regulatory documents. Rather, they 

provide guidance on methods to minimize threats to listed species and on criteria 

that may be used to determine when recovery is achieved. To develop and implement a recovery plan, the Service may appoint a recovery team consisting of ‘‘appropriate public and private agencies and institutions, and other qualified persons.’’ 

After a recovery plan has been drafted or revised, the Service is required to provide 

public notice and an opportunity for public review and comment. Although the ESA 

does not explicitly require the Service to follow recovery plans when delisting species, 12 the possible high level of public involvement in the development of recovery 

plans creates the expectation that the Service will adhere to them. 

In this context, from our December 2007 briefing, we are reporting on the types 

of ESA decisions, if any, excluded from the Service’s selection process of ESA decisions that had potentially been inappropriately influenced. Additionally, we are reporting on the extent to which the Service’s May 2005 informal guidance affected 

the Service’s decisions published from 2005 through 2007 on petitions to list or 

delist species and the extent to which the Service determined, before delisting, 

whether species met recovery criteria outlined in recovery plans. 

To determine what types of ESA decisions, if any, were excluded from the Service’s selection process for decisions to review, we interviewed the Director of the 

Service and all eight regional directors, and we conducted site visits, phone interviews, or both with staff from ten field offices in five regions that were actively engaged in ESA decision making. We also reviewed Service policies and procedures for 

making ESA decisions, as well as documentation on the Service’s process for selecting decisions to review and on the status of the review. To evaluate the extent to 

which the May 2005 informal guidance affected 90-day petition findings, we surveyed 44 current and former Service biologists responsible for drafting 54 90-day petition findings issued from 2005 through 2007. We included only listing and 

delisting petitions for U.S. species; for this reason and others, we excluded 13 petition findings between 2005 and 2007 from our sample. 13 To determine the extent 

12 

3 involved up-listing already protected species from threatened to endangered; 2 involved ongoing litigation; 2 involved species located outside the United States; and 1 involved a petition 

to revise a critical habitat designation for a species that was already protected. 

to which the Service met recovery criteria outlined in recovery plans before delisting 

a species, we developed a list of all U.S. species delisted because of recovery from 

2000 through 2007 and reviewed recovery plans and Federal Register proposed and 

final delisting decisions (rules); this information indicated whether the Service believed that it had met the criteria laid out in the recovery plans for the eight 

delisted U.S. species we identified. 

We conducted this performance audit from August 2007 to May 2008 in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence 

to provide a reasonable basis for our findings and conclusions based on our audit 

objectives. We believe that the evidence obtained provides a reasonable basis for our 

findings and conclusions based on our audit objectives. A more detailed discussion 

or our scope and methodology appears in Appendix I. Appendix II presents a table 

of the 90-day petition findings included and excluded from our sample. 

Summary 

Under the criteria the Service used to select decisions to review for possible inappropriate influence, several types of ESA decisions were excluded. First, while the 

Service focused solely on Ms. MacDonald, we found that other Interior officials also 

influenced some ESA decisions. For example, after reviewing a petition to list the 

Miami blue butterfly on an emergency basis, Service officials at all levels supported 

a recommendation for listing the species. Citing a Florida state management plan 

and existence of a captive-bred population, however, an Interior official besides Ms. 

MacDonald determined that emergency listing was not warranted, and the blue butterfly was designated as a candidate instead of a listed species. Second, the Service 

excluded policy decisions that limited the application of science, focusing instead 

only on those decisions where the scientific basis of the decision may have been compromised. Under Ms. MacDonald, several informal policies were established that influenced how science was to be used when making ESA decisions. Third, the Service 

excluded decisions that were changed but not significantly or to the point of negative impact on the species. Finally, we identified several other categories of decisions 

that in some or all cases were excluded from the Service’s selection process. For example, decisions were excluded from the Service’s selection process if it was determined that the decision could not be reversed or if it could not be conclusively determined that Ms. MacDonald changed the decision. 

While the Service’s May 2005 informal guidance had no substantive effect on the 

processing of 90-day petitions, the Service still faces other challenges in processing 

these petitions. Stakeholders have expressed concern that the May 2005 guidance 

was slanted more toward refuting petitioners’ listing claims, rather than encouraging Service biologists to use information to both support and refute listing petitions; consequently, they feared that a greater number of negative 90-day petition 

findings would result. In our survey of 54 90-day petition findings issued by the 

Service from 2005 through 2007, we found that biologists used information in addition to that cited by the petitioner to both support and refute claims made in the 

petitions, as applicable, including during the 18-month period when the May 2005 

informal guidance was being used. In November 2006, the Service distributed new 

draft guidance on the processing of 90-day petitions, which specified that additional 

information in Service files could be used to support and refute issues raised in the 

petition. Although the May 2005 informal guidance did not have a substantive effect 

on the Service’s processing of 90-day petitions, the Service faces challenges in processing petitions in a timely manner and in responding to court decisions issued 

since 2004. None of the 90-day petition findings issued from 2005 through 2007 

were issued within the desired 90-day time frame. During this period, the median 

processing time was 900 days, or about 2.5 years, with a range of 100 days to 5,545 

days (more than 15 years). Additionally, the Service faces several challenges in responding to court decisions issued since 2004. For example, the Service has not developed new official guidance on how to process of 90-day petitions after a portion 

of the prior guidance was invalidated by the courts. 

Of the eight U.S. species delisted from 2000 through 2007 because of recovery, the 

Service reported that recovery criteria were completely met for five species and partially met for the remaining three species because some recovery criteria were outdated or otherwise not achievable. When the delistings were first proposed, however, 

only two of the eight species had completely met all their respective recovery criteria. While the recovery criteria were not completely met in every case for each of 

13 

14 Under the ESA the term ‘‘species’’ includes any distinct population segment of any species 

of vertebrate fish or wildlife which interbreeds when mature. 16 U.S.C. § 1532(16). 

the species we reviewed, the Service determined that the five threat factors listed 

in the ESA no longer posed a significant enough threat to the continued existence 

of the species to warrant continued listing as threatened or endangered. Since the 

ESA was amended in 1988, the Service has been required to incorporate in each recovery plan, to the maximum extent practicable, objective, measurable criteria that 

when met would result in a determination, in accordance with the provisions of the 

ESA, that the species should be removed from the list of threatened and endangered 

species (i.e., delisted). Courts have held that the Service must address the ESA’s 

five threat factors for listing/delisting in developing recovery criteria, to the maximum extent practicable. In a 2006 report, we found that only 5 of the 107 recovery 

plans we reviewed included recovery criteria that addressed all five threat factors. 

We recommended that the Service include in recovery planning guidance direction 

that all new and revised recovery plans contain either recovery criteria to demonstrate consideration of all five threat factors or a statement about why it is not 

practicable to include such criteria. In January 2008, in response to our recommendation, the Director of the Service issued a memorandum requiring all new 

and revised recovery plans to include criteria addressing each of the five threat factors. Assuming successful implementation of this directive, future delistings should 

meet the criteria laid out in recovery plans, except in situations where new information indicates criteria are no longer valid. 

Although we requested comments from Interior on our findings and conclusions, 

none were provided in time for them to be included as part of this testimony. 

Background 

In addition to 90-day petition findings, 12-month status reviews, listings, and 

delistings, other key categories of ESA decisions include critical habitat designations, recovery plans, section 7 consultations, and habitat conservation plans (see 

table 1). 14

Service staff at headquarters, eight regional offices, and 81 field offices are largely 

responsible for implementing the ESA. Field office staff generally draft ESA decisions; listing, delisting, and critical habitat decisions are forwarded to regional and 

headquarters offices for review. Service headquarters forwards listing decisions to 

Interior’s Office of Assistant Secretary for Fish and Wildlife and Parks for review, 

although it is the Service Director who generally approves the final decisions. The 

Assistant Secretary of the Interior for Fish and Wildlife and Parks makes final critical habitat decisions, after considering the recommendation of the Service and considering economic, national security, and other factors. Although the Service is responsible for making science-based decisions, Interior takes responsibility for applying policy and other considerations to scientific recommendations. 

In most cases, ESA decisions must be based at least in part on the best available 

scientific information (see table 1). To ensure that the agency is applying the best 

available scientific information, the Service consults with experts and considers information from federal and state agencies, academia, other stakeholders, and the 

general public; some ESA decisions are both ‘‘peer reviewed’’ and reviewed internally to help ensure that they are based on the best available science. Nevertheless, 


42492.040
14 

15 Initially, the regional offices identified a total of 11 decisions for potential revision. One of 

these, on the Mexican garter snake, was subsequently withdrawn after further discussion determined that the decision was made internally by Service headquarters. Two additional decisions, 

regarding the bull trout and the marbled murrelet, were withdrawn by the region after it was 

determined that neither decision involved the inappropriate use of science but rather involved 

policy interpretations. 

because of differing interpretations of ‘‘best available scientific information’’ and 

other key concepts from the ESA, such as‘‘substantial’’ and ‘‘may be warranted,’’ 

conservation advocacy groups have expressed concerns that ESA decisions are particularly vulnerable to political interference from officials within Interior. 

While Ms. MacDonald was at Interior in two positions from July 7, 2002, through 

May 1, 2007, she reviewed more than 200 ESA decisions. After a May 9, 2007, congressional hearing, Interior’s Deputy Secretary directed the Service Director to examine all work products produced by the Service and reviewed by Ms. MacDonald 

that could require additional review because of her involvement. Service Director 

Hall said the selection process should include any type of ESA decision made during 

Ms. MacDonald’s time in office. He delegated the selection process to the regional 

directors and granted them considerable discretion in making their selections for potential revision. 

The regions generally applied three criteria to identify decisions for potential revision: (1) Ms. MacDonald influenced the decision directly, (2) the scientific basis of 

the decision was compromised, and (3) the decision was significantly changed and 

resulted in a potentially negative impact on the species. Using these criteria, the 

Service ultimately selected eight decisions for further review to determine if the decision warranted revision. 15 After further review, the Service concluded that seven 

of the eight decisions warranted revision (see table 2). 

Several Types of Decisions Were Excluded from the Service’s Review of 

Potentially Inappropriately Influenced ESA Decisions 

Several types of decisions were excluded from the Service’s review of decisions 

that may have been inappropriately influenced. First, while the Service focused solely on Ms. MacDonald, we found that other Interior officials also influenced some 

ESA decisions. Ms. MacDonald was the primary reviewer of most ESA decisions 

during her tenure, but other Interior officials were also involved. For example, in 

the Southeast, after reviewing a petition to list the Miami blue butterfly on an 

emergency basis, Service officials at all levels supported a recommendation for listing the species. Citing a Florida state management plan and existence of a captivebred population, however, an Interior official other than Ms. MacDonald determined 


42492.041
15 

16 16 U.S.C. § 1533(b)(3)(A). 

that emergency listing was not warranted, and the blue butterfly was instead designated as a candidate, not a listed species. 

Second, the Service excluded policy decisions that limited the application of 

science, focusing instead only on those decisions where the scientific basis of the decision may have been compromised. Under Ms. MacDonald, several informal policies 

were established that influenced how science was to be used when making ESA decisions. For example, a practice was developed that Service staff should generally 

not use or cite recovery plans when developing critical habitat designations. Recovery plans can contain important scientific information that may aid in making a 

critical habitat designation. One Service headquarters official explained, however, 

that Ms. MacDonald believed that recovery plans were overly aspirational and included more land than was absolutely essential to the species’ recovery. Under another informal policy, the ESA wording ‘‘occupied by the species at the time it is 

listed’’ was narrowly applied when designating critical habitat. Service biologists 

were restricted to interpreting occupied habitat as only that habitat for which they 

had records showing the species to be present within specified dates, such as within 

10 years of when the species was listed. In the case of the proposed critical habitat 

for the bull trout, Ms. MacDonald questioned Service biologists’ conclusions about 

the species’ occupied habitat. As a result, some proposed critical habitat areas were 

removed, in part because occupancy by the species could not be ascertained. 

Third, the Service excluded decisions that were changed but not significantly or 

to the point of negative impact on the species. For example, under Ms. MacDonald’s 

influence, subterranean waters were removed from the critical habitat designation 

for Comal Springs invertebrates. Service staff said they believed that the exclusion 

of subterranean waters would not significantly affect the species because aboveground waters were more important habitat. They also acknowledged that not much 

is known about these species’ use of subterranean waters. 

Finally, we identified several other categories of decisions that, in some or all 

cases, were excluded from the Service’s selection process. For example, in some 

cases that we identified, decisions that had already been addressed by the courts 

were excluded from the Service’s selection process; decisions that could not be reversed were also excluded. In the case of the Palos Verdes blue butterfly, Navyowned land that was critical habitat was exchanged after involvement by Ms. MacDonald in a section 7 consultation. As a result, the habitat of the species’ last known 

wild population was destroyed by development, and therefore reversing the decision 

would not have been possible. Additionally, decisions were excluded from the Service’s selection process if it was determined that review would not be an efficient use 

of resources or if it could not be conclusively determined that Ms. MacDonald altered the decision. Several Service staff cited instances where they believed that Ms. 

MacDonald had altered decisions, but because the documentation was not clear, 

they could not ascertain that she was responsible for the changes. Additionally, decisions that were implicitly attributed to Ms. MacDonald were excluded from the selection process. Service staff described a climate of ‘‘Julie-proofing’’ where, in response to continual questioning by Ms. MacDonald about their scientific reasoning, 

they eventually learned to anticipate what might be approved and wrote their decisions accordingly. 

The Service’s May 2005 Informal Guidance Had No Substantive Effect on 

90-Day Petition Findings, Although Other Challenges Exist 

While the Service’s May 2005 informal guidance had no substantive effect on the 

processing of 90-day petition findings, the Service still faces several other challenges 

in processing these petitions. Stakeholders have expressed concern that the wording 

of the May 2005 guidance was slanted more toward refuting petitioners’ listing 

claims, rather than encouraging Service biologists to use information to both support and refute listing petitions; consequently, they feared that a greater number 

of negative 90-day petition findings would result. According to a senior Service official, it was never the Service’s position that information collected to evaluate a petition could be used to support only one side, specifically, only to refute the petition. 

Rather, according to a senior Service official, its position is and has been that additional collected information can be used to either support or refute information presented in the petition; any additional information is not, however, to be used to augment or supplement a ‘‘weak’’ petition by raising new issues not already presented. 

According to the ESA, the petition itself must present ‘‘substantial scientific or commercial information indicating that the petitioned action may be warranted.’’ 16 Our 

survey of Service biologists responsible for drafting the 90-day petition findings 

issued from 2005 through 2007 found that the biologists generally used additional 

16 

17 In making a 90-day petition finding, the Service must consider whether the petition: (1) 

clearly indicates the administrative measure recommended and gives scientific and common 

names of the species involved; (2) contains detailed narrative justification for the recommended 

measure, describing, according to available information, past and present numbers and distribution of the species involved and any threats faced by the species; (3) provides information on 

the status of the species over all or a significant portion of its range; and (4) is accompanied 

by appropriate supporting documentation in the form of bibliographic references, reprints of pertinent publications, copies of reports or letters from authorities, and maps. 50 C.F.R. §

424.14(b)(2). 18 A senior Service official stated that, according to memory, no other informal guidance documents were issued during this 18-month period. If specific questions were asked by a particular 

region or field office, however, informal guidance could have been given by officials at Service 

headquarters through e-mail. 19See 61 Fed. Reg. 36075 (July 9, 1996). This guidance was issued jointly by the Service and 

the National Oceanic and Atmospheric Administration’s Fisheries Service. 20 ALA v. Norton, Civ. No. 00-2339, 2004 WL 3246687 at *3 (D.D.C. June 2, 2004). 21 A senior Service official stated that the emphasis was put on compiling information to refute petitioners’ claims because if a petition was found to be ‘‘not substantial,’’ the 90-day petition finding was the agency’s final action on that petition. The Service therefore needed to adequately document in the administrative record the reasons that the petition was denied. 

information, as applicable, to support as well as refute information in the petitions. 17 The Service is facing several challenges with regard to the processing of 90- 

day petition findings. In particular, the Service finds it difficult to issue decisions 

within the desired 90-day time frame and to adjust to various court decisions issued 

in the last 4 years. 

Notwithstanding the Service’s May 2005 Informal Guidance, Additional 

Information Collected by Service Biologists Was Used to Support and 

Refute 90-day Petitions 

In our survey of 44 Service biologists who prepared 54 90-day petition findings 

from 2005 through 2007, we found that additional information collected to evaluate 

the petitions was generally used, as applicable, to both support and refute information in the petitions, including during the 18-month period when the May 2005 informal guidance was being used. 18 The processing of 90-day petition findings is governed by the ESA, federal regulations, and various guidance documents distributed 

by the Service. To direct the implementation of the law and regulations, and to respond to court decisions, the Service issues guidance, which is implemented by Service staff in developing 90-day petition findings. This guidance can come in formal 

policies and memorandums signed by the Service Director, or informal guidance not 

signed by the Director but distributed by headquarters to clarify what information 

should be used and how it should be used in processing petitions. In July 1996, the 

Service issued a formal policy, called Petition Management Guidance, governing 90- 

day petition findings and 12-month status reviews. 19 A component of this document 

was invalidated by the District of Columbia district court in June 2004. 20 According 

to senior Service officials, since 2004 the Service has distributed a series of instructions through e-mails, conference calls, and draft guidance documents to clarify the 

development of 90-day petition findings. For example, in May 2005, the Service distributed via e-mail an informal guidance document that directed its biologists to create an outline listing additional information—that is, information not cited or referred to in a petition—that refuted statements made in the petition; biologists were 

not to list in the outline any additional information that may have clarified or supported petition statements. 21

We identified a universe of 67 90-day petition findings issued by the Service from 

2005 through 2007. To focus on how the Service used information to list or delist 

U.S. species, we surveyed Service biologists responsible for drafting 54 of the 67 90- 

day petition findings. For the 54 90-day petitions included in our survey, 40 were 

listing petitions, and 14 were delisting petitions; 25 resulted in positive 90-day petition findings, and 29 resulted in negative 90-day petition findings (see table 3). 

17 

22The biologist did not cite the May 2005 guidance when asked what guidance was followed 

in evaluating the petition, so it is unlikely that the finding was affected by the May 2005 guidance document. 

Note: The first time period, January 2005 through April 2005, includes the 90-day 

petition findings in our sample issued before the May 2005 informal guidance was 

being used. The second time period, May 2005 through November 2006, includes the 

18-month period when the May 2005 information guidance was being used. The 

third time period, December 2006 through December 2007, includes the 90-day petition findings in our sample issued after the May 2005 informal guidance was superseded by new draft guidance in November 2006. 

Five of these decisions have been or are being revised as the result of litigation, 

and two additional decisions were involved in ongoing litigation as of March 31, 

2008. 

In November 2006, the Service distributed new draft guidance on the processing 

of 90-day petitions, which specified that additional information in Service files could 

be used to refute or support issues raised in the petition but not to ‘‘augment a weak 

petition’’ by introducing new issues. For example, if a 90-day petition to list a species claimed that the species was threatened by predation and habitat loss, the 

Service could not supplement the petition by adding information describing threats 

posed by disease. The May 2005 informal guidance was thus in use until this November 2006 guidance was distributed, or approximately 18 months. 

Our survey results showed that in most cases, the additional information collected 

by Service biologists when evaluating 90-day petitions was used to support as well 

as refute information in petitions (see table 4). According to the Service biologists 

we surveyed, additional information was used exclusively to refute information in 

90-day petitions in only 8 of 54 cases. In these 8 cases, the biologists said, this approach was taken because of the facts, circumstances, and the additional information specific to each petition, not because they believed that it was against Service 

policy to use additional information to support a petition. In particular, with regard 

to the 4 petitions processed during May 2005 through November 2006 for which additional information was used exclusively to refute petition information, the biologists stated that the reasons they did not use information to support claims made 

in the petition was that either the claims themselves did not have merit or the information reviewed did not support the petitioner’s claims. Three of the four biologists responsible for these petitions also stated that they did not think it was 

against Service policy to use additional information to support issues raised in a petition. The fourth biologist was uncertain whether it was against Service policy to 

support issues raised in a petition. 22


42492.042
18 

23Processing times were calculated as number of days from the date the Service received the 

petition (or the date the petition was written, if the date of receipt was unavailable) to the date 

the associated finding was published in the Federal Register. 24Some of the 281 species on the candidate list have been waiting for a proposed listing decision for more than a decade. 25ALA v. Norton, Civ. No. 00-2339, 2004 WL 3246687 at *3 (D.D.C. June 2, 2004) (permanent 

nationwide injunction based on Gunnison sage grouse). See also ALA v. Norton, 242 F. Supp. 

2d 1, 18 (2003) (declaring this aspect of the guidance to be invalid). The adequacy of the guidance was also challenged in a 2001 decision, Center for Biological Diversity v. Gale Norton, 254 

F.3d 833, 838-40 (2001) (holding that provisions of the guidance related to candidate species violated the ESA). 

The Service Faces Challenges in Processing 90-Day Petitions in a Timely 

Manner and in Responding to Court Decisions Issued Since 2004 

While the May 2005 informal guidance did not have a substantive effect on the 

Service’s processing of 90-day petitions, the Service still faces challenges in processing 90-day petitions in a timely manner and in responding to court decisions 

issued since 2004. None of the 90-day petition findings issued from 2005 through 

2007 were issued within the desired 90-day time frame. During this period, the median processing time was 900 days, or about 2.5 years, with a range of 100 days 

to 5,545 days (more than 15 years). 23 According to Service officials, almost all of 

their ESA workload is driven by litigation. Petitioners have brought a number of 

individual cases against the Service for its failure to respond to their petitions in 

a timely manner. This issue presents continuing challenges because the Service’s 

workload increased sharply in the summer of 2007, when it received two petitions 

to list 475 and 206 species, respectively. 

The Service is also facing several management challenges stemming from a number of court decisions since 2004: 

• According to senior Service officials, the Service currently has no official guidance on how to develop 90-day petition findings, partially because of a 2004 

court decision invalidating part of the Service’s 1996 Petition Management 

Guidance. The Service’s official 1996 Petition Management Guidance contained 

a controversial provision that treated 90-day petitions as ‘‘redundant’’ if a species had already been placed on the candidate list via the Service’s internal 

process. 24 In 2004, a federal district court issued a nationwide injunction striking down this portion of the guidance. 25 Senior service officials stated that the 

Service rescinded use of the document in response to this court ruling and 

began an iterative process in 2004 to develop revised guidance on the 90-day 

petition process. According to these officials, guidance was distributed in piecemeal fashion, dealing with individual aspects of the process in the form of emails, conference-call discussions, and various informal guidance documents. 

Our survey respondents indicated that the lack of official guidance created confusion and inefficiencies in processing 90-day petitions. Specifically, survey respondents were confused on what types of additional information they could use 

to evaluate 90-day petitions—whether they were limited to information in Service files, or whether they could use information solicited from their professional 

contacts to clarify or expand on issues raised in the petition. Several survey respondents also stated that unclear and frequently changing guidance resulted 

in longer processing times for 90-day petition findings, which was frustrating 

because potentially endangered species decline further as the Service determines whether they are worthy of protection. Further complicating matters, 31 

of the 44 biologists we surveyed, or 70 percent, had never drafted a 90-day petiVerDate Aug 31 2005 15:00 Sep 25, 2008 Jkt 098700 PO 00000 Frm 00022 Fmt 6633 Sfmt 6621 L:\DOCS\42492.TXT Hresour1 PsN: KATHY

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26 Center for Biological Diversity v. Morganweck, 351 F. Supp. 2d 1137, 1143 (D. Colo. 2004). 27 Colorado River Cutthroat Trout, et al. v. Kempthorne, 448 F. Supp. 2d 170 (2006); Western 

Watersheds Project v. Norton, Civ. No. 06-127, 2007 WL 2827375 (D. Idaho Sept. 6, 2007) 

(pygmy rabbit); Center for Biological Diversity v. Kempthorne, Civ. No. 07-0038, 2008 WL 

6598322 (D. Ariz. March 6, 2008) (Sonoran desert population of bald eagle). The Service’s May 

2005 informal guidance directed biologists to use information in Service files or ‘‘other information,’’ which the guidance did not elaborate on. The Service’s November 2006 draft guidance 

stated that biologists should identify and review ‘‘readily available information within Service 

files’’ as part of evaluating information contained in petitions. The biologists we surveyed expressed confusion and lack of consensus on the meaning of the terms ‘‘readily available’’ and 

‘‘within Service files.’’ Some Service officials were concerned that if information solicited from 

outside sources could not be considered in developing 90-day petition findings, many more 90- 

day petitions would be approved and moved forward for in-depth 12-month reviews, further 

straining the Service’s limited resources. 28Defenders of Wildlife v. Kempthorne, Civ. No. 05-99 (D. Mont. Sept. 29, 2006) (wolverine); 

Center for Biological Diversity v. Kempthorne, Civ. No. 06-04186, 2007 WL 163244 (N.D. Cal. 

Jan. 19, 2007) (Siskiyou Mountains salamander and Scott Bar salamander); Western Watersheds Project v. Norton, Civ. No. 06-127, 2007 WL 2827375 (D. Idaho Sept. 6, 2007) (pygmy rabbit). 29Defenders of Wildlife v. Kempthorne, Civ. No. 05-99, slip op. at 20 (D. Mont. Sept. 29, 2006). 30 Center for Biological Diversity v. Kempthorne, Civ. No. 07-0038, 2008 WL 659822 (D. Ariz. 

Mar. 6, 2008). 

tion finding before. According to a senior Service official, the Service is planning 

to issue official guidance on how 90-day petition findings should be developed 

to eliminate confusion and inconsistencies. • With regard to the use of outside information in evaluating petitions, the Service must continue to adapt to a number of court decisions dating back to 2004 

holding that the Service should not solicit information from outside sources in 

developing 90-day petition findings. A December 2004 decision by the U.S. District Court for the District of Colorado stated that the Service’s ‘‘consideration 

of outside information and opinions provided by state and federal agencies during the 90-day review was overinclusive of the type of information the ESA contemplates to be reviewed at this stage....[and] those petitions that are meritorious on their face should not be subject to refutation by information and 

views provided by selected third parties solicited by [the Service].’’ 26 Since then, 

several other courts have reached similar conclusions. 27 Despite the constancy 

of various courts’ holdings, 25 out of the 54 90-day petition findings in our survey, or 46 percent, were based in part on information from outside sources, according to Service biologists. • In addition, the Service must continue to adapt to a number of court decisions 

since 2004 on whether it is imposing too high a standard in evaluating 90-day 

petitions. This issue—essentially, what level of evidence is required at the 90- 

day petition stage and how this evidence should be evaluated—goes hand in 

hand with the issue of using additional information outside of petitions in 

reaching ESA decisions. In overturning three negative 90-day petition findings, 

three recent court decisions in 2006 and 2007 have held, in part, that the Service imposed too high a standard in evaluating the information presented in the 

petitions. 28 These court decisions have focused on the meaning of key phrases 

in the ESA and federal regulations, such as ‘‘substantial’’ information, ‘‘a reasonable person,’’ and ‘‘may be warranted.’’ In 2006, the U.S. District Court for 

the District of Montana concluded that the threshold necessary to pass the 90- 

day petition stage and move forward to a 12-month review was ‘‘not high.’’ 29

Again, some Service officials are concerned that these recent court decisions 

may lead to approval of more 90-day petitions, thus moving them forward for 

in-depth 12-month reviews and straining the Service’s limited resources. 

Beyond these general challenges, the Service’s 90-day petition finding in a recent 

case involving the Sonoran Desert population of the bald eagle has come under severe criticism by the U.S. District Court for the District of Arizona. 30 The court 

noted that Service scientists were told in a conference call that headquarters and 

regional Service officials had reached a ‘‘policy call’’ to deny the 90-day petition and 

that ‘‘we need to support [that call].’’ A headquarters official made this statement 

even though the Service had been unable to find information in its files refuting the 

petition and even though at least some Service scientists had concluded that listing 

may be warranted. The court stated that the Service participants in a July 18, 2006, 

conference call appeared to have received ‘‘marching orders’’ and were directed to 

find an analysis that fit a 90-day finding that the Sonoran Desert population of the 

bald eagle did not constitute a distinct population segment. The court stated that 

‘‘these facts cause the Court to have no confidence in the objectivity of the agency’s 

decision-making process in its August 30, 2006, 90-day finding.’’ In contrast, in a 

20 

31Western Watersheds Project v. Hall, Civ. No. 06-0073, 2007 WL 2790404 (D. Idaho Sept. 

24, 2007). 3271 Fed. Reg. 75924 (Dec. 19, 2006). 

September 2007 decision, the U.S. District Court for the District of Idaho upheld 

the Service’s ‘‘not substantial’’ 90-day petition findings on the interior mountain 

quail distinct population segment. 31

Recovery Criteria for Threatened and Endangered Species Were Generally 

Met in Final Delisting Decisions but Not in Proposed Delisting 

Decisions 

Of the eight U.S. species delisted from 2000 through 2007 because of recovery, the 

Service reported that recovery criteria were completely met for five species and partially met for the remaining three species. When the delistings were first proposed, 

however, the respective recovery criteria for only two of the eight species had been 

completely met. Although the ESA does not specifically require the Service to meet 

recovery criteria before delisting a species, courts have held that the Service must 

address the ESA’s five threat factors for listing/delisting, to the maximum extent 

practicable, in developing recovery criteria. For each of the delisted species that we 

reviewed, the Service determined that the five threat factors listed in the ESA no 

longer posed a significant enough threat to the continued existence of the species 

to warrant continued listing as threatened or endangered. 

Table 5 summarizes whether the recovery criteria for the eight species delisted 

from 2000 through 2007 were partially or completely met at the proposed rule stage 

and the final rule stage. At the proposed rule stage, only two of the eight species 

had completely met their respective recovery criteria; that fraction increased to five 

of eight at the final rule stage. The period between the proposed rules and the final 

rules ranged from less than 1 year for the gray wolf’s western Great Lakes distinct 

population segment to just over 8 years for the bald eagle. 

A federal district court prevented the delisting of the Sonoran Desert population 

of the bald eagle, pending a 12-month status review and lawful determination of its 

status as a distinct population segment. 

For the species where the criteria were not completely met before final delisting, 

the Service indicated that the recovery criteria were outdated or otherwise not feasible to achieve. For example, the recovery plan for the Douglas County population 

of Columbian white-tailed deer was originally developed in 1976 and later updated 

in 1983. The recovery plan recommended maintaining a minimum population of 500 

animals distributed in suitable, secure habitat within Oregon’s Umpqua Basin. The 

Service reported it was not feasible to demonstrate, without considerable expense, 

that 500 specific deer live entirely within secure lands managed for their benefit, 

for most deer move between public and private lands. Even though this specific recovery criterion was not met, the Service indicated that the species warranted 

delisting because of the overall increase in its population and amount of secure 

habitat. 

The West Virginia northern flying squirrel, whose final delisting decision was 

pending at the time of our review, offers an example of a species proposed for 

delisting even though the recovery criteria have not been met. The species was proposed for delisting on December 19, 2006. 32 The squirrel’s recovery plan was developed in 1990 and amended in 2001 to incorporate guidelines for habitat identification and management in the Monongahela National Forest, which supports almost 


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33See Defenders of Wildlife v. Babbitt, 130 F. Supp. 2d 121 (D.D.C. 2001); Fund for Animals 

v. Babbitt, 903 F. Supp. 96 (D.D.C. 1995). In Defenders of Wildlife, the court remanded the recovery plan to the Service to incorporate delisting criteria or to provide an adequate explanation 

of why delisting criteria could not practicably be incorporated. In Fund for Animals, the court 

remanded the plan back to the Service for revision of the recovery criteria. 34GAO, Endangered Species: Time and Costs Required to Recover Species Are Largely Unknown, GAO-06-463R (Washington D.C.: Apr. 6, 2006). The random sample of 107 recovery 

plans included 99 recovery plans (covering 192 species) for which the Service has either primary 

responsibility or shared responsibility with the National Oceanic and Atmospheric Administration’s Fisheries Service, and 8 recovery plans (covering 9 species) for which the National Oceanic 

and Atmospheric Administration’s Fisheries Service has primary responsibility. 

all of the squirrel’s populations. The Service asserted that, other than the 2001 

amendment, the West Virginia northern flying squirrel recovery plan is outdated 

and no longer actively used to guide recovery. This was in part because the squirrel’s known range at the time of proposed delisting was much wider than the geographic recovery areas designated in the recovery plan and because the recovery 

areas have no formal or regulatory distinction. In support of its delisting decision, 

the Service indicated that the squirrel population had increased and that suitable 

habitat had been expanding. The Service drew these conclusions largely on the basis 

of a 5-year review—an ESA-mandated process to ensure the continued accuracy of 

a listing classification—completed in 2006, and not on the basis of the squirrel’s 

1990 recovery plan. The Service also reported that the recovery plan’s criteria did 

not specifically address the five threat factors. 

According to the Service, most recovery plan criteria have focused on demographic 

parameters, such as population numbers, trends, and distribution. While the Service 

acknowledges that these types of criteria are valid and useful, it also cautions that, 

by themselves they are not adequate for determining a species’ status. The Service 

reports that recovery can be accomplished via many paths and may be achieved 

even if not all recovery criteria are fully met. A senior Service official noted that 

the quality of recovery plans varies considerably, and some criteria may be outdated. Furthermore, Service officials also noted, recovery plans are fluid documents, 

and the plan’s respective criteria can be updated as new threat information about 

a particular species becomes available. 

While the ESA does not specifically require the Service to meet recovery criteria 

before delisting a species, courts have held that it must address each of the five 

threat factors to the maximum extent practicable when developing recovery criteria. 33 In a 2006 report, we provided information on 107 randomly sampled recovery plans covering about 200 species. 34 Specifically, we found that only 5 of the 107 

reviewed recovery plans included recovery criteria that addressed all five threat factors. We recommended that in recovery planning guidance, the Service include direction that all new and revised recovery plans contain either recovery criteria to 

demonstrate consideration of all five threat factors or a statement about why it is 

not practicable to include such criteria. In January 2008, in response to our recommendation, the Director of the Service issued a memorandum requiring all new 

and revised recovery plans to include criteria addressing each of the five threat 

factors. 

Concluding Observations 

In conclusion, Mr. Chairman, questions remain about the extent to which Interior 

officials other than Ms. MacDonald may have inappropriately influenced ESA decisions and whether broader ESA policies should be revisited. Under the original direction from Interior’s Deputy Secretary and the three selection criteria followed by 

the Service, a variety of ESA decisions were excluded from the selection process. 

Broadening the scope of the review might have resulted in the selection of more decisions, but it is unclear to what extent. The Service recognizes the need for official 

guidance on how 90-day petition findings should be developed to eliminate confusion 

and inconsistencies. The guidance will need to reflect the Service’s implementation 

of recent court decisions on how far the Service can go in collecting additional information to evaluate 90-day petitions and reflect what standards should be applied 

to determine if a petition presents ‘‘substantial’’ information. The need for clear 

guidance is more urgent than ever with the Service’s receipt in the summer of 2007 

of two petitions to list 681 species. 

Assuming successful implementation of the Service’s January 2008 directive that 

recovery criteria be aligned with the five threat factors in the ESA, we believe that 

future delistings will more likely meet recovery criteria while also satisfying the 

ESA’s delisting requirements based on the five threat factors. 

22 

Agency Comments 

We provided Interior with a draft of this testimony for review and comment. However, no comments were provided in time for them to be included as part of this 

testimony. Mr. Chairman, this completes my prepared statement. I would be happy 

to respond to any questions you or other members of the Committee may have at 

this time. 

GAO Contacts and Staff Acknowledgments 

For further information, please contact Robin M. Nazzaro at (202) 512-3841 or 

nazzaror@gao.gov. Contact points for our Offices of Congressional Relations and 

Public Affairs may be found on the last page of this statement. Individuals making 

key contributions to this testimony include Jeffery D. Malcolm, Assistant Director; 

Eric A. Bachhuber; Mark A. Braza; Ellen W. Chu; Alyssa M. Hundrup; Richard P. 

Johnson; Patricia M. McClure; and Laina M. Poon. 

GAO Highlights 

U.S. FISH AND WILDLIFE SERVICE 

ENDANGERED SPECIES ACT DECISION MAKING

Why GAO Did This Study 

The Department of the Interior’s (Interior) U.S. Fish and Wildlife Service (Service) is generally required to use the best available scientific information when making key decisions under the Endangered Species Act (ESA). Controversy has surrounded whether former Deputy Assistant Secretary Julie MacDonald may have inappropriately influenced ESA decisions by basing decisions on political factors rather than scientific data. Interior directed the Service to review ESA decisions to determine which decisions may have been unduly influenced. 

ESA actions include, among others, 90-day petition findings, 12-month listing or 

delisting findings, and recovery planning. The Service distributed informal guidance 

in May 2005 on the processing of 90-day petitions. Recovery plans generally must 

include recovery criteria that, when met, would result in the species being delisted. 

GAO examined three separate issues: (1) what types of decisions, if any, were excluded from the Service’s review of decisions that may have been inappropriately influenced; (2) to what extent the Service’s May 2005 informal guidance affected 90- 

day petition findings; and (3) to what extent the Service has, before delisting species, met recovery criteria. GAO interviewed Service staff, surveyed Service biologists, and reviewed delisting rules and recovery plans. Interior did not provide comments in time for them to be included in this testimony. 

What GAO Found 

Several types of decisions were excluded from the Service’s review of decisions 

that may have been inappropriately influenced. Using the following selection criteria, the Service identified eight ESA decisions for potential revision: (1) whether 

Ms. MacDonald influenced the decision directly, (2) was the scientific basis of the 

decision compromised, and (3) did the decision significantly change and result in a 

potentially negative impact on the species. The Service excluded (1) decisions made 

by Interior officials other than Ms. MacDonald, (2) policy decisions that limited the 

application of science, and (3) decisions that were changed but not significantly or 

to the point of negative impact on the species. 

The Service’s May 2005 informal guidance had no substantive effect on 90-day petition findings. In May 2005, Service headquarters distributed a guidance document 

via e-mail to endangered-species biologists that could have been interpreted as instructing them to use additional information collected to evaluate a 90-day petition 

only to refute statements made therein. GAO’s survey of 90-day petition findings 

issued by the Service from 2005 through 2007 found that biologists used additional 

information collected to evaluate petitions to both support and refute claims made 

in the petitions, as applicable, including during the 18-month period when the May 

2005 informal guidance was being used. However, GAO found that the Service faces 

various other challenges in processing petitions, such as making decisions within 90 

days and adjusting to recent court decisions. None of the 90-day petition findings 

issued from 2005 through 2007 were issued within the desired 90-day time frame. 

During these years, the median processing time was 900 days, or about 2.5 years, 

with a range of 100 days to 5,545 days (over 15 years). Additionally, the Service 

faces several challenges in responding to court decisions issued since 2004. For example, the Service has not yet developed new official guidance on how to process 

90-day petitions after the courts invalidated a portion of the prior guidance. 

23 

1We defined information in Service files as information not included or cited in the petition 

but used regularly over the course of the lead biologists’ work. We defined information external 

Continued 

Finally, of the eight species delisted because of recovery from 2000 through 2007, 

the Service determined that recovery criteria were completely met for five species 

and partially met for the remaining three species because some recovery criteria 

were outdated or otherwise not feasible to achieve. When the delistings were first 

proposed, however, only two of the eight species had completely met all their respective recovery criteria. Although the ESA does not explicitly require the Service to 

follow recovery plans when delisting species, courts have held that the Service must 

address the ESA’s listing/delisting threat factors to the maximum extent practicable 

when developing recovery criteria. In 2006, GAO reported that the Service’s recovery plans generally did not contain criteria specifying when a species could be recovered and removed from the endangered species list. Earlier this year, in response 

to GAO’s recommendation, the Service issued a directive requiring all new and revised recovery plans to include criteria addressing each of the ESA’s listing/delisting 

threat factors. 

Appendix I: Objectives, Scope, and Methodology 

We are reporting on (1) what types of decisions, if any, were excluded from the 

U.S. Pish and Wildlife Service’s (Service) selection process of Endangered Species 

Act (ESA) decisions that were potentially inappropriately influenced; (2) the extent 

to which the Service’s May 2005 informal guidance affected the Service’s decisions 

on petitions to list or delist species; and (3) the extent to which the Service determined, before delisting, whether species met recovery criteria outlined in recovery 

plans. 

To address our first objective, we interviewed the Director of the Service, all eight 

regional directors, and key regional staff. Also, we conducted site visits, phone interviews, or both with ESA staff from ten field offices in five regions that were actively 

engaged in ESA decision making. Further, we reviewed documentation developed by 

Service headquarters, regions, and field offices about the selection process and the 

status of the Service’s review. In addition, we reviewed Service policies and procedures for making ESA decisions and reviewed other species-specific information. 

To address our second objective, we identified 67 90-day petition findings issued 

by the Service from 2005 through 2007 and conducted structured telephone interviews of current and former Service biologists responsible for drafting 90-day petition findings issued in that time frame. Of the 67, we excluded 13 petition findings 

from our survey: 5 had been overturned by the courts or were being redone as a 

result of a settlement agreement; 3 involved up-listing already protected species 

from threatened to endangered; 2 involved ongoing litigation; 2 involved species located outside the United States; and 1 involved a petition to revise a critical habitat 

designation for a species that was already protected. In total, we surveyed 44 biologists responsible for drafting 54 90-day petition findings. To identify the lead author 

responsible for drafting the 90-day petition findings in our survey, we contacted the 

field office supervisor at the office where the petition finding was drafted. The field 

office supervisor directed us to the biologist who was the lead author of the finding 

or, if that person was not available, a supporting or supervising biologist. Of the 

44 biologists we surveyed, 39 were lead biologists in drafting the finding, 3 were 

supervising biologists, and 2 were supporting biologists. From February 1,2008, and 

February 6,2008, we pretested the survey with 5 biologists from three regions between, and We used their feedback to refine the survey. The five 90-day petition 

findings we selected for the pretest were all published in 2004 to most closely approximate, but not overlap with, our sample. They represented a balance between 

listing and delisting petitions, substantial and not substantial findings, and types 

of information used in evaluating the petition as stated in the Federal Register notice. We conducted the pretests through structured telephone interviews to ensure 

that (1) the questions were clear and unambiguous, (2) terms were precise, and (3) 

the questions were not sensitive and that the questions as phrased could be candidly answered. A GAO survey specialist also independently reviewed the questionnaire. 

Our structured interview questions were designed to obtain information about the 

process the Service uses in making 90-day petition findings under the ESA and the 

types of information used to draft each 90-day petition finding. Specifically, the 

structured questions focused on information that was not cited or referred to in a 

listing or delisting petition but was either internal to Service files or obtained from 

sources outside the Service. 1 In each of these categories, we asked whether the information was used to support, refute, or raise new issues not cited in the petition. 

24 

to Service files as information not included or cited in the petition but solicited from other entities or obtained through exhaustive literature searches during the process of reviewing the petition. 

Table 6 summarizes the key questions we are reporting on that we asked during 

the structured interviews. We also asked other questions in the survey that we do 

not specifically report on; these questions do not appear in the table below. 

Our survey results demonstrated in several ways that the May 2005 guidance did 

not have a substantive effect on the outcomes of 90-day petition findings. First, 

Service biologists who chose not to use information outside of petitions to support 

claims made in the petitions said that Service policy had no influence on this choice. 

Second, when asked what guidance they followed in drafting their 90-day petition 

finding, very few respondents cited the May 2005 guidance, indicating that although 

this guidance may have been followed to create an internal agency outline, it did 

not have a substantive effect on the finding itself. Third, in response to our concluding, open-ended question, none of the biologists mentioned specific reservations 

about the May 2005 guidance. 

To address our third objective, we generated a list of all of the Service’s final 

delisting decisions published as rules in the Federal Register (and corresponding 

proposed delisting rules) from calendar years 2000 through 2007, to determine the 

number of species removed from the list of threatened and endangered species by 

the Service. As of December 31, 2007, the Service had issued final rules resulting 

in the delisting of 17 species. Of those 17 delisted species, 2 species were delisted 

because they had been declared extinct, 6 species were delisted because the original 

data used to list the species were in error, and 9 species were delisted as a result 

of recovery. Of the 9 recovered species, we excluded the Tinian monarch, a species 

located in a U.S. territory, which reduced the number of species we looked at to 8 


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U.S. species delisted because of recovery. To examine whether the Service met recovery criteria outlined in recovery plans before delisting species, we obtained and 

reviewed the Service’s recovery plans for each of those 8 delisted species and also 

examined the Federal Register proposed and final delisting rules. This information 

indicated whether the Service believed that it had met the criteria laid out in the 

recovery plans for the 8 delisted U.S. species. Finally, we also reviewed the proposed 

rule to delist the West Virginia northern flying squirrel; as of March 31, 2008, the 

Service had not finalized this proposed rule. 

We conducted this performance audit from August 2007 to May 2008 in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence 

to provide a reasonable basis for our findings and conclusions based on our audit 

objectives. We believe that the evidence obtained provides a reasonable basis for our 

findings and conclusions based on our audit objectives. 


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The CHAIRMAN. Mr. Laverty? 


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STATEMENT OF R. LYLE LAVERTY, ASSISTANT SECRETARY 

FOR FISH AND WILDLIFE AND PARKS, U.S. DEPARTMENT OF 

THE INTERIOR, ACCOMPANIED BY REN LOHOEFENER, FISH 

AND WILDLIFE SERVICE, U.S. DEPARTMENT OF INTERIOR, 

AND ED SHEPARD, BUREAU OF LAND MANAGEMENT, U.S. 

DEPARTMENT OF INTERIOR 

Mr. LAVERTY. Good morning, Mr. Chairman and Members of the 

Committee. I am Lyle Laverty. I am the Assistant Secretary for 

Fish, Wildlife and Parks for the Department of the Interior. 

I want to thank you for this opportunity to share with you the 

Department’s recent actions relating to our implementation of the 

Endangered Species Act. This is my first appearance before you 

and your Committee since my confirmation as Assistant Secretary, 

and it truly is an honor to be here in front of you today. 

Let me begin by mentioning our most recent listing activity. As 

you know, Mr. Chairman, Secretary Kempthorne announced last 

week that he accepted my recommendation of the U.S. Fish and 

Wildlife Service Director Dale Hall’s decision to list the polar bear 

as a threatened species under the Endangered Species Act. 

This listing decision is based on the best available science, which 

shows that the loss of sea ice threatens and will continue to threaten the polar bear habitat. This loss of habitat puts polar bears at 

risk of becoming endangered in the foreseeable future, which is the 

standard established by the Endangered Species Act for designating threatened species. 

In making the decision, the Secretary also announced that he 

was using the authority provided in Section 4[d] of the Endangered 

Species Act to develop a rule that states if an activity is permissible under the stricter standards conservation regulatory requirements and standards imposed by the Marine Mammal Protection 

Act, it is also permissible under the Endangered Species Act with 

respect to the polar bear. 

This rule, which we have issued as an interim final rule which 

is effective immediately, will ensure the protection of the bear 

while allowing for continued development of our natural resources 

in the Arctic region in an environmentally sound fashion. 

While my nomination was pending with the U.S. Senate, this 

Committee held several hearings. Because of the unique position 

that I held at that time I was still an outsider, but by virtue of the 

nature of the position to which I had been nominated I was extremely interested in the issues that you were discussing. 

At that time I was fortunate to have both the time and the opportunity to reflect on what I was hearing and reading and what 

actions would in my mind address the problems and add real value 

to the process. I determined it was important for me to immediately set a firm tone on the issues of ethical behavior and how 

policy and science should interact in the Department. 

One of my commitments to both committees, and one of the first 

actions I took after the nomination, was to meet with my staff and 

the Department’s ethics officer for a comprehensive briefing on the 

Department’s ethics standards. I also committed to and have explained to my staff that any contacts they have with field personnel 

either at the Fish and Wildlife Service or the National Park Service 

47 

regarding questions of science must and will be through established organizational channels and only with my prior approval. 

I strive to ensure that everyone in my office treats everyone else 

and is, in turn, treated with dignity and respect. If there are questions of science, and there should be, I expect those discussions to 

flow through the Director for clarification. 

As a natural resource professional, I understand the role of 

science. I am committed to ensure the integrity of science as the 

foundation for our resource decisions. I have met with the Fish and 

Wildlife Service Director Dale Hall and Director Mary Bomar and 

have affirmed my commitment to professional behavior and personal code of conduct when it comes to the interaction. I affirmed 

this again in my letters to Senator Boxer and Senator Bingaman. 

I believe in performance accountability, including my own. I meet 

on a weekly basis with Director Hall to talk about communication, 

staff interactions and performance, on my feedback, on my performance, and the question am I doing what I said I would do? I 

value those conversations. 

I have read the GAO report regarding the Fish and Wildlife 

Service endangered species decision making. I have discussed the 

report with Fish and Wildlife staff and understand the Service is 

currently implementing the recovery plan recommendations. The 

90-day petition finding guidance is under review and incorporates 

and addresses the court decisions, as well as recommendations to 

the GAO. 

Director Hall has established a series of code of conducts as it 

relates to professional organizations. He has shared that with you. 

I will move on, just very quickly, to give an update on the discussion on decision review. The Service is moving ahead with the review of the decisions that were overseen by the former Deputy Assistant Secretary. The process for reviewing decisions is established 

by the Service, and engaged resource professionals in those assessments. 

Let me highlight just a few points that Deputy Director Ken 

Stansell shared with the Committee. It talked about the conclusion 

and the revision to seven of the eight decisions that should be 

made. There are actions underway to deal with many of those 

issues. I can go into more detail in a minute with you if you would 

like to do that. 

In conclusion, I believe that the Department and the Service 

have made great strides over this past year, ensuring that our 

decision-making processes are clearly delineated, that we maintain 

a strong emphasis on ethical conduct, and that we are continuing 

our commitment to maintaining the integrity of science used in the 

decision-making process. 

I want to thank you for this opportunity to join you, and I look 

forward to having a chance to answer any questions you might 

have for me. Thank you. 

[The prepared statement of Mr. Laverty follows:] 

Statement of R. Lyle Laverty, Assistant Secretary for Fish and Wildlife 

and Parks, U.S. Department of the Interior 

Mr. Chairman and Members of the Committee, I am Lyle Laverty, Assistant Secretary for Fish and Wildlife and Parks at the Department of the Interior. I thank 

you for the opportunity to share with you the Department’s recent actions relating 

48 

to our implementation of the Endangered Species Act. This is my first appearance 

before you and your Committee since my confirmation as Assistant Secretary, and 

it is my great pleasure to be here today. 

I am accompanied today by Mr. Ren Lohoefener, Regional Director for the U.S. 

Fish and Wildlife Service’s Pacific Region, and Mr. Ed Shepard, the Bureau of Land 

Management’s Oregon State Director. These gentlemen have made themselves available, at your request, to respond to any questions that you or other Members of the 

Committee may have about the spotted owl recovery plan and the Western Oregon 

Plan Revisions. 

Let me begin by mentioning our most recent listing activity. As you know, Mr. 

Chairman, Secretary Kempthorne announced last week that he accepted my recommendation of Fish and Wildlife Service Director Dale Hall’s decision to list the 

polar bear as a threatened species under the Endangered Species Act. The listing 

is based on the best available science, which shows that loss of sea ice threatens, 

and will likely continue to threaten, polar bear habitat. This loss of habitat puts 

polar bears at risk of becoming endangered in the foreseeable future, the standard 

established by the ESA for designating a threatened species. 

In making the decision, the Secretary also announced that he was using the authority provided in Section 4(d) of the ESA to develop a rule that states that if an 

activity is permissible under the stricter standards imposed by the Marine Mammal 

Protection Act, it is also permissible under the Endangered Species Act with respect 

to the polar bear. This rule, which we have issued as an interim final rule and 

which is effective immediately, will ensure the protection of the bear while allowing 

for continued development of our natural resources in the arctic region in an environmentally sound way. 

Past Hearings on ESA Implementation and Science 

During the time my nomination was pending before the Senate last year, this 

Committee held several hearings at which general implementation of the ESA was 

discussed, and the Department’s process for reviewing ESA-related decisions and 

the use of science and policy in that process were discussed in detail. At that time, 

both Deputy Secretary Lynn Scarlett and Fish and Wildlife Service Director Dale 

Hall affirmed that science is the cornerstone of the Service’s work, including our decision-making under the ESA, and reiterated the Department’s absolute commitment to the scientific integrity of that process. We have taken many actions, both 

before and since, that I will briefly discuss this morning. 

I should begin by acknowledging that Secretary Kempthorne has, since the time 

of his confirmation, placed a strong emphasis on ethical conduct and scientific integrity as we carry out our work for the American public. I know that throughout his 

career in public service, the Secretary has exhibited, and continues to exhibit, a 

commitment to the quality and integrity of science in the decision-making process. 

He, along with Deputy Secretary Scarlett, has been effective in setting a high standard in this regard. 

As Director Hall noted before the Committee last July, both science and policy 

have roles in the implementation of the ESA. Under the ESA, the Service must use 

the best available science, be explicit about the level of uncertainty in that science, 

and leave it to decision makers to choose among available options that achieve the 

objectives of the Act when making a decision. He also acknowledged that policy decisions in critical habitat designations are appropriate in the section 4(b)(2) exclusion 

process of the ESA, pursuant to which the Secretary must weigh the benefits of exclusion against the benefits of inclusion, and that 

...the assimilation, application, and interpretation of science often represent 

the beginning point in making policy decisions under the ESA. The peer review process, agency leadership, and the public comment process help to ensure high quality decisions. 

Recent Management Activities 

As I mentioned above, the Committee’s hearings were held last year while my 

nomination was pending in the United States Senate. Because of my unique position 

at the time, still an outsider but, by virtue of the position to which I had been nominated, extremely interested in the issues, I was fortunate to have both the time and 

opportunity to reflect on what I was hearing and reading and what actions would, 

in my mind, address the problems and add real value to the process. 

I determined that it was important for me to immediately set a firm tone on the 

issues of ethical behavior and how policy and science should interact in the Department. One of my commitments, and one of the first actions I took after confirmation, 

was to meet with my staff and the Department’s Ethics Officer for a comprehensive 

briefing on the Department’s ethics standards. I also committed to explaining, and 

49 

have explained, to my staff that any contacts they have with field personnel at 

either the Fish and Wildlife Service or the National Park Service regarding questions of science must and will be through established organizational channels, and 

only with my prior approval. I documented my commitment with a letter to all National Park Service and Fish and Wildlife Service employees on my first day as Assistant Secretary. I strive to ensure that everyone in my office treats everyone else 

and is, in turn, treated with dignity and respect. 

I have met with Fish and Wildlife Service Director Dale Hall and National Park 

Service Director Mary Bomar and affirmed this commitment to professional behavior and the personal code of conduct when it comes to the interaction between career 

and political staff. 

In a similar vein, in July of last year, Service Director Hall appeared before you 

and presented his views on ESA implementation and the various actions he had 

taken as Director to ensure that the Service implements the ESA with the utmost 

scientific integrity. Several of these important recent steps discussed at that hearing 

include: 

1. the issuance, in February 2006, of a memorandum detailing the Director’s 

views on how science should be used in making recommendations and decisions, as well as the process by which science would be reviewed in a policy 

and legal context; and 

2. clarification of the division of responsibilities for ESA reviews and decisions between the Service and the Assistant Secretary’s Office, including that the formulation of science would be the responsibility of the Service, while discussions 

between the Director’s office and Assistant Secretary’s office would focus on 

policy decision-making. 

The Service also announced this past January that it is implementing a code of 

scientific conduct, a series of guidelines applicable not only to scientists, but to managers and executives within the Service, including the Director. Moreover, while it 

applies to scientific conduct, it extends to include the translation and application of 

science used to inform resource management decisions. The code is modeled on other 

codes developed and implemented by professional organizations, such as The Wildlife Society and The American Fisheries Society, and these organizations have 

praised this effort as an important ingredient of organizational integrity. The code 

is intended to provide uniform policies for Service employees to follow as they conduct and manage scientific activities, with the utmost regard for maintaining and 

enhancing the Service’s reputation for professionalism, integrity and objectivity. 

All of these taken together serve as potent examples of the seriousness with which 

Secretary Kempthorne, Deputy Secretary Scarlett, and I, along with Director Hall 

and others in the Department, are treating the issue of scientific integrity and the 

commitment we have made to ensuring that our science-based decisions are made 

according to the highest possible standards. 

Update on Decision Reviews 

Finally, let me provide you with a brief update on the Service’s progress on revision of the seven ESA decisions. The process for reviewing decisions established by 

the Service was one of the subjects discussed in detail by the Committee and Director Hall at the July 2007 hearing. For that reason, I will not go into detail on that 

process, but will instead highlight the letter sent to you, Mr. Chairman, by the Service’s Deputy Director Kenneth Stansell in November 2007. That letter forwarded the 

Service’s conclusion that revisions to seven of the eight decisions should be made 

and provided a small amount of detail about each decision. 

Currently, Mr. Chairman, work is on-going for four of the seven decisions. In November 2007, the Service published a proposed rule to revise the listing of the 

Preble’s meadow jumping mouse, and the Service expects to make a final listing determination by June 2008. Work on the revision of the critical habitat designation 

for the Preble’s meadow jumping mouse will begin in June 2008, with a final decision expected in June 2010. A proposed rule to revise designation of critical habitat 

for the 12 Hawaiian picture-wing flies was also published in November 2007 and 

a final critical habitat determination is expected in November 2008. A proposed rule 

to revise critical habitat for the Canada lynx was published in February 2008, and 

a final critical habitat determination is expected in February 2009. 

Work on the critical habitat for the arroyo toad and the finding for the whitetailed prairie dog will begin in Fiscal Year 2009. 

FWS has allocated approximately $1 million from Fiscal Year 2008 and identified 

$1.12 million from the Fiscal Year 2009 budget request for the Endangered Species 

Program for work related to revising six of the seven decisions under the ESA. Revision of the seventh decision, involving the listed entity for the Preble’s meadow 

jumping mouse, is not included in the list above because the revision will be comVerDate Aug 31 2005 15:00 Sep 25, 2008 Jkt 098700 PO 00000 Frm 00053 Fmt 6633 Sfmt 6621 L:\DOCS\42492.TXT Hresour1 PsN: KATHY
50 

pleted in Fiscal Year 2008 and funding has come from the base allocation for the 

recovery program from Fiscal Years 2007 and 2008 due to our delisting proposal. 

Conclusion 

I believe the Department and the Service have made great strides over the past 

year in ensuring that our ESA decision-making processes are clearly delineated and 

that we maintain a strong emphasis on ethical conduct and continue our commitment to maintaining the integrity of the science used in the decision-making process. Again, thank you and I am happy to answer any questions that you may have. 

Response to questions submitted for the record by R. Lyle Laverty, 

Assistant Secretary for Fish and Wildlife and Parks, U.S. Department of 

the Interior 

Questions from Chairman Nick J. Rahall, II 

Guidance for Listing Decisions 

Question: GAO found (page 17) that 70 percent of the biologists surveyed and 

who are responsible for determining whether a listing petition is warranted have 

never drafted a petition finding. Biologists responding to GAO’s survey said frequently changing guidance resulted in longer processing times, and delayed listing 

decisions. What are your plans to issue official guidance to eliminate confusion and 

inconsistencies in the determination of 90-day petition findings? 

Response: A draft Director’s memorandum providing interim guidance on 90-day 

petition findings under the Endangered Species Act (ESA) is currently under review 

within the U.S. Fish and Wildlife Service (Service). We anticipate that a final Director’s memorandum on this guidance will be provided to the Regional and field offices 

by late summer 2008. 

Spotted Owl Recovery Plan 

Question: When the spotted owl recovery plan was announced last week, 

Members of Congressional staff were told that if peer review supported changes, 

FWS would gladly re-do the recovery plan. Do you plan to solicit peer review on the 

May 16 recovery plan? If peer reviewers recommend changes, will you revise the 

plan? 

Response: The Service is always amenable to expert review of its recovery practices and will look to the recovery plan implementers for advice on when adaptive 

management may be needed. 

Recovery Plan for Jaguar 

Question: In Jan 2008, Director Hall determined that a recovery plan was not 

necessary because the bulk of the jaguar population resides outside the United 

States. Yet, recovery plans were prepared for a number of species with a significant 

portion of their range outside the United States. As examples, recovery plans were 

prepared for the Sonoran pronghorn, Yuma Clapper rail and New Mexico Ridgenosed Rattlesnake. The jaguar occurs from southern Arizona and New Mexico to 

South America. Why was a recovery plan not prepared for the jaguar? 

Response: The examples cited above are all species for which a significant portion of the range and breeding populations of the species do occur in the United 

States. Neither is true for the jaguar. The ESA requires that recovery plans include 

objective and measurable delisting criteria and an implementation schedule with estimated costs and responsible parties which, when fully met and implemented, 

would lead to a determination that the species be removed from the List. The jaguar’s range extends through the jurisdictions of approximately 20 countries from the 

United States border through Mexico, Central and South America. The northern extreme of its range occurs in the southern United States; this area represents less 

than one percent of the jaguar’s entire range. 

Generally, the United States has little authority to implement actions needed to 

recover species outside its borders. These powers are limited to prohibiting unauthorized importation of listed species into the United States, and prohibiting persons 

subject to United States jurisdiction from engaging in commercial transportation or 

sale of listed species in foreign commerce. The ‘‘take’’ prohibitions of section 9 only 

apply within the United States, within the territorial seas of the United States and 

on the high seas. They do not apply in the foreign countries where nearly all jaguars 

are actually found. Consequently, the management and recovery of listed foreign 

species remain the responsibility of the countries in which the species occur, with 

the help of available technical and monetary assistance from the United States. In 

51 

short, the Service believes that preparation of a recovery plan for this largely international species will not promote its conservation. 

Question: Shouldn’t this type of decision to exempt a species from the requirement to prepare a recovery plan be one for which the Service solicits public review 

and comment? 

Response: Section 4(f)(1) of the ESA provides that the Secretary shall develop 

a recovery plan ‘‘unless he finds such a plan will not promote the conservation of 

the species,’’ and there is no statutory requirement that the Secretary’s finding be 

subject to public review and comment. 

Question: What is the statutory basis that the FWS relied upon in denying full 

ESA protections to a species with a significant foreign population? 

Response: The Service has not denied full ESA protection to the jaguar by its 

decision that preparation of a recovery plan would not benefit the species. The jaguar is still fully protected by all provisions of the ESA within U.S. borders. 

Although we find that formal recovery planning at this time will not promote the 

conservation of the jaguar, we intend to continue our efforts to protect jaguars within our borders, and to work cooperatively with our partners in northern Mexico in 

their efforts to conduct research, protect habitat, and reduce killing of jaguars in 

northern Mexico. Toward that end, we participate in the Jaguar Conservation Team 

(JAGCT), a federal, state and private partnership formed in 1997 to conserve the 

jaguar in the southwest United States and northern Mexico. 

Spotted Owl Recovery Plan 

Question: Why is the FWS preparing a recovery plan for the northern spotted 

owl? Haven’t the courts said that the Northwest Forest Plan is sufficient to protect 

the owl and a recovery plan is not necessary? Why are you using resources on this 

effort anyway? 

Response: According to the Endangered Species Act, the U.S. Fish and Wildlife 

Service is required to prepare recovery plans for listed species unless the Service 

determines that such a plan will not promote the conservation of the listed species. 

Recovery plans must include a description of site specific management actions and 

recovery criteria. The Northwest Forest Plan, while describing important management practices for the northern spotted owl, does not include the recovery criteria 

or actions for the owl, as required in the ESA. 

Question: Dr. Franklin also recommends that the Fish and Wildlife Service use 

the late successional reserves as the core of the spotted owl conservation area strategy, and supplement them with additional designated conservation areas as necessary. He says the 133 owl conservation areas identified in the plan are inadequate. Will you consider his recommendation and revise the plan accordingly? 

Response: According to the most recent northern spotted owl population modeling, the conservation area design as described in the Northern Spotted Owl Recovery Plan should, over the long term, be sufficient to address the loss of habitat. In 

fact, the Managed Owl Conservation Areas (MOCAs) on the west side of the Cascade Mountains, added to the federal lands managed for northern spotted owls on 

the east side of the Cascades, coupled with the additional Federal older forests 

maintained over the next 10 years while we explore the threat from barred owls, 

will equal or exceed the total amount of Late Successional Reserves. 

Delistings 

Question: We understand that funds for delisting and recovery come out of the 

same account and that the Service’s priority is to use these funds to delist species 

instead of focusing on recovery activities. Is our understanding correct? 

Response: The Service funds recovery activities using one sub-activity account. 

Recovery activities include developing recovery plans, implementing recovery actions, conducting 5-year status reviews, and addressing delisting and downlisting 

petition findings. In addition, we may use this funding to process species rules, such 

as experimental population designations under section 10(j). When recovery has 

been achieved for a species, we use this funding for regulatory actions to delist the 

species and develop post-delisting monitoring plans. 

We do not prioritize our funding allocation for regulatory actions, specifically 

delisting species. The bulk of our funding is allocated out by a formula that considers the number of listed species and the complexity of recovery implementation 

activities for those species. In addition, approximately 5% of the total general funds, 

or roughly $3.5 million, is allocated to specific Service projects or actions through 

a competitive proposal process. In FY08, we targeted, through this proposal process, 

$2.5 million towards on-the-ground recovery actions that either prevented extinction 

or funded recovery action that would move the species towards recovery faster. Approximately $990,000 of the $3.5 million allocated through the national competition 

52 

was used to fund the regulatory action for complicated or complex delisting or 

downlisting actions. A portion of the $990,000 was also used to develop postdelisting monitoring plans for the bald eagle and brown pelican. 

Wolverine 

Question: The Service’s decision in March not to list the wolverine in the lower 

48 seems to be based on the reasoning that it is too imperiled to be significant 

enough to warrant protection. Isn’t that conclusion completely at odds with the plain 

meaning and intent of the ESA? Using this same reasoning how would wolves and 

grizzly bears recover in the lower 48 under the ESA? 

Response: The Service based our determination that the wolverine in the lower 

48 contiguous United States was not warranted for listing on the following reasoning (see 73 FR 12929) 

* The contiguous U.S. population of the wolverine did not meet the discreteness 

criteria for a Distinct Population Segment under the Service’s 1996 policy. The 

international border could not be used to delineate a U.S. DPS, because differences between the two countries regarding control of exploitation, management of habitat, conservation status, or regulatory mechanisms are not significant in light of section 4(a)(1)(D) of the ESA. 

* The contiguous U.S. population of the wolverine did not meet the significance 

criteria for a Distinct Population Segment under the Service’s 1996 policy. The 

focus of the 12-month petition finding was on the contribution of the contiguous 

U.S. population of the wolverine to the North American subspecies as a whole. 

Only a small portion of the North American wolverine subspecies has ever occurred in the contiguous United States. The finding documented that the U.S. 

population was not significant to the continued existence of the North American 

subspecies in Canada and Alaska where it is faring reasonably well. 

Unlike the wolverine, the wolf and the grizzly bear both meet discreteness criteria 

defined in the DPS Policy as ‘‘delimited by international governmental boundaries 

within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 

4(a)(1)(D) of the Act.’’ Trapping and hunting regulations within the contiguous 

United States were not sufficient to maintain persistence of wolves and grizzly 

bears, which were reduced to low numbers at the time they were listed under the 

ESA. In Canada and Alaska, wolves and grizzly bears were also being trapped and 

hunted, but these activities were not threatening the healthy populations that exist 

there. 

Trapping and hunting of wolverines is legal only in Montana within the contiguous United States, and this program is closely monitored. Trapping and hunting 

do not pose a threat to the species; thus, differences in control of exploitation that 

are significant in light of section 4(a)(1)(D) did not exist to support the determination that the wolverine in the contiguous United States qualifies as a DPS. 

Gray Wolves 

Question: How many wolves will have to be killed to trigger a decision to relist 

the species? 

Response: The Service identified four scenarios in the Northern Rocky Mountain 

distinct population segment (NRM DPS) that could prompt us to initiate a status 

review and analysis of threats to determine if relisting would be warranted. These 

scenarios are: (1) if the wolf population for any one state in the DPS (MT, ID, WY) 

range falls below the minimum NRM wolf population recovery level of 10 breeding 

pairs of wolves and 100 wolves; (2) if the wolf population segment in Montana, 

Idaho, or Wyoming falls below 15 breeding pairs or 150 wolves in any one of those 

states for 3 consecutive years; (3) if the wolf population in Wyoming outside of National Park Service lands falls below 7 breeding pairs for 3 consecutive years; or, 

(4) if a change in state law or management objectives would significantly increase 

the threat to the wolf population. 

Furthermore, if any of these scenarios occurred during the mandatory 5-year postdelisting monitoring period, the post-delisting monitoring period would be extended 

5 additional years from that point in that State. 

The post-delisting monitoring plan for the Western Great Lakes distinct population segment (WGL DPS) outlines three scenarios that may cause the Service to 

consider relisting or emergency relisting the WGL DPS. These scenarios are: (1) a 

decline that reduces the combined Wisconsin-Michigan (excluding Isle Royale and 

the Lower Peninsula) late winter wolf population estimate to 200 or fewer wolves; 

(2) a decline that brings either the Wisconsin or the Michigan (excluding Isle Royale 

and the Lower Peninsula) wolf estimate to 100 or fewer wolves; or, (3) a decline that 

53 

brings the Minnesota winter wolf population point estimate or lower end of the 90% 

confidence interval to 1,500 or fewer wolves. 

Although the thresholds for initiating analyses for relisting are based on population numbers, any determination to relist the gray wolf would not be based solely 

on the number of wolves killed or even the overall population level alone. The Endangered Species Act requires that listing be based on the analyses of current and 

future threats to the entity under consideration using the best scientific and commercial data available. Our delisting analyses found that all threats to the NRM 

DPS and the WGL DPS of the gray wolf have been removed. In the past, the primary threat to wolves was deliberate and organized persecution. Wolf populations 

are otherwise very resilient to human-caused and other forms of mortality. On average, humans would have to kill more than 30-50% of a wolf population each year 

to cause population declines. Without the use of poisons (which are now banned) 

and/or a government-sponsored eradication program, the Service believes that, as a 

practical matter, it would be very difficult to kill enough wolves for a long enough 

period of time to threaten the wolf population and require relisting under the Endangered Species Act. 

Before we could delist the WGL DPS and NRM DPS, each State with a portion 

of a recovered wolf population had to commit in FWS-approved wolf management 

plans to maintain their segment of the wolf population so that the overall populations will remain well above recovery goal levels. The States also committed to 

continue to monitor their wolf population for the mandatory 5-year post-delisting 

monitoring period and report results to the FWS. 

In the NRM DPS, the three core States of Idaho, Montana, and Wyoming committed in their wolf management plans to manage for at least 15 breeding pairs and 

150 wolves each, which is 50% higher than the minimum recovery goal level. The 

combined number of wolves that the States indicated they will actually manage for 

is around 1,000, which is more than triple the minimum recovery goal level. Currently, the NRM DPS population is at about 1,500 adults and yearlings plus approximately 500 pups born this spring. 

In the WGL DPS, the three core States of Minnesota, Wisconsin, and Michigan 

describe in their management plans the minimum number of wolves each State will 

maintain. Minnesota’s minimum statewide winter population goal is 1,600 wolves. 

Wisconsin’s minimum population goal is 350 wolves outside of Indian Reservations. 

Michigan’s plan calls for a minimum sustainable population of 200 wolves in the 

Upper Peninsula. The numeric recovery goals were 1,251-1,400 for Minnesota and 

100 for the Wisconsin-Michigan population. Currently, the Minnesota population is 

estimated at more than 3,000 wolves. Wisconsin’s current estimate is 520-545 

wolves outside Indian Reservations, and Michigan’s estimate is 434 wolves. 

Wolves in the contiguous United States outside the NRM DPS and WGL DPS remain listed under the Endangered Species Act. The estimated 50-60,000 wolves in 

Canada and 8-10,000 in Alaska are not listed. 

Mexican Wolf 

Question: Why has the Fish and Wildlife Service not revised the recovery plan 

for the Mexican wolf? 

Response: The Mexican gray wolf was listed as an endangered subspecies on 

April 28, 1976 (41 FR 17736). On March 9, 1978, the Service issued a final rule that 

eliminated individual subspecies on the list and reclassified the entire species C. 

lupus as either endangered or threatened in North America south of Canada (43 FR 

9607). However, the final rule stated that we would continue to recognize valid biological subspecies for purposes of research and conservation (43 FR 9610). The first 

(and only) Mexican Wolf Recovery Plan was international in scope and was approved on September 15, 1982, by the Director of the Service and the Director General of Mexico’s Direccio ́n General de la Fauna Silvestre. 

In April 2003, the Service reclassified the gray wolf, creating three distinct population segments (DPS): the eastern, western, and southwestern DPS (SWDPS) (68 

FR 15804). Creation of the SWDPS provided an opportunity to engage a full recovery planning effort and develop delisting criteria for the gray wolf in the southwest, 

which included the non-essential experimental population of Mexican wolves. The 

Service convened the SWDPS Gray Wolf Recovery Team in October 2003. The Recovery Team was nearing the end of the internal planning process in February 2005 

when an Oregon Federal Court ruled on litigation brought by a coalition of environmental groups and enjoined and vacated the 2003 Reclassification Rule (Defenders 

of Wildlife v. Norton, 03-1348-JO; National Wildlife Federation v. Norton, 1:03-CV340, D. VT. 2005). 

In response to these rulings, Region 2 put the SWDPS recovery team on hold. The 

recovery team could not continue its work until legal issues were resolved and thus 

54 

we have not been able to complete a formal revised recovery plan for the Mexican 

wolf. 

As an interim measure, the Service is developing a conservation assessment for 

the Mexican gray wolf. This assessment will draw upon much of the information 

generated by the Recovery Team during their initial preparation of the draft Mexican wolf recovery plan. The conservation assessment will provide background information about the species, describe current threats, and contain recommendations to 

advance recovery through the wolf program. It will not contain decisions about how 

many wolves are necessary to achieve recovery, nor will it recommend specific geographic areas for expansion of Mexican wolf recovery efforts. However, much of the 

information from the conservation assessment could be utilized in a future recovery 

plan and in preparing modifications to the rule. 

In addition to the conservation assessment, the Service is simultaneously updating the Mexican Wolf Environmental Impact Statement. This process will provide 

broad public participation opportunities and will allow us to use knowledge gained 

over the last ten years to shape alternatives that address successful recovery activities. 

Question: In his testimony, Mr. Parsons on panel 2 states that we are witnessing 

the extinction of the Mexican wolf. How will the DOI put the wolf back on a track 

towards recovery? 

Response: The Mexican wolf was extirpated from the United State by the midtwentieth century. Decades later, we better understand and support the role that 

top predators play in balancing ecosystems. The Service and its partners have established a group of primarily wild born wolves that are breeding and reproducing in 

the Southwest and has demonstrated substantial progress towards recovery. We 

continue to use all available management options for increasing the number of 

wolves in the 10(j) area. The population in New Mexico and Arizona has remained 

near 50 wolves from 2003 to 2007. 

Prior to the Service’s 1998 initial release of wolves into the 10(j) area, the known 

wild population was zero. As a result of the Service’s wolf program, the existence 

of a stable experimental population of wolves in the wild over the last several years 

makes it clear that we are not witnessing the extinction of the Mexican wolves as 

suggested by Mr. Parsons’ testimony. The captive breeding program is managed 

under a Species Survival Plan. There are currently close to 300 wolves in the captive population, and all of the wolves released into the wild came from this captive 

population. 

Question: How do you square the additional killing or permanent removal of 

wolves allowed under Standard Operating Procedures 13 with the ESA requirement 

that killing and permanent removal must not preclude progress toward recovery? 

Response: The Environmental Impact Statement (EIS) established for the reintroduction of Mexican wolves into the Southwestern United States stated: ‘‘The 

FWS will permanently remove from the wild or, as a last resort, euthanize any 

wolves exhibiting a consistent pattern of livestock depredation (three or more confirmed kills—(page 2-16).’’ 

The Service and its partners have set policy that is consistent with the foundation 

documents of this project. Re-introduction of wolves as an experimental 10(j) population with Standard Operating Procedures (SOP) provisions are not in violation of 

the ESA and support the goal of successful re-introduction by managing human/wolf 

conflicts. 

The primary reason for the extirpation of wolves from the Southwest was lack of 

tolerance (both by the public and government agencies) of wolves because of human/ 

wolf conflicts. Active management of individual wolves that kill cattle has been the 

management paradigm in the Midwest, the Northern Rockies and the Southwest 

and clearly increases tolerance for wolves by the local public. The Service believes 

that other aspects within this project are more limiting relative to overall recovery, 

including: (1) a single population of wolves rather than multiple populations; (2) the 

recovery area’s geographic limitations; and, (3) the difficulties of establishing a wild 

population from captive stock. 

Our records show about half of all wolf removals (both permanent and temporary) 

are due to livestock interactions. From 1998 through 2007, the Service’s records 

show 34 wolves have been permanently removed from the wild (11 lethally) and 108 

were removed on a temporary basis. The remainder of removals are based on other 

factors including boundary violations, nuisance behavior and illegal shootings. Temporarily removed wolves are eligible to be re-released into the wild. This summer, 

New Mexico Department Game and Fish (NMDGF) will transfer two adult Mexican 

wolves into the wild. 

55 

Moratorium on Take of Mexican Wolves 

Question: Mexican wolf experts have called for a moratorium on ‘‘take’’ until an 

expert task force can be convened to provide guidance? Do you agree with the experts? 

Response: The Mexican Wolf Reintroduction Project is a cooperative effort among 

the Service, Arizona Game and Fish Department (AZGFD), NMDGF, U.S. Department of Agriculture—Wildlife Services, USDA Forest Service, and the White Mountain Apache Tribe. In addition, many state and federal agencies, counties, Native 

American Tribes, zoos, wildlife sanctuaries, universities, and non-government organizations in both the United States and Mexico have assisted in planning and implementing recovery efforts for the Mexican wolf. We are fortunate to be able to 

draw on the expertise of so many dedicated biologists with practical experience and 

expertise in managing endangered species on the ground in Arizona and New Mexico. 

While the Service has removed one wolf and translocated wolves within the 10(j) 

area in 2008, there have been no legal lethal takes this year. We are also leading 

efforts to review and revise the program’s Standard Operating Procedures to provide 

us with a broader scope of management options to help avoid future lethal removals. 

Biologically, the reintroduction project is successful. We have second generation 

wolves finding mates in the wild, establishing their own packs, and taking down native prey. Forty-seven of the 52 wolves (90%) documented in 2007 were wild born 

animals. However, the socio-economic effects of reintroducing a top predator into 

cattle country are a reality that must be factored into the equation. Wolf/livestock 

conflict is one of the most challenging obstacles facing the Mexican wolf reintroduction program. Resolution of this impediment will help accommodate the recovery of 

the Mexican wolf. 

When livestock conflicts occur, our preference is to work with the livestock owner 

to help disrupt depredation behavior by hazing or other non-lethal methods of discouraging wolves that are seeking cattle. If that does not work, the non-essential 

experimental population rule governing the reintroduction project allows for permanent removal as one of the tools to resolve livestock depredation problems. 

Wolf removals are not our preference as they can disrupt pack behavior. In order 

to reduce the economic impacts of livestock depredations by wolves, we have suggested a proactive Mexican Wolf/Livestock interdiction fund. The fund would provide 

for interdiction, incentives and compensation to effected ranchers. We believe that— 

when fully implemented—the interdiction fund will provide a means to offset the 

costs of losses due to wolf recovery to ranchers and allow the Service to suspend 

wolf removals under SOP 13. 

Red Knots 

Question: When can we expect action to be taken on this year’s emergency listing 

petition for red knots? 

Response: The Service has received four petitions to emergency list the red knot. 

The most recent on February 27, 2008, requested that the Service list the U.S. populations of two subspecies of the red knot (Calidris canutus roselaari and Calidris 

canutus rufa) as endangered and emergency list one of the subspecies of red knot 

(Calidris canutus rufa). The Service responded to the petitioners in a letter dated 

May 1, 2008. In the letter the Service reiterated to the petitioners that we had already made a determination that listing the red knot (Calidris canutus rufa) is warranted but precluded by other listings of higher priority and have added the subspecies to our list of candidates. We annually determine whether listing remains 

warranted and precluded and whether we need to utilize the emergency listing provisions of the ESA. The Service is currently in the process of making the annual 

finding for this subspecies and anticipates the review and reevaluation of our previous finding will be completed by the end of this year. In the same letter, we also 

stated that due to funding constraints, we are unable to address the petition to list 

the red knot (Calidris canutus roselaari) this year. Currently all of our listing and 

critical habitat funding for Fiscal Year 2008 has been spent on court orders, settlement agreements, and other statutory deadlines. We anticipate making an initial 

finding in the Fiscal Year 2009 as to whether the petition contains substantial information indicating the action may be warranted. 

Question: Notwithstanding the evidence pointing to the continued decline of the 

species, the red knot was listed as a ‘‘6’’ on a priority scale of 1 to 12 for candidate 

species. Why does the red knot have such a low listing priority? 

Response: The Service considers three factors when determining the appropriate 

Listing Priority Number (LPN) for a species: (1) the magnitude of threats; (2) the 

immediacy of threats; and (3) the taxonomy of the species. Under the third factor, 

taxonomy, a monotypic genus is afforded priority over a full species which is afVerDate Aug 31 2005 15:00 Sep 25, 2008 Jkt 098700 PO 00000 Frm 00059 Fmt 6633 Sfmt 6621 L:\DOCS\42492.TXT Hresour1 PsN: KATHY
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forded priority over a subspecies or distinct population segment. As a subspecies of 

red knot, Calidris canutus rufa could potentially be assigned an LPN of 3, 6, 9, or 

12 only. As of last year, we had determined the rufa subspecies had a high magnitude of threat due to the modification of habitat through harvesting of horseshoe 

crabs to an extent that put the viability of the red knot at substantial risk. However, we determined the threats were non-imminent because of reductions and restrictions on harvesting horseshoe crabs adopted by the States in the Delaware Bay 

region. The red knot was therefore assigned an LPN of 6; an LPN of 3, the only 

higher designation the subspecies could potentially receive, would require both a 

high magnitude and a high immediacy of threat. 

Cactus Ferruginous Pygmy-Owl (Arizona Population) 

Question: When can we expect the Service to make a finding on whether the petition to list the Sonoran desert population of pygmy owls is warranted? 

Response: The Service announced on June 2, 2008, that the cactus ferruginous 

pygmy-owl may warrant federal protection as a threatened or endangered species 

under the Endangered Species Act. This decision follows an initial review of a petition seeking to protect the pygmy-owl by adding it to the federal list of endangered 

and threatened wildlife. With this announcement, the Service has begun the 12- 

month status review process. 

White Nose Bat Syndrome 

Question: Bats in New York, Connecticut and Vermont are apparently affected 

by the white nosed bat syndrome. Scientists are concerned that the syndrome could 

spread to other states, such as West Virginia and Virginia where the endangered 

Indiana Bat lives. What is the agency doing to address this growing problem? 

Response: The Service is working closely with State agencies, the U.S. Geological 

Survey, academic institutions, laboratories, and non-government organizations to 

address the threat to bats posed by white-nose syndrome (WNS). The Service is taking the following actions: 

1. Facilitating information exchange, coordination, and communication by hosting 

weekly conference calls with state and federal agencies throughout the Northeast and Midwest, and maintaining a WNS webpage to keep the public and 

media informed. 

2. Developing containment and decontamination protocols for researchers and 

cavers to reduce the risk of potentially accelerating the spread of WNS. 

3. Tracking surveyed sites for presence or absence of WNS to monitor its apparent spread. 

4. Mapping caver and biologist movements to investigate any possible correlation 

with affected sites. 

5. Addressing permitting requirements for listed species work. 

6. Assisting with field work including collection of samples for lab analysis and 

the counting and capture of live bats for monitoring of population health in affected and unaffected regions. 

7. Working with the states and labs to determine baseline information needs in 

unaffected areas and to develop study designs. 

8. Developing proposals for collaborative research projects and assisting states in 

identifying and securing potential sources of funding. 

9. Helping to plan and organize a three-day working group meeting of all state, 

federal, and private agencies, laboratories, and academic institutions that have 

been involved with WNS investigations and monitoring to date, to further our 

understanding of white-nose syndrome and conserve important bat populations. 

Piping Plover Critical Habitat 

Question: Were you aware of the proposed Kenedy Ranch wind project in Texas 

before you announced your plans to re-designate critical habitat for piping plover 

along the Southeast Texas coast? 

Response: Yes, we knew of proposals for two wind farms when we received the 

July 2006 court order to vacate 19 existing units of critical habitat for piping plover 

on the Texas coast and reconsider them by May 2008. 

Question: Has the Department or the Service discussed this proposal with the 

project proponent or the State of Texas? If so, can you please describe this consultation and the results? 

Response: The project proponents considered and documented whether their 

projects would affect endangered species and concluded that piping plovers and their 

habitat do not occur in the wind farm project areas, hence they have drawn the conclusion that piping plovers are not anticipated to be affected. Since federal monies 

or permits are not necessary for this project that is on private lands, the project proVerDate Aug 31 2005 15:00 Sep 25, 2008 Jkt 098700 PO 00000 Frm 00060 Fmt 6633 Sfmt 6621 L:\DOCS\42492.TXT Hresour1 PsN: KATHY
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ponents are not required to consult with the Service on impacts to endangered species. 

Question: Does the Department intend to intercede with the State of Texas to 

request that construction of this project not be permitted until such time that additional piping plover critical habitat is designated by the Service? 

Response: We are unaware of any Departmental plans to intercede with the 

State of Texas 

Question: Should the Kenedy Ranch Project move forward as planned, will the 

Department pursue enforcement of the Endangered Species Act and Migratory Bird 

Treaty Act when illegal take of piping plover occurs? 

Response: Endangered Species Act and Migratory Bird Treaty Act enforcement 

will occur as appropriate on all wind power projects, including those planned for 

Kenedy County. 

West Virginia Flying Squirrel 

Question: What are the main threats to the West Virginia Northern Flying 

Squirrel’s habitat? 

Response: The main threats that led to the listing of the WVNFS were the 

rangewide clear cut logging of the red spruce-northern hardwood forests and fires 

associated with the logging in the mid-1800s. The red spruce forests have regenerated on their own and through restoration efforts. As stated in our December 19, 

2006, proposed delisting rule, there is no current threat of clear cut logging within 

the WVNFS habitat, nor is this threat likely to occur in the future. The Service determined in the proposed rule that any threat to the West Virginia northern flying 

squirrel’s (WVNFS) habitat has been either eliminated or largely abated. 

Question: Have all the threats to the West Virginia Northern Flying Squirrel’s 

habitat been reduced? If the threats to West Virginia Northern Flying Squirrel have 

not been reduced, why is the Fish and Wildlife Service moving forward, especially 

when squirrel population has not been measured? 

Response: Yes, all threats have been eliminated or largely abated such that the 

subspecies no longer meets the definition of threatened or endangered under the Endangered Species Act. 

Question: Why wasn’t population taken into consideration in the delisting proposal? 

Response: The Service considered population dynamics when assessing the status of the WVNFS using the best available scientific data. The Service considers 

persistence to be the best indicator of successfully reproducing populations for this 

subspecies. We define persistence as continuing captures of WVNFS over multiple 

generations at previously documented sites throughout the historical range. The 

Service has analyzed 20+ years of presence/absence data to determine persistence 

of WVNFS across its range, taking into consideration detectability rates, life span, 

reproductive capacity, dispersal capability, linkages to other populations, and the 

naturally patchy habitat distribution of the subspecies. These data consistently indicate a relatively high degree of persistence (roughly 80 percent) across the landscape, and are not indicative of a declining population of WVNFS. 

Questions from Rep. Peter A. DeFazio 

Question: The peer reviews of the draft recovery plan, the SEI review, and the 

members of the habitat working group for the final plan, all concluded that all owl 

habitats should be protected, regardless of their location. Why didn’t the FWS follow 

this recommendation? Upon what scientific studies is the decision to deviate from 

the habitat working group’s recommendation based? 

Response: Input from the SEI report (2008) and the habitat work group convened by the Service concerned occupied spotted owl habitat and ‘‘high-quality’’ spotted owl habitat; these groups did not recommend to the Service that ‘‘all owl habitat’’ be maintained. The final recovery plan looks to the maintenance of ‘‘substantially all of the older and more structurally complex multi-layered conifer forests on 

Federal lands outside of MOCAs’’ (Recovery Action 32). Maintenance of this higherquality habitat (a subset of suitable habitat) was recommended because: (1) these 

stands include occupied sites, (2) costly and time-consuming pre-project surveys can 

be avoided, and (3) chances are reduced of modifying sites either temporarily not 

occupied by spotted owls or actually occupied by spotted owls but not detected (due 

to presence of barred owls). 

Question: Rangewide, only 55% of the MOCAs on the west side actually contain 

owl habitat (p. 89). Given the scientific consensus to protect all owl habitat everywhere, why aren’t these ‘‘reserves’’ bigger? How can a species in decline survive— 

much less rebound and be delisted with only 55% of a home, 55% of prey, and 55% 

of a mate? 

58 

Response: There was not scientific consensus to protect all owl habitat everywhere. Input from the SEI report (2008) and the habitat work group convened by 

the Service concerned occupied spotted owl habitat and ‘‘high-quality’’ spotted owl 

habitat; these groups did not recommend to the Service that ‘‘all owl habitat’’ be 

maintained. Recovery Action 5 (page 20) states, ‘‘Manage habitat-capable lands 

within MOCAs to produce the highest amount and highest quality spotted owl habitat the lands are capable of producing.’’ The final plan recommends that lands within the MOCAs that may become suitable habitat should be managed to do so. In 

Table C6 (starting on page 85), the percentage of habitat-capable lands within the 

MOCAs are listed in the column titled ‘‘Percent (capable of total)’’. The percentages 

are generally above 90 percent. 

Question: Can you name any other species for which FWS has proposed reducing 

existing habitat protections while the species population is declining? 

Response: Since recovery plans are guidance documents, the Service does not believe that the northern spotted owl recovery plan reduces existing protections. 

Question: The MOCAs are based on the reserves proposed in 1990 by the ISC, 

and by the 1992 recovery plan. However, since then, scientists (including Dr. Franklin) have concluded that those reserves are not big enough or contain enough habitat to help the owl, and that there should be more of them. Why aren’t the MOCAs 

bigger and contain more habitat? 

Response: According to the most recent northern spotted owl population modeling, the conservation area design as described in the Northern Spotted Owl Recovery Plan will address the loss of habitat. In fact, the MOCAs on the west side of 

the Cascade Mountains, added to the federal lands managed for northern spotted 

owls on the east side of the Cascades, coupled with the additional Federal older forests maintained over the next 10 years while we explore the threat from barred 

owls, will equal or exceed the total amount of Late Successional Reserves. 

Question: You spoke of ‘‘acceptable risk’’ in managing for the owl. What about 

the risk of litigation for a recovery plan that doesn’t pass scientific mustard? What 

about the risk of region wide injunctions? What about the risk of more controversy 

in my district and state? Do these things figure into your calculus of ‘‘risk’’? 

Response: The Service is charged with using the best available information to 

create a recovery plan designed to recover the owl and incorporate the stakeholders. 

The Northern Spotted Owl Recovery Plan represents such a document. 

Question: According to the final recovery plan, the MOCA strategy is based on 

‘‘Option 7’’ of the ten options discussed in the FEMAT report, which provided the 

scientific foundation for the Northwest Forest Plan (Final Recovery Plan, 74). 

FEMAT states that ‘‘all options except option 7 incorporate the Scientific Analysis 

Team (Thomas et. al. 1993) approach to late successional and riparian forest management (which enhances both connectivity between reserve areas and increases the 

acreage of late successional and old-growth forest available to northern spotted 

owls)’’ (FEMAT, 11-31). Option 7 had the second lowest likelihood of leading to a 

recovered and well-distributed NSO population. Why is the final recovery plan 

based on the only option considered by FEMAT that wasn’t based on the best available science? Why is Option 7 any better today than it was in 1993? 

Response: The recovery plan uses the most recent science available. Recent spotted owl population modeling using the latest techniques and demographic information indicates the size (MOCA 1s are to support 20 or more pair, and MOCA 2s to 

support 1-19 pair) and spacing (no more than 12 miles apart for MOCA 1s and no 

more than 7 miles apart) of the MOCAs is expected to provide for a recovery level 

of occupancy over 100 years. In fact, the MOCAs on the west side of the Cascade 

Mountains, added to the federal lands managed for northern spotted owls on the 

east side of the Cascades, coupled with the additional Federal older forests maintained over the next 10 years while we explore the threat from barred owls, will 

equal or exceed the total amount of Late Successional Reserves. 

In addition, the Plan identifies a landscape approach to spotted owl habitat conservation on the fire-prone eastern side of the species’ range that was strongly recommended by leading spotted owl and fire experts. 

In theses three Provinces, Eastern Washington Cascades, Eastern Oregon Cascades, and the California Cascades, the goal is to maintain an ecologically sustainable environment in which spotted owls can persist. Spatially dynamic spotted owl 

habitat patches will be identified by a work group after the plan is completed. These 

habitat patches are expected to move around as they are affected by natural disturbances, such as fire or insect damage. The entire area outside of the habitat 

patches will be managed to restore ecological processes and functions and to reduce 

the potential for significant losses by stand-replacement fires, insects and disease. 

All areas outside of habitat patches will be actively managed to reduce risks to spotVerDate Aug 31 2005 15:00 Sep 25, 2008 Jkt 098700 PO 00000 Frm 00062 Fmt 6633 Sfmt 6621 L:\DOCS\42492.TXT Hresour1 PsN: KATHY
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ted owl habitat, through such actions as fuels treatments and maintenance of large, 

fire-resistant trees. 

The recovery plan’s goal is to maintain 30 to 35 percent of the dry forest habitatcapable area in each eastside province for spotted owl habitat, which totals more 

than 900,000 acres. Added to the acres of MOCAs, about 7.35 million acres would 

be managed for spotted owl habitat. 

Further, the plan looks to federal land managers to maintain older, complex forests on federal lands west of the Cascade crest to benefit spotted owls, and identifies 

almost 2.4 million acres of non-Federal lands as Conservation Support Areas, which 

are meant to provide demographic support to the MOCAs. 

Question: What is the difference between the habitat conservation strategy you 

have proposed and the ineffective strategies of the early 1990s that lead to the owl’s 

listing? 

Response: It is unclear what strategies are being referenced. The Service is 

charged with using the best available information to create a plan that it believes 

is capable of recovering the owl. The Northern Spotted Owl Recovery Plan is the 

first finalized recovery plan for the owl and will be implemented in concert with all 

willing partners. 

Question: Are the MOCAs stationary? The draft recovery plan created MOCAs 

based on a ‘‘rule set’’ that the USFS and BLM could use to delineate the reserves. 

I’d like clarification on whether that rule set was carried forward into the final plan, 

or if FWS has drawn these lines on a map. 

Response: The MOCAs are stationary and their boundaries are displayed in the 

maps provided in Appendix D of the Recovery Plan (pages 93-95). 

Question: How does the FWS define ‘‘high quality habitat’’? Is this the same as 

‘‘nesting, roosting, and foraging’’ habitat, or something else? 

Response: ‘‘High-quality habitat’’ is defined on page 10 of the Recovery Plan as, 

‘‘Older, multi-layered structurally complex forests that are characterized as having 

large diameter trees, high amounts of canopy cover, and decadence components such 

as broken-topped live trees, mistletoe, cavities, large snags, and fallen trees. This 

is a subset of suitable habitat.’’ Nesting, roosting and foraging habitat is defined differently (page 9) as, ‘‘Suitable habitat that provides nesting, roosting and foraging 

opportunities for spotted owls. Important stand elements are high canopy with larger overstory trees and a presence of broken-topped trees or other nesting platforms 

(e.g., mistletoe clumps). Some suitable habitat may have limited nesting opportunities, but still provide foraging opportunities.’’ All high-quality habitat is nesting, 

roosting or foraging habitat, but all nesting, roosting and foraging habitat is not 

necessarily high-quality habitat. 

Question: The recovery plan states ‘‘the recovery plan specifies the spotted owl 

habitat goals for the MOCAs but defers the actual management of those acres to 

the expertise of the land management agencies’’ (Final Recovery Plan Appendix F, 

Response to Comments). Since the FWS is the ‘‘expert’’ when it comes to the spotted 

owl, why is the agency leaving the actual management requirements up to the 

USFS and BLM to determine? 

Response: While the Service is the federal agency with expertise in northern 

spotted owl biology, the Forest Service and the BLM are experts in managing federal forests. Recovery plans are guidance documents that are meant to establish the 

recovery criteria, goals, and recommended actions for achieving recovery. Recovery 

Action 5 (page 20) states, ‘‘Manage habitat-capable lands within MOCAs to produce 

the highest amount and highest quality spotted owl habitat the lands are capable 

of producing.’’ In other words, all the lands within the MOCAs that may become 

suitable habitat should be managed to do so. The Service believes the land management agencies, in technical consultation with the Service, have the most expertise 

on how best to actually implement this recovery action. 

Question: The recovery plan states that the MOCAs on BLM land in southern 

Oregon ‘‘coincide with the proposed Late Successional Management Areas (LSMAs) 

in the BLM’s preferred alternative for its WOPR’’ and that ‘‘the best approach for 

spotted owl recovery now appears to be maintain the MOCAs on BLM land and to 

implement a landscape-management approach on U.S. Forest Service land, but this 

discussion requires further analysis’’ (Final Recovery Plan, 24). What does this 

mean? Is it possible that there will be no reserves in southern Oregon? 

Response: Input from the SEI report (2008) and the fire work group convened 

by the Service clearly indicated that the Klamath Provinces in Oregon and California should ultimately be managed in a manner similar to the east-side landscape 

approach. However, specific design of such an approach needs more work. On Page 

25, the Recovery Plan states, ‘‘The first task of the [Dry-Forest Landscape] Work 

Group will be to review the interim strategy for the Klamath Provinces and make 

60 

recommendations for a final strategy there. The review should entail: 1. inclusion 

of appropriate scientists, Federal agencies, and interested parties as appropriate...’’ 

Question: The recovery planning process for the owl has been highly controversial in the past, and has continued today. Given the controversy surrounding the 

draft plan, do you expect to take scientific peer review of the final plan? What will 

you do if that review is negative? Will you revise the plan immediately? If you do 

revise the recovery plan, how might that revision affect ongoing management actions (timber sales, WOPR, etc.) that tier to the recovery plan? 

Response: Consistent with our established policy (see 59 FR 34270), the Service 

conducted peer review of the draft recovery plan and we made adjustments to the 

final plan in response to comments that we received. While no further Service-instigated peer review of this plan is anticipated in the near future, we could modify 

the Northern Spotted Owl Recovery Plan if the implementation advisors believe sufficient information exists to warrant an adaptive management modification. 

Question: I support landscape restoration efforts, both east and west of the Cascade crest. The final recovery plan calls for large-scale thinning east of the crest, 

which is something I could support. However, the recovery plan does not specify 

what these treatments will look like. Who will decide what those forest treatments 

will be, and will there be any independent review of those prescriptions? 

Response: Recovery Action 9 (page 25) calls for the establishment of an interagency Dry-Forest Landscape Work Group that will be responsible for making recommendations on how to best accomplish the goals of the Recovery Plan in those 

areas. We anticipate this group will be interdisciplinary and will include researchers, biologists, silviculturists, planners and managers, among other expertise. 

Projects implemented by the land management agencies will be evaluated for NEPA 

clearance. 

Question: How will you determine whether the spotted owl population is responding to the recovery plan? Will you use habitat models, or ‘‘hoot for owls’’? 

Response: Spotted owl population monitoring is currently conducted through a 

statistically rigorous, extensive sampling program. Anthony et al., 2006, Status and 

Trends in Demography of Northern Spotted Owls, 1985-2003, Wildlife Monographs. 

There are 13 long-term demographic study areas (DSAs) across the range of the 

spotted owl that constitute the sampling process. These DSAs are large and cover 

much of the owl’s geographic range including a variety of landownership (but mostly 

federal) and management strategies. The monitoring program provides the general 

trend of the species representative of most owl populations on federal lands, not the 

total population of the species. Once the DSAs indicate the status of the species is 

improving toward stability a more extensive monitoring effort may be desired for 

at least 10 years to determine if Recovery Criterion 1 is met, i.e., ‘‘The population 

trend of spotted owls is stable or increasing over 10 years of monitoring.’’ 

Question: If you are relying on habitat models to determine whether the species 

is progressing towards recovery, why are you doing so, given that peer reviewers 

have concluded are not accurate, and do not provide enough information to accurately determine the health of the owl population? What science supports your habitat model approach, for the spotted owl? 

Response: The Service is relying on the results of the demographic monitoring 

program to determine the species’ progress. Habitat maintenance (as part of the 

MOCA strategy, the high-quality habitat provision and the dry-forest landscape approach) represents only one part of the recovery strategy. 

Question: How does the FWS plan to get an aggressive ‘‘hoot and shoot’’ plan 

for the barred owl through the NEPA and ESA consultation process? 

Response: Recovery Action 29 (p. 31) calls for the design and implementation of 

large-scale control experiments to ‘‘assess the effects of barred owl removal on spotted owl site occupancy, reproduction, and survival.’’ If the results are favorable, we 

may decide to pursue further control efforts. For the initial control experiment, we 

anticipate conducting a rigorous NEPA process, with full public review, and conducting an intra-Service consultation on this recovery action. 

Question: Is the draft EIS for WOPR consistent with the final recovery plan? 

Response: The Western Oregon Plan Revision (WOPR) Draft Environmental Impact Statement (DEIS) was based on, and is consistent with, the 2007 Draft Recovery Plan, however, the Bureau of Land Management is working to make the final 

WOPR consistent with the final recovery plan released in May 2008. The Service 

has worked closely with the Bureau of Land Management and other federal land 

management agencies to discuss what is needed to recover the spotted owl. 

Question: The final recovery plan is expressly predicated on the implementation 

of the Northwest Forest Plan (Final Recovery Plan, 7). Yet, the BLM is proposing 

to eliminate LSRs and substantially reduce Riparian Reserves in its WOPR. How 

will this affect the assumptions and conclusions in the recovery plan? 

61 

Response: Where possible and where it made biological sense, MOCAs were overlaid on Northwest Forest Plan reserves because of their management over the past 

14 years. However, the MOCA system, the retention of high quality habitat and the 

dry-forest landscape approach are all intended to function independently from the 

Northwest Forest Plan. 

Question: Who is going to conduct the monitoring required by the recovery plan? 

How will it be paid for? 

Response: The current demographic monitoring program is supported by the 

BLM, Forest Service and, to a more limited extent, the National Park Service. We 

anticipate these three agencies, in cooperation with the Service, and perhaps the 

states on state land will continue to fund the monitoring program. 

Question: What can we expect from FWS in terms of NSO critical habitat, which 

I understand will be out in early June? 

Response: Except for the areas east of the Cascades, the Service intends to designate a critical habitat network that is consistent with the Recovery Plan. However, critical habitat requires mapped units and is not flexible in recognizing landscapes that naturally change. The Recovery Plan does not recommend static conservation areas in the dry-forest landscape. Consequently, the critical habitat strategy for the eastside uses the areas identified in the 2007 draft of the Recovery Plan 

as necessary for recovery. 

Question: Please submit for the record maps of the NSO provinces overlaying (a) 

FS and BLM land ownership; (b) Designated Conservation Areas as identified in the 

1992 draft recovery plan; (c) LSRs as described in the Northwest Forest Plan; and 

(d) MOCAs under the 2008 recovery plan. 

Response: The requested materials are attached. 

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42492.068
63 


42492.069
64 


42492.070
65 

Response to questions submitted for the record by Ed Shepard, Bureau of 

Land Management, U.S. Department of the Interior 

1. The draft EIS for the WOPR was based on the draft recovery plan, both 

of which were roundly criticized, including by its own scientists. Now 

that the recovery plan has been finalized, how will the BLM respond? 

Will the BLM be ‘‘maintaining substantially all high quality habitat’’ outside of MOCAs, and managing the remaining land to produce the highest 

amount and highest quality habitat that those lands are capable of producing? Does that include not logging old growth, which BLM earlier 

proposed to log under WOPR? 

The BLM is still in the planning process, and I cannot predetermine the final decisions that will be the outcome of that process. However, I can tell you that the 

BLM has worked closely with the U.S. Fish and Wildlife Service (FWS) during the 

development of the Final Northern Spotted Owl Recovery Plan and BLM’s Proposed 

Western Oregon Plan Revisions (WOPR). The BLM released the draft Environmental Impact Statement (EIS) in August 2007 and is continuing to work with the 

FWS to make the final EIS consistent with the Recovery Plan. The BLM’s close collaboration with the FWS will continue as the Recovery Plan undergoes adaptive 

management in the future. 

2. One of the key assumptions of the recovery plan is that ‘‘existing habitat 

conservation strategies (e.g., the NWFP) would be in place’’ (Final Recovery Plan, 7). But WOPR would eliminate the LSRs in southern Oregon 

(still an area of concern due to past management and the checkerboard), 

and drastically reduce the Riparian Reserves. What does this mean for 

the assumptions and conclusions of the final recovery plan? How will 

the BLM respond? 

The BLM is still in the planning process, and I cannot predetermine the final decisions that will be the outcome of that process. The quoted text, ‘‘existing habitat 

conservation strategies (e.g., the NWFP) would be in place’’ is a baseline assumption 

made by a panel of seven experts for use in a Delphi process at a meeting held on 

June 1, 2006, not a key assumption. The final Recovery Plan does not recommend 

maintaining the Northwest Forest Plan (NWFP) late successional reserve network 

for any province. The Recovery Plan for southern Oregon includes the following 

statement: 

‘‘This Plan recommends implementation of a MOCA network for the Klamath Provinces, but it will be considered an interim strategy until such time 

another strategy is adopted. A change to a non-MOCA landscape approach, 

at least on the Forest Service lands, is expected following the work of the 

Dry-Forest Landscape Work Group (discussed below). 

The MOCAs in the Klamath Provinces in Oregon and California coincide 

with the proposed Late Successional Management Areas (LSMAs) in the 

BLM’s preferred alternative for its Western Oregon Plan Revision and with 

U.S. Forest Service LSRs. There is a significant difference in land ownership 

patterns between the BLM and U.S. Forest Service in this area (i.e., much 

of the BLM owned land is in a checkerboard pattern, while the Forest Service administers large contiguous blocks of land). BLM’s checkerboard land 

ownership means the agency generally does not manage more than 50 percent of the land in a given area, so its approach to fire management and 

spotted owl recovery may differ from that of the U.S. Forest Service. The best 

approach for spotted owl recovery now appears to be to maintain the MOCAs 

on BLM land and to implement a landscape-management approach on U.S. 

Forest Service land, but this discussion requires further analysis.’’ (Page 24) 

The final Recovery Plan makes no recommendation for the width of riparian management areas. The only reference to riparian management areas is found on page 

19. It notes ‘‘While there is uncertainty regarding the forest conditions required for 

spotted owl dispersal, it is assumed dispersal success is better when the habitat between the blocks more closely resembles suitable habitat. Land use allocations such 

as visual corridors, riparian management zones, unstable soil areas, and special 

management areas for other species that support higher-quality spotted owl habitat 

embedded in a landscape of forest lands managed for timber production should facilitate dispersal of spotted owls.’’ 

66 

3. It seems to me that the BLM is going to have to make extensive revisions 

to the draft EIS for WOPR, in light of the recovery plan, spotted owl critical habitat due out any day now, and the BLM’s own internal science 

review of WOPR. Would you like more time to make these revisions? 

The BLM has been working closely with the FWS on the Western Oregon Plan 

Revisions and the Recovery Plan. Because of this close coordination, we expect to 

issue a Record of Decision for the current Western Oregon Plan Revisions planning 

process by the end of 2008. 

The CHAIRMAN. Ms. Luxton? 

STATEMENT OF JANE LUXTON, GENERAL COUNSEL, 

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, 

U.S. DEPARTMENT OF COMMERCE 

Ms. LUXTON. Thank you, Chairman Rahall and Members of the 

Committee, for the opportunity to discuss the proposed rule to implement speed restrictions to reduce the threat of ship collisions 

with North Atlantic right whales. 

The North Atlantic right whale is one of the most critically endangered large whale species in the world. The latest NOAA peer 

reviewed stock assessment indicates that a minimum of 313 individuals were estimated to have existed in 2002. The minimum population size has likely hovered near 3,000 [sic] individuals for several decades, having increased from perhaps fewer than 100 individuals by 1935 when international protection for right whales 

came into effect. 

From 1995 to 2002, the period when estimates are available, the 

minimum number of right whales alive has fluctuated from 284 in 

1995, to 313 in 2002. These numbers indicate that this population 

remains at risk. Collisions with marine vessels, which we call ship 

strikes, are of the greatest known human-related causes of right 

whale deaths and serious injuries. 

To address this threat, NOAA, in collaboration with other agencies and stakeholders, developed a right whale ship strike reduction program, which includes rulemaking to reduce ship speeds in 

areas where right whales occur. NOAA described the program in 

an advanced notice of public rulemaking, which we call ANPRs, in 

June 2004. After considering comments on the ANPR and consulting with other affected agencies, NOAA published a proposed 

ship speed restriction rule on June 26, 2006. 

The proposed rule would impose a ship speed limit of 10 knots 

on commercial vessels 65 feet and greater in overall length, which 

are subject to the jurisdiction of the United States. The proposed 

rule also sought comments on 12 and 14 knot speed limits. For reasons I will explain in a moment, U.S. vessels owned or operated by, 

or under contract to, the Federal government would be exempt 

from this speed restriction. 

The proposed restrictions would apply in specific marine areas 

and certain port entrances along the East Coast of the United 

States, imposing seasonal speed limits only in parts of designated 

regions that correspond to right whale feeding, migration and 

nursery/calving areas, and high vessel density. The areas designated were confined as much as possible to reduce economic impact to the shipping industry and the ports. 

67 

The proposed rule also includes speed restrictions that are triggered in dynamic management areas where NOAA determines 

there is concentration of three or more right whales, or there are 

one or more right whales in a designated shipping lane. 

NOAA’s proposed rule exempted Federal vessels, as I mentioned 

before, based on a determination that national security and navigational and human safety missions of some agencies may be compromised by a mandatory speed limit. NOAA further noted such an 

exemption would not relieve Federal agencies of their obligations to 

protect endangered right whales under the Endangered Species 

Act, including Section 7. 

In conjunction with this rule, NOAA also completed a draft environmental impact statement analyzing six alternatives. The EIS included an economic analysis of the rule. NOAA accepted written 

comments on the proposed regulation and the draft environmental 

impact statement, and held several public hearings in Jacksonville, 

Baltimore and Boston during 2006. 

NOAA received more than 10,000 comments on the proposed rule 

from the following groups: State and Federal agencies; shipping industry and cruise lines; ports, pilots, marinas and longshoremen; 

whale watch and passenger ferries; recreational fishing sector; environmental groups; members of environmental groups; and individuals. 

Comments focused on the data available, speed restrictions, area 

covered by the rulemaking, economic impacts and safety concerns. 

Of the comments, more than 9,700 were some type of form response. 

After considering all public comments on the proposed rule and 

consulting other affected Federal agencies, NOAA drafted a final 

rule and transmitted it to the Office of Management and Budget 

on February 20, 2007, in accordance with Executive Order 12866. 

At present, NOAA’s final rule is under interagency review. 

NOAA has also taken steps to reduce ship strikes through vessel 

routing measures. The United States prepared and submitted to 

the International Maritime Organization a proposal to reconfigure 

the traffic separation scheme that services Boston, Massachusetts. 

The IMO reviewed and adopted the proposal, and the realignment 

was implemented in July 2007. 

NOAA has also addressed the threat of large whale entanglement in fishing gear, another serious problem for right whales. On 

October 5, 2007, NOAA issued a final rule to amend the regulations implementing the Atlantic Large Whale Take Reduction Plan. 

This final rule revises the management measures for reducing the 

incidental mortality and serious injury to the northern right whale, 

also humpback whales and fin whales in commercial fisheries, to 

meet the goals of the Marine Mammal Protection Act and Endangered Species Act. 

Thank you again, Mr. Chairman, for the opportunity to testify. 

I am happy to respond to any questions. 

[The prepared statement of Ms. Luxton follows:] 

Statement of Jane Luxton, National Oceanic and Atmospheric 

Administration, U.S. Department of Commerce 

Good morning, I am Jane Luxton, from the National Oceanic and Atmospheric Administration (NOAA). Thank you, Chairman Rahall, and members of the Committee 

68 

for the opportunity to discuss the proposed rule to implement speed restrictions to 

reduce the threat of ship collisions with North Atlantic right whales. 

The North Atlantic right whale (Eubalaena glacialis) is one of the most critically 

endangered large whale species in the world; the latest NOAA peer-reviewed stock 

assessment indicates that a minimum of 313 individuals were estimated to have existed in 2002. The minimum population size has likely hovered near 300 individuals 

for several decades, having increased from perhaps fewer than 100 individuals by 

1935, when international protection for right whales came into effect. From 1995 to 

2002 (the period when estimates are available) the minimum number of right 

whales alive has fluctuated from 284 individuals in 1995 to 313 individuals in 2002. 

These numbers indicate that this population remains at risk. Collisions with marine 

vessels (‘‘ship strikes’’) are one of the greatest known human-related causes of right 

whale deaths and serious injuries. 

To address this threat, NOAA, in collaboration with other agencies and stakeholders, developed a right whale ship strike reduction program, which includes rulemaking to reduce ship speeds in areas where right whales occur. NOAA described 

the program in an Advanced Notice of Public Rulemaking (ANPR; 69 Fed. Reg. 

30,857) on June 1, 2004. After considering comments on its ANPR and consulting 

with other affected agencies, NOAA published a proposed ship speed restriction rule 

on June 26, 2006 (71 Fed. Reg. 36,299). 

The proposed rule would impose a ship speed limit of 10 knots on commercial vessels 65 ft and greater in overall length, which are subject to the jurisdiction of the 

United States. The proposed rule also sought comments on 12 and 14 knot speed 

limits. For reasons I will explain in a moment, U.S. vessels owned or operated by, 

or under contract to, the Federal Government would be exempt from this speed restriction. The proposed restrictions would apply in specific marine areas and certain 

port entrances along the East Coast of the United States, imposing seasonal speed 

limits only in parts of designated regions that correspond to right whale feeding, migration, and nursery/calving areas and high vessel density. The areas designated 

were confined as much as possible to reduce economic impact to the shipping industry. The proposed rule also includes speed restrictions that are triggered in ‘‘Dynamic Management Areas’’ where NOAA determines there is a concentration of 

three or more right whales or there are one or more right whales in a designated 

shipping lane. NOAA’s proposed rule exempted federal vessels based on a determination that national security and navigational and human safety missions of 

some agencies may be compromised by a mandatory speed limit. NOAA further 

noted that such an exemption would not relieve federal agencies of their obligations 

to protect endangered right whales under the Endangered Species Act, including 

Section 7. 

In conjunction with this rule, NOAA also completed a draft Environmental Impact 

Statement (EIS) analyzing six alternatives. The EIS included an economic analysis 

of the rule. NOAA announced the availability of the draft EIS on July 7, 2006 (71 

Fed. Reg. 38,640). NOAA accepted written comments on the proposed regulation and 

the draft EIS, and held several public hearings in Jacksonville, Baltimore, and Boston during 2006. 

NOAA received more than 10,000 comments on the proposed rule from the following groups: 

• state or federal agencies 

• shipping industry and cruise lines 

• ports, pilots, marinas, and longshoremen 

• whale watch and passenger ferries 

• recreational fishing sector 

• environmental groups 

• members of environmental groups 

• individuals 

Comments focused on the data available, speed restrictions, area covered by the 

rulemaking, economic impacts, and safety concerns. Of the comments, more than 

9,700 were some type of form response. 

After considering all public comments on the proposed rule and consulting other 

affected agencies, NOAA drafted a final rule and transmitted it to the Office of Management and Budget (OMB) on February 20, 2007, in accordance with Executive 

Order 12866. At present, NOAA’s final rule is under interagency review. 

NOAA has also taken steps to reduce ship strikes through vessel routing measures. The United States prepared and submitted to the International Maritime Organization (IMO) a proposal to reconfigure the ‘‘Traffic Separation Scheme’’ that 

services Boston, Massachusetts. The proposed realignment is expected to provide a 

significant reduction in ship strike risk to right whales and all baleen whale species 

occurring in the area, with minimal concurrent impact to mariners. The IMO reVerDate Aug 31 2005 15:00 Sep 25, 2008 Jkt 098700 PO 00000 Frm 00072 Fmt 6633 Sfmt 6621 L:\DOCS\42492.TXT Hresour1 PsN: KATHY
69 

viewed and adopted the proposal, and the realignment was implemented in July 

2007. 

NOAA has also addressed the threat of large whale entanglement in fishing gear. 

On October 5, 2007, NOAA issued a final rule (72 FR 57104) to amend the regulations implementing the Atlantic Large Whale Take Reduction Plan. This final rule 

revises the management measures for reducing the incidental mortality and serious 

injury to the Northern right whale (Eubalaena glacialis), humpback whale 

(Megaptera novaeangliae), and fin whale (Balaenoptera physalus) in commercial 

fisheries to meet the goals of the Marine Mammal Protection Act and the Endangered Species Act. 

Thank you again, Mr. Chairman, for the opportunity to testify. I am happy to respond to any questions. 

Response to questions submitted for the record by Jane Luxton 

Cabinet Level Decision 

We understand that the ship strike rule has been discussed in Department 

meetings and could be the subject of a cabinet meeting. This is reminiscent 

of the rarely invoked God Squad provision where cabinet members meet to 

decide whether a proposed agency action should go forward notwithstanding the likelihood that species may go extinct. 

How are we not to conclude that the delay in issuing the regulation to protect the right whale is anything more than another example of this Administration’s politicization of a scientific decision? 

The process for publishing the ship speed reduction rule has been similar to the 

process for other rulemakings under the Endangered Species Act (ESA). It is also 

the same process that NOAA goes through under other mandates such as the Magnuson-Stevens Act and the Marine Mammal Protection Act. 

It began with an Advance Notice of Proposed Rulemaking, followed by a public 

comment period during which time the agency conducted public meetings up and 

down the East coast. NOAA then filed a notice of intent to prepare a draft environmental impact statement and had additional public meetings as required by the National Environmental Policy Act (NEPA). Next, following interagency review coordinated by the Office of Management and Budget (OMB), as required by Executing 

Order 12866, NOAA published a Proposed Rule and a notice of availability for the 

draft environmental impact statement. Public comments were accepted again as required by NEPA and the Administrative Procedure Act. Following this, NOAA developed a final rule and final environmental impact statement. All three rulemaking 

documents were sent to the OMB for interagency review, as required by Executive 

Order 12866. 

Under Executive Order 12866, which has been in effect since the Clinton Administration, OMB is notified of all proposed federal rulemaking actions and coordinates 

the interagency review of all rules that are deemed to be significant. Rules are ‘‘significant’’ if they may have $100 million or more in annual economic effect, interfere 

with or are inconsistent with actions taken or planned by another agency, or raise 

novel legal or policy issues. This rulemaking has an economic impact exceeding $100 

million, and thus is considered significant; therefore OMB has been coordinating the 

interagency review process. 

Vice President’s Interest 

Why is the Vice President’s office interested in the ship strike rule? 

Scientific issues were not seen as important when OMB reviewed the 

proposed rule. What has changed? 

This rule is based on peer-reviewed science. The interagency review process set 

forth in Executive Order 12866 will help ensure that the Final Rule achieves its regulatory objective in the most cost-effective manner, based on ‘‘the best scientific, 

technical, economic and other information,’’ and taking into account the views of 

other agencies and members of the public. The rulemaking process is meant to support robust interagency dialogue on all of these issues. 

Delay of Rule 

What is the scientific justification for further delays in the proposed rule? 

The interagency review process set forth in Executive Order 12866 will help ensure the Final Rule achieves its regulatory objective as effectively as possible, based 

on ‘‘the best scientific, technical, economic and other information,’’ and taking into 

70 

account the views of other agencies and members of the public. The rulemaking 

process is meant to support robust interagency dialogue on all of these issues. 

$100 million Cost 

We understand that the rule could cost international shipping interests 

$100 million which is significant, even if the amount represents only .1 percent of annual receipts for international shippers. It is my understanding 

that the Chamber of Shipping of America, which primarily represents 

American companies, is willing to accept the rule. Yet, the World Shipping 

Council representing international interests opposes the regulation. 

Why is the Administration giving more credence to the concerns of the 

World Shipping Council than to the Chamber of Shipping of America, if 

American companies are willing to do what it takes to protect the whale? 

In conjunction with this rule, NOAA conducted numerous public meetings and 

held several rounds of discussions with the shipping community and other stakeholders to describe the content and purpose of the ship strike reduction proposals. 

NOAA received more than 10,000 comments on the proposed rule from the following groups: 

• state or federal agencies 

• shipping industry and cruise lines 

• ports, pilots, marinas, and longshoremen 

• whale watch and passenger ferries 

• recreational fishing sector 

• environmental groups 

• members of environmental groups 

• individuals 

Comments from all stakeholders were considered in drafting the Final Rule. 

Deadlines 

Why has the White House in reviewing the right whale regulation missed 

the deadlines in Executive Order 12866? 

Rules are ‘‘significant’’ if they may have $100 million or more in economic implications, interfere with or are inconsistent with actions taken or planned by another 

agency, or raise novel legal or policy issues. This rulemaking is considered significant under Executive Order 12866 and involves complex issues that have generated 

substantial public comment. OMB is taking the time needed to coordinate the interagency review process. 

The CHAIRMAN. Thank you all for your testimony. I appreciate it. 

Let me begin by asking Ms. Nazzaro, based on your work, do you 

believe there are ESA decisions that were inappropriately influenced by Interior officials other than Ms. MacDonald? 

Ms. NAZZARO. Through the course of our work, we did identify 

that had the Agency broadened their criteria—they used three 

criteria—primarily were the decisions influenced by Ms. MacDonald, was the scientific basis of that decision compromised and 

did the decision significantly change or result in a negative impact? 

Had they broadened that criteria, yes, they would have identified 

other decisions for possible revision. 

The CHAIRMAN. And who? 

Ms. NAZZARO. It might be more important for me to identify titles. I don’t know if the names will mean as much as to identify 

so that you could get a sense of where in the organization they possibly would be. 

The CHAIRMAN. That would be a good start. 

Ms. NAZZARO. But one would be the Special Assistant to the Assistant Secretary. Another would be—I don’t have his title. One 

was a former Assistant Secretary, and the other was a Deputy Assistant Secretary. Another was Chief of Staff, so we identified a 

number of individuals. 

71 

The CHAIRMAN. Can you name names? 

Ms. NAZZARO. I could. 

The CHAIRMAN. Please. 

Ms. NAZZARO. OK. The Special Assistant to the Assistant Secretary was Randall Bowman. We found that there were five decisions that he affected. Another would be Judge Craig Manson; he 

was a former Assistant Secretary. We found three ESA decisions 

that he impacted. Third, the Deputy Assistant Secretary was Todd 

Willens. He affected one decision. And Brian Waidmann, who was 

Chief of Staff, was not mentioned in connection with a particular 

species, but his name appeared in various sources as also reviewing 

decision packages and generally supporting decisions that Julie 

MacDonald made. 

Now again, this was through our conversations and reviews of 

studies. We are not saying it is an exhaustive list, but we have an 

indication that had they broadened it, there could have been others. 

The CHAIRMAN. You mentioned Brian Waidmann. Is he still 

Chief of Staff to the Secretary, Mr. Kempthorne? 

Mr. LAVERTY. Yes, sir, he is. 

The CHAIRMAN. He is still holding the title ‘‘Chief of Staff.’’ And 

you feel he may have inappropriately influenced ESA decisions? 

Ms. NAZZARO. From the sources that we reviewed, sir, we found 

that he frequently reviewed ESA decision packages and generally 

supported decisions that Julie MacDonald made. 

The CHAIRMAN. Thank you. 

Let me ask Ms. Luxton a question. Please do not take this in the 

wrong way. I recognize that you are not the witness whom we had 

requested to be with us today. The Agency instead put you up, so 

this is in no way a reflection upon you or your abilities, and therefore I will keep the question very simple. It only will require a 

‘‘yes’’ or a ‘‘no.’’ 

Has the White House interfered in any way on the right whale 

issue? Yes or no? 

Ms. LUXTON. I am really not in a position to answer that question. I mean, the interagency review process is, I think, what you 

may be referring to, and that is a part of the typical review process 

that goes on with any significant rule, and this is classified as a 

significant rule. 

The CHAIRMAN. Do you have any knowledge of any White House 

involvement? 

Ms. LUXTON. Well, in the typical interagency process, there is always a review by all interested parts of the Federal government, 

and that process is going on now. This is an ongoing rulemaking, 

and that is the normal process. 

The CHAIRMAN. Are you aware of any involvement of the Council 

of Economic Advisors? 

Ms. LUXTON. Again, all parts of the Federal government are part 

of the interagency review, all that are interested in this particular 

rule, so it is a broad group, just as NOAA is involved in interagency reviews when other Agency questions come up that have a 

NOAA aspect of interest to the Agency. 

The CHAIRMAN. And why is it taking so long for this rule to get 

out? 

72 

Ms. LUXTON. I agree. This rule has taken longer than we would 

have liked it to take. It is a significant rule. 

As I mentioned, we received 10,000 comments on this rule, and 

it involves a great many aspects of vessel safety and maneuverability, economics, scientific issues, technical issues, and all of 

them are part of the extensive comments we received and the discussions that need to be had to make sure we produce the best rule 

possible. 

The CHAIRMAN. OK. Let me ask Assistant Secretary Laverty. 

You heard my opening remarks and the GAO testimony that the 

American people expect more from their government, yet at the Interior Department, it appears lessons learned are still being lost. 

The Fish and Wildlife Service bungled its review of the Julie MacDonald decisions. Politics is still trumping science. 

Your testimony not withstanding, I would like your response to 

what GAO has reported and to wit: ‘‘Questions remain about the 

extent to which Interior officials other than Ms. MacDonald may 

have inappropriately influenced ESA decisions and whether broader ESA policies should be revisited.’’ Your comments, please? 

Mr. LAVERTY. Yes, Mr. Chairman. I am not aware specifically of 

the specific references in the report as it relates to these outside 

of Ms. MacDonald. I would be happy to follow up on that. 

I can tell you right now that the integrity of the science and the 

process is absolutely clear, and I can assure you that decisions that 

are being made by Fish and Wildlife Service are based on the integrity of science, and that there are no changes taking place in 

science. 

The CHAIRMAN. Let me ask you what we just heard from the previous witness, Ms. Nazzaro, about the Secretary’s Chief of Staff, 

Mr. Waidmann, is involved in this decision-making process. Do you 

have a comment on that? 

Mr. LAVERTY. I am not aware of what his involvement would be. 

I think, as a normal course of review, the Chief of Staff does review 

decisions, but I am not sure what effect it would have had in previous ones. 

I have had conversations with him on actions that we are taking, 

but I don’t find those to be changing decisions. 

The CHAIRMAN. All right. I recognize the acting Ranking Member 

from Nebraska. 

Mr. SMITH. Thank you, Mr. Chairman and Members. Certainly, 

I am a relatively new Member to this Committee, and it is very interesting the more information that I receive. 

I am a bit curious, Ms. Nazzaro. What is the process? For example, Julie MacDonald or Mr. Waidmann—folks like this whose 

names are mentioned in hearings such as this—do you interview 

them as part of your investigation? 

Ms. NAZZARO. We did not interview these individuals. Our methodology, as I mentioned earlier, we had talked with Director Hall. 

We also talked to the eight regional directors. 

We also went to 10 field offices in five different regions, focusing 

on those field offices that had the majority of the listing and 

delisting activities, as well as to provide geographic coverage. 

73 

Mr. SMITH. And so, is there any opportunity given to these individuals for rebuttal before their names are mentioned in a setting 

such as this? 

Ms. NAZZARO. We are not making an accusation. We are saying 

they potentially inappropriately influenced it. We did not research 

to what extent they have influenced it or what the outcomes were. 

The question asked was to what extent were other individuals 

potentially influencing decisions, and we just felt that the scope of 

the study that the Agency engaged in was a rather narrow scope 

just looking at Ms. MacDonald. 

We understand the allegations that were made regarding her, 

and we understand why they chose to do that as a first step. We 

are just saying, if they had broadened it, they may have come up 

with others. 

Mr. SMITH. But the emphasis would be on the potential you mentioned? 

Ms. NAZZARO. Correct. Correct. I mean, these came through conversations. We also reviewed studies, such as studies by the Union 

of Concerned Scientists and others of that nature. 

Mr. SMITH. But these individuals have not been interviewed by 

GAO? 

Ms. NAZZARO. Correct. 

Mr. SMITH. Thank you. 

The CHAIRMAN. Would the gentleman yield, very quickly, on 

that? 

Mr. SMITH. Sure. 

The CHAIRMAN. Did you also have access, as part of your methodology, to memos? 

Ms. NAZZARO. Yes. 

The CHAIRMAN. Thank you. 

Ms. NAZZARO. Emails, documents, Agency documents. Yes. We 

had a quite extensive record of where these individuals’ names 

were mentioned numerous times. 

Mr. SMITH. Sure. Well, I appreciate that. You know, we have a 

job to do here, and you do as well, and I appreciate your service 

to the public as with anyone here in the room. I mean, there are 

many responsibilities that all of us have. 

I have been sifting through some paperwork here, and I would 

like to submit for the record a rebuttal from Ms. MacDonald for the 

record. 

The CHAIRMAN. Without objection. It will be made part of the 

record. 

[The letter submitted for the record by Ms. MacDonald follows:] 

Julie A. MacDonald 

MacDonald Consulting 

Phone: 202-333-0844 

June 2, 2008 

Mr. Gene Dodaro 

Acting Comptroller General 

Government Accountability Office 

441 G. St., NW 

Washington, DC 20548 

Dear Mr. Dodaro; 

The purpose of this letter is to correct several inaccuracies in GAO’s report on Endangered Species Act Decision-Making, GAO-08-688T. In addition to the report, 

74 

1GAO Mission Statement; http://www.gao.gov/about/index.html 

2GAO Core Values; http://www.gao.gov/about/index.html 

3http://frwebgate.access.gpo.gov/cgi-bin/ 

getdoc.cgi?dbname=browselusc&docid=Cite:+16USC1533 4With respect to listing determinations the Act states: 

(b) Basis for determinations 

(1)(A) The Secretary shall make determinations required by subsection (a) (1) of this section solely on the basis of the best scientific and commercial data available to him... 

With respect to critical habitat designations the Act states. 

these inaccuracies—both general and specific in nature—were also included in 

GAO’s testimony before the House Resource Committee on May 21, 2008. Sadly, 

most of the errors could have been avoided had the author reviewed the source documents and interviewed the primary subjects of the report. 

The report misstates the requirements of the Act and is also misleading with respect to the duties of the Fish and Wildlife Service and the Department of the Interior. With an almost unbelievable lack of thoroughness, the authors clearly failed 

to even read the text of the Endangered Species Act. This is a particularly egregious 

omission, since its provisions form the basis of the entire decision-making process 

which is the subject of the report. In addition, the authors apparently neglected to 

perform even the most cursory review of the source documents comprising the 

record. All the emails and comments regarding the referenced regulatory documents 

are readily available and a matter of public record. Further, a letter rebutting the 

specific claims made in the referenced Inspector General’s Report was made available to 8 senior staff at the Department. Despite the fact that the rebuttal was referenced publicly in a House Resource Committee hearing in July of 2007, the GAO 

ignored the information, choosing instead to perpetuate the IG’s 

mischaracterizations. Finally, the GAO never bothered to contact either me or the 

other officials whose activities are referenced in the body of the report. 

Apparently, the GAO prefers to draw the conclusions in its reports untrammeled 

by the facts. Attached is a rebuttal of the specific claims included in the report. I 

presume based on the GAO’s mission and core values, that the errors and unsubstantiated accusations will be corrected by your office. To fail to do so will indelibly 

mark the Office with the taint of partisanship carelessness, and disregard for the 

law and facts. 

Sincerely, 

Julie A. MacDonald 

DETAILED CORRECTIONS TO 

‘‘ENDANGERED SPECIES ACT DECISION-MAKING’’ 

GAO REPORT-08-688T 

June 2, 2008 

The report is written to support a conclusion that science was ’inappropriately’ influenced. The artifice used to support the conclusion has several components, which 

include: 

• Mischaracterization of the requirements of the Endangered Species Act;; 

• Confusion of the role of the Assistant Secretary’s Office; 

• Misstatement of the role of the Fish and Wildlife Service; 

• Mischaracterization of legitimate quality control activities of the Assistant Secretary’s Office; 

• Omission of readily available facts 

The approach used by GAO is cynical and contrary to its mission, which is to provide Congress information that is objective, fact-based, nonpartisan, nonideological, 

fair, and balanced 1. Instead, the GAO has delivered a document to Congress that 

could hardly have been more misleading or inaccurate. Further, the approach used 

in developing the report is contrary to the core values of GAO, which states all facts 

and analyses in our work are thoroughly checked for accuracy 2. As the following 

paragraphs will demonstrate, facts were not checked, or even considered, and analyses were completed in a context that did not reflect the requirements of the law. 

• Mischaracterization of the requirements of the Endangered Species Act 3

The ESA provides for 3 major regulatory activities, listing, designation of critical 

habitat and consultation on discretionary federal activities. All of the regulatory activities rely on one standard, the best scientific and commercial data available. 

In the summary, GAO characterizes the standard used for ESA decisions as the 

’best available scientific information’: 4

75 

(2) The Secretary shall designate critical habitat, and make revisions thereto, under subsection (a)(3) of this section on the basis of the best scientific data available and after taking 

into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat. The Secretary may exclude 

any area from critical habitat if he determines that the benefits of such exclusion outweigh 

the benefits of specifying such area as part of the critical habitat, unless he determines, 

based on the best scientific and commercial data available, that the failure to designate such 

area as critical habitat will result in the extinction of the species concerned. 

With respect to biological opinions the Act states: 

(2) Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency (hereinafter 

in this section referred to as an ‘‘agency action’’) is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical, unless such agency has been 

granted an exemption for such action by the Committee pursuant to subsection (h) of this 

section. In fulfilling the requirements of this paragraph each agency shall use the best scientific and commercial data available. 

‘The Department of the Interior’s (Interior) U.S. Fish and Wildlife Service 

(Service) is generally required to use toe best available scientific information 

when making key decisions under the Endangered Species Act (ESA).’ 

Then on page 1, GAO repeats the error; 

Generally, Interior and the Service are required to use the best available scientific information when making key ESA decisions. 

And again several times on page 9, where oddly, GAO characterizes one out of 

six activities as most activities... 

‘In most cases, ESA decisions must be based at least in part on the best 

available scientific information (see table 1).’ 

‘...some ESA decisions are both ‘‘peer reviewed’’ and reviewed internally to 

help ensure that they are based on the best available science...’ 

And again on page 8 of the House staff briefing materials: 

‘Many ESA decisions must be based, at least in part, on the best available 

scientific information’. 

However, Table 1 of the GAO Report, found on page 8, recognizes that only one 

activity has a standard based on the less rigorous standard of ’information’ as opposed to data, and that is the 90-day petition finding, which has no regulatory effect. No scientific standards are imposed on Recovery Plans. 

There are only two possible explanations for the repeated errors on this score. Either the GAO never examined the requirements of the statutes or the GAO deliberately ignored the contents of the statute and chose to mischaracterize its requirements. Neither explanation is consistent with the mission or core values of the 

GAO. 

• Confusion Of The Role Of The Assistant Secretary’s Office 

By statute the Assistant Secretary’s Office supervises the Director of the Fish and 

Wildlife Service. Yet, in characterizing the activities of the Office as ’inappropriate’ 

the GAO report implies that the supervisory authority exercised by the office was 

not authorized by law. 

Of the activities undertaken by that office, what exactly was inappropriate? 

• Requiring that statements in rulemakings were supported by data, which is a 

requirement of the Act? 

• Requiring that citations of scientific literature be accurate? 

• Requiring that comment letters from states and the public be read and considered? 

• Requiring that the language in final rules was internally consistent and fully 

explained the basis for decisions? 

• Perhaps GAO finds that the exercise of the explicit authority given to the Secretary to exclude lands from critical habitat was inappropriate? 

The above listed activities, which the GAO is characterizing as ’inappropriate’, 

were conducted by the Office of Assistant Secretary Manson. These activities were 

clearly authorized in law and in fact were exercised in fulfillment of the statutory 

responsibilities of the Office. To the extent that final rules were influenced by these 

activities, the influence was consistent with the requirements of the Act and due 

to the fact that the rules did not originally meet those standards. 

By using the term ’inappropriate decision making’ the GAO neatly sidesteps the 

fact that the decisions were well within the Assistant Secretary’s purview, but lays 

spurious doubts on whether they were in fact carried out to fulfill the requirements 

of the ESA. 

76 

• Misstatement of the role of the Fish and Wildlife Service 

The ESA gives no role to the Fish and Wildlife Service. While by convention and 

delegation the FWS gathers data, reviews it, and prepares regulatory documents; 

the ultimate decision-making authority rests with the Secretary. The Assistant Secretary in supervising the FWS sets policy and standards in order to ensure that 

those documents prepared by the FWS meet the standards of the Department of the 

Interior for factual accuracy and legal sufficiency. However, the Act gives no authority to the FWS, and the Secretary could just as easily through regulation require 

preparation and response to listing documents be prepared by another bureau within the Department of the Interior. 

Nevertheless, the report states: 

Although the Sen/ice is responsible for making science-based decisions, Interior takes responsibility for applying policy and other considerations to scientific recommendations. 

There is absolutely no legal authority for such a statement or any of the myriad 

statements implying that the FWS has a statutory role in ESA decisions. While the 

Service may have authority delegated to make decisions, that authority is always 

subject to review of the Director’s superiors, in this case the Assistant Secretary. 

The FWS prepares documents based on scientific data. The Assistant Secretary, as 

the supervisor of the Director of the Fish and Wildlife Service, reviews those documents and in the course of the review, may legitimately impose standards on those 

documents. 

GAO’s conclusions regarding the role of the Director of the FWS and the Secretary’s Office is akin to finding that a Colonel in the Army has the authority to 

override a General’s military decisions. 

• Mischaracterization of legitimate quality control activities of the 

Assistant Secretary’s Office 

As supervisor of the Director of the Fish and Wildlife Service, the Assistant Secretary is responsible for the quality of the products produced by the FWS. As a function of his supervision of the Director the Assistant Secretary imposed quality control standards. Those standards included: 

• Requiring that all statements in listing rules be supported by data, as required 

by statute; 

• Requiring that all comment letters be considered; 

• Requiring that data support identification of habitat as occupied; 

• Requiring that all studies and data were considered; 

• Requiring that all rules be written clearly enough for the reader to understand 

the basis for the decision included in the rules; 

First, it is the Secretary of the Interior who is empowered to make the decisions 

under the Endangered Species Act, not staff biologists. The statute doesn’t envision 

someone who has spent their entire career in a narrow field of study making national policy. 

Second, decisions under the Act are required to be based on best commercial and 

scientific data available, not the more nebulous standard of ’best science’, or ’best 

scientific information’ either of which can be construed to include theory, hypothesis, 

speculation and even opinion. 

GAO has chosen to characterize these activities as ’inappropriately influencing’ 

the work. Is it possible to have a more ridiculous or nebulous charge? It is the role 

of a supervisor to ensure the work meets the required standards. What the GAO 

has identified in the report is that the Assistant Secretary’s Office would not accept 

opinion and speculation in place of data and studies based on the scientific method. 

Just because a scientist has an opinion, doesn’t make it science. 

• Omission of readily available facts 

The report repeatedly mischaracterizes matters of fact which could have readily 

been identified with a minimum of effort. Had the authors even taken the trouble 

to interview me the errors would have been avoided. Documentation is available. 

• The report misstates the direction given to the FWS staff regarding the 

use of Recovery Plans. The draft information guidance document entitled 

’Lessons Learned’ clearly states for biologists to use the science behind the recovery plan, rather than citing the recovery plan. This is because there is no 

scientific standard applied to the conclusions and recommendations in a Recovery Plan. The Act requires that all information be considered for a Recovery 

Plan, but provides no standard for the final determination as to what is included in the plan. 

Thus the Assistant Secretary’s Office merely required that underlying science supporting the Recovery Plan be used. 

77 

The GAO Report characterized the guidance in this manner: 

‘...a practice was developed that Service staff should generally not use or 

cite recovery plans when developing critical habitat designations.’ 

The statement could hardly be more misleading given the actual direction given 

to the FWS. The ’lessons learned’ document is a matter of public record, and as a 

matter of fact was the subject of a FOIA request. How unfortunate that the GAO 

staff didn’t bother to review this guidance. • The GAO mischaracterizes the nature of policy decisions related to application of a standard for ‘occupied at the time of listing’. The Act requires that critical habitat be designated on areas occupied at the time of listing. GAO notes that the Assistant Secretary’s Office interpreted this requirement narrowly, and implies this was improper. The Assistant Secretary’s Office 

exercised appropriate policy guidance by requiring the FWS to define a standard for ’occupied at the time of listing’ and include that standard in the rule. 

The standard was determined on a species by species basis. In the case of the 

bull trout, which the GAO references, an area was defined as occupied at the 

time of listing if there was one sighting by a qualified professional within a 20 

year period; hardly a narrow window. 

The GAO report states: 

‘...some proposed critical habitat areas were removed, in part because occupancy by the species could not be ascertained.’ 

That means there is no data to support occupancy. The Act requires data to make 

determinations. Is the GAO suggesting that the Assistant Secretary’s Office should 

ignore the requirements of the Act and allow regulations to be imposed based on 

speculation and hypothesis? 

• The GAO implies that Recovery Plans have a greater role in listing determinations than is provided in law. In the report, the GAO states: 

‘ESA does not specifically require the Service to meet recovery criteria before delisting a species’ 

In fact, there is no place for Recovery Plans in listing determinations. Under the 

Act, one listing determination is made, and that is: whether or not a species belongs 

on the list. There are five factors that apply to the decision. Recovery Plans have 

no scientific standard required in the statute and they have no regulatory authority. 

The Service routinely ignores Recovery Plan standards if and when species meet 

them. In doing so the Service appropriately relies instead on the analysis of the five 

factors which the statute requires for a listing determination. 

• The GAO mischaracterizes the nature of MacDonald involvement in the 

Sacramento Splittail Decision. 

The GAO report states: 

‘...she edited information regarding the statistical analysis. Service staff 

said that these edits could make it harder to use the scientific analysis in 

the future...’ 

What the GAO fails to note in its report is that first, all the edits were to support 

the FWS original recommendation on the splittail. Second, the wording in the report 

leads the reader to believe that a study was altered in some way, or excluded. The 

truth is just the opposite. The Service had conducted two studies on the splittail. 

My edits ensured that the results of both studies were included in the final rule. 

None of the study data or findings was changed or excluded. How odd that the GAO 

writers failed to either identify the fact or report it. 

• The GAO Report Ignores the Factual Rebuttal to the First Inspector 

General Report. 

The GAO report references the IG report, yet fails to acknowledge the rebuttal 

provided to Interior and first referenced in a July 2007 Resources Committee hearing. In letter responding to a query by Congressman Young, the IG stated that his 

report merely repeated allegations. Those two documents should have raised sufficient questions regarding the accuracy of the statements in the IG report and subsequent statements by selected service staff for the GAO to at least check their facts 

with the subject of the report. 

Mr. SMITH. Mr. Laverty, can you tell us some of the challenges, 

I guess, with implementing recovery programs? I know that in my 

district, we have the Platte River Recovery Program. I have tried 

to be helpful with that so that we can arrive at a workable scenario. 

78 

I may not be a big fan of some of the legislation or the statutes, 

but I know that it is here and we need to work within those confines and so I want to be a good steward of everything afforded me 

and my constituents. Can you tell us what some of the challenges 

with implementing these recovery programs might entail? 

Mr. LAVERTY. Perhaps as a starter, I think one of the challenges 

comes from working across jurisdictions and working with multiple 

agencies because most species have no understanding of administrative boundaries, jurisdictional boundaries. 

In my past life as the regional forester with the Rocky Mountain 

Region of the Forest Service, working across agency boundaries, administrative boundaries, becomes one of the biggest challenges that 

we have, I think, of bringing people together to agree on recovery 

strategies and then mounting the resources to make those come 

about. 

Mr. SMITH. Thank you. I would like to discuss in what little time 

I have left, and if any of you would like the opportunity to respond, 

there is a frustration, certainly, among my constituents, and actually I would concede to Mr. DeFazio the local nature of many of 

these issues—that local folks typically know the most about a situation, especially as it involves the environmental impacts of public 

policy, or lack thereof. 

In my district, there was talk of not having enough prairie dogs. 

They are cute little creatures. Most of my constituents would argue 

that there were plenty of them, and when they got word that there 

weren’t enough of them, in some minds, they got kind of worked 

up about that. You know, it seemed to be that maybe there was 

some political science involved with wanting to list that; maybe 

not. I don’t know, truly. 

It seems to me that some of these policies are maybe premature, 

and they tend to draw a bigger distance between the public and 

policymakers or policy enforcers. Could you speak to that at all? 

Mr. LAVERTY. Yes, I can. I believe the conversations that we have 

had and, in fact, I shared during my confirmation hearings with 

both committees, is the foundation of science as the basis for policy. 

I think you have to have that as the starting point for the conversations. 

The challenge then comes in working with different constituent 

groups, and I think your example of the prairie dogs, and black 

footed ferrets are another example, are what we are working on recovering, but yet working with communities, working with landowners, disparate types of philosophies, if you will, becomes the 

challenge, and I think that is why we have great people working 

underground to bring these about. 

Mr. SMITH. OK. Thank you. I appreciate all of you participating 

today and answering questions, and I yield back. 

Mr. DEFAZIO [presiding]. OK. Thank you. 

Mr. Laverty, I understand you are accompanied by some people 

behind you who you might need to refer to since I am going to be 

asking you about something which is specific to my region and has 

a long history and is a bit complicated, but let me ask a general 

question first. 

I mean, given your professional background, do you believe that 

peer review is useful? 

79 

Mr. LAVERTY. Absolutely. 

Mr. DEFAZIO. OK. And then when the Agency solicits peer review, what do you think they should do with the peer review? 

Mr. LAVERTY. Well, I can share with you the peer review that we 

did on science as a framework for the polar bear listing. I think it 

just sharpens the final product, and I believe you can look at examples on the science reports that were done by USGS and the peer 

review comments. Those were incorporated into the final product. 

Mr. DEFAZIO. OK. So they actually incorporated some of the critique or suggestions from the peer review into the final product? 

Mr. LAVERTY. I believe the final review incorporated thoughts. 

Probably not all of them. 

Mr. DEFAZIO. Right. 

Mr. LAVERTY. I would imagine if you went back and looked at 

the—— 

Mr. DEFAZIO. So generally, when you solicit peer review, it would 

be useful to receive it, evaluate it, and then incorporate it into your 

final recovery plan? That is just sort of a simple question. 

Mr. LAVERTY. Sure. 

Mr. DEFAZIO. OK. Good. All right. 

Mr. LAVERTY. I understand. 

Mr. DEFAZIO. OK. Again, you may not be able to address this, 

but I guess my question would be, in the case of the recovery plan 

for the spotted owl, the Agency did solicit peer review and received 

a critique which the Agency had solicited in April 2008, but they 

rewrote the recovery plan before they received the peer review, and 

the peer review was extraordinarily critical of the recovery plan. 

I guess, perhaps to Mr. Lohoefener—— 

Mr. LAVERTY. Lohoefener. Yes, sir. 

Mr. DEFAZIO.—if we could perhaps allow him to answer the 

question? 

Why are we rushing ahead with the draft recovery plan without 

having a chance to fully incorporate the critique which you solicited 

and received only last month? 

For the record, state your name and position, please. You will 

have to pull that a little closer. 

Mr. LOHOEFENER. Ren Lohoefener, Regional Director, Pacific Region, the United States Fish and Wildlife Service. 

Thank you for that question. It gives me the opportunity to correct a misconception. We received the first drafts of the SEI report, 

the solicited peer review that you referred to, in either late March 

or early April. That draft changed in very, very minor ways from 

the final. 

We began using the first draft the minute we had it and, in fact, 

as the SEI report was being developed, the principal contractor on 

that, Dr. Steven Courtney, was in almost daily contact with our recovery leader, Dr. Paul Fifer. So, from the very beginning, we used 

the information that was being collected in the SEI report to craft 

the final report. 

Mr. DEFAZIO. Well, I can see it appears that, particularly on the 

east side, you were somewhat responsive, but I have real concerns, 

and some of your east side work I think does address sustainability 

of those ecosystems and the potential for recovery over there, but 

I have particular concerns about the west side. 

80 

Has there ever been another recovery plan where you have a declining population where you recommend reducing existing habitat? 

Mr. LOHOEFENER. Again, Congressman, thank you for that question. Again, it gives me the opportunity to correct a misconception 

that seems to be out there. 

I believe the reduced amount of habitat you are referring to goes 

back to the Northwest Forest Plan. You will recall the Northwest 

Forest Plan addressed the needs of over 100 species in addition to 

the spotted owl and, in fact, the Northwest Forest Plan did not lay 

out any recovery criteria specific to the forest plan. 

Therefore, it is no great surprise that when we write a plan specific to the spotted owl the habitat, which is still well over six million acres recognized as needed for the spotted owl, is less than the 

forest plan. 

On the west side, which you referred to, we maintain what we 

call managed owl conservation areas, which are principally the reserves. 

Mr. DEFAZIO. Just to clarify, unfortunately I know way too much 

about this. I have been involved probably as long or longer than 

you have on this issue, and I just hate revisiting all this stuff. 

As I look at those, they remind me an awful lot of the preexisting 

habitat conservation areas which actually were in place, but led actually to the injunctions which we had. We seem to be harking 

back. Has the science changed on evaluating those areas in the last 

22 years? 

Mr. LOHOEFENER. Congressman, I would fully agree. Your experience out there over the last 18 years with the listing of this owl 

is longer term than mine. No doubt about that. Many things have 

changed in the range of the spotted owl, not the least of which is 

the new threat we recognize, the barred owl. 

On the west side, to get back to that issue, in addition to the conservation areas that have been set up I particularly congratulate 

the Forest Service and the Bureau of Land Management for stepping forward and agreeing to look at habitat that may serve as a 

buffer, as an ability to keep the spotted owl and the landscape as 

we deal with the barred owl question. 

They have voluntarily stepped forward and agreed to at least for 

the next 10 years as we look at the barred owl question maintain 

that complex forest system. We also are looking to the state and 

the private individuals out there to maintain the connected areas 

between the reserve areas, so I think we have an outstanding 

strategy, especially for the next 10 years, and if we can control the 

barred owl threat I look for us to turn the corner on recovery of 

the spotted owl. 

Mr. DEFAZIO. OK. I have exceeded my time, but I will have more 

questions. 

I would now turn to Mr. Duncan. 

Mr. DUNCAN. Thank you, Mr. Chairman. I don’t really have any 

questions since I just got here, although I was told that the recovery plan for the spotted owl has doubled from $189 million to $400 

million. Is that correct? If so, why is that? 

Mr. LOHOEFENER. Actually your last estimate is a little bit low. 

I think it is even a little bit more than that. 

81 

A large part of the funds being tied up in the needs for the owl 

recovery is the recognition of the huge need to manage against 

wildfire on the east side. That is a very expensive thing to do. 

Mr. DUNCAN. So if that $400 million is low, what is the current 

estimate of the cost? 

Mr. LOHOEFENER. It is in the recovery plan. Without looking at it specifically, it is in the neighborhood of $450 million, I believe. 

Mr. DUNCAN. All right. Thank you very much. 

Mr. LOHOEFENER. Assistant Secretary Laverty points out to me it is actually $459 million. 

Mr. DUNCAN. All right. Thank you. 

Mr. DEFAZIO. With that, Mr. Grijalva would be next. 

Mr. GRIJALVA. Thank you, Mr. Chairman. 

Ms. Nazzaro, can you briefly elaborate? We understand scientists 

were instructed to Julie-proof their decisions to gain Ms. MacDonald’s approval for their work. Can you elaborate on that? What 

does it mean to Julie-proof a decision? 

Ms. NAZZARO. Yes. This was a term that we heard during our 

interviews with some of the Service biologists regarding their decisions. 

What this would be, it would be an act of anticipating what it 

would take to get a decision approved by Julie MacDonald, so in 

their activities, they were writing the decision based on that criteria rather than on the basis of the science—what they anticipated 

she was looking for, rather than using what the science would have 

dictated. 

Mr. GRIJALVA. Thank you. 

Ms. Luxton, can you tell me and the Committee why the Vice 

President’s office is interested in the ship strike rule? You know, 

OMB reviewed the proposed rule, didn’t seem to have any issue 

with it. What has changed since then? 

Ms. LUXTON. Well, again, Congressman, the interagency review 

process provides the opportunity for any part of the Federal government that has an interest in the issue to be part of a robust dialogue to make sure that the rule is as strong a final product as it 

can be. 

Beyond that, I really can’t get into the details of the interagency 

review process in an ongoing rulemaking. 

Mr. GRIJALVA. OK. Secretary, in January Director Hall issued a 

scientific code of conduct for the Department, but it doesn’t apply 

to the Assistant Secretary, Deputy Assistant Secretary or anyone 

else in those offices. 

Would you consider the idea of it being Department-wide including those offices, the application of that code of conduct? 

Mr. LAVERTY. The first day on the job, I spent some time with 

Dale, as the Director of the Fish and Wildlife Service, and his staff 

as well as with my immediate staff, and I shared with them my 

performance expectations as it relates to the involvement of my 

staff with Dale and his staff. 

I believe that the framework that we established at that moment 

in time talks very clearly about the roles and relationships of the 

Fish and Wildlife Service in terms of the integrity of science and 

the role and interaction that my office would have with both the 

Fish and Wildlife Service, as well as the Park Service. 

82 

I believe it sets the bar very high, and I think the Secretary has 

also done a great job in terms of establishing a standard of performance and ethics, and with those elements in place I believe 

that we have the mechanism in place to do the kinds of things that 

need to be done to hold again the integrity of science. 

Mr. GRIJALVA. Without the application of the code? 

Mr. LAVERTY. I think Dale’s code is an absolutely important part. 

Mr. GRIJALVA. That should apply to the respective offices that I 

referred to—Assistant Secretary, Deputy Assistant Secretary and 

their staffs, Chief of Staff? 

Mr. LAVERTY. It certainly fits for all of our folks, and I believe 

that the Secretary’s code of ethics sets the standard on behavior 

across the Department. 

Mr. GRIJALVA. OK. If I may, Mr. Secretary, two territorial issues 

dealing with the endangered species. 

First, the cactus pygmy owl in Arizona in my district. It was 

delisted in April 2006. I think the conclusion that Fish and Wildlife 

came up with is that while the population was endangered in 

southern Arizona that there was more of the species in Mexico. 

Consequently, the protection shouldn’t be extended. 

A petition was filed, I think, on March 15, 2007, to list the 

Sonoran Desert population of pygmy owls, which includes distinct 

owls between Arizona and New Mexico. The 90-day period on the 

petition was due in June. It has been almost a year. Can we expect 

the Service to have a finding on the petition to list in any timeframe soon? 

Mr. LAVERTY. Mr. Grijalva, I will follow up on that as soon as 

I get back. I am sorry. I can’t tell you the exact status on that one, 

but I will follow back up when I get back. 

Mr. GRIJALVA. And let me just continue with the reasoning of 

delisting the pygmy owl. 

If we follow that reasoning, Mr. Secretary, then wouldn’t it be accurate to say that wolves, grizzly bears, jaguars, Canadian lynx, 

and other species found in the U.S. but also found in greater numbers in Canada and Mexico, wouldn’t they be warranted for 

delisting as well if you follow that reasoning on this particular species? 

Mr. LAVERTY. I believe the status reviews of the Fish and Wildlife Service considers populations at large. 

Mr. GRIJALVA. And the other species is the Mexican wolf. Experts 

tell us that it is probably necessary to call a moratorium on the 

taking, on take, until there is a task force of experts that can really 

provide guidance. 

Do you agree with that concept? How do you square the additional killing or permanent removal of wolves under Standard Operating Procedure 13 with the ESA requirement that killing and 

permanent removal must not preclude progress to recovery? How 

do you reconcile that and the moratorium so experts could convene 

and provide some real guidance to the Department? 

Mr. LAVERTY. Mr. Grijalva, I understand a little bit of what is 

taking place as it relates to the Mexican gray wolf, and I know that 

they are gathering additional information as part of the 10[g] effort. 

83 

How all those pieces come together and incorporate not only the 

new science and what they are finding in terms of what is actually 

happening with numbers of wolves, but also then the interaction 

with the grazing community, so I think there are some things that 

are going on that will help in terms of defining what needs to be 

done. 

Mr. GRIJALVA. But the reconciling of Procedure 13 and recovery? 

Mr. LAVERTY. I think that has to all be part of that. 

Mr. GRIJALVA. Thank you. 

Thank you, Mr. Chair. 

Mr. DEFAZIO. I now turn to Mr. Gohmert. 

Mr. GOHMERT. Thank you, Chairman. I appreciate having this 

hearing because this certainly is an issue that needs to be dealt 

with. 

Let me ask anybody that knows. I had read somewhere—and you 

know you can’t trust everything you read, and that is why I am 

asking—that there have been spotted owls spotted mating in such 

innocuous places as a K-Mart sign. Have you all read or heard anything like that? Other places outside of the virgin woods. Are you 

aware of any spotting of the spotted owl outside their virgin wood 

territory? 

Mr. LOHOEFENER. Thank you for that question. One thing I 

learned way back when I took ornithology in college was that a 

bird can show up any place, any time. That is the benefit of having 

wings. 

Certainly owls disperse. I have no doubt that they can get lost 

at times and show up places that normally they wouldn’t be. 

Mr. GOHMERT. Well, my thought was that if the spotted owl were 

capable of mating on a K-Mart sign then maybe as an endangered 

species we ought to consider the K-Mart signs because they have 

been in financial trouble. We have lost a lot of K-Marts. 

Maybe we could bring a bunch of the K-Mart signs together and 

have them in a little K-Mart forest and encourage the spotted owl 

there because as I read and the Oregonian said the versatile and 

voracious barred owl is proving far more adept at getting rid of the 

small owls, such as the spotted owl, than the Endangered Species 

Act was in saving it. 

What gets me is for years we heard the Federal government had 

to stop the logging in the Northwest. We put thousands and thousands of people out of work. We put thousands of people into poverty to save this little owl, and it turns out we weren’t saving the 

owl. Nature is taking care of getting rid of the owl with the barred 

owl moving in. 

Sometimes it just seems that we get so arrogant, that we think 

that we are so much more powerful than nature, that we are going 

to come in. I don’t know. Have there been any thoughts of maybe 

killing some of the barred owl to try to save the spotted owl? Is 

that where we are going to intervene next is to try to stop nature 

from taking its course? Do you know? 

Mr. LOHOEFENER. You ask a good question, Congressman. There 

are two questions revolving around the barred owl. Should we control barred owls, and can we control barred owls? 

84 

The first question is a policy question. The barred owl is protected by the Migratory Bird Treaty Act itself. It is a policy question we need to address in a public forum soon and resolve that. 

The second question, can we control barred owls, is an equally 

relevant question. My information shows that the barred owl now 

occurs throughout the range of the northern spotted owl, so that 

is a large area. I am not at all sure even if the—— 

Mr. GOHMERT. Now, they originally weren’t in some of the northwestern forests where the northern spotted owl was. Isn’t that correct? They have moved into that territory now, as I understand it. 

Mr. LOHOEFENER. My information is that over the past 100 years 

the barred owl has been moving first west through Canada and 

now south down through Canada and now throughout the range of 

the spotted owl, even down into California, so it has changed its 

range. 

Many species change their range through time. As climate 

change happens, I think we expect this phenomena to be more common. All the more need to address the philosophical question of 

should we manage the species. 

Mr. GOHMERT. You bring up climate change. There is another 

issue because the climate change experts assured us back in the 

1970s absolutely certain. We had 30 years showing that the climate 

was changing. It was getting colder. 

We were told repeatedly we are at the beginning of a new ice 

age. I am going, ‘‘Do you really think so?’’ Thirty years. No. We 

have 30 years of data showing that we are at the beginning of a 

new ice age. Thirty years later, we are saying the data shows we 

are at the beginning of burning up the planet. 

Let me just mention this. I will tell you, I am really a bit emotional about this in addition to being sarcastic a moment ago. I was 

talking to an 83-year-old lady back home, and she is not getting 

the change she believes in or what she ought to have, but she is 

now paying $400 to $500 a month for energy, and she is thinking 

she needs to change and go back to her energy source when she 

was a little girl of wood because we are putting so much of our vast 

resources off limits. We are endangering species like my 83-yearold constituent back home. 

With this Endangered Species Act, Mr. Chairman, we had an improvement in the last Congress that passed the House because it 

took head on this issue of one percent of the species being saved. 

We want to save the species. 

This has not been the way to do it, and we ought to end this policy that encourages shooting, shoveling and shutting up. We ought 

to pay people if we take their land because they have an endangered species. We would start saving a lot more species. 

Thank you. I see my time is up. 

Mr. DEFAZIO. Thank you. Just a quick response, living at the epicenter of the spotted owl controversy. 

The spotted owl is one of many potential indicators for old 

growth ecosystems. The fight is now and always has been about the 

last vestiges of old growth in the Pacific Northwest, plain and simple. Distill out all the science. That is what it is about. 

Until we protect that old growth, we are going to continue to 

have this controversy. We can argue it infringes the spotted owl or 

85 

other issues, but that is what it is all about, it has always been 

about. We are stepping backwards to the 1990s, and I just fear we 

are going to end up seeing our forests totally shut down again. 

That is going to be a disaster. 

Mr. GOHMERT. Will the Chairman yield for a question? 

Mr. DEFAZIO. Certainly. 

Mr. GOHMERT. One of the things we figured out to save older forests in east Texas is to go in and trim undergrowth and have fire 

lanes to prevent spreading of fire. Is that something that is being 

done or contemplated to make sure that nature doesn’t wipe out 

the old growth forest? 

Mr. DEFAZIO. Nowhere near enough actually. I am developing a 

plan substantially based on thinning, both green thinning and fuel 

reduction thinning. We haven’t had adequate budgets to implement 

our fuel reduction in the Pacific Northwest. 

That is part of their proposed recovery plan on the east side. I 

think that has a lot of merit. The west side doesn’t have as much 

fire danger, but southern Oregon does. I don’t think their plan gets 

at that issue. 

No. You are right about that. We do not want to lose these ecosystems to unnaturally intense fires that come from poor management over a number of years, so the gentleman is correct there. 

Mr. Inslee? 

Mr. INSLEE. Thank you. 

Mr. Laverty, folks my age are really excited about maybe having 

grandkids, and we are very concerned those grandkids are going to 

grow up in a diminished world, a world without polar bears, without salmon, without orca. 

We are doubly concerned because this Administration has given 

them nothing but delay and dysfunction and just outright deceit in 

this endangered listing situation. I think that unfortunately continued in this really hoax of a polar bear listing. I want to ask you 

about that. 

I want to make sure I understand. Despite my friend Mr. 

Gohmert’s argument, the Bush Administration has concluded, has 

it not, that the best available science indicates that the polar bear 

faces a major risk of extinction within the next century because of 

global climactic changes associated with global warming gases? 

That is true, isn’t it? 

Mr. LAVERTY. Mr. Inslee, the listing decision and the best available science that came to us from perhaps the best scientists in the 

world as it relates to the understanding of polar bears and the Arctic conditions tells us that the listing basis was based on the fact 

of sea ice lost and continued sea ice loss. 

Mr. INSLEE. Right. And the sea ice loss is due to climactic 

changes caused by human anthropomorphic introduction of greenhouse gases into the atmosphere. The Bush Administration has 

reached that conclusion, has it not? 

Mr. LAVERTY. There is no question, and I think everyone agrees, 

that warming is taking place. 

Mr. INSLEE. And we all agree and the Bush Administration 

agrees the warming is taking place at least in substantial part because humans are putting greenhouse gases in the atmosphere. 

Just say ‘‘Yes.′′ We can move on. 

86 

Mr. LAVERTY. I would agree, and I think you—— 

Mr. INSLEE. You agree that the Bush Administration—— 

Mr. LAVERTY.—have to look at that from a very global perspective across the United States. 

Mr. INSLEE. OK. Now, when you reach a conclusion like that, the 

Endangered Species Act gives a promise to Americans, does it not, 

that the Federal government will change course to reduce the 

threat that would cause this extinction? You certainly agree with 

that, do you not? 

Mr. LAVERTY. The challenge that you have with that question is 

linking the cause of emissions to a specific point and impact on the 

habitat. You can’t do that. 

Mr. INSLEE. You agree with me that a listing decision calls for 

the Federal government to change course so that it can reduce the 

threat caused by the problem. Isn’t that true? I mean, come on. Everybody agrees with that, right? 

Mr. LAVERTY. The listing decision is to help recover the species. 

Mr. INSLEE. Right. So let us talk about what the Bush Administration has done as a result of this listing decision. 

The day before the listing decision, it opposed a cap on the trade 

to reduce the threat of global warming that would cause the extinction of this bear and the collapse of the polar ice sheet, which is 

already occurring. We have already lost a million square miles last 

summer of the polar ice cap. 

The day after the listing did the Bush Administration embrace 

a cap in the trade system? 

Mr. LAVERTY. I would take your comment. 

Mr. INSLEE. Well, just so we can be clear, the listing did not 

cause the Bush Administration to change one iota in its resistance 

to the single most important thing that can prevent the loss of the 

Arctic and the loss of the bear, which is the cap in the trade system. Isn’t that right? 

Mr. LAVERTY. I would suggest that dealing with emissions and 

climate change is a global issue. It is not going to just take place 

here in the United States. 

We know from the science that if we shut off emissions today 

that it would take 40 plus years before we would see a change in 

conditions in greenhouse gases. 

Mr. INSLEE. Right. We will get to that. 

Mr. LAVERTY. I am sure we will. 

Mr. INSLEE. You will have a chance to put your talking points 

on the record. 

Did the Bush Administration embrace a renewable portfolio 

standard for clean energy as a result of this listing of this bear? 

Mr. LAVERTY. I can’t tell you if it was related to the bear. 

Mr. INSLEE. Did the Bush Administration change its position regarding research and development budgets for clean energy that 

can save the polar ice cap and this bear as a result of this listing? 

Mr. LAVERTY. I don’t know that it is related to the bear. 

Mr. INSLEE. Well, the answer would be no, right? 

Mr. LAVERTY. I don’t know if it was related to the bear. 

Mr. INSLEE. Well, did the Bush Administration do anything as a 

result of listing this bear? The answer is no. 

87 

Did it change its permitting process for oil and drilling rigs in 

the North Sea? 

Mr. LAVERTY. I believe we already have protection in oil and gas 

drilling in the North Sea with MMPA. 

Mr. INSLEE. Did it change? Did it change its permitting process 

for drilling in the North Sea as a result of this listing? 

Mr. LAVERTY. I would say again because of the protections that 

are already provided through MMPA there was probably not a need 

to do that. 

Mr. INSLEE. All I hear from you in this listing is a list of things 

the Bush Administration has refused to do, even though it has concluded that this bear is going to go extinct because of global warming. 

I haven’t heard a single thing on the list of what the Bush Administration is going to do as a result of this listing that will, in 

fact, prevent the extinction of this bear and the allowance of our 

grandkids to have this bear in their life. 

Now, can you point to a single thing the Bush Administration 

has done as a result of this listing? 

Mr. LAVERTY. I would say that as a result of the soliciting that 

took place last week that we have already done some things to 

move ahead on what we can do to protect this species. 

I, too, because of my age—I have grandchildren. I have a granddaughter and I have a grandson, and I engage in conversations 

with my grandkids about the polar bear. They are as concerned 

about the polar bear as I am, and I believe that we are on course 

to do the kinds of things in terms of raising the awareness of 

American people globally about what needs to take place to deal 

proactively with the challenges. 

This is not just a United States issue. This is a global issue, and 

I believe that we have to be working harder globally to deal with 

this issue. 

Mr. INSLEE. That is great, but we are the Federal government of 

the proudest country in the world, and you haven’t done a single 

thing to protect these bears. You can’t tell your kids or grandkids 

you have done anything, and you can’t tell me you have done anything because you haven’t done anything. 

Mr. DEFAZIO. The gentleman’s time has expired. Thank you. 

I would turn now to the gentleman from Alaska, Mr. Young. 

Mr. YOUNG. I thank the Chairman. It is awfully difficult for me 

to sit there. You know, thank God for George Bush. 

If we wouldn’t have had the hurricane, if we wouldn’t have had 

the earthquake in China and the polar bear cap habitat wouldn’t 

be lost. I mean, the whole thing. It is just marvelous to watch 

somebody instead of using science browbeat somebody at the Department of Interior on nothing. 

If anybody reads the geology of the world and the past of the 

world, 11,000 years ago there was no ice cap and the polar bear 

survived. That is amazing. I am one of those few people who do not 

believe that man is creating this so-called climate change, and 300 

other scientists from your state, by the way, and other areas 

around this nation agree with me. 

No one wants to debate the issue because we have fallen into 

this idea that this whole thing is coming to a collapse, and the ice 

88 

cap is disappearing and the polar bears are going to disappear and 

that is nonsense. I have geologists come to me and talk about the 

oil under the North Pole. Now, if that is the case there wasn’t an 

ice cap. 

Think about that a moment. All I know is, Mr. Chairman, and 

I don’t want to be partisan in this, is that Bush is blamed for the 

high cost of gasoline. I would respectfully say we have done nothing to mount the supply since 1973. The last time this Committee 

passed the trans-Alaskan pipeline is the last Act this Congress has 

done to promote supply. 

Demand is going up. Supply is going down. We have a great, 

great supply of oil in the Chukchi Sea, the Beaufort Sea and other 

parts of Alaska, let alone the Gulf of California or the coast of California and the coast of Florida, and yet no one wants to develop 

it. I want to ask my American people if they like paying $4 a gallon. It will be up to $6 a gallon by the end of July, so you better 

buy some and store it because this Congress hasn’t acted. 

Now, I have said this about this Congress. Not you. We haven’t 

done nothing. We were in control 12 years and did nothing. The 

Congress is irresponsible when it comes to supply, and we must do 

this supply equation in delivery of fuel to this nation if we want 

an economic base. 

Mr. Laverty, one of the things I would like to know is you made 

a decision. I am not overly happy with the threatened decision, but 

it is better than endangered. What model did you base the fact that 

these bears are threatened? 

In fact, there are I think 25,000 polar bears now in the world 

and a few years ago there was less than 15,000, so something is 

occurring. What was the model that you used in finding the decision on how these were listed? 

Mr. LAVERTY. Congressman Young, the model that provided the 

framework was based on the IPCC models. We put together an ensemble of those models, going back and looking at how they fit with 

what has happened in the past and then projecting into the future. 

That became the foundation for the estimates out in the future. 

The other part that factored into that was the actual observed 

trends and what is actually happening with sea ice loss and how 

it relates to the forecasting models. Since the sea ice is the foundation for that species in terms of its food gathering and becomes the 

important part of it, any time you look at habitat loss that becomes 

a challenge. 

I believe that wildlife modeling becomes an extremely important 

part of this. You talk about the population that exists today. Much 

of the population recovery today is because of managed harvest levels, so it has brought it up from places where probably back in the 

1960s and 1970s we were down around 10,000 and 12,000 bears, 

and because of managed sustainable harvesting that population is 

back up. 

Now the bears are facing a different kind of threat, and that is 

the loss of habitat. That was the foundation for the decision. 

Mr. YOUNG. Again, you know, I don’t want to dispute this, Mr. 

Chairman. 

Keep in mind I heard the same argument about Terror Lake in 

Kodiak. We couldn’t build a lake and raise the water because there 

89 

were two brown bear dens, and they would be flooded. I just ask 

you how dumb those bears are because we did build the dam, and 

the bears just moved above the waterline to another denning area. 

We are the only species that I know of who are not trying to 

adapt to climate change, if there is climate change, and apparently 

some people think there is. Is it man caused? I don’t believe it is. 

But if that is the case, then we are the only ones that want to 

keep everything at status quo instead of looking at adaption. Animals will adapt. They will not be extinct, contrary to what some 

people say in this room. But oh, woe is us. They are all going to 

die. They didn’t do it 11,000 years ago. 

It is an amazing thing, but of course we didn’t have scientists 

and newspapers and Congressmen that just go on emotionalism 

about how the world is coming to an end and saying maybe we 

ought to think about adaption if this is occurring. 

Mr. Laverty, again as I talked to the Secretary and yourself, we 

have some other issues concerning polar bears that we will discuss 

at a later date. Hopefully we can solve those problems together. 

I am glad to see that some people said in this room earlier on, 

according to information I received, that someone had supposedly 

done something wrong without really backing it up. I suggest before anyone makes a statement that might impugn someone’s character that they might want to look at the facts and understand it. 

I yield back, Mr Chairman. 

Mr. DUNCAN. Would the gentleman yield just for a second? Just 

very quickly. 

Mr. YOUNG. Go ahead. 

Mr. DUNCAN. I am just curious about one thing that was just 

said, and I want to see how accurate it is. You said the population 

of the polar bears was 10,000 or 12,000 in the 1970s. Is that correct? 

Mr. LAVERTY. That is correct, sir. Yes. 

Mr. DUNCAN. And what is it now? 

Mr. LAVERTY. Approximately 20,000 to 25,000. 

Mr. DUNCAN. All right. Thank you. 

Mr. DEFAZIO. We would now turn to Mr. Sarbanes. 

Mr. SARBANES. Thank you, Mr. Chairman. Thank you to the 

panel. 

I wanted to go back briefly to the ‘‘Julie-proofing’’ concept that 

Congressman Grijalva was asking you about, Ms. Nazzaro, because 

there are two sinister consequences to what you are describing. 

There are implications here. 

One is when science comes up unfiltered and then it is rejected, 

which is a problem that we have been discussing and actually is 

analogous to intelligence, for example. In the intelligence community that comes up and then gets rejected. That is bad enough. 

Even worse is when the resistance at the top begins to contaminate the entire process of gathering information and having a deterrent effect on people at lower levels in terms of what they will 

offer up because then you are not even getting the science or in the 

intelligence community, analog intelligence, coming up to the higher levels. 

What happens is the policy begins to influence the way it is gathered, analyzed and presented, and that pushes out and down and 

90 

dangerously insulates the agency at all its levels from making good 

decisions. 

So when you were talking about the ‘‘Julie-proofing,’’ you explained that people below Julie MacDonald would provide or 

present or include criteria on things and considerations that they 

thought she was interested in, rather than the science. I am just 

fascinated by that as a kind of guide for us on this danger. 

Can you be a little more specific? What is an example? Give me 

a couple examples, if you can, of a Julie MacDonald criteria that 

somebody would include, and what is the kind of science criteria 

that they might keep out in favor of that Julie criteria? 

Ms. NAZZARO. Actually, why don’t I have the staff who actually 

did the interviews of some of these people come up—— 

Mr. SARBANES. Yes. 

Ms. NAZZARO.—because this issue came up both during interviews we did with some of the Service biologists, as well as during 

surveys we did. 

What they were doing was anticipating what kind of criteria she 

would be looking for to support their decisions and then they were 

writing their decisions based on this anticipation, knowing that 

they wanted to get these things approved through her. 

I have Jeff Malcolm with me, who is the Assistant Director responsible for this engagement, and I will have him directly respond 

to your question if you please. 

Mr. SARBANES. Mr. Chairman, I assume that is fine that we can 

hear from Mr. Malcolm? Yes. 

Mr. MALCOLM. My name is Jeff Malcolm, Assistant Director with 

GAO’s Natural Resource and Environment Team. 

There were a number of policies we discussed, informal policies, 

and definitions of some items that weren’t particularly clear in the 

Act. ‘‘Occupied at the time of listing’’ is one of the examples that 

we used, so in designating critical habitat there has been a lot of 

discussion about what that phrase actually means. 

In some cases species were listed very early in the Act, let us say 

in the 1970s, that still don’t have a critical habitat designated yet, 

so doing that today there was a large debate over what occupied 

at the time of listing meant. Was that the occupied territory when 

it was listed in the 1970s? 

Julie had some interpretations on how that should be implemented, in some cases limiting it to a specific timeframe around 

the listing decision so that influenced decisions, so they would put 

information forward only talking about occupied habitat specifically 

during a specific timeframe based on policies and formal guidance 

that she had provided. 

Mr. SARBANES. So in other words, she had kind of made it clear 

what her interpretation was and so then they designed their analysis and presentation of the information around that particular interpretation—— 

Mr. MALCOLM. Right. 

Mr. SARBANES.—to get it through, basically? 

Mr. MALCOLM. Right. There were a couple different things. In 

some cases we heard that people wrote two different decisions. I 

mean, they would have one in their pocket in case the other one 

didn’t go through. Then they would have the one that they thought 

91 

would more likely go through. In other cases it was just write the 

other decision the first time and send that forward. 

Ms. NAZZARO. I think you raised two issues. One is there are opportunities where you would make a decision based on a policy call, 

and there are times when that is appropriate, but what we are asking for is transparency in the process. 

The other issue that you are raising is the fact that the guidance 

is not clear. We talked about the fact that the last time formal 

guidance was written as far as the 90-day petition process was 

back in 1996. In 2004, the courts struck down various aspects of 

that both on merit, as well as on formality, if you will. 

And so what we are hearing from a lot of the scientists is there 

are nebulous terms. They don’t know what it means. You know, 

people have the opportunity to interpret it as they see in this case. 

It appears that she had different definitions for things. 

What we are asking the Service to do is to finalize this draft 

guidance that has been in draft now for over eight years I believe 

in various forms. It is time to get something out there so that the 

Service biologists know what they are supposed to be using and it 

is transparent to the general public. 

Mr. SARBANES. I see my time is up. Mr. Chairman, we have 

reached a scary place if scientists and professionals in the Department have to carry around an extra version of their analysis in 

their pocket and try to gauge which version will be able to get past 

their superiors. 

I yield back. 

The CHAIRMAN [presiding]. OK. Do other Members have questions? Yes, sir. Mr. Wittman? 

Mr. WITTMAN. Thank you, Mr. Chairman. Just a question for Mr. 

Laverty. 

We have heard about polar bear populations as a worldwide 

group and then population dynamics of those polar bears within 

the United States. Can you tell us as a means to manage the U.S. 

population are you going to use the numbers or the population dynamics of the world as a whole? 

If so, when you do that how are you going to look at approaching 

or designating how levels are being approached for polar bears that 

are harvested or that are affected by human-bear interactions here 

within the United States? 

Mr. LAVERTY. There are several pieces to the response to your 

question. 

Two weeks ago, I had a chance to journey to Canada with the 

Secretary and met with the Minister of the Environment in Canada. We talked about what we can do, jointly with the Canadians, 

in terms of U.S.-Canadian relationships and managing bears. The 

Canadians have about two-thirds of the total population of bears, 

and I believe that some of the actions that came out of that are 

the kind of things that will fit. 

The next step the Fish and Wildlife Service will be undertaking 

is the designation and delineation of critical habitat. That is going 

to start right away. I think as we begin to get those pieces together, continuing to look at how we can gather more information 

and knowledge about bears and bear populations, bears’ behavior, 

92 

adaptability, those are all pieces that come together as we continue 

to move ahead on how to protect and conserve the bear. 

Mr. WITTMAN. Mr. Chair, one more question. I am just curious. 

Has the Department requested funding to implement the U.S.- 

Russia Polar Bear Treaty? If so, what are the extent of resources 

that are needed in order to implement that? 

Mr. LAVERTY. Congressman, I am not sure. I will follow up with 

that one. 

The CHAIRMAN. The Chair wishes to apologize to the gentlelady 

from Guam for failing to recognize her in proper order. 

And now the gentlelady from Guam, our distinguished Subcommittee Chair on Fish and Wildlife, is recognized for whatever 

time she desires. 

Ms. BORDALLO. Thank you. Thank you very much, Mr. Chairman. I won’t take up too much time. I did come in late. The Subcommittee on Insular Affairs also has a hearing this morning. 

I hope these questions haven’t been asked, but I would like to 

hear them again if they have. To you, Ms. Nazzaro. Did the Service 

follow a consistent process across the eight regions in selecting the 

eight MacDonald ESA decisions for further review? 

Ms. NAZZARO. Our conclusion is that they generally followed it 

because they used the same criteria. However, the process that 

they used did vary slightly by region. There was a telephone conversation from Director Hall to the regional directors instructing 

them basically to revisit issues, decisions that Julie MacDonald had 

been involved in. 

How they came up with those is where there was a slight variation, and some of it had to do with the workload. A region that 

did not have many decisions it may have been readily available, 

but the regional director would have known what decisions to include. Others did involve lower level staff so, like I say, it varied 

slightly, but generally they all used the same criteria. 

Ms. BORDALLO. A follow-up question then. Overall in what ways 

can the decision-making process be improved in your opinion? 

Ms. NAZZARO. I think some of the issues that we raised with Representative Sarbanes’ questions. We do recognize the difficult task 

that these officials are asked to do. 

A lot of times there is not a lot of information on the species or 

the habitat. You can reach different conclusions with the information. We have also talked about how vague some of the guidance 

is and that there is a need to redo it. 

We really are looking for an environment where we have a trust 

that the decisions that are being made are the right decisions, and 

we would view certainly having guidance that is very specific is 

useful for the Service biologists and then is transparent to the general public. 

You know, for example, we talked about the recovery plans, not 

using the recovery plans as criteria for delisting. Well, the recovery 

plans go through a public scrutiny process. The general public 

thinks that is the criteria being used, and then they find out the 

Service used other criteria and it just raises questions. 

Again, it is the trust of the decision makers. Let us make the 

process transparent. Let us make it clear and very straightforward, 

93 

and I think it would minimize a lot of these allegations and improve communication. 

Ms. BORDALLO. Are you beginning to overturn or restructure this 

decision-making process currently? Is it ongoing now? Have you 

begun to do the work now? How long until you think you will have 

everything in the right place? 

Mr. LAVERTY. If I could perhaps respond? 

Ms. BORDALLO. Yes. 

Mr. LAVERTY. The Service has, in fact, moved ahead on some of 

the recommendations that came from the GAO report and recommendations as it relates to the findings in the recovery piece. 

We are working on the guidance, and that should be out fairly 

quickly. 

Ms. BORDALLO. Good. The other question I have is for Mr. 

Laverty. Why does it take the Service an average of two and a half 

years to respond to a 90-day petition? 

Mr. LAVERTY. I will try. I have been in the job for a little over 

180 days, but let me tell you what I have learned. 

The bear is a good example, the polar bear, the incredible 

amount of information and science that has to come together to 

make those decisions. Some of them are fairly straightforward. 

Some are fairly simple. Others I think are extremely complex, and 

they require not only gathering science, but then the scientists in 

terms of their peer review. That takes times. 

Just as we went through the polar bear, we had peer review that 

took time. Then we put that out for comment, so it does take time 

to do that. 

Ms. BORDALLO. Thank you, Mr. Chairman. I think that answers 

my questions. Thank you. 

The CHAIRMAN. Thank you. 

The gentleman from Washington, Mr. Inslee? 

Mr. INSLEE. Thank you, Mr. Chair, for indulging me. A previous 

question prodded me. 

Mr. Laverty, you mentioned you had gone to Canada. Did I hear 

accurately that in Canada you told Canadian media that you 

thought the Congress should amend the law so that bears could be 

shot, polar bears could be shot in Canada and imported into the 

United States? 

Mr. LAVERTY. I don’t believe I said that, sir. 

Mr. INSLEE. I am sorry? 

Mr. LAVERTY. I don’t believe I said that. 

Mr. INSLEE. I appreciate that. We just had received reports of 

that. Thanks for clarifying that. 

I should give you a chance to make sure. Do you want to clarify 

what you did say? 

Mr. LAVERTY. I would like to, yes. 

Mr. INSLEE. Go ahead. I am sorry. 

Mr. LAVERTY. Once the bears are listed under the ESA as threatened it becomes a depleted species under the Marine Mammal Protection Act, and once it is listed as a depleted species under the 

Marine Mammal Protection Act you can no longer bring those animals into the States. 

94 

To make any adjustments it would require an Act of the Congress to amend the Marine Mammal Protection Act to permit that 

import of those trophy or species taken in Alaska. 

Mr. INSLEE. I am reading a CBC news report, May 16, 2008. It 

is talking about the fact that, as you have indicated, the current 

law would say they are depleted and not subject to importation. 

It reads, ‘‘But Lyle Laverty, the U.S. Assistant Secretary of the 

Interior for Fish and Wildlife and Parks, told CBC News that there 

is some hope that an exception could be made for polar bear trophies, even though polar bears are now a threatened species. 

‘‘What we are going to have to do is to work with Congress,’’ 

Laverty said Thursday. ‘‘I don’t want to say it is simple, but with 

just a little amendment to the Marine Mammal Protection Act, 

Congress can make a provision that would permit the importation 

of a trophy from Canada.’’ 

That sounds to me like you were saying that there should be a 

little amendment to the Marine Mammal Protection Act that would 

allow bears to be shot in Canada that are now listed as threatened 

and imported into the United States. Am I misreading that, or is 

that a misquote? 

Mr. LAVERTY. I can tell you the essence of the conversation. It 

was in fact she asked how could bears that were taken in Canada 

come into the States, and I was very forthright, and told her that 

it would take a change in the Marine Mammal Protection Act. 

That certainly becomes the role of the Congress. If that becomes 

an action that you would like to take that certainly is the prerogative of the Congress. 

Mr. INSLEE. This news report—— 

Mr. LAVERTY. Just a second. 

Mr. INSLEE. I am sorry. Go ahead. Go ahead. 

Mr. LAVERTY. If I could just close up on that, what becomes important is that harvesting of bears in Canada is under a very, very 

sustained and managed process, and I believe that the action to do 

that would not be a threat to the bear. We could not find that harvesting for either subsistence or trophy hunting is, in fact, a perceived threat to the bear. 

Mr. INSLEE. So is this article inaccurate when it said that you 

hoped such an exception could be made? Do you hope that such an 

exception can be made? 

Mr. LAVERTY. You know, I guess I would bring it back to you. 

I think that the fact that people have been able to bring in species is an important part to the Canadian economy, and if that fits 

into the scheme of things and there is not a threat to the bear then 

I would say it is worthy of conversation. 

Mr. INSLEE. So do you hope there is an exception or not? 

Mr. LAVERTY. I would say yes. 

Mr. INSLEE. Pardon? 

Mr. LAVERTY. Yes. 

Mr. INSLEE. So the Assistant Secretary in charge of marine mammal protection who just listed the bear as a threatened species 

hopes it will be allowed to be shot in Canada and brought home. 

Is that right? 

95 

Mr. LAVERTY. I would say that given the fact that sustainable 

harvesting of bears in Canada is not a threat to the species, it is 

an OK thing to do. 

Mr. INSLEE. Well, I think that your hopes in that regard—I am 

not against hope. I am all for hope, but your hopes in that regard 

are consistent with the failure of the Administration to do anything 

as a result of this listing, which is my concern. A listing that is just 

a listing, without action, is just a piece of paper. 

Now, you have mentioned that you are going to go and start 

working on a critical habitat designation for the polar bears, but 

we all know what the critical habitat is. It is the ice, and if the 

ice is gone the platform that supports the bears’ survival will be 

gone. 

This Administration has concluded that the ice is likely to be 

gone as a result of global warming, so isn’t it true that we already 

know what the critical habitat is, we already know that global 

warming is causing it to disappear, we already know that the Bush 

Administration agrees with that, contrary to the comments of some 

of my colleagues across the aisle? 

Their own party’s President has recognized what the critical 

habitat is, and the fact is that the Bush Administration is not 

doing anything significant to reduce that threat. Isn’t that a pretty 

fair statement? 

Mr. LAVERTY. I guess I would say not necessarily so. I think the 

fact that we have raised the awareness of the importance of dealing 

with climate change is absolutely fundamental to engaging in conversations. 

If we are going to solve this problem, it is a global issue and you 

cannot just look at the issues in dealing with the United States’ 

emissions without bringing into the context all the rest of the emissions that are taking place that are impacting the bear. 

You cannot tell me that there are any emissions that come directly from the United States that impact the specific site for the 

bear. 

Mr. INSLEE. I can’t tell you which molecule of DDT would have 

killed which eagle either or which Al-Qaeda terrorist may threaten 

us. 

Mr. LAVERTY. Precisely. 

Mr. INSLEE. But when the Federal government refuses to act to 

a known threat, that is irresponsible and against the law of the 

Endangered Species Act. 

What you have said, that you are satisfied that by this listing 

you have raised the awareness, the consciousness of the community, that is great, but a fire department that simply hollers ‘‘Fire!’’ 

and raises the awareness and does not get a ladder, and does not 

get a hose, and does not get the engine out of the fire shop, is not 

doing its job. 

I just don’t believe, under any stretch of the imagination, this 

Agency is doing its job to respond to this listing, which is to do 

something about the threat. You know what the threat is. You 

know what it is going to do to the polar bears, but this Administration refuses to act. 

I think it is sad it is going to take a new President. I really wish 

that we had an epiphany from this President. It is apparent to me 

96 

from your testimony we haven’t got one, but we are going to have 

to do some really fast work in January. You can respond if you 

would like. 

Mr. LAVERTY. No, sir. 

The CHAIRMAN. The gentleman from Oregon, Mr. DeFazio, is recognized. 

Mr. DEFAZIO. Thank you, Mr. Chairman. 

Ms. Nazzaro, on the question about the decisions that we visited 

last year in the hearing by Ms. MacDonald and those decisions that 

were influenced or corrupted by her work, one of the things that 

was done to clean up the Agency was to set up a conduct accountability board, as I understand it. 

It is my understanding that the board can only review matters 

referred to it by Ms. Scarlett, who we took testimony from last 

year, and the Chief of Staff, Brian Waidmann. I am not certain 

what their knowledge of or involvement in some of Ms. MacDonald’s work was. 

I know that apparently Mr. Waidmann at least signed off on 

some of those and approved some of those decisions which had been 

influenced by her. Have you interviewed those two individuals? 

Ms. NAZZARO. We did not interview either of them, and Ms. 

Scarlett’s name has not come up. Again, our intention in raising 

these was just that there was we felt a lost opportunity, if you will. 

Mr. DEFAZIO. Why haven’t you interviewed Mr. Waidmann then 

since he signed off on some of these faulty decisions? 

Ms. NAZZARO. As I said, we weren’t there to try to corroborate 

or to get the extent. You also have to realize the amount of time 

that we had to do these engagements. We didn’t start this until 

late last year and so it was a relatively short timeframe. 

We tried to gather as much information as we could to raise 

some of the issues, and what we are saying is that it appears that 

there was a lost opportunity. The Agency recognized there had 

been a problem with Ms. MacDonald. They were revisiting some of 

those decisions. 

We felt if they had cast a broader net maybe there were others 

that they would have wanted to revisit as well. We are listing them 

as potential, but we have not verified or validated the extent of 

their involvement. 

Mr. DEFAZIO. OK. I mean, wouldn’t it be useful to sit down with 

Mr. Waidmann since he was in such a key position and discuss? 

I mean, since now he is one of the two people who can refer matters to the ethics review board, wouldn’t it be useful to know what 

his role and knowledge of those decisions was at the time he approved them? 

Ms. NAZZARO. No. I certainly agree that that is a next step that 

would come after what we have—— 

Mr. DEFAZIO. OK. So have you asked to interview him? 

Ms. NAZZARO. We have not yet, no. 

Mr. DEFAZIO. OK. 

Ms. NAZZARO. It was not something the Committee asked us to 

do. 

Mr. DEFAZIO. But you intend to do that? 

97 

Ms. NAZZARO. If the Committee asked us. As you know, GAO 

works basically at the request of Congress so if we are asked to do 

that we certainly could do that. 

Mr. DEFAZIO. OK. Thank you. 

OK. I am going to go back to my more parochial issue here because I don’t think that we quite got an answer, Mr. Lohoefener. 

Sorry, sir. People have trouble with my name too. 

What I was trying to say was that basically, as I read your final 

recovery plan, that it really seems to me substantially comparable 

to Option 7 back in the FEMAT, and I don’t know if you are familiar with Option 7, but Option 7 at least in my layman’s reading of 

that, and I will certainly ask Dr. Franklin about this later, but I 

did have a brief conversation with him this morning where I think 

he might confirm that we are revisiting Option 7, and that had a 

very low probability of recovery, Option 7 back then 20 years ago. 

I guess my question is why we think basically reducing habitat 

in much the way that was recommended in Option 7, which was 

evaluated back then to not have a high probability, having the second lowest out of the 10 options to leading to recovery, why we are 

going there now when it was rejected 20 years ago? 

Mr. LOHOEFENER. Thank you, Congressman. I have the advantage. I can address you as Mr. Congressman, where you have to 

pronounce my last name, so I appreciate that. 

I do not know Option 7 so I can’t speak to that directly. I can 

tell you that the recovery plan we have in our hands today is the 

result of 18 years, basically, of hard work by many individuals to 

recover the owl—specifically over the last two years, 12 peer reviews, a long, contracted peer review, five months of public comment, and over 80,000 comments received. 

The recovery team that was convened and the recovery team that 

finalized the plan believed that the habitat that is identified in the 

plan, if all the recovery actions are taken and if the recovery action 

is successful, will be sufficient to recover the owl over the next 30 

years. 

Mr. DEFAZIO. But we talked previously, and you have received 

a critical report. You say you were working to address some of 

those concerns from the draft critical peer review, but the question 

is what will you do to accommodate other concerns that were raised 

at that time or concerns that are being raised now about your final 

recovery plan? 

Mr. LOHOEFENER. A final recovery plan is a guidance document—it is not regulation—which means we can take comments on 

the guidance document any time, and we are happy to do so. 

I will convene an oversight group made up of state, Federal and 

other interested private parties, whatever, to help guide and implement the recovery plan. If at any time these comments rise to the 

occasion of needing adaptive management of the recovery plan we 

can do that, and if that adaptive management warrants public comment we can put the amendment back out for public comment and 

will do that. 

Mr. DEFAZIO. OK. Just to note, it does say on page 74 of the plan 

that the MOCA—I mean, I hate all these acronyms, but anyway, 

the MOCA network—identified in this recovery plan most closely 

98 

resembles Option 7 and the 20 pair system described in Noon & 

McKelvey, 1996. 

Again, and I guess I will be asking Dr. Franklin, why we would 

think today that with a species in decline and a plan that was rejected back then, we would be going back and essentially implementing something that had a lower probability. But again, I will 

have to ask Dr. Franklin. 

One other, and you may not be able to address this, and this may 

be BLM, but as I understand the final recovery plan—at least you 

can address this part—it is predicated to some great extent upon 

the ongoing implementation of the Northwest Forest Plan. Is that 

correct? 

Mr. LOHOEFENER. The Northwest Forest Plan, like the IST report, like the 1992 draft recovery plan, all played an important 

part in the documents in the underlying information that was used 

in the original draft of the recovery plan. 

Mr. DEFAZIO. Right, but here is where I am getting into this sort 

of circular problem. You have a new final recovery plan. It is substantially based in looking at ongoing implementation of the Northwest Forest Plan, yet the BLM is proposing to substantially revise 

the Northwest Forest Plan. 

So how do these things interrelate? I mean, should they revisit 

their whopper to incorporate basically some of the assumptions and 

concerns that the final recovery plan is based on, which is the 

Northwest Forest Plan, or should you revisit your final recovery 

plan given the fact that they are proposing to substantially change 

the Northwest Forest Plan and see what impact that would have 

on your final recovery plan? How do we get out of this little loop 

here? 

Mr. LOHOEFENER. Thank you, Congressman. I won’t begin to address the land management issues that the Bureau of Land Management has to contend with out there. As you know, managing 

public lands under a multiple use doctrine is an incredibly complex 

job, and I am certainly not the person to speak to that. 

I would go back to my answer I gave you a while ago though and 

say the forest plan addressed the needs of over 100 species and 

were not specific to the spotted owl. The final recovery plan is specific to the spotted owl, and we worked very closely. 

In fact, the help that BLM has given over the last three years 

as we developed the recovery plan can’t be acknowledged enough 

in my opinion, so I am very confident that the land management 

that BLM will take on the land will work to recover the spotted 

owl. 

Mr. DEFAZIO. OK. So eliminating habitat and old growth will 

help with the recovery? 

Mr. LOHOEFENER. I am sorry, Congressman. Would you restate 

that? 

Mr. DEFAZIO. Their whopper plan is substantially based on substantial harvest of remaining old growth and so you are thinking 

that harvesting remaining old growth habitat will help with the recovery? 

Mr. LOHOEFENER. Again, I won’t speak to the land management 

prerogatives of the Bureau of Land Management, but again I will 

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ment’s management, if successful, of the spotted owl will lead to 

the recovery of the owl. 

Mr. DEFAZIO. OK. Mr. Chairman, I know I am over time, but 

there is a BLM person here too. Perhaps he could address this. 

I just see we are getting into this little circle here where you are 

making assumptions in the recovery plan which are going to be 

contradicted by the actions of the BLM. As I expressed earlier, I 

am very concerned that we are just going to end up with a total 

injunction and an end to what is already an anemic level of Federal 

timber harvest. 

Perhaps the BLM witness, and please identify yourself. I am over 

time, so if you could address that briefly? I know it is a complicated 

question. 

Mr. SHEPARD. It is complicated. 

Mr. DEFAZIO. Just for the record identify yourself. 

Mr. SHEPARD. Ed Shepard. I am the BLM State Director for the 

states of Oregon and Washington. 

You know, it is very complicated, but we have worked very closely. Our biologists have worked very closely with them. Under the 

plan revisions, we will be harvesting some old growth. We will also 

be protecting a considerable amount of old growth and growing 

some old growth. 

Based on the recent recovery plan, we know that we have some 

changes that we have to make in our plans to bring that into compliance. 

Mr. DEFAZIO. OK. All right. When will you be undertaking to 

make those changes? 

Mr. SHEPARD. We are doing it right now. 

Mr. DEFAZIO. OK. So what is the time period? 

Mr. SHEPARD. Well, we expect that we are going to have the final 

out this fall. 

Mr. DEFAZIO. OK. All right. Thank you. 

Thank you, Mr. Chairman. 

The CHAIRMAN. The gentleman from Texas, Mr. Gohmert? 

Mr. GOHMERT. Thank you, Mr. Chairman. I am not going to need 

11 minutes to make my comments and address my concern. 

Earlier, a couple of speakers ago, we heard a recitation of socalled facts. We know that this is the case. We know that global 

warming is threatening polar bears. If we were back in my old 

courtroom, then I would have had to sustain an objection to someone assuming facts that are not in evidence because we don’t know 

all of those things. 

It just seems like the U.S. Government may be the only place 

where we take a look and we see that the facts are, as we have 

already heard, that polar bears have gone from 10,000 to 12,000 in 

number to 25,000 in number, so that makes them threatened. I 

mean, what other government would make that analysis and come 

to that conclusion? 

We are told that CO2 emissions are going to destroy the planet. 

Mr. Chairman, it seems like the worst source of CO2 emissions 

seems to be the Floor of the House of Representatives. Maybe we 

do need to put more strict controls on that. 

But I am concerned about the premise of the hearing. It is deeply 

troubling. The premise seems to be that there is a problem in havVerDate Aug 31 2005 15:00 Sep 25, 2008 Jkt 098700 PO 00000 Frm 00103 Fmt 6633 Sfmt 6602 L:\DOCS\42492.TXT Hresour1 PsN: KATHY
100 

ing political appointees who are accountable to the taxpayer and 

who are put in place by the elected head of the United States Government; that there is somehow something wrong with having that 

person oversee and supervise the work of career employees who are 

not directly accountable to the taxpayer. 

The fact of the matter is the political appointees from Secretary 

Babbitt on down oversaw the work of scientists during the Clinton 

Administration, just as political appointees do in the current Administration. 

I would also remind what I have read is that the Office of Inspector General concluded that in the case of Julie MacDonald, ‘‘We 

discovered no illegal activity on her part,’’ that there was no case 

presented that she ‘‘harassed, bullied and insulted Fish and Wildlife or FWS employees,’’ so we seem to be making some false assumptions even for the premise of the hearing. 

But when an Assistant Secretary weighs in on a decision it 

means he or she is doing his or her job. Career biologists in Fish 

and Wildlife Service are human beings. Like anyone else, they have 

their biases, and on occasion they may ignore valid policy objectives. This is where legitimate oversight by supervisors comes into 

play. Someone has to do quality control, especially when there are 

problems with bias, even among Fish and Wildlife Service employees. 

What we seem to be hearing from the Majority side of the aisle 

today is that we should cede control to unelected career government bureaucrats who are also prone to make mistakes and who 

can ignore valid management objectives the Administration or Congress might wish to implement. 

But both career bureaucrats and Presidential appointees simply 

need oversight, and that is why I have appreciated the oversight 

hearings the Chairman has had, but to turn over every four to 

eight years at the top of these massive agencies the control is not 

a bad thing per se. The only way the system of appointees every 

four to eight years with new Administration is a bad thing is if we 

don’t trust the majority of American voters. 

We are told by polls currently that they expect the majority of 

voters in the United States to elect a Democrat as President in November of this year. What the Majority of this Committee seems 

to be saying is that they want to be on record as saying they don’t 

trust the judgment of those kind of people that would vote for a 

Democrat for President. 

I trust the American voter. I think they do a good job, and I hate 

to sit idly by and have the majority here insult those voters who 

may vote Democrat in the November election. 

Thank you, Mr. Chairman. 

The CHAIRMAN. The gentleman from Arizona, Mr. Grijalva? 

Mr. GRIJALVA. Thank you very much. I would agree with my colleague that there is no inherent bad thing about political appointees, and I am looking forward to a new crop. 

But I think those political appointees have to be guided by some 

very fundamental principles and values having to do with integrity, 

having to do with transparency and having to do with the fact that 

the public’s right to know on how decisions are being made. I think 

101 

once we follow those rules we wouldn’t be dealing with the situation. 

I want to thank the Chairman. A year ago we had a hearing 

based on the Inspector General’s report dealing with manipulation 

of scientific decisions on the Endangered Species Act. It has been 

a year. Ms. MacDonald has resigned. Eight decisions—maybe it 

should have been more—are being reviewed. 

I think, unfortunately, the damage has been done. I say that because the greatest allies that endangered species have under the 

Act is science. That is the greatest ally, and the route to recovery 

is guided by science and guided by the Act itself. Once that gets 

manipulated and once that begins to be part of the political decision and not the scientific decision-making scheme then all things 

are lost. 

So when we talk about the wolverine, the red nut bird, the gray 

wolf, the Mexican wolf, the pygmy owl, on and on and on, the jaguar, we have jeopardized them because now we have allowed a different culture to run it. 

And so, my question is a very general one. Correct me if I am 

wrong. I think the change that needs to happen is not with the Act 

itself, but with the Administration and the implementation of the 

Act. I say that because I think we have institutionalized now a culture that is about pleasing a political outcome and not dealing with 

the reality of facts and science. That has been institutionalized 

with regard to the Endangered Species Act, and that change has 

to be fundamental and thorough in the near future. 

And so, my question is am I wrong, Mr. Laverty, if I may? Am 

I wrong in assuming that we are not really going to make any 

progress until that massive institutional change and culture is 

changed? 

I really think what we are talking about today—process, specifics—is good and healthy. I think the overall culture needs to be 

changed tremendously with regard to the application of the Act. 

Am I wrong in that assumption or in that conclusion to be more 

exact? 

Mr. LAVERTY. Mr. Grijalva, I believe—and I can share this with 

absolute confidence—that if you were to ask any scientist in the 

Fish and Wildlife Service or the United States Geological Service 

about the integrity of science you would find that today the answer 

would be that they believe the integrity of science is whole. 

I believe I can share that with you because I have established 

in my own set of principles and values conversations with Director 

Dale Hall and his folks that I value the integrity of science, and 

I am going to do, as I shared with you in my earlier testimony, all 

I can to ensure the integrity of science. 

Now, as I pointed out, I think it is very, very important to be 

able to have questions about clarity of science. That should be OK. 

That should not be viewed as a threat. That should not be viewed 

as a negative thing. It should be absolutely important to make sure 

that when we come together with the best science that that stands 

the test of integrity. 

The fact that you question me is good. We need to be able to do 

that, and I think that same thing is true for science. I believe that 

the actions that have been taken, as I mentioned, in the short time 

102 

that I have been here—we have four listings warranted, two not 

warranted. Those are based on absolute integrity of science. We 

have come together with nine substantial 90-day findings, and I 

would venture to say that if you ask anyone to come and look at 

that it would be based absolutely on science. 

I want to go back and clarify perhaps some of the points that 

were made regarding Brian Waidmann, Chief of Staff. Brian 

Waidmann reviews every Federal Register listing that comes out 

whether it is Fish and Wildlife Service, Park Service, USGS, anything. 

Brian Waidmann initials and reviews that, and I think some of 

those reviews are to make sure that we are, in fact, clear that the 

pieces all connect together. That shouldn’t be again viewed as a 

negative thing, but I think it is a very important piece. 

One of the things, if I could just follow up while I—— 

Mr. GRIJALVA. Well, let me go back to my original question, if I 

may. 

Mr. LAVERTY. Sure. 

Mr. GRIJALVA. My earlier question. When I talked about the scientific code of conduct that was implemented by Hall, it doesn’t 

apply to yourself or anybody else in your office, and the question 

I asked then, shouldn’t it so that we have a level of consistency on 

the integrity question? 

Mr. LAVERTY. Mr. Grijalva, I would be happy to share with you 

the letter that I sent to the Department folks, to both Fish and 

Wildlife Service and the Park Service, that established my personal 

code of conduct and how I was going to operate, how I was going 

to establish that set of principles for my staff. 

I believe that we have a very, very solid platform to work. We 

can assure that. 

Mr. GRIJALVA. My time is up, Mr. Secretary, and I appreciate 

your honesty and your response, and I yield back. 

Mr. LAVERTY. Thank you. 

The CHAIRMAN. The gentlelady from California, Ms. Napolitano? 

Mrs. NAPOLITANO. Thank you, Mr. Chair. 

I would like to talk to Mr. Laverty in regard to the petitioning 

under the ESA. I guess many things have not been corrected, and 

apparently last week the long-fin smelt in the California Bay-Delta 

was deemed substantial nine months after it was petitioned. 

What assurances do we in this Subcommittee have that the status review for the smelt will now proceed efficiently and, moreover, 

be based on the best available science, and will it be completed in 

the next 12 months, which then goes to improving the efficiency of 

the 90-day petition, and how will Fish and Wildlife ensure the new 

delta smelt stands up to court scrutiny, the buyout? 

Mr. LAVERTY. Thank you for that question. I actually had a 

chance to spend some time with Secretary Cristman and Regional 

Manager Steve Thompson talking about the delta smelt and how 

that science and the biological opinions come together. 

One of the things that has to happen is we have to complete that 

biological opinion, and I understand that part of that now is with 

the Bureau of Reclamation. I just found that out this morning, so 

I will follow up on that on the delta smelt. 

Mrs. NAPOLITANO. How long will that take? 

103 

Mr. LAVERTY. The long-fin. Was that the one that we just listed? 

In a couple months I think we are going to have that one out. 

Mrs. NAPOLITANO. Are we sure it is a couple months and not a 

year or more? 

Mr. LAVERTY. Absolutely. I can assure you. I am getting poked. 

Yes. 

Mrs. NAPOLITANO. May I ask that the Committee be given the information as soon as possible? 

Mr. LAVERTY. Yes, ma’am. 

Mrs. NAPOLITANO. And if you will proceed with the rest of the 

question about the 90-day approval of the implementation? 

I am sorry. Should we be concerned with the delays on other decisions, such as the 12-month status reviews in Section 7 consultations—listing and delisting and others? 

Mr. LAVERTY. I believe part of our conversation earlier focused 

on the findings from the GAO in terms of guidance to the field on 

the 90-day listing, and I believe we have the mechanism in place 

and that is currently under review. We should have that out fairly 

quickly. 

Mrs. NAPOLITANO. What about the new delta smelt biological 

opinion? Will it stand up to court scrutiny? 

Mr. LAVERTY. I can tell you it will be based on the best available 

science. 

Mrs. NAPOLITANO. OK. Ms. Nazzaro, on page 22 of your report 

it says: ‘‘Furthermore, Service officials also noted recovery plans 

are fluid documents, and the plan’s respective criteria can be updated as new threat information about a particular species becomes 

available.’’ 

Were you able to check the veracity of the Service’s statement? 

Is that true that the recovery plans are regularly revised? 

Mr. MALCOLM. We can’t say specifically if they were regularly revised, but a number of the species we have examples of in our report the recovery plans had been updated, so it can happen. 

Again, we also note that a lot of the activity at least on the listing side of the house is litigation driven, so there obviously is a 

prioritization process that happens. They do have authority to revise the plans. It may not happen—— 

Mrs. NAPOLITANO. Why the litigation? Based on what? 

Mr. MALCOLM. The example you just used on a late 90-day finding. So if the finding is too late there could be litigation brought 

to say—— 

Mrs. NAPOLITANO. Which brings it back to are we ensuring that 

we are going to expedite some of those petitions? 

Mr. MALCOLM. Right. Yes. 

Mrs. NAPOLITANO. Avoid litigation. 

Mr. MALCOLM. Well, some of the litigation involved is over 

missed deadlines, but again there are so many species and so many 

decisions and not listing/delisting, but critical habitat and recovery 

plans and all those types of actions, so doing everything for every 

single species on time obviously would be challenging for the Department. 

Mrs. NAPOLITANO. Well, according to the review of the recovery 

plans in the Fish and Wildlife database, it shows that only 22 recovery plans have been formally revised in the last 12 years and 

104 

30 in the last 20, and of the 22 in the last 12 only 13 have been 

formally completed and made final. The average length is 17 years. 

Ms. NAZZARO. Certainly one thing that we did hear was that litigation does take a lot of time and so a lot of the other priorities 

that the Service would set, they are distracted from that because 

of litigation. 

Mrs. NAPOLITANO. But if you have litigation that is causing the 

delay because it is not done—how would I say—expeditiously, within the period required, wouldn’t that solve some of the problems? 

Ms. NAZZARO. What we are hoping is we have not reviewed the 

draft guidance that Mr. Laverty discusses, but we anticipate that 

once that guidance gets issued it is going to clarify how the Service 

biologists go about reviewing these 90-day petitions, and it would 

certainly expedite the process. 

Mrs. NAPOLITANO. Could you tell me how many of your revision 

plans or actually—I am sorry. I am getting my thoughts together. 

Of the litigated ones are based on late filings or extended filings? 

Is there any amount, percentage? 

Mr. LAVERTY. I am sorry. I don’t know what that answer would 

be. It would be substantial. 

Mrs. NAPOLITANO. Would you find that out for us and let us 

know, because then we can understand that maybe this is part of 

the answer. 

Mr. LAVERTY. Yes, ma’am. 

Mrs. NAPOLITANO. Thank you, Mr. Chair. 

The CHAIRMAN. The gentleman from California, Mr. Costa? 

Mr. COSTA. Thank you very much, Mr. Chairman, for this important and timely hearing. 

I have a specific question that follows on the one Chairwoman 

Napolitano asked with regard to the Sacramento-San Joaquin 

River Delta system, and then I have a more general question as it 

relates to the Endangered Species Act, which is the subject that we 

are hearing today. 

As it relates to the specific question involving the issues of listed 

species in the Sacramento-San Joaquin Delta, which is the largest 

delta region on the West Coast that has numerous problems I 

would argue as it relates to the multi-purposes and the multi-facets 

of that delta river system that provides not only transportation, but 

a source of water, a source of fishery and critical habitat for the 

West Coast and for California particularly. 

As it relates to the smelt issue that Congresswoman Napolitano 

was talking about, when these various scientific efforts are being 

pursued to deal with the various causations how are we attempting 

to weigh the factors, the other factors that are causing the degradation of the fisheries—not only the smelt, but the salmon and the 

other? 

When we try to weigh the factors in of invasive species, when we 

try to weigh the factors of the impacts of tremendous urbanization 

that has taken place over the last two decades in the area, when 

we try to weigh the fact that there is over 1,600 pumps that are 

within the region that are unscreened—we have pumps throughout 

the country that are screened—and that we deal with diversions of 

water upstream as well besides the exportation, how do you weigh 

all those factors in? 

105 

Mr. LAVERTY. Mr. Costa, I believe the question you framed captures the complexity of the challenges that not only the Fish and 

Wildlife Service faces as we look at the recovery of species, but it 

capitalizes and captures the essence of how do we work with multiple jurisdictions to deal with these kinds of issues? I know from 

my conversations with resource professionals on the ground that 

this is an incredibly vexing problem for them. 

I would have to say there is not any magic that is just going to 

pop out and we are going to find an instant situation. The delta 

is a classic example I think of the complexities that we face. You 

know, not only is that water important for fish, but it is also important for the commerce and the economy of California. 

Finding that balance I believe is going to be our challenge working together, and I think that is why some of the conversations 

that we have had with the Governor’s office, as well as with municipalities and agencies that are all impacted, that is where we 

are going to have to find that balance. 

Mr. COSTA. Yes, I know, but the balance is always the challenge. 

Mr. LAVERTY. Absolutely. 

Mr. COSTA. You know, I want to ask a broader question, but it 

is related to this. I mean, regardless of our philosophical discussions, we all agree that good science ought to apply. 

The problem is that scientists focus in their domain and their effort, and they have varied degrees of expertise, but then not withstanding the science there are always the tradeoffs. It is not up to 

the scientists necessarily to determine the social tradeoffs because 

they involve social, economic and other ethos that we all have that 

are similar and common and different. 

Therein lies when you set the balance of the values in terms of 

trying to strike that balance I am not so sure it is fair to ask the 

scientists to do that. 

Mr. LAVERTY. I would agree, and I believe that setting a policy 

call is not the role of the scientist. 

Mr. COSTA. Right. 

Mr. LAVERTY. The scientist is to bring together the best available 

science to that policy table and then policymakers then weigh those 

tradeoffs, if you will. 

Mr. COSTA. Well, then that brings me to the question, and I don’t 

know if I have enough time here. With the title, ‘‘Danger of Deception: Do Endangered Species Have a Chance?’’, it just seems to me 

that we ought to back up a little bit and try to figure out when we 

deal with risk assessment versus risk management what in our day 

and age today is the art of the possible. 

I mean, I can assure you that if we didn’t have the 38 million 

people that live in California today, not to mention the other people 

that live in Oregon and Washington, we could do a whole lot to restore the environment and the riparian systems and everything 

else because we wouldn’t have the demands that all the people 

place on those important resources. 

But the problem is we do have 38 million people living in California, and we have millions of people living in Oregon and Washington, and they share the same resources with all the other important species that we try to coexist with. 

106 

We never, it seems to me, make an evaluation or attempt to try 

to make the judgment because before people ever set foot on this 

continent, I mean, you had species that went extinct. It is the natural evolution of things, but they went extinct based upon various 

climate conditions and other predatory species and the like. 

Now, we are the big species here, and we are very predatory I 

would argue, and therefore we impact all the other species, but we 

seem to have this notion that we can have it both ways, that we 

can turn the clock back 150 years or whatever time you choose 

when mankind wasn’t impacting all the species. 

I am not so sure you can have it both ways, but I don’t think 

we ever have that conversation or that intellectual discussion, 

which is what I think we ought to have in terms of what the art 

of the possible is. That was an editorial. I don’t know. Do you folks 

ever have these policy discussions? 

Mr. LAVERTY. Every day. I don’t mean to be flippant in that response, but that is really the fundamental issue that we face as we 

bring together the science of what we know about species in our 

environment and how do we then engage in helping make these 

critical decisions as it relates to policy calls on our needs as a society and how do we provide that long-term quality for what this 

country is all about. 

Mr. COSTA. And it is the art of the possible. If you will, Mr. 

Chairman, give me 30 more seconds, I mean, just to add to this 

point. We have made a determination after 18 years plus of lawsuit 

on the San Joaquin River to reach an out-of-court settlement 

agreement. 

I am not going to put a value on as to whether it is good, bad 

or indifferent because everybody has a different perspective, but 

the parties, both the plaintiffs and the defendants, decided after 18 

years they were going to quit suing one another to attempt to restore a species on the San Joaquin River on 47 miles of the river 

that has not flowed since 1964. It is a very noble experiment at a 

cost of somewhere between $300 and $600 million. We don’t know 

what the cost will be. 

And so we can do a lot of things, but we also have to factor in 

what the costs and the tradeoffs are. We hope in the period of the 

15 years during the implementation of this agreement that we will 

be successful, but we don’t know that we will be. Yes? 

Mr. LAVERTY. Just perhaps one last comment. I think you framed 

it very, very well in terms of the importance of good, hard, quality 

science. That becomes the foundation for many of these conversations. 

That is exactly what we are trying to do is make sure that we 

have that kind of science that has that integrity that policymakers 

can understand what the tradeoffs might be. 

Mr. COSTA. Thank you, Mr. Chairman. 

Mr. LAVERTY. Thank you for your comments. 

The CHAIRMAN. The gentleman from Texas, Mr. Gohmert? 

Mr. GOHMERT. Thank you, Mr. Chairman. I think our friend, Mr. 

Costa, did a beautiful job of articulating the real balance necessary 

to have proper governance over this country. 

107 

I was affected by my friend from California Ms. Napolitano’s discussion about the long-finned smelt, and I would like to yield to get 

an answer to a question regarding this balance. 

It is my understanding that if the long-finned smelt, this little 

fish, is actually determined to be or classified as being an endangered species it will be necessary to hold more water up in the 

delta region, which would apparently deprive a lot of Southern 

California from much needed water. 

I am curious. In the consideration of trying to preserve species, 

which we would all like to do, should any policy consideration be 

given to the adverse effects on the humanity there in Southern 

California? I yield to the gentlelady. 

Mrs. NAPOLITANO. Thank you for yielding. I can tell you there is 

an ongoing battle in regard to allowing water to flow naturally 

down from Northern California. This is a north/south issue. 

The fact that there have been lawsuits and much controversy 

over ESA and its effect on the population, let me assure you that 

both sides, no matter what, we need to ensure that we protect some 

of that. I am even discussing in some areas if there is endangered 

species why are we not having hatcheries to be able to ensure that 

the species survive? There is an issue there with the environmentalists, which I can understand, but I would rather have the 

DNA be a little bit watered down rather than lose it. 

Protection of people? It depends because I can tell you in some 

areas you can be in the lowlands and look up and there is a boat 

going by up in the upper regions. You see it up high, the levees. 

One of those earthquakes is going to come down and all of that 

land is going to be affected. Salt will be intruded into the drinking 

water. It will ruin a lot of California’s economy. The rest of the 

nation is going to suffer. 

Now, do we protect? Yes, we have to protect much like we want 

to protect ourselves, the human race. There are many things we 

need to do. How we do it, working cooperatively, and this is what 

Jim was alluding to, is they decided that it is better to work with 

them because it does help the ecosystem. 

With that I would like to turn it over to Jim to finish that up. 

Mr. GOHMERT. Well, let me reclaim my time for a moment. It is 

my understanding though, and you mentioned the allowing of the 

natural flow of water, but it is my understanding if the long-finned 

smelt were classified as endangered then it would probably be required to have an unnatural restraint of water in order to help the 

long-finned smelt, and it would be the unnatural restraint of water 

flow that would so adversely affect portions of Southern California. 

I would be glad to yield to my friend, Mr. Costa, if he has a comment. You really did a beautiful job of articulating the difficulty 

there. 

Mr. COSTA. Well, thank you. I mean, we in California made a 

promise to Chairman Rahall a couple years ago not to bring California water problems to the Committee, but they are problems. 

Mr. GOHMERT. Yes. 

Mr. COSTA. I appreciate your interest. But I really think they are 

reflective of water problems that we are going to face around the 

country and around the world in the 21st Century, and maybe if 

we can do a better job in California than we have in terms of solvVerDate Aug 31 2005 15:00 Sep 25, 2008 Jkt 098700 PO 00000 Frm 00111 Fmt 6633 Sfmt 6602 L:\DOCS\42492.TXT Hresour1 PsN: KATHY
108 

ing some of them maybe that will be helpful to other parts of the 

world. 

The smelt specifically that you asked the question of. If they are 

listed and there is a portion of the listing, the process, and that 

was the questions we were referring to, could cut back as much as 

an estimated 70 percent of the water supply to Southern California 

and as much to the area that I live in and that many of my colleagues do where we farm, so it is a very serious issue in terms 

of the ability to export water south of the delta. 

From a standpoint of geography and plumbing, you wouldn’t 

have designed California. We have two-thirds of the population living where there is very little water, in Southern California, and 

their water supply comes from the Colorado River; it comes from 

the east side of the Sierra; it comes from the north. 

Eighty percent of the developed water resources in California agriculture uses. We have picked a lot of low-hanging fruit in the last 

two decades to conserve water. Water is not cheap in California I 

would argue any more. 

But we have a host of competing challenges on the delta smelt 

that you made reference to. For example, striped bass are not native to the delta. They are an eastern fish. They were introduced 

in the 1920s as a good game fish. They are a very predatory fish, 

and they eat smelt, which is the food for the salmon. They also eat 

juvenile salmon. Up until recently actually we still sold striped 

bass stamps, fishing stamps, to increase the propagation of striped 

bass, so these are the internal conflicts that drive us nuts. 

Let me just close with one piece of advice when you wade into 

the water of the West. Mark Twain, I think, had it right over a 

century ago when he said, as a reporter in the West, it was clear 

to him that whiskey was made for drinking and water was made 

for fighting, and we are still fighting over those water resources 

today. 

Mr. GOHMERT. OK. Thank you. 

Reclaiming my time—well, actually it has expired—if I could just 

say, we certainly want to work with all states with water problems, 

and I hope that we can also, at some point, have a hearing on the 

invasive plant species that are about to take over waterways all 

over the South. We are about to lose a lot of natural—— 

Mr. COSTA. If the gentleman would yield? 

Mr. GOHMERT. Sure. 

Mr. COSTA. I think invasive species, period. I would not limit it 

to plants. 

Mrs. NAPOLITANO. Would the gentleman yield for a second? 

Mr. GOHMERT. Sure. 

Mrs. NAPOLITANO. One of the things we are battling right now 

is the quagga mussel, which is eating some of the food from the 

fish—— 

Mr. COSTA. Right. 

Mrs. NAPOLITANO.—which we have yet to find the solution to, 

and I think working cooperatively we may be able to have the R&D 

to be able to at least begin to address it because that is clogging 

all your pumps. Not only that; it is taking some of the natural food 

element of a lot of the fish. 

Mr. COSTA. Right. 

109 

Mrs. NAPOLITANO. So it is a series of things, not just one rather. 

Thank you, sir. 

Mr. GOHMERT. OK. Thank you, and thank you, Mr. Chairman. It 

sounds like you have some Members who would love a hearing on 

invasive species. 

The CHAIRMAN. It sounds like it, but I think right now the panel 

needs to be relieved so I will thank the gentlemen and ladies that 

appeared before us today for your expertise and your patience and 

all your help to this Committee and say that you are excused. 

Thank you. 

The Chair will call the next panel, Panel II, composed of Dr. 

Scott D. Kraus, the Vice President of Research, New England 

Aquarium; Dr. Jerry F. Franklin, Ph.D., College of Forest Resources, University of Washington; Dr. Francesca T. Grifo, Ph.D., 

Senior Scientist and Director, Scientific Integrity Program, Union 

of Concerned Scientists; 

Scott Hoffman Black, the Executive Director of the Xerces Society for Invertebrate Conservation; David R. Parsons, a Science Fellow at the Rewilding Institute; and Larry L. Irwin, Ph.D., Principal 

Scientist, National Council for Air & Stream Improvement. 

Is everybody still here? The Chair will remind all witnesses we 

do have your prepared testimony and, without objection, it will be 

made part of the record as if actually read. You are encouraged to 

summarize your prepared testimony. 

We will begin with Dr. Kraus. Dr. Kraus, you have been recognized to proceed first. 

STATEMENT OF SCOTT D. KRAUS, PH.D., VICE PRESIDENT 

OF RESEARCH, NEW ENGLAND AQUARIUM 

Mr. KRAUS. Thank you, Mr. Chairman. We are going to move 

into the ocean. 

I am from the New England Aquarium. I have been running a 

research program on North Atlantic right whales for almost 30 

years, and I would like to briefly talk about those animals and the 

issues around the ship strike rule that has been proposed by 

NOAA. 

The North Atlantic right whale currently numbers less than 400 

animals, making it one of the most endangered of the large whales. 

In the western North Atlantic, they are found along the entire East 

Coast of North America. Calving occurs in the coastal waters of the 

southeastern U.S. during the winter, and the migratory zone is 

along the Mid-Atlantic. In the summer, spring and fall, right 

whales are found in the Gulf of Maine in several habitats. 

Historically, the species was hunted nearly to extinction, and despite protection for 70 years, the right whale population remains at 

very low numbers. Today, the primary reasons for right whale 

losses are accidental kills by ships and fishing gear. 

Since 1999, at least 30 right whales have been hit by ships, leaving 15 dead, four seriously injured and likely to die, and 11 with 

injuries. Another 37 right whales have been entangled in fishing 

gear, six of which were fatal, and another six had potentially fatal 

injuries. In addition to the documented deaths, an average of six 

right whales per year disappear from the population and are presumed dead, adding to the mortality rates. 

110 

The Department of Commerce’s National Marine Fisheries Service is the agency responsible for right whales under the ESA and 

the MMPA. The Agency is working hard with the research and 

fishing communities to solve the problem of entanglements in fishing gear, and more work is needed in this area. 

However, the problem of ships killing whales is well defined, and 

the Agency’s proposed rule to slow ships is a solution that will 

work. There have been a number of questions about the science 

posed by the Office of Management and Budget, the World Shipping Council, as well as some to one of my staff by the Council of 

Economic Advisors. I would like to address those questions briefly. 

First, the evidence that high ship speeds kill whales. Many scientific studies have been done to assess the role of speed in ship 

kills of large whales and in particular for right whales. In my submitted testimony, I have provided the relevant graphs of speed 

versus the probability of collision, as well as a comprehensive list 

of all the scientific publications on this topic. 

In all cases, scientists have used existing data to model the probability of lethal injury to a right whale from ships going at different speeds. When you add them all together, the cumulative results of all of these studies are conclusive. No matter which analytical technique is applied, increased shipping speed carries increased risk of death and serious injury to all large whales. 

Questions have been raised about whether ship size matters to 

the danger posed to whales. It turns out that it doesn’t matter very 

much when the difference is large. Ships are, let us say, somewhere between 5,000 and 50,000 dead weight tons, and a large 

whale might only be 40 dead weight tons. 

For comparison, imagine a vehicle colliding with a songbird. 

Whether the vehicle is a motorcycle or a car or a train, the bird 

will probably survive a collision of five to 10 miles an hour. However, a collision with any of those vehicles at 30 miles an hour or 

50 miles an hour, the bird is likely to die. The difference in mass 

doesn’t matter as long as the vehicle is substantially larger than 

the bird. Only speed matters. 

The same principles apply to whales. Because whale to ship size 

differences are large, the severity of damage to a whale in the 

event of a collision with a ship is primarily a function of speed. 

Therefore, speed reductions will reduce the risk of fatal collisions 

between all large ships and whales. 

Now, what is the evidence that many of these different ship 

types are involved? Well, there has been a review by a couple of 

National Marine Fisheries Service scientists, and it turns out that 

just about every large ship around the world that we can think of 

in terms of types have been involved—Navy vessels, container, 

cargo ships, freighters, whale-watching vessels, cruise ships, Coast 

Guard vessels, ferries, dredges, et cetera. The data confirm that all 

types of vessels are involved in collisions with whales. 

What does NMFS need to carry out its mandate under the Endangered Species Act for right whales? They have a statutory obligation under the Endangered Species Act to take actions that enable the recovery of right whales. It needs the support of Congress 

to get this rule in place. 

111 

NMFS also needs appropriate funding levels from Congress to 

monitor the population to determine how many animals are being 

lost to human activities, and which management measures are 

working. Failure to support NMFS’ efforts is a disservice to the industries that are being regulated and will undermine their ability 

to ensure the survival of the North Atlantic right whale. 

In conclusion, fast ships kill large whales. Slowing ships will, 

one, reduce the probability of a fatality should an encounter occur 

and, two, give whales the time to evade oncoming vessels. Ship 

strikes of whales involve all ship types, all whale species and occur 

all along the East Coast. 

The National Marine Fisheries Service has taken the appropriate 

approach in using the 10 knot speed limit. This speed limit considers economic impact, safe navigation and benefit to right whales 

in a fair and well-researched manner. 

There is no scientific justification for further delays in the proposed rule to seasonally slow ships in right whale habitats and migratory corridors along the East Coast of the United States. Thank 

you. 

[The prepared statement of Mr. Kraus follows:] 

Statement of Scott D. Kraus, Ph.D., Vice President for Research, New 

England Aquarium, Boston, Massachusetts 

The North Atlantic right whale currently numbers less than 400 animals, making 

it one of the most endangered of the large whales. In the western North Atlantic, 

individual right have been observed from the Gulf of Mexico to the Gulf of St Lawrence, but most are found seasonally in one of five known habitats. The only calving 

ground is in the coastal waters of the southeastern U.S. during the winter months. 

The migratory corridor for all right whale mothers and calves is the coastal zone 

of the U.S. between Florida and Massachusetts. In the spring, aggregations of right 

whales are present in the Great South Channel (east of Cape Cod) and in Cape Cod 

and Massachusetts Bays. In the summer and fall, right whales are observed in the 

Bay of Fundy, between Maine and Nova Scotia, and in an area 50 km south of Nova 

Scotia called Roseway Basin. Aerial surveys also have recently discovered wintertime aggregations in the middle of the Gulf of Maine. 

Historically, this species was hunted to near extinction, and, despite protection for 

70 years, the right whale population remains at very low numbers. Today, the primary reasons for the population’s slow recovery are the accidental kills by ships and 

fishing gear. Since 1999, at least 30 right whales have been hit by ships, leaving 

15 dead, 4 seriously injured and likely to die, and 11 with injuries (Table 1). Another 37 right whales have been entangled in fishing gear, of which 6 were fatal, 

and 6 caused potentially fatal injuries. In addition to the documented deaths, an average of 6 animals per year (range: 1—11) have disappeared from the population 

and are presumed dead, adding to total mortality rates. 

Shipping and entanglement deaths are added to natural mortality, and several 

population models have shown that this population was declining during the 1990’s 

(Caswell et al. 1999; Fujiwara and Caswell 2001). Fujiwara and Caswell’s projections indicated that those trends would drive the North Atlantic right whale to extinction in approximately two centuries. However, those same models suggested that 

saving just two females per year could reverse this trend. These circumstances confirm that this is a critical period for right whales and that focused and dedicated 

efforts will be required if we are to assure the recovery of the North Atlantic right 

whale population. 

The NOAA National Marine Fisheries Service (NMFS) requirement for recovery 

is a population increase for a period of 35 years at an average rate of increase equal 

to or greater than 2% per year. Preliminary analyses indicate that this group of 

right whales has had an average growth rate over the last two decades of about 1%. 

Recent calf counts have increased slightly, although increases in mortality in recent 

years may have offset those gains. 

The Department of Commerce’s National Marine Fisheries Service is the responsible agency for right whale conservation under the ESA and the MMPA. The agency is working hard with the research and fishing communities to solve the problem 

112 

of entanglements in fishing gear, and more work is needed in this area. However, 

the problem of ships killing whales is well-defined, and the NMFS proposal to slow 

ships is a solution that will work. There have been a number of questions about 

the science posed by the OMB, the OIRA, and the World Shipping Council, including 

questions posed directly to a colleague on my staff by the Council of Economic Advisors. I would like to address these questions briefly. 

Evidence that High Ship Speeds Kills Whales 

Many scientific studies have been done to assess the role of speed in ship kills 

of large whales, and 5 studies have specifically evaluated this for right whales. 

These studies (Vanderlaan and Taggart 2007; Pace and Silber 2005: Laist et al. 

2001: Kite Powell, et al., 2007; Vanderlaan et al., 2008) used different analytical approaches, but all reached the same conclusion that vessel speed plays a role in the 

level of severity of a strike. In addition, a Knowlton et al (1998) report titled The 

Hydrodynamic Effects of Large Vessels on Right Whales: Phase Two concluded that 

in none of their simulations was there a situation where a slower moving ship increased the risk of collision. A slower ship has lower hydrodynamic forces and is 

thus safer for a whale trying to take avoidance action. 

To summarize the results of all of these studies, I have provided a single graph 

from each of the four quantitative papers in the following pages, and offer a summary statement from many of the papers on whales and shipping here. The cumulative results of these multiple studies are conclusive—no matter which technique 

is applied, increased shipping speed carries increased risk of death and serious injury to all large whales. 

Laist et al., 2001 ‘‘Collision accounts compiled here suggest that serious injuries 

to whales may occur infrequently at vessel speeds below 14 kn and rarely at speeds 

below 10 kn.’’ 

Jensen and Silber, 2003 ‘‘All vessel classes are represented in our database, but 

it appears generally that relatively large and relatively fast moving vessels are most 

often involved.’’ 

Pace and Silber 2005 ‘‘We found strong evidence (P=0.0025) that the probability 

of death or serious injury increases rapidly with increasing ship speed (Figure 1).’’ 

Vanderlaan and Taggart 2007. ‘‘Notably, it is only at speeds below 11.8 knots that 

the chances of lethal injury drop below 50% and above 15 knots the chances asymptotically increase toward 100%.’’ 

Kite-Powell, et al., 2007 ‘‘Model results suggest that more than half of right 

whales located in or swimming into the path of an oncoming ship traveling at 15 

knots or more are likely to be struck even when they do take evasive action.’’ 

Vanderlaan and Taggart, 2008 ‘‘Only the reduced vessel-speed option will decrease the likelihood of a lethal injury should an encounter occur.’’ 

In the following graphs, scientists have used the existing data to model the probability of lethal injury to a right whale from ships going at different speeds. In the 

first one, Vanderlaan and Taggart (2007) show that the probability of fatal injury 

rises rapidly after 8-10 knots and approaches 100% above 18kts. In the second 

(Vanderlaan et al., 2008), they add the probability of a whale-ship encounter to the 

original data to show the combined likelihood of a fatal collision (in color, where red 

is bad (fatal), and blue is good (not fatal)). 

113 

In the next graph, Pace and Silber (2005) modeled a slightly larger dataset without binning into speed categories, and obtained nearly the same results as 

Vanderlaan and Taggart (2007)(shown above). Their analysis shows that the probability of mortality or serious injury increases dramatically above 7 knots. 


42492.046
114 

Despite some confusion on the part of the World Shipping Council and the CEA, 

ship mass does not matter much when the difference between the ship and the 

whale is large. From a shipping perspective, most ships are much more massive 

than a whale (5000-100,000 DWT vs 40 DWT). As C. Taggart points out (in lit. Aug 

31 2007 to S.E. Dudley OIRA) the situation is similar to a vehicle colliding with a 

song bird. Whether the vehicle is a motorcycle, a car, a bus, or a train, the bird will 

probably survive a collision of 5-10 miles per hour. However, in a collision with any 

of those vehicles at 20-30 miles per hour, the bird is highly likely to die. 

Thus mass (size) does not matter as long as the difference between the animal 

and the vehicle is large. The severity of damage to a whale in the event of a collision 

with a large vessel is primarily a function of speed. Therefore, regardless of ship 

size, speed reductions will reduce the risk of fatal collisions between ships and large 

whales. 

Note that most of the results discussed above are predicated upon passive whales, 

in other words, a whale that does not attempt to move out of the way of a closely 

approaching ship. However, Kite-Powell et al. (2007) analyzed close approaches (less 

than 500 m) of ships to right whales, and found that a majority of whales do attempt evasive actions. Although the sample size is limited, evasive actions increased 

as proximity to the ship increased. Taking whale behavior into account, Kite-Powell 

and colleagues modeled ship/whale encounters at various speeds and produced the 

following graph, which shows the probability of collision given different speeds and 

different ships. Although this does not predict fatal injuries, it is consistent with the 

previous models which show that the risk of collision between ships and whales increases with speed. These results indicate that slowing ships to a speed of ten knots 

gives whales an increasing amount of time to avoid collisions by taking evasive action. 


42492.047
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Evidence that All Ship Types are Involved 

Jensen and Silber (2003) provide detailed information of the vessel types involved 

in strikes worldwide. ‘‘Of the 134 cases of known vessel type, there are 23 reported 

incidents (17.1%) of Navy vessels hitting whales, 20 reports (14.9%) of ship strike 

for container/cargo ships/freighters, 19 (14.2%) reports of ship strike for whalewatching vessels, and 17 reports (12.7%) for cruise ships/liners (Figure 5). Sixteen 

reports of ship strike (11.9%) are attributed to ferries. Nine cases of ship strike 

(6.7%) are reported for Coast Guard vessels and eight cases (6.0%) for tankers. Recreational vessels and steamships were each responsible for seven collisions (5.2%) 

in the database, while fishing vessels were responsible for four records (3.0%) of 

strike. One collision (0.75 %) was reported from each of the following: dredge boat, 

research vessel, pilot boat, and whaling catcher boat.’’ 

These data confirm that all types of vessels are involved in collisions with whales, 

although care should be taken in interpreting these numbers. Large ships (e.g. container ships, tankers, and cruise ships) may not be aware that a collision with a 

whale has occurred and thus do not report the incident. Captains of ships of all sizes 

are under no obligation to report collisions and may not do so due to apathy or fear 

of legal consequences. The high percentage of Navy and Coast Guard collision reports is likely due to standardized military and government reporting practice rather than an actual higher frequency of collisions relative to other ship types. Both 

federal agencies are actively involved in large whale protection programs and reporting struck or dead whales to the National Marine Fisheries Service are standard operating procedures. 

Evidence that Ship Kills are Impacting All Large Whales 

NMFS has done a thorough job of keeping track of serious injury and mortality 

events (Nelson, et al. 2007). From 2001-2005, NMFS verified 292 large whale morVerDate Aug 31 2005 15:00 Sep 25, 2008 Jkt 098700 PO 00000 Frm 00119 Fmt 6633 Sfmt 6621 L:\DOCS\42492.TXT Hresour1 PsN: KATHY

42492.048
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talities and determined that 26 were due to entanglements and 27 were the result 

of ship strikes. The cause of death could not be determined for 223 (76%) of the carcasses (Nelson 2007), since animals floating at sea are typically not retrieved for a 

necropsy (except right whales). Because of the endangered status of right whales, 

NMFS has supported the retrieval and necropsy all right whale carcasses when feasible. From 2001 through 2007, a total of 31 right whale carcasses have been documented. Fourteen of these carcasses were towed to shore, 10 were found on the 

beach, and seven were unretrievable. Of the 14 carcasses retrieved, nine (64%) died 

as the result of ship strike. If we applied this percentage to all large whale carcasses 

that were not retrieved (223 animals), there may have been as many as 142 large 

whales that died as the result of a vessel strike in that five-year timeframe. This 

suggests that all large whale species in the near coastal waters of the U.S. are at 

risk from ship strikes and would be afforded protection from this rule. 

What NMFS Needs to Carry Out Its Mandate Under the ESA for Right 

Whales 

NMFS has the statutory obligation under the Endangered Species Act to take actions that enable the recovery of right whales. The NMFS proposed rule has the 

weight of multiple independent scientific studies behind it. Other agencies should 

review the proposed rule for economic and other consequences, but should not attempt to second guess the science. 

Reducing right whale deaths is critical to protecting the species, yet federal funding for right whale research was halved in 2006, eliminating support for necropsies, 

entanglement mitigation, acoustic surveys, and photo-identification surveys, thereby 

negating the ability to monitor population health, survival and reproduction. Without these ongoing research efforts, it will be impossible to determine how many animals are being lost to human activities, which management measures are working, 

and what can be done to support the recovery of the species. This data loss is a 

disservice to the industries that are being regulated to reduce human-caused kills 

of this species, and it will hamper NMFS’ ability to assure the recovery of the North 

Atlantic right whale under the Endangered Species Act. 

Conclusion 

Fast ships kill large whales. Slowing ships will 1) reduce the probability of a fatality should an encounter occur, and 2) give whales the time to evade oncoming vessels. Ship strikes of whales involve all ship types, all species, and occur in all waters 

of the East Coast. NMFS, as the agency responsible for mitigating right whale mortality by law, has taken the appropriate approach in using the 10-knot speed limit. 

This speed limit considers economic impacts, safe navigation, and benefit to right 

whales in a fair and well-researched manner. There is no scientific justification for 

further delays in the proposed rule to seasonally slow ships in right whale habitats 

and migratory corridors along the East Coast of the U.S. 

References Cited 

Caswell, H., M. Fujiwara, and S. Brault. 1999. Declining survival probability threatens the North Atlantic right whale. Proceedings of the National Academy of 

Sciences 96:3308-3313. 

Fujiwara, M., and H. Caswell. 2001. Demography of the endangered North Atlantic 

right whale. Nature 414:537-541. 

Jensen, A.S. and G.K. Silber. 2004. Large Whale Ship Strike Database. NOAA Technical Memorandum NMFS-OPR 

Kite-Powell, H.L., A.R. Knowlton, and M. Brown. 2007. Modeling the effect of vessel 

speed on Right Whale ship strike risk Project report for NOAA/NMFS Project 

NA04NMF47202394 

Knowlton, A. R., F.T. Korsmeyer, B. Hynes. 1998. The hydrodynamic effects of large 

vessels on right whales: Phase two. NMFS Contract No. 46EANF60004 

Kraus, S.D., M.W. Brown, H. Caswell, C.W. Clark, M. Fujiwara, P.K. Hamilton, 

R.D. Kenney, A.R. Knowlton, S. Landry, C.A. Mayo, W.A. McLellan, M.J. 

Moore, D.P. Nowacek, D.A. Pabst, A.J. Read, R.M. Rolland. 2005. North Atlantic right whales in crisis. Science 309:561-562. 

Laist, D.W. A.R. Knowlton, J.G. Mead, A.S. Collet and M. Podesta. 2001. Collisions 

between ships and whales, Marine Mammal Science, 17(1):35-75 

Nelson, M., M. Garron, R. L. Merrick, R. M. Pace III, and T.V.N. Cole. 2007. Mortality and Serious Injury Determinations for Baleen Whale Stocks along the 

United States Eastern Seaboard and Adjacent Canadian Maritimes, 2001-2005. 

Northeast Fisheries Science Center Reference Document 07-05. 

Pace, R.M. and G. Silber. 2005. Simple analyses of ship and large whale collisions: 

Does speed kill? Sixteenth Biennial Conference on the Biology of Marine Mammals, San Diego, CA. 

117 

Vanderlaan, A.S.M. and C.T. Taggart. 2007. Vessel collisions with whales: The probability of lethal injury based upon vessel speed. Marine Mammal Science 

23(1):144-156. 

Vanderlaan, A.S.M., C. T. Taggart, A. R. Serdynska, R. D. Kenney, M. W. Brown. 

2008. Reducing the risk of lethal encounters: vessels and right whales in the 

Bay of Fundy and on the Scotian Shelf. Endangered Species Res. Vol. 4: 283- 

297. 

Table 1. Summary of North Atlantic Right Whale Vessel Strikes, 1999-2008 

Compiled using data obtained from the National Marine Fisheries Service, the 

Provincetown Center for Coastal Studies, the New England Aquarium, and Woods 

Hole Oceanographic Institution. 

For more information on individually identified whales, go to http:// 

rwcatalog.neaq.org/. 


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The CHAIRMAN. Thank you. 

Dr. Franklin? 

STATEMENT OF JERRY F. FRANKLIN, PH.D., COLLEGE OF 

FOREST RESOURCES, UNIVERSITY OF WASHINGTON 

Mr. FRANKLIN. Thank you. I appreciate the invitation to be here 

today. I would just put down for the record that I have been involved in the issues with regard to the northern spotted owl for 

well over 20 years now, so I have had a little bit of experience with 

it. 

I was part of the Thomas Committee that did the original development of the DCA strategy. I was a member of the Gang of Four. 

I was a major participant in the FEMAT and Northwest Forest 

Plan preparation process, and I was a part of two sustainable ecosystem institute groups that were convened by the Fish and Wildlife Service, one to do a comprehensive science review on the owl 

and the most recent one to advise them on how to respond to the 

criticisms of the draft recovery plan. 

I want to compliment the Fish and Wildlife Service on the incredible improvement in the plan, going from the draft recovery 

plan to the final recovery plan that they issued last week. It was 


42492.050
119 

an order of magnitude improvement in the plan, but they had a 

long way to go. 

I particularly want to compliment them on the adoption of a 

credible strategy for dealing with owls in the dry forest habitats 

found on the eastern slope of the Cascade Range. That dry forest 

may turn out to be one of the keys to the long-term survival of this 

subspecies of the spotted owl because it appears that there is a possibility that the barred owl is going to be less competitive on these 

dry sites, so it was critical to address that. 

I also want to compliment them on the adoption of some adaptive 

approaches to keep problem areas. Certainly implementing the dry 

forest strategy, really developing a scientific basis for addressing 

the barred owl and for addressing issues in the very complex Klamath-Siskiyou region. 

I want to apologize to the Fish and Wildlife Service with regard 

to my testimony. I suggested in my testimony that various advisory 

committees that they intended to put together were just going to 

be Federal. The stated intent with regard to most of these in the 

recovery plan is that they would be multi-institutional and involve 

a range of stakeholders, and I just would encourage this Committee 

to be sure that it happens that way. 

Perhaps my major criticism of the final recovery plan is that it 

does not adequately protect suitable owl habitat within the range 

of the northern spotted owl. This is recognized in the final recovery 

plan itself, which is why they have a Recovery Action 32 that says: 

Maintain substantially all of the older and more structurally complex multi-layered conifer forests on Federal lands outside of the 

MOCAs. 

Basically what has happened even in the final recovery plan is 

that we have a species in very serious decline, and still we are proposing in this final recovery plan to actually reduce both the quantity and quality of designated habitat on the Federal lands for the 

owl. 

We sort of went back to, this is perhaps too strong a word, but 

an ancient reserve design as a basis for the MOCAs. The concept 

in terms of addressing reserves on the Federal lands really advanced under the FEMAT and Northwest Forest Plan process to 

late successional reserves, which analysis has shown were much 

superior in terms of both the quantity and the quality of habitat 

insofar as owls are concerned. 

There are a couple of things that could be done very easily to resolve this. One would simply be to base any kind of a designated 

reserve system on Federal lands as the late successional reserve 

system and then add other areas as needed. 

If that seems to be unacceptable and the Agency doesn’t want to 

do that, it would be possible to develop a more definitive basis for 

their Recovery Action 32, one which would actually define for the 

Federal agencies what that suitable habitat is and then simply require the agencies to be accountable for ensuring that it is maintained. 

I think I can end with that. Maybe I will just comment one other 

thing here. There was a suggestion that well, the late successional 

reserves are not really appropriate for this because they were for 

more than that. Well, I was there as part of a small team with Eric 

120 

Forsman, Mr. Spotted Owl or Dr. Spotted Owl, drawing the boundaries of the late successional reserves in FEMAT. 

They were drawn very explicitly to meet owl criteria. We would 

have had a very different system if, in fact, the owl biologists had 

not been very and appropriately influential in that process. So to 

suggest that, in fact, they were not designed primarily to accommodate owls is not an accurate representation, so I will leave it there. 

Thank you. 

[The prepared statement of Mr. Franklin follows:] 

Statement of Dr. Jerry F. Franklin, Professor of Ecosystem Analysis, 

College of Forest Resources, University of Washington 

I am here today to provide testimony on development and revision of the Recovery 

Plan for the Northern Spotted Owl, which was released by the U.S. Fish and Wildlife Service (USFWS) on May 16, 2008. I am Professor of Ecosystem Analysis in the 

College of Forest Resources at the University of Washington. These comments reflect my own views and not those of any institution or organization with which I 

am associated. 

Development of the recovery plan for the Northern Spotted Owl (Strix caurina 

var.occidentalis) (NSO) has a history that extends back nearly 20 years and which 

are interwoven with many other planning efforts, including the Interagency Scientific committee to Address the Conservation of the Northern Spotted Owl (Thomas 

et al.1990), Scientific Committee on Late Successional Forest Ecosystems (1991), 

Forest Ecosystem Management Team (1993), and Northwest Forest Plan (1994), in 

which I have been personally involved. I was a member of s Sustainable Ecosystem 

Institute’s (SEI) team that was commissioned by the USFWS to do a comprehensive 

10-year science review of the owl. In 2007 the USFWS finally issued a Draft Recovery Plan, which received extensive public comment and scientific review, including 

by a scientific panel created by The Wildlife Society and in which I participated. Finally, earlier this year I participated in a science team commissioned by the USFWS 

and convened by SEI to advise the agency regarding responses to scientific criticisms raised of the draft plan in completing a final recovery plan. 

The SEI Team was convened to assist the USFWS in assessing the merit of the 

numerous scientific criticisms that were made of the Draft Recovery Plan and in developing appropriate responses to these criticisms during revision of the draft plan. 

The report of this group, ‘‘Scientific Review of the Draft Northern Spotted Owl Recovery Plan and Reviewer Comments’’ is available at the Sustainable Ecosystems 

Institute website (http://sei.org). The team membership included several NSO specialists as well as scientific experts in fire ecology. SEI Team activities included two 

open meetings in which testimony was taken from numerous other scientific 

experts. 

Major findings of the SEI review of the Draft Recovery Plan included: (1) Major 

threats remain the loss of suitable habitat to fire and timber harvest and Barred 

Owl competition; (2) Much geographic variability exists in the ecology of NSO, especially suitable habitat and prey use, and this needs to be reflected in a final recovery plan; (3) The Draft Recovery Plan underestimates the threat of habitat loss from 

fire and from harvest or salvage of large trees; (4) The Draft Recovery Plan is unclear about how much suitable habitat will be protected—and this must be clarified 

in a revised plan; (5) The relation of NSO to habitat following wildfire in their home 

ranges is not clear—all fires do not result in habitat loss but intense stand-replacement fires are certainly not desirable circumstances for the owls; (6) Control of 

Barred Owls may be warranted but credible experimentation and other research 

needs to be done before a control program is designed and adopted; (7) Wildfire 

threats are seriously underplayed in the Draft Recovery Plan and are likely to increase with climate change; (8) The ‘‘...only viable conservation strategy [in the dry 

forests of the eastern Cascades} will be to actively managed fire-prone forests and 

landscapes to sustain Spotted Owl habitat. However, this needs to be closely monitored through an adaptive management process.’’; and (9) ‘‘A simple reserve network is unsustainable in east-side fire-prone habitats. Conservation strategies, to be 

viable, must be designed and implemented at the landscape level.’’ The SEI team 

also concluded that dealing with wildfire threats to NSO habitat in the Klamath 

Province (Klamath-Siskiyou Mountains) is critical but could not reach a consensus 

on what strategies should be adopted, given the considerable ecological complexity 

of the region; hence, the team concluded that developing an active conservation 

strategy for NSO in that province is a high priority in the near future and that it 

121 

should include a team of scientific and technical experts diverse in both expertise 

and institutional affiliation. 

The SEI report on the Draft Recovery Plan emphasizes adaptive and collaborative 

approaches to approaching the several problem areas, including implementation of 

an Eastside Cascade management approach, development of a management approach for NSO in the Klamath Province, research and experimentation on Barred 

Owls; and, most important, general oversight on the implementation and effectiveness of a Final Recovery Plan. The history of the recovery planning effort and related federal activities, such as the Bureau of Land Management’s WOPR, makes 

clear that there is very little confidence in the ability of the federal agencies to objectively implement such programs without participation and oversight by scientific 

and technical personnel from outside the federal establishment. Models from other 

regional efforts, which involve independent standing committee’s of experts who are 

well educated and full engaged in regional conservation efforts, should be utilized 

in creating an oversight body for the final recovery plan. 

As is apparent from the preceding comments and the public record, the Draft Recovery Plan for the Northern Spotted Owl had significant scientific deficiencies. 

These included massive reductions in the acreage of critical habitat designated for 

the species, inappropriate extrapolation of scientific findings from the southwestern 

portions of the NSO range to its entire range, a failure to credibly address the 

threat of uncharacteristic wildfire in drier portions of the NSO range, and adoption 

of an aggressive program of Barred Owl removal without any scientific evidence as 

to whether it would be effective. All of the scientific reviews have been critical— 

intensely critical—of many aspects of the Draft Recovery Plan and of its overall scientific credibility. In effect, the Draft Recovery Plant failed all scientific tests. 

The final recovery plan for the NSO that was released last week represents a 

major improvement in scientific credibility over the draft recovery plan. The amount 

of critical habitat, identified as Managed Owl Conservation Areas (MOCAs) has 

been modestly increased, although it still falls well short of designating all suitable 

NSO habitat on federal lands. A credible strategy is provided for addressing risks 

of NSO habitat loss to uncharacteristic stand replacement wildfires has been incorporated into the plan (I will elaborate more on this later in my testimony). There 

is a plan for comprehensive scientific study and experimentation on the relationships between the barred and spotted owl prior to any extensive barred owl removal 

program. 

USFWS is to be applauded for these significant improvements in the scientific 

content of the final Northern Spotted Owl Recovery Plan. However, it is important 

that Congress recognize that these improvements are largely a consequence of the 

oversight provided by extensive public involvement, including comprehensive and 

independent scientific review during the development of the recovery plan. 

It is important to continue this kind of public oversight and broad scientific participation during the implementation of the plan. Specifically, the plan calls for the 

development of several inter-organizational working groups, including a group that 

will oversee implementation of the plan and subgroups that will deal with the research programs on Barred Owls, development of a strategy for the Klamath Province, and implementation of the eastside landscape management approach. The 

USFWS apparently intends to only populate these working groups with employees 

of federal agencies; if this is correct, it is a serious mistake. Oversight and planning 

activities of these types should draw their participants from diverse organizations 

and stakeholder groups; they should not be limited to participants from federal 

agencies. Beyond broadened participation in these processes, independent thirdparty assessments are going to be critical in assuring the viability and credibility 

of adaptive management processes. 

My personal perspectives on two specific aspects of the Final Recovery Plan 

follow: 

Conservation Areas. The 133 owl conservation areas identified in the 

plan are not adequate. These are based on an old reserve design that was 

developed by the Interagency Scientific Committee to Address the Conservation of the Northern Spotted Owl (the ‘‘Thomas Committee’’) in 1989- 

1990. This system of reserves (referred to as Habitat Conservation Areas or 

HCAs at that time) was designed to provide adequate habitat for NSOs but 

distributed so as to minimize impacts on timber harvest programs. I see no 

scientific reason why the USFWS would have based their approach on this 

old strategy. The Northwest Forest Plan provided for a much more extensive system of Late Successional Reserves (LSRs), a system of reserves superior to the HCAs in both the amount and quality of owl habitat that was 

conserved. Given the critical status of the NSO it seems appropriate to me 

to provide both the larger amount and better quality of habitat found in 

122 

the LSRs in preference to the system of MOCAs adapted from the earlier 

HCA strategy. An explanation of why LSRs were not used as the identified 

and mapped conservation area system is not provided in the Final Recovery Plan. The USFWS should use the NW Forest Plan’s system of Late Successional Reserves as the core of the NSO conservation area strategy and 

supplement it as necessary with additional designated conservation areas. 

Given the declining status of NSO populations, these additions to the LSRs 

might well include all mature and old-growth forest outside of the LSRs on 

moist forest sites. 

Eastside Dry Forest Strategy. Better explanation or elaboration of the 

highly meritorious eastern Cascade Range dry forest strategy is appropriate in both press releases and in the main body of the plan, although 

a fuller presentation is available in an appendix. The press release describes the strategy as ‘‘...one of shifting spotted owl habitat patches in an 

entire landscape...’’; the emphasis should not be on the transient or shifting 

nature of the patches since the real intent is actually to decrease the risk 

that the denser forest patches of NSO nesting, roosting, and foraging habitat will burn and, conversely, increase the probability that the designated 

patches will persist. Further, at various places the plan describes the treatments of the forests within which these patches are embedded as 

‘‘thinning’’; in fact, the silvicultural treatments are much more than simply 

thinning but, rather, restoration treatments that include prescribed fire 

and efforts to conserve and restore mature and old tree populations. 

USFWS should emphasize these landscape-level treatments as silvicultural 

treatments to restore more historic or characteristic (and, certainly, more 

sustainable) conditions and that the patches of NSO habitat will not be 

subject to significant mechanical thinning but, rather, retained intact and 

for as far into the future as possible. 

This approach of providing for sustainable owl habitat in the context of a larger, 

more holistic effort to restore the dry forest landscapes, stands, and old tree populations on the eastern slope of the Cascades is important. Optimizing the output of 

any single resource inevitably results in adverse affects on other elements of the 

ecosystem, whether organisms, processes or disturbance regimes. The proposed approach in the dry eastside Cascade forest holds the potential to benefit the full array 

of resources. 

Which leads me to my concluding comment on the NSO recovery planning process: 

I conclude my comments with a plea for holistic integrated approaches to resolution 

of natural resource management issues, including those related to endangered species. Historically there is a pattern of sequential episodes of planning and management of natural resources that essentially focus on a primary resource value. The 

dominant focus was wood production for many decades, shifted to conservation of 

biological diversity (as exemplified by Northern Spotted Owls), and, most recently 

to fuel treatments related to wildfire. It is inevitable that when we adopt a dominant focus on any single resource that there are significant negative impacts on 

other important resource values; it seems to be one of those great absolutes that 

this inevitably happens when you optimize for one specific resource outcome. Focusing primarily on timber production is a great example for we learned incontrovertibly that devoting a landscape primarily to maximizing wood production will result 

in negative impacts to many other important resource values, regardless of efforts 

at mitigation. Natural processes rarely produce forests and landscapes that ‘‘optimize’’ for specific organisms or processes, including disturbances; that is simply not 

the pattern by which they evolved. I believe that we need to stop lurching from one 

singular emphasis to another and begin to develop management regimes that truly 

integrate a variety of objectives (including timber production, provision of NSO habitat, and greater sustainability in the face elevated disturbance regimes). These approaches must be: Based on fundamental scientific knowledge about forest ecosystems and landscapes, including their integrated terrestrial and aquatic components; Holistic in their perspective and integrative in practice; and Actively engage 

stakeholders in both design and implementation, incorporate adaptive approaches, 

and provide for credible public oversight of agency performance. 

Mr. DEFAZIO. OK. Thank you for clarifying that point. 

We would now go to the next witness, and I can’t see that far. 

Dr. Francesca Grifo? 

123 

STATEMENT OF FRANCESCA T. GRIFO, PH.D., SENIOR 

SCIENTIST AND DIRECTOR, SCIENTIFIC INTEGRITY 

PROGRAM, UNION OF CONCERNED SCIENTISTS 

Ms. GRIFO. Thank you, Mr. Chairman, and thank you to the 

Committee for inviting me here today. I am a Senior Scientist and 

the Director of the Scientific Integrity Program at the Union of 

Concerned Scientists, a nonprofit working for a healthy environment and a safer world. 

One of the great strengths of the Endangered Species Act is its 

foundation in robust scientific principles. Objective scientific information and methods should be used in protecting species. The 

habitat needs of endangered species should be scientifically well-informed, and the standard of best available science must rely on impartial scientific experts. 

Unfortunately, this has not been the case. The politicalization of 

endangered species science undermines the ESA’s implementation 

and enforcement. As the GAO report confirms, in every stage of the 

process from the consideration of species for protection to the creation of recovery plans for critically endangered species, the Fish 

and Wildlife Service has both distorted science and changed the 

way it uses scientific information, creating a bias against endangered and threatened species. Julie MacDonald was truly only the 

tip of the iceberg. 

More than 80 species decisions from the past several years are 

under some type of review because of inappropriate interference for 

political or economic reasons. While we must continue to uncover 

instances where endangered species science has been manipulated, 

edited, overruled or ignored, it is equally important to determine 

what policies allow that interference to take place. 

For example, a Fish and Wildlife policy uncovered under the 

Freedom of Information Act prohibited Fish and Wildlife scientists 

from using Agency data to support the protection of endangered 

species during the 90-day finding, which is the first step in determining whether a species merits protection. 

The new policy still contains a table that requests data to refute 

the petition’s information and clearly states that the information 

within the Service’s files is not to be used to augment a weak petition, which had previously not been the case. 

Documents also show that one portion of the policy which requires a summary to be sent to Interior months before the petition 

review has been completed was implemented specifically so that 

Fish, Wildlife and Parks could discuss any issues early in the process. In the current context, we wonder what that really means. 

And while the spotlight exposing political interference in endangered species falls most harshly on Fish and Wildlife Service and 

Interior, NOAA and the Department of Commerce are not immune 

to political pressures. As we have heard, a rule intended to reduce 

fatal collisions between ships and the critically endangered right 

whale has been held at the Office of Management and Budget for 

456 days when by executive order a 90-day turnaround is required. 

Documents that we have uncovered show that the Office of the 

Vice President and White House Council of Economic Advisors 

spearheaded an attempt by the White House to discredit the 

science supporting the rulemaking. 

124 

The Council of Economic Advisors went so far as to recollect the 

raw data, reprogram a nonrandom selection of data points—some 

might call that ‘‘cherry picking’’ the data—and use the resulting 

unscientific analysis to attempt to discredit the relationship with 

vessel speed and whale mortality. NOAA scientists described this 

analysis as biased and unlike any formal sensitivity analysis we 

are familiar with. 

Secretary Kempthorne did not list a single domestic species for 

two years and five days until a court deadline forced him to make 

a decision on the polar bear. Two hundred and eighty species await 

protections on the candidate list. Our research reveals that 52 90- 

day petitions and 34 12-month reviews were denied between 2002 

and 2007. 

The Fish and Wildlife Service and the National Marine Fisheries 

Service have failed to establish a transparent means of implementing the Endangered Species Act. Agency officials are making 

decisions behind closed doors and with little accountability, giving 

those who abuse science considerable cover. 

The problem of political interference in science will not be solved 

solely by the arrival of a new Administration or the resignation of 

additional political appointees. There will always be pressure on 

elected officials from special interests to twist information in their 

favor and, for that reason, I urge this Committee to support systemic reforms. 

Specifically, meaningful publicly available ethics guidelines must 

be implemented at all agencies addressing the protection of imperiled species. We agree with GAO that the decision-making process 

must be made more transparent to expose the misuse of scientific 

information. 

Scientists should be allowed basic freedoms to carry out their 

work and keep up with advances in their field. This should include 

the right to publish in peer reviewed journals regardless of whether 

their research results agree with Administration policy or not, the 

right to speak freely based on clear media and communication policies and the encouragement to actively participate in all aspects of 

scientific societies. 

The conference committee reconciling the Whistleblower Protection Enhancement Act must give Federal scientists the right to expose political interference in their research without fear of retribution and to close in the short term and now because delay has consequences. 

Secretary Kempthorne should send a clear message to all political appointees that substituting opinions for science is not acceptable. We made this suggestion a year ago at this hearing, and we 

are still waiting. 

In light of the GAO report and the demonstrated pervasiveness 

of political interference in recent years, the Interior Department 

should engage in a systemic review of all Bush Administration decisions to ensure that the science behind those decisions was not 

altered or distorted, and Secretary Kempthorne must demonstrate 

that all 90-day reviews happen on time and are protective of species as required by law. We would like to see stakeholder input into 

the finalization of that guidance. 

125 

Given the number of recent attempts to undermine the scientific 

underpinnings of the ESA by Members of Congress and political 

appointees, congressional committees of jurisdiction must act to 

safeguard the role of science in protecting highly imperiled species. 

Thank you. 

[The prepared statement of Ms. Grifo follows:] 

Statement of Francesca T. Grifo, Ph.D., Senior Scientist with the Union of 

Concerned Scientists, Scientific Integrity Program 

This testimony is presented by Dr. Francesca Grifo, Senior Scientist with the 

Union of Concerned Scientists (UCS), a leading science-based nonprofit working for 

a healthy environment and a better world. The full testimony is submitted for the 

record. Dr. Grifo will summarize her statement for the Committee on the problem 

of political interference in the work of federal government scientists. This written 

testimony contains a critique of the ethics policies of the Fish and Wildlife Service 

(FWS), evidence of a concerted effort by political appointees to interfere with the legally mandated process of listing endangered species, examples of interference in legally mandated endangered species actions, an overview of the problem of political 

interference in science, an updated summary of documented abuses of science in Endangered Species Act (ESA) decisions, and recommended government reforms needed to restore scientific integrity to the federal policy making process. 

Chairman Rahall, Ranking Member Young, and Members of the Committee, the 

Union of Concerned Scientists appreciates the opportunity to testify today on an extremely important issue—the federal government’s implementation of the Endangered Species Act and whether the science used to implement the law has been compromised. 

One of the great strengths of the Endangered Species Act is its foundation in robust scientific principles and its reliance on the best available science. Objective scientific information and methods should be used in listing species, the habitat needs 

of endangered species should be ‘‘scientifically well-informed’’ and the Endangered 

Species Act standard of ‘‘best available science’’ must rely on ‘‘impartial scientific 

experts.’’ 

Unfortunately, time and time again, when scientific knowledge has appeared to 

be in conflict with its political goals, the current administration has manipulated 

the process through which science enters into its decisions. At many federal agencies and departments, including the Department of Interior (DOI), this has been accomplished by placing people who are professionally unqualified or who have clear 

conflicts of interest in official posts; by censoring and suppressing reports by the 

government’s own scientists, and by actually omitting or distorting scientific data. 

I. Introduction 

Politicization of the science surrounding the Endangered Species Act undermines 

its implementation and enforcement. The manipulation and suppression of this 

science is pervasive and is not limited to one aspect of the execution of the Act, but 

rather it is rampant from the first steps of the listing process to the creation of recovery plans of critically endangered species. In addition, the Fish and Wildlife 

Service (FWS) and the National Marine Fisheries Service (NMFS) have failed to establish a transparent means of implementing the Act nor one subject to a clear code 

of ethics. Instead, the agencies allow political appointees within and without the 

conservation agencies to interfere with individual species decisions and propagate 

policies that reduce the role of science in endangered species decision making. 

The Endangered Species Act is a strong and significant environmental law, but 

its implementation is wearing thin under the assault of political pressures. This failure to insulate science based decision making from political considerations frequently lands FWS and NMFS in court, on the losing side of litigation. Decisionmaking occurs out of the view of the public, and out of reach of open government 

laws like the Freedom of Information Act. 

While it is imperative that we continue to uncover instances where endangered 

species science has been manipulated, edited, overruled, or ignored in its entirety, 

it is equally important to determine what policies exist or existed in the DOI and 

Department of Commerce to allow such interference to take place. Listing under the 

ESA is based solely on science; critical habitat and recovery plans can include economic and other concerns, but shouldn’t be allowed to completely outweigh scientific 

conservation goals. With 80 FWS and NMFS decisions (Appendix I) under review 

because of political interference, this process of investigation of possibly illegal decisions has already begun. Unfortunately, FWS in its current capacity cannot be 

126 

1Kempthorne, Dirk. Memorandum to All Employees. Subject: Promoting Ethics, the Public Interest, and Respectful Behavior. June 27, 2007. Hosted online by Public Employees for Environmental Responsibility (PEER) at http://www.peer.org/docs/doi/07l03l07ldoilethicsl directive.pdf 2Kempthorne, Dirk. Amendment No. 1 to Order No. 3268. Subject: Creation of the Conduct 

Accountability Board at the Department of the Interior. July 25, 2007. Hosted online by PEER 

at http://www.peer.org/docs/doi/07l17l12lcablscope.pdf 3Department of Justice. Former Interior Deputy Secretary Steven Griles Sentenced to 10 

Months in Prison for Obstructing U.S. Senate Investigation into Abramoff Corruption Scandal. 

June 26, 3007. Available online at http://www.justice.gov/opa/pr/2007/June/07lcrml455.html 4 Andrews, Edmund L. Interior Official Assails Agency for Ethics Slide. The New York Times. 

September 14, 2006. 5 Ibid. 

6Wyden, Ron. Press Release: Wyden Asks Secretary Kempthorne for Answers on Interior 

Ethics Concerns. July 19, 2007. Available online at http://wyden.senate.gov/newsroom/ 

record.cfm?id=279869& 

relied upon to initiate these reviews themselves, as they only found 7 decisions to 

review. Systemic problems are more difficult to detect from the outside, and more 

difficult to root out. However, we are hopeful that with clear, unambiguous ethics 

policies, a renewed commitment to transparent decision making, and a working environment free of interference and intimidation from high level political appointees, 

the career scientists and managers of the conservation agencies will be able to identify and correct the processes that have lead to the current abysmal situation. 

This testimony includes our analysis of the beginnings and failings of ethical reform at the DOI and FWS (page 1), problems with listing species under the ESA 

both at the anecdotal level and the procedural level, a discussion of the inherent 

flaws in the 90-day review policy (page 4) the problems in the implementation of 

the Act after listing, highlighting the recent case of the right whale, (page 9) and 

a discussion of the economic consequences of politically influenced decisions, and 

policies that may reduce species protections (page 12). In conclusion we present our 

recommendations for how this can be remedied (page 13). 

II. Ethics at the Department of the Interior (DOI) and FWS 

Many of the problems with the implementation of the ESA stem from political appointees manipulating or overruling the science behind ESA decision-making. A 

strong ethics policy should address this problem, together with greater accountability, more transparency, and a retaliation-free environment for reporting political 

interference. Recent ethics policies at DOI and FWS attempt to achieving this goal, 

with varying degrees of success. 

Secretary Kempthorne’s Ethics Reform 

In June 2007, Department of Interior Secretary Dirk Kempthorne unveiled a 10- 

point ethics plan designed to transform the FWS into ‘‘a model of an ethical workplace.’’ 1 A month later, Kempthorne quietly scaled back the scope and utility of one 

of the central pillars of his plan, the Conduct Accountability Board. 2 Jurisdiction 

of the Board was limited to cases involving ‘‘Executive Level’’ employees—less than 

1% of the Interior workforce—and the Board was only allowed to review matters referred to it by the Deputy Secretary and Chief of Staff. 

This means that if former Deputy Secretary Steven Griles, now serving time in 

federal prison for obstruction of justice related to his unethical connections to Jack 

Abramoff, 3 was still at Interior he could have determined whether his conduct 

would be eligible for Board review. Griles was the subject of an Inspector General 

investigation probing Griles’ arrangement of meetings between former clients in the 

oil and gas industry and Interior Officials. Inspector General Earl E. Devaney expressed outrage before the House Government Reform Subcommittee on Energy on 

Sept 13, 2006 that 23 of 25 potential ethical violations he had uncovered were dismissed, and then-Secretary of Interior Gale Norton decided not to act on the remaining two allegations. 4 As for the general ethics of the DOI’s leadership, Mr. 

Devaney charged, ‘‘Simply stated, short of a crime, anything goes at the highest levels of the Department of the Interior.’’ 5

It is unclear what functionality, if any, the Conduct Accountability Board retains. 

The first chair of the Board, Mark Linbaugh, then-assistant secretary for water and 

science, resigned 16 days after his appointment to chair in order work for the Ferguson Group as a water lobbyist for industry. 6 Kempthorne had also identified 

Linbaugh as one of the Department officials charged to review the ethics issues 

raised by the Inspector General’s report on Julie MacDonald. The IG determined 

that MacDonald, former Assistant Secretary of Fish, Wildlife, and Parks, had been 

‘‘heavily involved with editing, commenting on, and reshaping the Endangered Species Program’s scientific reports from the field’’ and had ‘‘disclosed nonpublic inforVerDate Aug 31 2005 15:00 Sep 25, 2008 Jkt 098700 PO 00000 Frm 00130 Fmt 6633 Sfmt 6621 L:\DOCS\42492.TXT Hresour1 PsN: KATHY
127 

7Department of the Interior Office of the Inspector General. Investigative Report On Allegations Against Julie MacDonald, Deputy Assistant Secretary, Fish, Wildlife, and Parks. Available 

online at http://wyden.senate.gov/DOIlIGlReport.pdf 8Scarlett, Lynn. Committee on Natural Resources hearing transcript. Hearing entitled: Endangered Species Act Implementation: Science or Politics? May 9, 2007. 9 Hall, Dale. Scientific Code of Professional Conduct. Jan 30, 2008. Available online at http:// 

www.fws.gov/science/ 10 Ibid. 11 Union of Concerned Scientists. FWS Decrees the Southwestern Bald Eagle is Safe, in Spite 

of Science. FOIA documents on the southwestern bald eagle all obtained by the Center for Biological Diversity and generously shared with UCS. Available online at http://www.ucsusa.org/scientificlintegrity/interference/fws-decrees-southwestern-bald-eagle-safe.html 12 Ibid. 13 Hall, Dale. Scientific Code of Professional Conduct. Jan 30, 2008. Available online at http:// 

www.fws.gov/science/ 14Meeting between Deputy Secretary Lynn Scarlett and conservation groups, including UCS. 

Jan 14, 2008. 

mation to private sector sources.’’ 7 Interior Deputy Secretary Lynn Scarlett refused 

to condemn MacDonald’s actions in testimony on May 9, 2007 before this committee; 

she instead said that MacDonald ‘‘strived to do what she thought was her duty to 

ensure quality product.’’ 8

The Department of Interior clearly needs an ethical conduct board to review the 

actions of its high level appointees, and it also needs to send a stronger message 

that, at every level of its leadership, it will adhere to strong ethical standards. It 

also needs to open the charge of the Board to review allegations from all-comers, 

not just two high ranking officials. 

FWS Code of Scientific Conduct 

Fish and Wildlife Service Director Dale Hall also took steps towards ethical reform at his agency. In late January 2008, Hall released a Scientific Code of Professional Conduct that covers FWS employees. 9 While a positive first step, we believe 

this code has many shortfalls. The code does not encourage transparency. There is 

no way for scientists to express their difference of opinion on a regulatory decision. 

The code also does not create protections for scientists who express concerns about 

interference in science, or an outlet for them to do so anonymously without fear of 

reprisal. 

We are particularly concerned about two sections of the code. Section 7.7 (F) 

states that employees, should ‘‘Strive to understand and accurately interpret, report, 

and apply scientific information to support management decisions affecting fish and 

wildlife and their habitats.’’ 10 There are several documented cases of political interference where scientists were forced to manipulate their data to support pre-determined management decisions. For example, FOIA documents show that Benjamin 

Tuggle, regional director of the FWS Southwestern office, and Ren Lohoefener, 

former assistant director for the Endangered Species Program in the FWS Washington D.C. Office, ‘‘reached a policy call’’ that the southwestern bald eagle did not 

meet the requirements under the ESA to be listed as a distinct population segment, 

or DPS. 11 In order to support this decision, FWS scientists were instructed during 

a meeting that the ‘‘answer has to be that it’s not a DPS’’ and ‘‘now we need to find 

an analysis that works.’’ 12 We are concerned that the implementation of this clause 

in the ethics policy could further systemize situations like that of the bald eagle decision. 

Section 7.9(C) states that ‘‘Employees must...Be forthright and honest about the 

scientific foundation used for possible policy options and the uncertainties associated 

with any resulting prediction of consequences for fish and wildlife and their habitats.’’ 13 Exaggerating scientific uncertainty is a common approach for political opposition to a science-based rule, so while we wholeheartedly agree that employees 

should be fully honest about scientific uncertainty, they should also be fully protected from the misinterpretation of this uncertainty. 

While the concerns above are all serious issues that should be addressed, the principal problem with this code of conduct is that it doesn’t cover the leadership at the 

Interior Department. In a mid-January 2008 meeting between Deputy Secretary 

Lynn Scarlett and several conservation organizations, Scarlett stated that the Interior Department could not create an overarching scientific code of ethics because the 

agencies varied too widely in their mission and procedures for decision making. 14

The Department should be able to agree on a basic set of ethics to guide how science 

is used to inform decisions. We encourage the Interior Department as a whole to 

adopt a policy like the FWS Scientific Code of Professional Conduct, taking note of 

our concerns. If it is truly impossible for Interior to adopt a uniform ethics code, 

128 

15Kempthorne, Dirk. Secretary Kempthorne Announces Decision to Protect Polar Bears under 

Endangered Species Act. May 14, 2008. Available online at http://www.fws.gov/home/feature/ 

2008/polarbear012308/pdf/DOIlpolarlbearslnewslrelease.pdf 16 Center for Biological Diversity. Bush Sets New Record in Refusing to Protect Endangered 

Species. May 9, 2008. Available online at http://www.biologicaldiversity.org/news/pressl 

releases/2008/esa-listing-05-09-2008.html 17The Endangered Species Act. Available online at http://www.fws.gov/endangered/pdfs/ 

ESAall.pdf 18 50 CFR 424.14(b) 

then it should formally agree to abide by and be subject to the ethics codes of its 

individual agencies in its dealings with them. 

III. Problems with Listing 

On May 14, 2008, Department of Interior Secretary Dirk Kempthorne, acting 

under a court ordered deadline, listed the polar bear as threatened under the Endangered Species Act. 15 Until that day, Kempthorne had gone two years and five 

days without listing a single domestic species, the longest drought in listing in the 

history of the ESA. 16

The implementation of the listing process for the Endangered Species Act is broken. While we do not have a clear picture for why the listing process has been so 

effectively severed, we believe it is a combination of individual actions against species and a biased policy on evaluating petitions that discriminates against listing. 

The following cases support this idea, but a thorough examination of the full policies 

and procedures governing listing is needed to ensure that imperiled species received 

the protections guaranteed to them by the ESA. 

An Unfair Policy on 90-Day Petitions 

The FWS policy on conducting reviews of citizen petitions for ESA protection of 

species is biased towards denying listing, likely raises the standard that a petition 

must meet higher than is required by the Act and federal regulations, and prevents 

a full picture of the ‘‘best available scientific and commercial data’’ from being used 

in this first and critical stage towards listing. Through documents, many highly redacted, obtained via the Freedom of Information Act, UCS establishes that the implementation of the 90-day petition review process is open to political interference 

from high ranking officials in the FWS and DOI, and is likely part of the reason 

that the listing process ground to a halt for two full years. 

An overview of the rules governing listing—Two listing pathways were established for imperiled species in Endangered Species Act—a discretionary pathway 

where FWS can initiate the listing process either by placing a species on the candidate list or by issuing a proposed listing rule, and a pathway for action by the 

public. The listing record clearly shows that citizen petitions, and the court settlements enforcing their timetables, are the primary entry point to the endangered 

species list. The Service, for whatever reasons or constraints, rarely initiates its own 

reviews. 

The first stage of the citizen-initiated listing pathway is the 90-day period, where 

the FWS determines whether or not to do a full-scale review of the species for listing. This process is determined by Sect 4(b)(3)(A) of the Endangered Species Act, 

which states, 

‘‘To the maximum extent practicable, within 90 days after receiving the petition of an interested person under section 533(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.’’ 17

The standard for substantial information within the Code of Federal Regulations 

(CFR) is ‘‘that amount of information that would lead a reasonable person to believe 

that the measure proposed in the petition may be warranted.’’ 18 Petitioners are not 

required to prove that a listing is warranted, only to demonstrate the reliability of 

the information they present supporting the action advocated by the petition. 

The FWS interpretation of listing rules—Through the narrow glimpse available 

through FOIA documents, the FWS policy for reviewing 90-day petitions interprets 

the Act and its accompanying regulations in such a way that the petition listing 

route is effectively closed. FWS internal memos (Appendix II) show that their policy 

(which updated policies from 1995, but which we have been informed has been since 

slightly modified) interprets the Act to mean that, ‘‘it is the responsibility of the petitioner to provide substantial scientific or commercial information to support the 

129 

19Memorandum from the Director. Policy on 90-Day Petition Findings Under the Endangered 

Species Act. Sent to the Region heads by Chris Nolin on November 8, 2006. Obtained via FOIA 

by UCS. Appendix II. 20 Ibid. 21 Email from Michelle Morgan. Subject: New petition outline. May 2, 2005. Obtained via 

FOIA by UCS. Available from UCS upon request. 22Previous two references, and also: Listing meeting notes (regarding the southwestern bald 

eagle). May 16, 2005. Obtained via FOIA by the Center for Biological Diversity. All bald eagle 

FOIAs referred to in this testimony obtained by CBD. Available online at http:// 

www.biologicaldiversity.org/news/presslreleases/desert-bald-eagle-05-17-2007.html 23Memorandum from the Director. Policy on 90-Day Petition Findings Under the Endangered 

Species Act. Sent to the Region heads by Chris Nolin on November 8, 2006. Obtained via FOIA 

by UCS. Appendix II. 

petitioned action.’’ 19 The Service, in its implementation of this clause, requires the 

petition to be both legally and scientifically comprehensive, a standard which the 

average citizen or even the average environmental group cannot easily meet. 

In fact, FWS policy explicitly prevents its scientists from using information they 

already have within their own files to support a citizen’s petition. A memo obtained 

through FOIA entitled ‘‘Policy on 90-Day Petition Findings Under the Endangered 

Species Act’’ emailed to the regional directors on 11/08/2006 by Chris Nolin (chief 

of the division of conservation and classification at the Fish and Wildlife Service) 

says, in the section discussing the scope of information to be considered, that information in FWS files is only to be used to 

‘‘...evaluate the reliability of the information contained within the petition...The information within the Service’s files is not to be used to augment 

a ‘weak’ petition. If we have information independent of that provided in 

the petition that is sufficient to support a change in the species’ listing status, it is the Service’s responsibility to utilize our internal candidate, listing, and delisting priorities and processes.’’ (Emphasis in original). 20

Again, FWS rarely initiates its own review of species, so refusing to continue a 

90-day petition in the face of Service data suggesting that the species needs review 

is the least protective option FWS could take. 

FWS formalized the attitude that Service information should only be used to discredit a listing petition, and not augment it in such a way that imperiled species 

would quickly receive protections, by creating a new procedure for the review process, known as the 90-day petition outline and table. The new procedure, which FWS 

has told UCS was only used during 2005 and 2006, was requested by the office of 

the Assistant Secretary of Fish, Wildlife, and Parks as an early-warning system to 

allow them to ‘‘discuss any issues early in the process.’’ 21

FWS scientists now had to prepare a 1-2 pages summary and an attached table 

detailing specifically each claim made in the petition, the information in the petition 

to support each claim, and if there was information in the Service’s files to refute 

the petition. In fact, one column of the table explicitly calls for FWS information 

to refute the petition; there is no corresponding column for supporting information, 

and FWS scientists were explicitly told they could not use any. 22 This outline and 

table were due at the Washington Office at least 2 months before the petition analysis was completed, so that the Washington Office could forward this report up the 

Assistant Director’s level. 23

Specific flaws in the current interpretation—The FWS 90 day policy is fundamentally flawed for the following reasons: 

1. The policy does not allow the use of the best available science. Listing decisions 

are required by the Act to be based on the best available science. The 90-day 

petition is the first step towards listing. Selective use of data in the review of 

a species is inherently not using the best available scientific data. 

2. Scientific data in Service files is used in a biased manner which favors denying 

protections. Only allowing information from Service files to be used to refute 

a petition, not support a petition, is an uneven use of the taxpayer-funded 

science of the FWS. FWS files may contain the critical information suggesting 

that a species requires immediate protections, but the FWS policy prevents its 

employees from using this information in conjunction with the review already 

underway to make sure threatened and endangered species get their protections in a timely fashion. Instead, the policy requires Service employees to use 

their information to start a separate internal review, a process which rarely 

happens. Also, since the issue at hand is the protection of species threatened 

with extinction, bureaucratic delays due to uneven policies can and surely will 

result in the unnecessary extinctions. 

3. The FWS policy lacks transparency. UCS requested the 90 day tables and the 

policies regarding the 90 day process in a FOIA request on November 28, 2007. 

130 

24 Union of Concerned Scientists. Systematic Interference with Science at Interior Department 

Exposed: Gunnison’s Prairie Dog. Available online at http://www.ucsusa.org/scientificlintegrity/ 

interference/endangered-species-act-interference.html 

Six months later, we still only have a partial response. In what we have received, FWS has redacted all of the ‘‘Service conclusion’’ portions of the table 

which would allow you to see the effects of their selective use of scientific data. 

FWS claims that their conclusions are predecisional. This response is inconsistent with FWS’s response to a FOIA request by the Center for Biological Diversity (CBD) regarding the southwestern bald eagle, in which no parts of the 

90-day table were redacted. 

4. The policy likely raises the burden of proof higher than is required by the Act 

or the CFR. According to the Act and the CFR, the petitioner has to provide 

substantial information that the petitioned action is warranted. They do not 

have to present an air-tight case that the species is warranted for the petitioned action—that is the threshold for the 12-month process. The CFR says 

they have to present enough information that a ‘‘reasonable person’’ would believe the action to be warranted. While we cannot tell the precise effects of the 

use of selective data because of the redactions in our FOIA, the table provided 

to the CBD for the bald eagle shows that 34 of their points were rated ‘‘substantial’’ while 4 points were rated ‘‘information in dispute’’. FWS subsequently 

denied Bald Eagle petition, but a court has since ordered a 12 month review 

of this subpopulation because of evidence that the scientists were forced to manipulate their findings to support a predetermined policy position. 

5. FWS scientists are not allowed to use their full expertise. Hamstringing the 

ability of taxpayer-funded scientists with unfair restrictions on the use of data 

does a great disservice to the scientists, the imperiled species, and the public. 

From what we can tell from the redacted 90-day tables provided to us, FWS 

are not always adhering to the restrictions in the FWS policy, and we applaud 

them for their efforts. 

6. The policy opens up the review process to political appointees. The inclusion 

of the 90-day table and outline to the review process was done so explicitly at 

the request of the Office of Fish, Wildlife and Parks. Internal emails show that 

conversations with the Assistant Secretary’s office were the catalyst for the inclusion of the column for information which refutes, never supports, the petition. The Assistant Secretary’s office has, through its former deputy assistant 

secretary Julie MacDonald, a documented history of manipulating, distorting, 

and suppressing endangered species science, and overturning the listing decisions of FWS scientists by executive fiat. It is not a stretch to assume that the 

90-day outline and table were a part of the inappropriate interference of this 

office. While FWS says that the table is no longer being used in the petition 

process, we do not know if it has been replaced with something else, or if FWS 

has taken steps to insulate its scientists from the unacceptable manipulation 

of high level political appointees. 

Individual Examples of Political Interference in Listing Decisions 

In species after species, scientific data has been minimized, edited, or overruled 

to deny ESA protections to imperiled species. Among the species whose listing decisions have been subject to political interference are the greater sage grouse, Gunnison sage grouse, Gunnison’s prairie dog, white tailed prairie dog, Mexican garter 

snake, southwestern bald eagle, Preble’s meadow jumping mouse, Sacramento 

splittail, California tiger salamander, roundtail chub, Tabernaemontana rotensis (a 

rare island tree), fluvial arctic grayling, and the Pierson’s milkvetch. Most of these 

are now under investigation by either FWS, the Department of Interior IG, the Government Accountability Office, or the courts. We will highlight a few cases (See Appendix I for more examples): 

Gunnison’s prairie dog—This species was on track for a positive 90-day finding 

as of Jan 19, 2006. But a short email saying ‘‘Per Julie please make the pd [prairie 

dog] finding negative’’ overruled the scientists at FWS and the best available science 

on this species. When FWS announced it would review eight species decisions impacted by Julie MacDonald, it did not include this species in the list that they would 

revisit. Senator Wyden has since request an IG investigation including this prairie 

dog. 24

Greater sage grouse—Julie MacDonald criticized scientific studies showing widespread threats to this species. MacDonald heavily edited the biologist’s findings and 

the species received a 12-month not-warranted finding. This finding has since been 

131 

25 Union of Concerned Scientists. Systematic Interference with Science at Interior Department 

Exposed: Greater Sage Grouse. Available online at http://www.ucsusa.org/scientificlintegrity/interference/endangered-species-act-interference.html# 26 Center for Biological Diversity. Bush Sets New Record in Refusing to Protect Endangered 

Species. May 9, 2008. Available online at http://www.biologicaldiversity.org/news/pressl releases/2008/esa-listing-05-09-2008.html 27Department of the Interior. 72 FR 69034. 28 UCS. FOIA into use of the 90-day table. Available upon request. 29 Appendix I 30 NOAA Fisheries—Office of Protected Resources. North Atlantic Right Whales (Eubaleana 

glacialis) webpage. http://www.nmfs.noaa.gov/pr/species/mammals/cetaceans/rightwhalelnorth 

atlantic.htm 31 NOAA. Proposed Rule to Implement Speed Restrictions to Reduce the Threat of Ship Collisions with North Atlantic Right Whales. 71 FR 36299, 36300. June 26, 2006. 32Stock Assessment, 12. NOAA. Advanced Notice of Proposed Rulemaking for Right Whale 

Ship Strike Reduction. 69 FR 30857. June 1, 2004. 33 NOAA. Proposed Rule to Implement Speed Restrictions to Reduce the Threat of Ship Collisions with North Atlantic Right Whales. 71 FR 36299, 36300. June 26, 2006. 34Office of Information and Regulatory Affairs (OIRA). EO 12866 Regulatory Review—Search 

results for Department of Commerce. http://www.reginfo.gov/public/do/eoPackageMain 35 Executive Order No. 12866. 58 FR 51734. Oct 4, 1993. 

struck down in court due to the direct political interference overriding the use of 

best available science. 25

An Unclear Future 

Two full years and a handful of days, from May 9 2006 to May 14, 2008, passed 

in which Secretary Kempthorne failed to list a single domestic species. 26 This was 

not due to a lack of species—280 species await protections on the candidate list, 27

and our FOIA reveals that 52 90-day petitions and 34 12-month reviews were denied between 2002 and 2007. 28 With over 80 species decisions from a similar time 

period under various public, court, congressional, IG, or GAO reviews because of inappropriate interference for political or economic reasons, 29 our faith that those petition denials were done in a fair and scientifically accurate process is greatly 

eroded. 

IV. Problems with Implementation after listing 

Listing is not the only area of Endangered Species Act implementation that is 

under assault from political interference. The pieces of the Act intended to ensure 

species’ recovery—critical habitat and recovery plans—are subject to interference via 

delay, manipulation of science, biased cost-benefit analyses, and more. We highlight 

here a few blatant cases of politicization. 

Right Whale Interference 

Political interference in endangered species decisions is not limited to the FWS 

and DOI. A new investigation by the Union of Concerned Scientists reveals unprecedented interference with a proposed rule intended to minimize losses of the critically 

endangered Northern Atlantic right whale. Documents show that five executive 

branch offices—The Office of Management and Budget, the Council on Environmental Quality, the Office of Science and Technology Policy, the Council of Economic Advisers, and the Office of the Vice President—have all been involved in 

blocking the National Marine Fisheries Service from issuing the rule to protect 

whales from fatal collisions with ships. 

The right whale is critically endangered—Only about 300 right whales remain on 

the East Coast, and their numbers are threatened by fatal collisions with ships and 

entanglement in fishing gear. 30 Ship strikes have caused at least 19 right whale 

deaths since 1986, with more suspected but unconfirmed. 31 According to NMFS, ‘‘no 

mortality or serious injury for this [whale] can be considered insignificant’’ and that 

the death of even a single whale, particularly a breeding female, ‘‘may contribute 

to the extinction of the species.’’ 32

As part of its efforts to protect the remaining individuals of the species, NMFS 

proposed a rule to implement a 10-knot speed limit around 16 Atlantic ports and 

coastal areas during the seasons of right whale feeding, migrating, and reproducing. 33 After an extensive, thorough, and transparent four years of drafting, NMFS 

sent its final rule to OMB for review on Feb 20, 2007. 34

OMB delays the rule—Under the executive order authorizing the OMB to review 

regulations, OMB must complete its rule within 120 days—90 days plus a 30-day 

extension. 35 The date of this hearing, May 21, 2008, will mark 456 days since the 

rule was sent to OMB. 

White House repeatedly attacks the science underlying the rule—Internal documents obtained by UCS from anonymous sources show that offices within the White 

132 

36 NOAA. Response to the Office of the Vice President—Ship Strike Rulemaking. Oct 2007. 

Available online at http://oversight.house.gov/documents/20080430104427.pdf 37 Ibid. 38 NOAA. Response to Council of Economic Advisers’ (CEA) Analysis of Vessel Speed vs. Whale 

Ship Strikes. July 31, 2007. Available online at http://oversight.house.gov/documents/ 

20080430104427.pdf 39 Appendix III. Side by side comparison of NMFS analysis of right whale mortality vs ship 

speed with the CEA analysis of the same thing. 40Private communication with Dr. Amy Knowlton and Dr. Christopher Taggart. 41 NOAA. Response to Council of Economic Advisers’ (CEA) Analysis of Vessel Speed vs. Whale 

Ship Strikes. July 31, 2007. Available online at http://oversight.house.gov/documents/ 

20080430104427.pdf 42 Ibid. 

House have repeatedly challenged and attempted to discredit the scientific work of 

NMFS scientists with the goal of altering the rule. 

1. The Office of the Vice President claims NMFS has ‘‘no data’’. In private communication, UCS has been told that the OVP has repeatedly challenged NOAA/ 

NMFS conclusion that slowing ships, even ships of extremely large size, will 

reduce whale mortality. This is supported by the documents obtained by UCS. 

One document dated October 2007 shows NMFS employees replying to unfounded attacks from the Office of the Vice President: 

‘‘OVP staff wonders what evidence NOAA has of whales surviving a collision with a ’large ship.’ OVP staff contends that we have no evidence (i.e., 

hard data) that lowering the speeds of ‘‘large ships will actually make a difference.’’ 36

NOAA’s reply indicated this was not the first time they had to defend 

against these allegations: 

‘‘Several types of statistical analysis (provided earlier) of the ship strike 

records and theoretical physics (provided earlier and appearing in peer-reviewed literature) indicated that vessel speed is a critical variable in reducing the severity of a ship strike.’’ ‘‘The size parameter is not statistically 

significant in the models which incorporate it, while speed is significant in 

all the models that included it’’ ‘‘Accordingly, these theoretical exercises 

provide no basis to overturn our previous conclusion that imposing a speed 

limit on large vessels would be beneficial to whales.’’ 37

2. The Council of Economic Advisers conducts a biased analysis. After a meeting 

on July 10, 2007 involving NOAA, DOC, OMB, OSTP, OVP, and CEA to discuss the right whale ship speed rule, CEA announced it would ‘‘investigate the 

reliability of analysis in the published literature on which NOAA is basing its 

position.’’ 38 UCS has obtained a copy of that analysis, which can be seen in 

Appendix III in a side by side comparison to the NOAA analysis. 39 NOAA 

helped CEA construct the database of ship strike records; CEA also solicited 

information directly from academic researchers. Christopher Taggart of 

Delhousie University and Amy Knowlton of the New England Aquarium were 

both asked for data and analysis by CEA. 40

For its analysis, CEA’s staff, which has no expertise in either the right whale or 

scientific biometrical modeling, re-coded a non-random selection of datapoints, and 

concluded that the relationship between whale mortality and ship speed is not as 

strong as is suggested by career NOAA scientists and independent, peer-reviewed 

publications. CEA also questioned the choice of 10 knots as a speed limit. 41

NOAA responded to the CEA analysis in a document obtained from an anonymous 

source. In this document, NOAA says: 

‘‘NOAA has reviewed CEA’s analysis and finds it is a biased sensitivity 

analysis. ‘‘Furthermore, this analysis is unlike any formal sensitivity analysis NMFS biometricians are familiar with.’’ ‘‘The basic facts remain that 

(1) there is a direct relationship between speed and death/serious injury, 

and (2) at vessel speeds at or below 10 knots the probability of death/serious injury is greatly reduced.’’ 42

3. NOAA and NMFS scientists have been assailed by attempts to undermine their 

science. Through private communications, leaked documents, public records 

and anonymous mailings, UCS has determined that NOAA scientists have 

been constantly challenged by industry, White House agencies, and other departments within the federal government. 

• As yet another challenge to the NOAA research, OSTP contracted a scientist from Woods Hole Oceanographic Institute to conduct yet another 

study on ship speed and right whale mortality. UCS has been unable to 

133 

43Private communication. 44Office of Management and Budget. Public Comments webpage for NOAA. http:// 

www.whitehouse.gov/omb/oira/0648/comments.html 45 NOAA. Responses to 16 November Questions from the White House on Right Whale Ship 

Strike Reduction Final Rule. November 20, 2007. Available online at http://oversight.house.gov/ 

documents/20080430104534.pdf 46Private communication. 47 Appendix I. 48DellaSala, Dominick. Written testimony for the House Natural Resources Committee Hearing entitled ‘‘Endangered Species Act Implementation: Science or Politics?’’ May 9, 2007. http:// 

www.nccsp.org/files/land/spottedowltestimonydds.pdf 49FWS. Draft Recovery Plan for the Northern Spotted Owl: Merged Options 1 and 2. April 

2007. Available online at http://www.fws.gov/pacific/ecoservices/endangered/recovery/documents/ 

DraftRecoveryPlanNorthernSpottedOwlWEBl000.pdf 50FWS. N. Spotted Owl Draft Recovery Plan peer reviews. See in particular the Society for 

Conservation Biology (North American Section) and American Ornithologist’s Union review. 

http://www.fws.gov/pacific/ecoservices/endangered/recovery/peer.html 

find a copy of this report, and the scientist has signed a confidentiality 

agreement. 43

• The World Shipping Council, and industry group, has been pressuring OMB to 

dismiss or seriously alter the rule. The shipping community is not united in this 

attitude, as the Chamber of Shipping of America supports the rule with minor 

exemptions. 44

• NOAA fielded at least one other round of questions from the White House, this 

time questioning calf birth data, the impact force required to kill a whale, and 

the decision of 30 nautical miles as the radius around points of concern. NOAA 

responded to these questions on Nov 20, 2007. 45

• The Maritime Administration, a branch of the Department of Transportation, 

has repeatedly challenged the rulemaking in internal, private meetings. 46

It is wholly inappropriate for White House agencies to attempt to manipulate 

right whale science—The case of the right whale speed rule displays political interference in science at its worst. NOAA scientists have done absolutely everything required of them in the rulemaking, conducting an open and stakeholder-accessible 

process based on the best available science. Unfortunately, we have no idea if their 

staunch defense of their rule has been successful, both because the rule is delayed 

and because the current executive branch review of the rule is completely opaque. 

Uncovering this story took time and patience, as the good scientists at NOAA 

wrestled both wanting the political interference to be exposed and fearing for retaliation against themselves and the rule itself. However, through anonymous documentation, it is now clear that White House agencies have conducted two separate 

studies attempting to inject artificial uncertainty into the relationship between ship 

speed and whale mortality; one of these studies was biased and did not follow accepted, peer-reviewed practices for analysis. The Office of the Vice President has 

boldly doubted the conclusions of the NOAA scientists, and the OMB has delayed 

the rule for a year and three months. 

Political Interference in Other Species Protections 

Besides the right whale, many other species have suffered from political interference reducing their chances at recovery. Among them are the arroyo toad, bull 

trout, California red-legged frog, Canada lynx, three invertebrates living in Comal 

Springs, the gulf sturgeon, loach minnow, Northern spotted owl, Preble’s meadow 

jumping mouse, Santa Ana sucker, southwestern willow flycatcher, spikedace, and 

the Topeka shiner. 47 Many of these are under investigation (Appendix I). We will 

highlight two of these cases—the spotted owl shows high level interference in a recovery plan, and the bull trout shows a common practice of manipulating a costbenefit analysis to significantly reduce critical habitat. 

Spotted Owl—High ranking officials from the DOI, FWS, and the other federal 

land agencies intervened in the recovery plan for the northern spotted owl, compromising the science-based protections in order to reduce barriers to increased logging 

in old-growth forests. 48 According to peer review by scientists, the draft Northern 

Spotted Owl Recovery Plan 49 prepared in 2007 by FWS is a hodgepodge of deliberately misrepresented or selectively applied science that downplays the importance 

of habitat loss. 50 It also includes a second management option, forced upon the recovery team by senior officials, that eliminates fixed protected areas for the bird. 

Bull trout—Officials at the FWS censored an analysis of the economics of protecting the bull trout, a threatened trout species in the Pacific Northwest, publishing only the costs associated with protecting the species and deleting the report’s 

section analyzing the economic benefits. Furthermore, while the benefits of protecting the bull trout were deleted from the economic analysis, the costs associated 

134 

51FWS press release, ‘‘Draft Economic Analysis of Critical Habitat Proposal for Bull Trout in 

the Columbia and Klamath River Basins Released for Public Comment,’’ April 5, 2004. Available 

online at http://news.fws.gov/newsreleases/r6/E6CD3A83-F8FD-484C-8523CF328EC43D93.html. 52 Endangered Species Coalition. Political Interference and the Loss of Salmon: How Federal 

Biological Opinions Affected the Salmon Fishing Closure. Available upon request. 53Pool, Richard. Testimony before the Subcommittee on Fisheries, Wildlife and Oceans. May 

15, 2008. Available online at http://resourcescommittee.house.gov/images/Documents/20080515/ 

testimonylpool.pdf 54Department of the Interior Office of the Solicitor. Subject: The Meaning of ‘‘In Danger of 

Extinction Throughout All or a Significant Portion of its Range.’’ March 16, 2007. Available online at http://www.doi.gov/solicitor/M37013.pdf 55Kempthorne, Dirk. Secretary Kempthorne Announces Decision to Protect Polar Bears under 

Endangered Species Act. May 14, 2008. Available online at http://www.fws.gov/home/feature/ 

2008/polarbear012308/pdf/DOIlpolarlbearslnewslrelease.pdf 

with this species’ protection were inflated. 51 An exaggerated cost analysis and a deleted benefits analysis essentially give the FWS the economic justification, under 

the ESA, to disregard scientific information when designating critical habitat for the 

endangered bull trout. 

Economic Consequences 

Political interference in science not only delays or prevents much needed protections for imperiled species; it can also have drastic economic consequences. For example, in two scientifically compromised decisions, FWS and NMFS determined that 

water use plans in California would not harm several species of endangered fish, 

including the delta smelt, winter and spring run Chinook salmon, and Central Valley Steelhead. Federal courts later confirmed the allegations that politics overruled 

science and struck these decisions down, demanding they be rewritten. However, 

implementation of water use plans had already begun to move forward based on 

these illegal decisions. 52

The costs, both economic and ecological, of these decisions are innumerable and 

far-reaching. California is experiencing severe drops in populations in many fish 

species and the salmon fishery in the Sacramento system has crashed, along with 

several other species in the Delta. The federal government has been asked for $150 

million in disaster relief for the fishing industry, and the recreational fishing industry (a $4.8 billion industry supporting 41,000 jobs) and recreational boating ($60 

million in sales in 2006) will be hit hard. 53 Additional costs, yet undetermined, will 

be incurred by agriculture and the urban water industries as water deliveries to 

urban and farming areas are cut dramatically in an attempt to bring these species 

back from the brink. Had the FWS and NMFS used the best available science and 

determined that the proposed water delivery options would jeopardize these species 

in the first place, the region might not be in the critical situation it finds itself in 

now. 

New Policies of Concern 

On March 16, 2007, the Interior Office of the Solicitor issued a memorandum reexamining what the ESA means when it defines an ‘‘endangered species’’ as one 

which is ‘‘in danger of extinction throughout all or a significant portion of its 

range.’’ 54 The conclusion of this memo finds that the range of a species is limited 

to that area where it currently exists, and should not include any range in which 

the species historically existed but has since been extirpated. This conclusion will 

likely impact both listing and the protection of listed species. Many endangered species live in habitats of severely reduced size due to urban encroachment or pollution. 

If FWS rules that species have no right to their historic range, many will be left 

in situations where they simply cannot recover to the point where than can be removed from the endangered species list. 

In addition, simultaneous to the listing of the polar bear, Secretary Kempthorne 

announced that DOI would be issuing another solicitor’s opinion narrowing the 

scope of possible protective actions for the polar bear. 55 The press release also stated that ‘‘the Department will proposed common sense modifications to the existing 

regulatory language.’’ Modifications to the regulatory language of the ESA have 

been attempted before which would have significantly reduced the effectiveness of 

the Act. Congress must remain vigilant as to what these new regulatory changes 

will be to ensure that the Act continues to function as the premier defense against 

extinction. 

V. Recommendations—Systemic Problems Require Systemic Solutions 

The problem of political interference in science will not be solved by a new Administration or the resignation of additional political appointees. There will always be 

pressure on elected officials from special interests—to weaken environmental laws. 

135 

For that reason the Union of Concerned Scientists urges this committee to enact 

systemic reforms: 

Ethics at the DOI 

Secretary Kempthorne must fully implement the 10-point ethics plan he unveiled 

over a year ago. We have not been able to discern the extent to which it has been 

implemented or modified but they do not appear to be extensive. The Conduct Accountability board appears to be particularly flawed and dysfunctional and in need 

of reform such as a broader charge. The DOI should also create a Scientific Code 

of Professional Conduct similar to the FWS and do this with scientific community 

input. 

Ensuring Agency Independence 

While the Office of Management and Budget and other White House offices play 

important roles in coordinating and overseeing the regulatory process, those roles 

should not include second-guessing or editing the science underlying ESA decisions. 

Transparency in Scientific Decisions 

Scientists at the FWS recommended more transparency in the decisions making 

process. Said one FWS biologist, ‘‘Plac[e] much more scrutiny on the decision-making process between the draft scientific document and the final decision. The work 

is great until it hits the supervisory chain, and then things are dropped, changed, 

altered (usually without written record) and then finalized with dismissive responses to concerns.’’ 

To ensure the work of federal scientists will not be subject to political manipulation, the Department of Interior should increase transparency in the decision-making process to expose manipulation of science and make other political appointees 

think twice before altering or distorting scientific documents. We make the following 

recommendations: 

• The DOI should publish a statement explaining the scientific rationale for each 

listing decision (positive or negative) and recovery plan. The statement should 

justify and defend how FWS staff reconcile scientific and economic data to make 

the final decision. The statement must include the scientific documentation that 

went into the decision and the names of the FWS employees and officers involved in the process. 

• If FWS scientists have significant concerns with or criticisms of the decision, 

they must also be able to submit a statement explaining their disagreement. 

This would provide them with an opportunity to make their concerns public and 

provide FWS with an opportunity to explain how they have addressed the concerns or why they are not significant. 

• DOI should establish a formal and independent scientific review board for agency policies and decisions. 

Scientific Freedoms 

Scientists should be allowed basic freedoms to carry out their work and keep up 

with advances in their field. One FWS scientist recommended, ‘‘Encourag[ing] scientists to keep abreast of scientific information (e.g. Membership in professional societies, pay for them to attend prof[essional] meetings) and allowing scientists to do 

their job-make sure they can focus on getting the science right before they are 

bombarded with the social, political and economic angles that come with each issue.’’ 

• DOI scientists should be free to publish their tax-payer funded research in peerreviewed journals and other scientific publications and be able to make oral 

presentations at professional society meetings. The only exception should be if 

the publication or presentation of the research is subject to Federal export control, national security, or is proprietary information. 

• DOI scientists should be encouraged to actively participate in relevant scientific 

association meetings including serving on their boards or as officers. These activities should not be viewed as a conflict of interest. 

Scientific Communication 

Open communication among scientists is one of the pillars of the scientific method. For society to fully reap the benefits of scientific advances, information must 

also flow freely among scientists, policymakers, and the general public. The federal 

government must respect the constitutional right of scientists to speak about any 

subject, including policy-related matters and those outside their area of expertise, 

so long as the scientists make it clear that they do so in their private capacity, and 

such communications do not unreasonably take from agency time and resources. 

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• DOI should adopt media and communication policies that ensure tax-payer 

funded scientific research is open and accessible to Congress, the media, and 

the public. The policy should: 

Æ Affirm that scientists and other staff have the fundamental right to express 

their personal views, provided they specify that they are not speaking on behalf of, or as a representative of, the agency but rather in their private capacity. 

Æ Create an internal disclosure system to allow for the confidential reporting 

and meaningful resolution of inappropriate alterations, conduct, or conflicts 

of interest that arise with regard to media communications. 

Æ Include provisions to actively train staff and post employee rights to scientific 

freedom in all workplaces and public areas. 

Whistleblower Rights 

In the past, scientists who have attempted to disclose political interference with 

science have been found ineligible for whistleblower protection. Whistleblower protections for scientists who report abuse of science would help ensure that basic scientific freedoms of federal scientists are respected. 

• The Conference Committee reconciling the Whistleblower Enhancement Act, 

must retain the House provision which would give federal scientists the right 

to expose political interference in their research without fear of retribution. It’s 

time for the Conference Committee to act to protect scientists. 

• DOI scientists who provide information or assist in an investigation regarding 

manipulation or suppression of scientific research should be given adequate protection from retaliation. 

• DOI should fully investigate any retaliatory actions against a scientist who expresses their concerns within or outside of the agency. 

Immediate Actions 

There are several immediate actions that the Interior Department and Congress 

should take to prevent political interference in science and reinforce the scientific 

foundation of the Endangered Species Act: 

• Interior Department Secretary Dirk Kempthorne should send a clear message 

to all political appointees that substituting opinions for science is unacceptable. 

• In light of the demonstrated pervasiveness of political interference in Endangered Species Act decisions during the past several years, the Interior Department should engage in a systematic review of all Bush administration decisions 

to ensure that the science behind those decisions was not altered or distorted. 

At the very least, Secretary Kempthorne should require an immediate reevaluation of all the decisions where political interference has been exposed. 

• Secretary Kempthorne must demonstrate that the 90 day review is protective 

of species. Listing decisions must be based on best available scientific and commercial data. Secretary Kempthorne must insure that all the information the 

FWS has is included—not just the information that would not support a listing. 

• Given the number of recent attempts to undermine the scientific underpinnings 

of the Endangered Species Act by Members of Congress and political appointees, congressional committees of jurisdiction must act to safeguard the role 

of science in protecting highly imperiled species. 

We look forward to working with the 110th Congress on comprehensive bipartisan 

legislation and other reforms to restore scientific integrity to federal policymaking. 

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Mrs. NAPOLITANO [presiding]. Thank you very much. That was 

quite a statement. 

We would like to now call on Mr. Scott Hoffman Black, the Executive Director of Xerces Society for Invertebrate Conservation. 


42492.067
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STATEMENT OF SCOTT HOFFMAN BLACK, EXECUTIVE 

DIRECTOR, XERCES SOCIETY FOR INVERTEBRATE 

CONSERVATION 

Mr. BLACK. Thank you for the opportunity to provide testimony 

today. I very much appreciate it. My name is Scott Hoffman Black, 

and I am an ecologist and entomologist, and I am the Executive Director of the Xerces Society for Invertebrate Conservation. 

We actually were named after the first butterfly to go extinct in 

the U.S. because of human activity. It was in the San Francisco 

area as the Presidio expanded for World War II. Not an easy name 

to pronounce, but a good name for an organization like ours. 

For 37 years, the Xerces Society has worked with agencies, scientists, land managers and farmers to conserve habitat, habitat for 

invertebrates who are vitally important for our welfare. So why 

care about these animals that most people don’t think of? Well, 

butterflies, bees, dragonflies, beetles, worms, starfish, mussels and 

crabs are but a few of the millions of invertebrates at the heart of 

a healthy environment. 

Consider some facts. More than two-thirds of all flowering plants 

require insects for pollination. We wouldn’t have most plants without insects. Insects and other invertebrates play a vital role in 

nearly every food chain. Eighty-nine percent of birds depend upon 

insects at some point in their lifecycle. If you fish, bird watch or 

hunt game birds you can thank insects for that opportunity as all 

of these animals need to feed on insects to survive. 

They are also very important in medicine and technology. For instance, scientists recently discovered the highly endangered Hawaiian picture wing flies. These are the flies that MacDonald changed 

the critical habitat on and provided 18 acres of critical habitat for. 

These flies may possess an antibiotic previously unknown to medical science, yet there was 18 acres of critical habitat provided for 

these very important animals. 

Indeed, according to a recent paper in the journal Bioscience, the 

benefits of native insects to the U.S. economy is worth more than 

$57 billion a year for pollination services, pest control and for food 

for economically important wildlife. That is $57 billion a year. 

Hopefully now you know why we care about these small animals. 

While the Endangered Species Act has been successful in protecting some invertebrates, the U.S. Fish and Wildlife Service often 

does not take the recommendations of its own scientists in making 

decisions regarding ESA listing and critical habitat decisions. 

Although Julie MacDonald may have provided the most egregious examples of illegal activity at the expense of these endangered species, there are cases in which she was not involved where 

the U.S. Fish and Wildlife scientists were overruled anyway. 

Consider a couple case studies. I have more in my written testimony. Over 90 percent of the endangered Salt Creek Tiger Beetles’ 

salt marsh habitat has been destroyed or severely degraded, and 

there are estimated to be less than 700 of these beetles remaining. 

Not 7,000. Seven hundred. 

A multi-agency team of scientists initially proposed over 36,000 

acres of critical habitat for the recovery of this beetle. At the 

prompting of the U.S. Fish and Wildlife Service, the team revised 

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the proposal to 15,000 acres of critical habitat. They were trying to 

balance science with other issues. 

The team members expressed that 15,000 acres was the bare 

minimum amount of habitat needed in order for the species to recover. The U.S. Fish and Wildlife Service then proposed only 1,795 

acres of critical habitat. One scientist on the team, in comments, 

has called the decrease from 15,000 to 1,700 ludicrous. 

The Miami blue butterfly was mentioned earlier by the GAO. It 

was originally petitioned for listing when there were less than 100 

butterflies left. This was a formerly very common species. The field 

office and region prepared an emergency rule to list the species because of its limited habitat and the multiple threats. After review, 

Service officials at all levels—at all levels—supported recommendation for listing. 

Citing a Florida state management plan and the existence of a 

captive bred population which had not yet been released, however, 

one Interior official—not Julie MacDonald—determined that emergency listing was not warranted, and the blue butterfly was designated as a candidate instead. 

Dr. Jaret Daniels, the world expert on the species and a butterfly 

expert at the McGuire Center for Lepidoptera at the University of 

Florida, believes that the current species’ very small distribution, 

dangerously low population numbers and limited areas available 

for reintroduction leaves this butterfly extremely vulnerable to extinction. 

As mentioned earlier by Dr. Grifo, in addition to interfering with 

these scientific decisions concerning endangered species, this Administration has been awful and has really failed the Endangered 

Species Act on new listings. As we heard, we have had the fewest 

new species of any Administration since the ESA was passed, and 

it is not for lack of species in need. We have over 281 species that 

are candidates waiting for decisions. 

It is imperative that the U.S. Fish and Wildlife Service and the 

Interior fix the ESA listing process by allowing their own scientists 

to do their jobs unhindered by political interference and get some 

of these candidates who have been some of them waiting for years 

off this list. 

In summary, we continue to see recommendations of U.S. Fish 

and Wildlife Service scientists overruled by their superiors. This interference I believe has a negative impact on the recovery of these 

species, as well as a demoralizing effect on U.S. Fish and Wildlife 

Service scientists who call me from their home at night. 

In the long run, these decisions cost taxpayers more money as 

the issues need to be resolved in court. For the sake of the conservation of these species, decisions need to be based on science, 

not politics. 

Thank you, and sorry for going a little bit over. 

[The prepared statement of Mr. Black follows:] 

Statement of Scott Hoffman Black, Ecologist/Entomologist, 

Executive Director, The Xerces Society for Invertebrate Conservation 

Summary 

Insects and other invertebrates perform the vital services of pollination, seed dispersal, and nutrient recycling and are food for wildlife. Native insects are also worth 

over 57 billion dollars a year to the U.S. economy. Many invertebrates are currently 

149 

faced with extinction. While the Endangered Species Act [ESA] has been very successful in protecting and recovering some invertebrates, the U.S. Fish and Wildlife 

Service [USFWS] often does not follow the law or take the recommendations of its 

own scientists in making decisions regarding ESA listing and critical habitat. Although Julie MacDonald may have provided the most egregious examples of illegal 

activity at the expense of endangered species, there continue to be other, ongoing 

examples of the U.S. Fish and Wildlife Service violating the law and ignoring 

science. 

Salt Creek Tiger Beetle (Cicindela nevadica lincolniana) Critical Habitat 

A multi-agency team of scientists initially proposed over 36,000 acres of critical 

habitat for the recovery of the Salt Creek Tiger Beetle. At the prompting of the 

USFWS, this team revised the proposal to 15,000 acres of critical habitat. The 

USFWS then proposed only 1,795 acres of critical habitat. One scientist on the team 

has called the decrease from 15,000 acres to 1,795 acres ludicrous. This decision was 

not based upon the scientific information available regarding the species and the 

area needed for its recovery. 

Miami Blue Butterfly (Hemiargus thomasi bethunebakeri) Listing 

This butterfly was originally petitioned for listing when there were less than 100 

individuals known to exist. The field office and region prepared an emergency rule 

to list the species because it was limited to one population and threats were imminent. The DC office failed to follow through on the listing even though all of the 

information available showed that listing was both scientifically and legally justified. The number of butterflies remains critically low yet the USFWS has not taken 

action to list this species. 

Island Marble Butterfly (Euchloe ausonides insulanus) Listing 

The USFWS denied listing this species, which has fewer than 1,000 estimated individuals left in its population. There continue to be multiple threats to the survival 

of this butterfly. The field office initially was preparing a rule to list the species, 

but the regional office failed to follow though with the listing. 

In addition to interfering with scientific decisions concerning endangered species, 

in the tenure of this administration the USFWS has systematically failed to implement the Endangered Species Act. In particular, they have been dragging their feet 

in listing new species, having listed the fewest new species of any administration 

since the ESA was passed. To date, the administration has protected just 60 U.S. 

species, compared to 522 protected under the Clinton administration and 231 protected under the elder Bush’s administration. Until the courts forced the U.S. Fish 

and Wildlife Service to protect the polar bear last week, the agency had not protected a new U.S. species for 735 days. This drought in protection of new species 

far surpassed the last such drought, which occurred when James Watt was Secretary of Interior and went 382 days without protecting a species in 1981 and 1982. 

This previous drought led Congress to amend the Endangered Species Act to include 

mandatory timelines for listing species. 

The lack of new listings is not for a lack of deserving species. There are currently 

281 species that are candidates for listing, including many invertebrates. 

It is imperative that the USFWS and Department of Interior fix the ESA listing 

process by allowing agency scientists to do their jobs unhindered by political interference and by listing all of the candidate species in the next five years. Congress 

could help this process by increasing funding for listing of new species and ESA implementation overall and by providing clear direction to the agency that increased 

funding be used to provide protection to candidate species. 

Importance of Invertebrates 

Butterflies, dragonflies, beetles, worms, starfish, mussels, and crabs are but a few 

of the millions of invertebrates at the heart of a healthy environment. Invertebrates 

build the stunning coral reefs of our oceans; they are essential to the reproduction 

of most flowering plants, including many fruits, vegetables, and nuts; and they are 

food for birds, fish, and other animals. 

Of the more than one million species of animals in the world, 94 percent are invertebrates. The services they perform—pollination, seed dispersal, food for wildlife, 

nutrient recycling—are critical to life on our planet. Indeed, without them whole 

ecosystems would collapse. But when decisions are made about environmental policy 

and land management, these vital and diverse creatures are often overlooked. 

Consider the Facts 

More than two-thirds of flowering plants require insects for pollination. 

150 

Insects, worms, and mites are vital in helping microbes break down dung and 

dead plant and animal matter. 

Insects and other invertebrates play pivotal roles in nearly every food chain. 

Eighty nine percent of birds depend upon insects at some point in their lifecycle. 

Small flies are the most important food source for juvenile salmon. Even the mighty 

grizzly bear can eat 30,000 cutworm moths a day. Some grizzly bears get 1/3 of their 

yearly supply of food from these insects. 

Invertebrates are also very important for medicine and technology. Horseshoe 

crabs are used extensively in the biomedical and pharmaceutical industries. Pharmaceutical companies use a blood enzyme from horseshoe crabs to test the safety 

of their products. Spider silk is being used to understand how to make better parachutes and sea stars are being studied to understand how to make better 

photoreceptors. Studies of the interactions among ants in a colony have led to breakthroughs in managing shipping terminals. What other discoveries await us? 

Invertebrates Contribute to the Economy 

According to a recent paper in the journal Bioscience, the benefits of insects to the U.S. economy is worth more than $57 billion per year. Insects are a critical food 

source for the animals that drive a $50-billion-per-year recreation industry (game 

bird hunting, fishing and bird watching). Pollination by non-honeybee insects, primarily native bees, supports $3 billion annually in agricultural crops. Native insects 

that control pests save growers an estimated $4.5 billion per year. 

According to E.O. Wilson, Pulitzer Prize-winning author and renowned scientist, 

‘‘So important are insects and other land-dwelling arthropods that if all were to disappear, humanity probably could not last more than a few months.’’ 

Importance of Endangered Insects 

A rare and endangered species of insect or other invertebrate is unlikely to determine the fate of an ecological system, but as a group these species may have a profound effect. Ecosystem functions, such as the recycling of nutrients, often are done 

by specialists like the American burying beetle (a species listed as Threatened) rather than generalists. 

Endangered species also can act as keystone species in small, specialized systems, 

such as caves, oceanic islands, or some pollinator—plant relationships. For example, 

some plant species rely on only one or few species of pollinators. Decreased abundance or loss of any of these pollinators can lead to the extinction of plants. 

Some endangered species might provide useful products, such as new defenses 

against diseases and tools for studying various ecosystem or organismal processes, 

as well as direct material benefits. For instance, Scientists recently discovered that 

highly endangered Hawaiian picture wing flies (Drosophila spp.) may possess autoimmune system characteristics previously unknown to medical science. 

Endangered invertebrates can act as ‘‘Canaries in a coal mine’’ and can be used 

as indicator species. Aquatic insects have been used for decades to assess water 

quality, endangered butterflies can be used to determine the condition of meadow 

and prairie habitats and some rare snails can be used to assess the health of old 

growth forests. Protecting habitat based on these small animals may also protect 

habitat for other more charismatic species. 

Insect Extinctions and Endangerment 

The Xerces blue butterfly, Antioch katydid, Tobias’ caddisfly, Roberts’ alloperlan 

stonefly, Colorado burrowing mayfly, and Rocky Mountain grasshopper all were 

driven extinct by humans. 

In the United States, the Natural Heritage Program lists 210 insect species either 

as presumed extinct or as missing and possibly extinct. Many scientists believe that 

these numbers underestimate actual insect extinction and that many hundreds, or 

perhaps thousands, of species have gone extinct unnoticed in North America. 

The USFWS lists 57 insects as either endangered or threatened but many more 

may be on the brink of extinction. To illustrate, 4.6% of the endangered animal species listed by the USFWS, are insects, yet insects make up more than 72% of global 

animal diversity. Of all vertebrates that are known to exist in the United States, 

approximately 18% are listed as threatened or endangered. If we assume that insects and vertebrates face similar destructive forces at similar levels of intensity, 

then one should expect to find on the order of 16,000 at-risk insect species in the 

United States alone. Although this assumption oversimplifies the situation, it shows 

that the 57 insects listed as endangered and threatened by USFWS are a significant 

underestimate. The Natural Heritage Program may be closer to the mark for select 

groups of insects for which we have more information. It estimates that 20% of 

stoneflies, 10% of tiger beetles 7% of butterflies, and 8% of dragonflies and 

damselflies are critically imperiled or imperiled in the United States. In addition, 

151 

the Xerces Society has produced a Red List of Pollinator Insects of North America. 

The Red List is the most complete assessment of the status of the continent’s atrisk pollinators. Fifty butterflies and moths and 51 bees are listed as critically imperiled, imperiled or vulnerable. 

Invertebrates and the Endangered Species Act 

The first invertebrate listed under the Endangered Species Act was the Schaus 

swallowtail butterfly on April 28, 1976. This was followed by six California butterflies on June 1, 1976. 

The Endangered Species Act has always treated vertebrates more generously than 

it does invertebrates. The Act authorizes the protection of species, subspecies, and 

‘‘distinct population segments’’ of vertebrates, yet only species and subspecies of invertebrates may be protected. This provision was a compromise between the House 

of Representatives and the Senate in 1978 after the House voted to eliminate protection for invertebrates altogether. Insects are also singled out as the only group that 

cannot be protected if a particular species is determined by the Secretary of Agriculture to be an agricultural pest. However, this provision has never been used, as 

any serious pest would not likely be an endangered species. 

Even with these restrictions, the Endangered Species Act remains one of the most 

important environmental laws in the world for the conservation of insects and other 

invertebrates, and the habitat upon which they depend. There is no other national 

law in the U.S. that specifically protects invertebrates and their habitats. 

The Xerces Society’s Efforts to Protect At-Risk Invertebrates 

The Xerces Society works through all available methods to protect invertebrates 

and their habitats. We consult with private landowners, providing them with the 

information and tools to protect habitat on private lands. We join efforts with federal, state and county agencies to restore, enhance and protect habitat on public 

lands. The Xerces Society works on cooperative efforts with multiple stakeholders 

to protect the most vulnerable animals in the country. The Xerces Society has a very 

positive, cooperative relationship with the USFWS, other federal, state and county 

land management agencies as well as farmers and other landowners. 

When a species is at risk of extinction, the formal listing of that species under 

the Endangered Species Act and the designation of critical habitat are tools that 

spur conservation and research on these animals and engage agencies and private 

landowners. In my experience, the United States Endangered Species Act is one of 

the most powerful tools for the conservation of these animals and their habitats in 

the world. 

Using Science (Not Politics) to Protect Species 

Over the past seven years there have been many instances of decisions at the 

USFWS that were based on politics rather than the available science. Many of these 

have involved insects and other invertebrates. One of the most egregious examples 

of this was in the designation of critical habitat for the Hawaiian picture-wing flies. 

After pressure from conservation groups, the USFWS designated 11 species of Hawaiian picture-wing flies (Drosophila aglaia, D. differens, D. hemipeza, D. 

heteroneura, D. montgomeryi, D. musaphilia, D. neoclavisetae, D. obatai, D. 

ochrobasis, D. substenoptera, and D. tarphytrichia) as endangered, and one species 

(D. mulli) as threatened. But in 2006, it proposed a total of 18 acres as critical habitat for the flies. This is less than 1 1/2 acres per fly, which was not adequate for 

survival of the species nor was it scientifically or legally defensible. 

There have also been many other cases of abuse. To see a more complete list of 

invertebrates where science has taken a back seat to politics in ESA decisions, 

please see appendix 1. 

Politics Still Often Trumps Science in Listing and Critical Habitat Decisions 

In our efforts to protect these animals we continue to see recommendations of 

USFWS scientists overruled by their superiors. This interference has a negative impact on the recovery of the species involved as well as a demoralizing effect on 

USFWS scientists who are trying to do their job. In the long run, these decisions 

cost tax payers more money as the issues will need to be resolved in court. 

Salt Creek Tiger Beetle (Cicindela nevadica lincolniana) Critical Habitat 

A multi-agency team of scientists initially proposed over 36,000 acres of critical 

habitat for the recovery of the Salt Creek Tiger Beetle. At the prompting of the 

USFWS, this team revised the proposal to 15,000 acres of critical habitat. The 

USFWS then proposed only 1,795 acres of critical habitat. One scientist on the team 

has called the decrease from 15,000 acres to 1,795 acres ludicrous. This decision was 

152 

not based upon the scientific information available regarding the species and the 

area needed for its recovery. 

On October 6, 2005, the USFWS listed the Salt Creek tiger beetle as endangered 

under the U.S. Endangered Species Act. The beetle is only found in a few remnant 

saline marshes near Lincoln, Nebraska. The Salt Creek tiger beetle is one of the 

rarest insects in the world and occupies one of the most restricted ranges of any 

insect in the United States. 

Since the late 1800s, over 90 percent of the Salt Creek tiger beetle’s saline marsh 

habitat has been destroyed or severely degraded through commercial, residential, industrial, and agricultural development and road projects. Although formally much 

more common only three small populations of this beetle remain, and the known 

adult population size in over the last three years has fluctuated from a low of only 

153 individuals to a high of just over 600 individuals. 

The Salt Creek tiger beetle is considered an ‘‘indicator’’ species. Its presence signals the existence of a healthy saline marsh—the groundwater feeding these wetlands pass through rock formations containing salts deposited by an ancient sea 

that once covered Nebraska. Over the past century, more than 230 species of birds 

have been reported using eastern Nebraska saline marshes, including the least tern, 

piping plover, and peregrine falcon. These saline wetlands are also home to several 

salt-adapted plants that are found nowhere else in Nebraska. In addition, a healthy 

saline marsh provides numerous benefits for people, including water purification 

and flood control, as well as an area for bird watching and other outdoor recreation. 

On May 4, 2005 a team of scientists from the University of Nebraska-Lincoln, Nebraska Game and Parks Commission, Lower South Platte Natural Resource District 

and the Nebraska Field Office of the U.S. Fish and Wildlife Service produced an 

‘‘Advance Concept Paper’’ proposing 36, 906 acres of critical habitat for the Salt 

Creek tiger beetle. 

USFWS staff at the regional office subsequently asked the authors of the Advance 

Concept Paper to revise their paper and reduce the acreage of the critical habitat 

proposal. The authors revised their recommendation to 15,000 acres of critical habitat, distributed across six recovery areas. Team members expressed that 15,000 

acres was the bare minimum amount of habitat needed in order for the species to 

recover. 

The USFWS then proposed a total of only 1,795 acres of critical habitat in four 

areas (Proposed Rule Federal Register / Vol. 72, No. 238 / Wednesday, December 

12, 2007). There was no scientific rationale for the USFWS to cut over 13,000 acres 

from the previous proposal. The USFWS has not provided any scientific justification 

for how 1,795 acres would allow the recovery and long term maintenance of the Salt 

Creek tiger beetle. One of the scientists who co-authored the Advanced Concept 

Paper has called the decrease from 15,000 acres to 1,795 acres ‘‘ludicrous’’. 

The best available scientific evidence as presented in the Advanced Concept Paper 

clearly shows that the current proposed critical habitat is woefully inadequate for 

the recovery and long term maintenance of the Salt Creek Tiger Beetle. 

Miami Blue Butterfly (Hemiargus thomasi bethunebakeri) Listing 

This butterfly was originally petitioned for listing when there were less than 100 

individuals known to exist. The field office and region prepared an emergency rule 

to list the species because it was limited to one population and threats were imminent. The DC office failed to follow through on the listing even though all of the 

information available showed that listing was both scientifically and legally justified. The number of butterflies remains critically low yet the USFWS has not taken 

action to list this species. 

The Miami Blue is endemic to Florida. The range of this butterfly, which once occurred along the Florida coast (from about St. Petersburg to Daytona) as well as 

several western barrier islands including Sanibel, Marco Island, and Chokoloskee 

south through the Florida Keys to Key West and the Dry Tortugas, has been shrinking for many years. Ever-expanding urbanization and the associated loss of coastal 

habitat have all but eliminated the Miami blue from the south Florida mainland. 

In recent years, this alarming trend of decline has continued in the Florida Keys. 

Once widespread and locally abundant, the butterfly has become considerably rarer 

and was thought to have been extinct with no verified records for the period from 

March 1992 to October 1999. The species was rediscovered on 29 November 1999 

as part of a small breeding colony within the boundaries of Bahia Honda State Park 

on Bahia Honda Key. 

In June of 2000 the North American Butterfly Association petitioned the USFWS 

to list the Miami Blue as a federally endangered species on an emergency basis. The 

petitioners cited habitat loss and fragmentation, mismanagement of existing habitat 

153 

(e.g. fire suppression), unethical collecting, and the influence of mosquito control 

chemicals as threats to this butterfly’s continued survival. 

On January 3, 2002, the USFWS announced a positive 90-day finding for the petition to list the Miami blue, initiated a status review, and sought data and information from the public. In this finding, the USFWS indicated that the Miami blue appeared to be in danger of extinction, but did not believe the threats to be so great 

that extinction was imminent. However, the USFWS indicated that they could issue 

an emergency rule when an imminent threat posed a significant risk to the wellbeing of the species. 

In June 2002, the USFWS initiated a contract with the McGuire Center for Lepidoptera and Biodiversity at the University of Florida to conduct a one-year status 

survey of the Miami blue throughout its historic Florida range and to monitor the 

known population at Bahia Honda State Park. Although extensive field surveys 

were conducted, no additional wild populations of the Miami blue were discovered. 

A detailed assessment of the Bahia Honda State Park population confirmed a series 

of small breeding colonies with a total estimate of less than 100 individuals at any 

time. 

As the USFWS dragged their feet the State of Florida took action. On December 

10, 2002 the State of Florida declared the Miami blue to be an endangered species 

on an emergency basis. This was one of the very few times that the State of Florida 

had taken emergency action for any reason, and the first time it had done so on 

behalf of an endangered species. Although this was a good step state listing does 

not provide the comprehensive protection of the ESA. On November 19, 2003, the 

State of Florida unanimously approved the species management plan and the resulting addition of the Miami blue to Florida’s endangered species list. The listing by 

the State of Florida did provide increased protection for this species and provided 

some funding for a captive breeding program. In February 2003, under consultation 

of the USFWS, Florida DEP, and the State of Florida (Florida Fish and Wildlife 

Conservation Commission), a captive colony of the Miami blue was initiated at the 

University of Florida in Gainesville from wild eggs collected at Bahia Honda State 

Park. 

The field office and region prepared an emergency rule to list the species because 

it was limited to one population and threats were imminent. The DC office failed 

to follow through on the listing even though all of the information available showed 

that listing was both scientifically and legally justified. In December 2004 the 

USFWS acknowledged that the butterfly merited protection, but declined to add it 

to the federal list of endangered species citing lack of funding. They subsequently 

put it on the candidate list. 

Although the state of Florida became involved, the recovery of the Miami Blue is 

anything but certain. Initial areas slated for reintroduction and recovery were disallowed because of the perceived need for mosquito control. As a result, initial reintroductions were delayed and divided into Phase I and Phase II areas-making aggressive recovery actions more challenging. 

In 2006, a small number of additional Miami Blue colonies were discovered in the 

Key West National Wildlife Refuge. The University of Florida is currently working 

with the State of Florida and the Refuge biologists to determine the exact colony 

locations and estimates of the population sizes. 

Dr. Jaret Daniels, a butterfly expert with the McGuire Center for Lepidoptera and 

Biodiversity (University of Florida), suggests that although the captive propagation 

program has gone well, the current species’ distribution, dangerously low wild population numbers, limited areas available for reintroduction, and limited funding 

leaves the butterfly extremely vulnerable to extinction. He believes that federal listing would benefit the recovery of this species because of access to additional funding 

And better protection from threats such as mosquito control. 

Island Marble Butterfly (Euchloe ausonides insulanus) Listing 

The USFWS denied listing this species, which has fewer than 1,000 estimated individuals left in its population. There continue to be multiple threats to the survival 

of this butterfly. The field office initially was preparing a rule to list the species, 

but the regional office failed to follow though with the listing. 

The Island Marble butterfly was historically found in British Columbia, on 

Gabriola Island and on Vancouver Island from Nanaimo in the north, southward 

along the eastern edge of the island to Beacon Hill Park, Victoria. It appears that 

this butterfly inhabited coastal grasslands, and may have taken advantage of forage 

in adjacent prairies associated with Garry Oak woodlands. It had not been seen 

since 1908 and was believed to be extinct. In 1998, one small population of the Island Marble was found on San Juan Island in Washington State. 

154 

In 2005, two hundred twenty-five surveys were conducted at 110 potential Island 

Marble sites by staff from the Washington Department of Fish and Wildlife, 

USFWS, Washington Department of Natural Resources, the Xerces Society, and 

local volunteers. As a result of these searches, Island Marble butterflies were found 

at eleven new locations, although none of the sites had more than five individuals. 

The surveys also helped determine the extent of the original population at San Juan 

Island National Historical Park American Camp. The vast majority of the butterflies—and the only viable populations—are located at American Camp. Many of the 

individuals found at the new locations are likely strays from this main site. The 

total estimated population for the butterfly was under 1,000 individuals. 

Responding to pressure from conservation groups in February 2006, the USFWS 

issued a positive 90-day finding for the Island Marble Butterfly, determining that 

protection may be warranted and initiating a status review of the species. 

The field office initially was preparing a rule to list the species, but the regional 

office failed to follow though with the listing. Until September 2006, in conversations with the USFWS biologists preparing the 12 month finding they routinely stated that the species met all of the criteria for listing. A few weeks before the decision 

on the listing was to be announced, the same biologists informed me that they were 

no longer allowed to discuss the Island Marble butterfly. In November of 2006 the 

USFWS denied protection to this butterfly with no legal or scientific justification. 

To the credit of the USFWS, they have done some work to conserve this species 

since the listing decision was made (the Xerces Society is part of an Island Marble 

working group). However their effort falls short of real protection under the Endangered Species Act. As of 2007, the population numbers were still low and possibly 

declining. 

Conclusion 

The Xerces Society for Invertebrate Conservation has worked for more than 37 

years to conserve habitat for our most vulnerable animals. We often work with the 

U.S. Fish and Wildlife Service to protect these animals. However, the USFWS has 

been ignoring science in many of its endangered species decisions. For the sake of 

the conservation of many important species, decisions need to be made based on 

science not politics. 

All statements made in this testimony are mine alone. That said I would like to 

thank Dr. Jaret Daniels, McGuire Center for Lepidoptera and Biodiversity (University of Florida), Steve Spomer (University of Nebraska, Lincoln), and Noah 

Greenwald and Bill Snape, (Center for Biological Diversity) for clarification on 

issues regarding the species mentioned above and on the ESA process. 

Appendix 1. 

The USFWS has violated the critical habitat provisions of the Endangered Species 

Act in the following invertebrate species: 

Peck’s Cave Amphipod (Stygobromus pecki) Critical Habitat 

The final critical habitat designation included just 38.5 acres (72 Fed. Reg. 39247, 

July 17, 2007) which is much less than the total extent of habitat identified as essential to the conservation of the species by USFWS scientists. 

Comal Springs Riffle Beetle (Heterelmis comalensis) Critical Habitat 

The final critical habitat designation included just 30.3 acres (72 Fed. Reg. 39247, 

July 17, 2007) which is much less than the total extent of habitat identified as essential to the conservation of the species by USFWS scientists. 

Comal Springs Dryopid Beetle (Stygoparnus comalensis) Critical Habitat 

The final critical habitat designation included just 39.5 acres (72 Fed. Reg. 39247, 

July 17, 2007) which is much less than the total extent of habitat identified as essential to the conservation of the species by USFWS scientists. 

Pecos Assiminea Snail (Assiminea pecos) Critical Habitat 

The critical habitat rule for this species dramatically reduced acreage protection 

from 1,523 acres to 396.5 acres. 70 Fed. Reg. 46303 (August 9, 2005). 

Koster’s Tryonia Snail (Juturnia kosteri) Critical Habitat 

The critical habitat rule for this species dramatically eliminated acreage protection from 1,127 acres to zero acres. 70 Fed. Reg. 46303 (August 9, 2005). 

Noel’s Amphipod (Gammarus desperatus) Critical Habitat 

The critical habitat rule for this species dramatically eliminated acreage protection from 1,127 acres to zero acres. 70 Fed. Reg. 46303 (August 9, 2005). 

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Roswell Springsnail (Pyrgulopsis roswellensis) Critical Habitat 

The critical habitat rule for this species dramatically eliminated acreage protection from 1,127 acres to zero acres. 70 Fed. Reg. 46303 (August 9, 2005). 

Helotes Mold Beetle (Batrisodes venyivi) Critical Habitat 

The final rule in question was finalized for this Bexar County (TX) karst cave species on April 8, 2003 (68 Fed. Reg. 17155). Although the proposed critical habitat 

rule sought to protect 958 acres, the final rule shrunk this to just 164 acres. 

Robber Baron Cave Spider (Cicurina baronia) Critical Habitat 

The final rule in question was finalized for this Bexar County (TX) karst cave species on April 8, 2003 (68 Fed. Reg. 17155). Although the proposed critical habitat 

rule sought to protect 395 acres, the final rule shrunk this to just 57 acres. 

Madla Cave Meshweaver (Cicurina madla) Critical Habitat 

The final rule in question was finalized for this Bexar County (TX) karst cave species on April 8, 2003 (68 Fed. Reg. 17155). Although the proposed critical habitat 

rule sought to protect 1,811 acres, the final rule shrunk this to just 201 acres. 

Braken Bat Cave Meshweaver (Cicurina venii) Critical Habitat 

The final rule in question was finalized for this Bexar County (TX) karst cave species on April 8, 2003 (68 Fed. Reg. 17155). Although the proposed critical habitat 

rule sought to protect 481 acres, the final rule shrunk this to just 85 acres 

Government Canyon Bat Cave Meshweaver (Cicurina vespera) Critical Habitat 

The final rule in question was finalized for this Bexar County (TX) karst cave species on April 8, 2003 (68 Fed. Reg. 17155). Although the proposed critical habitat 

rule sought to protect 116 acres, the final rule eliminated all critical habitat and 

protected zero acres. 

Government Canyon Bat Cave Spider (Neoleptoneta microps) Critical Habitat 

The final rule in question was finalized for this Bexar County (TX) karst cave species on April 8, 2003 (68 Fed. Reg. 17155). Although the proposed critical habitat 

rule sought to protect 304 acres, the final rule eliminated all critical habitat and 

protects zero acres. 

Ground Beetle (Rhadine exilis) Critical Habitat 

The final rule in question was finalized for this Bexar County (TX) karst cave species on April 8, 2003 (68 Fed. Reg. 17155). Although the proposed critical habitat 

rule sought to protect 7,557 acres, the final rule shrunk this to just 644 acres. 

Ground Beetle (Rhadine Infernalis) Critical Habitat 

The final rule in question was finalized for this Bexar County (TX) karst cave species on April 8, 2003 (68 Fed. Reg. 17155). Although the proposed critical habitat 

rule sought to protect 5,083 acres, the final rule shrunk this to just 686 acres. 

Cokendolpher Cave Harvestman (Texella cokendolpheri) Critical Habitat 

The final rule in question was finalized for this Bexar County (TX) karst cave species on April 8, 2003 (68 Fed. Reg. 17155). Although the proposed critical habitat 

rule sought to protect 395 acres, the final rule shrunk this to just 57 acres. 

Riverside Fairy Shrimp (Streptocephalus woottoni) Critical Habitat 

The final rule in question was finalized on April 12, 2005 (70 Fed. Reg. 19153) 

and protects just 306 acres despite earlier proposed rules that protected anywhere 

from 5,795 acres to 12,060 acres. Without rational explanation, or even acknowledgement, it contradicts the Riverside fairy shrimp’s recovery plan, scientific peer 

reviewers, and USFWS scientists. It falsely identifies many essential habitat areas 

as not essential. 

Mrs. NAPOLITANO. Thank you. 

The reason I am a little bit antsy is we are going to be having 

votes in a few minutes it looks like. In fact, they may be calling 

for them now, so we will take possibly one more speaker and then 

we will have to recess. 

We can finish? OK. We may be able to finish, but only if we hold 

to our five minute limit if you wouldn’t mind. 

Mr. BLACK. I apologize. 

156 

Mrs. NAPOLITANO. No problem. 

Mr. David Parsons, Science Fellow from the Rewilding Institute? 

Thank you for being here, sir. 

STATEMENT OF DAVID R. PARSONS, 

SCIENCE FELLOW, REWILDING INSTITUTE 

Mr. PARSONS. Yes, ma’am. Thank you, Madam Chairman. It is 

a high honor to be testifying before this Committee. 

I have some supporting documents for my written testimony that 

I would like to enter into the record with your permission. 

Mrs. NAPOLITANO. Without objection. So ordered, sir. 

Mr. PARSONS. Thank you. 

I have one quick rebuttal to a comment that was made by the 

Ranking Republican Member. I believe that was Congressman 

Smith. He stated that the law requires the killing of all Mexican 

wolves that attack livestock. 

I am the primary author of the Federal regulation that applies 

to all of the Mexican wolves that live in the wild today. That regulation was written to allow us the flexibility to manage conflict, but 

not at the expense of conserving the species, the Mexican wolf. I 

can assure you there is no provision in that regulation that requires the killing of Mexican wolves that attack livestock. 

Thirty-two years after being listed as endangered under the Endangered Species Act, the Mexican gray wolf remains the most endangered mammal in North America and the most endangered subspecies of gray wolf in the world. Less than 50 are known to exist 

in the wild, and around 300 live in captivity. 

Under the Bush Administration, the U.S. Fish and Wildlife Service has failed to conserve and recover the Mexican wolf as mandated by the Endangered Species Act because it has abandoned the 

application of science and mismanaged the program. Since March 

of 1998, a total of 99 wolves have been released through the end 

of the year 2006, yet less than 50 survive today. 

The approved objective for this initial reintroduction project was 

the establishment of a viable, self-sustaining wild population of at 

least 100 Mexican wolves by the end of 2006. That was to happen 

in the 7,000 square mile Blue Range Wolf Recovery Area in southwest New Mexico and southeastern Arizona. The Service has failed 

to meet this objective by all measures, and there is no evidence 

that the population is on a growth trajectory. 

Twenty-six years after adoption of a recovery plan and 10 years 

following the initial reintroduction, the total wild population of 

Mexican wolves is only 52 animals and three successful breeding 

pairs at the end of the year 2007. The population is lower now than 

it was at the end of 2003. 

In my opinion, the recovery of the Mexican wolf cannot succeed 

under the current policies and management practices of the Service 

and a body called the Adaptive Management Oversight Committee 

to which the Service has delegated its decision authority under a 

memorandum of understanding for the reintroduction project. 

The complex web of bureaucratic, multi-agency authority sharing, deference to special interests that oppose recovery, mismanagement of public lands, the promulgation of operational procedures 

that cause excessive management removal of wolves, inattention to 

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science and the indefinite suspension of the recovery planning process are precluding the Service from meeting the Endangered Species Act mandate for recovery of the Mexican gray wolf. 

The poster child of mismanagement is the draconian wolf control 

policy formerly implemented as Standard Operating Procedure 13 

by the Adaptive Management Oversight Committee and approved 

by the Service. This procedure requires the permanent removal or 

killing of any wolf that is known to or likely to have killed three 

head of livestock over the span of a year regardless of the consequences to wolf recovery. 

This may be what the Congressman was referring to, but it is a 

discretionary authority, not a hardwired provision of the rule. 

The Service releases wolves with one hand and kills wolves with 

the other. It is my professional opinion that the Service and its cooperating agencies are prioritizing wolf control over wolf recovery 

to the point of threatening the second extrication of the critically 

endangered Mexican wolf in the wild. Ultimately this may result 

in the complete extinction of the Mexican wolf subspecies since the 

captive breeding program is intended only as a temporary measure 

to achieve recovery in the wild. 

I will briefly outline some solutions that can correct these problems. We need to abolish Standard Operating Procedure 13 and establish benchmarks for population growth to meet the conservation 

standard of the Act. The Service should reclaim its decision authority from the Adaptive Management Oversight Committee because 

they are not getting the job done. 

We should reinstate recovery planning, which the Service has 

put into permanent suspension as far as we can tell. We need to 

I think develop and introduce legislation that might help resolve 

some of these problems, such as 

Æ

Æ perhaps legislation that would allow the compensation of 

ranchers to voluntarily retire Federal grazing permits in the 

Wolf Recovery Area. 

Thank you very much for this opportunity to comment. 

[The prepared statement of Mr. Parsons follows:] 

Statement of David R. Parsons, Carnivore Conservation Biologist/ 

Science Fellow, The Rewilding Institute 

OVERVIEW OF THE ISSUE 

The Mexican gray wolf (Canis lupus baileyi) was completely extirpated from the 

wild by a United States government eradication program throughout its historical 

range in the U.S. and Mexico and rescued from the brink of extinction through the 

captive breeding of just 7 survivors. 

Thirty-two years after receiving protection under the Endangered Species Act 

(ESA), the Mexican gray wolf remains the most endangered mammal in North 

America and the most endangered subspecies of gray wolf in the world. 

The U.S. Fish and Wildlife Service (FWS) has failed in its duty under the ESA 

to conserve and recover the Mexican wolf because it has abandoned the application 

of science and consequently mismanaged the program. 

Twenty-six years after adoption of a recovery plan and 10 years following initial 

reintroductions, the total wild population of Mexican wolves was only 52 animals 

and 3 successful breeding pairs at the end of 2007 (Figure 1). 

The approved objective for this initial reintroduction project is the establishment 

of a viable, self-sustaining wild population of at least 100 wolves and 18 breeding 

pairs by the end of 2006 in the 7,000 square mile Blue Range Wolf Recovery Area 

in SW New Mexico and SE Arizona (Figure 2). The FWS has failed to meet this 

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objective by all measures; and there is no evidence that the population is on a 

growth trajectory. 

Under current policies and management practices it appears unlikely that recovery of the Mexican wolf will succeed. A complex web of bureaucratic multi-agency 

authority sharing, deference to special interests that oppose recovery, mismanagement of public lands, the promulgation of operational procedures that cause excessive management removal of wolves, inattention to science, and the indefinite suspension of the recovery planning process are precluding the FWS from meeting the 

Endangered Species Act (ESA) mandate for recovery of the endangered Mexican 

wolf. 

It is my professional opinion that the FWS and its cooperating agencies are 

prioritizing wolf control over wolf recovery of the endangered Mexican gray wolf to 

the point of threatening the second extirpation of the Mexican wolf in the wild; ultimately, this may result in the complete extinction of the Mexican wolf since the captive-breeding program is intended as a temporary measure to achieve recovery in 

the wild. 

BACKGROUND 

The FWS approved the Mexican Wolf Recovery Plan in 1982 which called for reintroduction of Mexican wolves, using the rescued captive stock of certified pure 

Mexican wolves, to at least two areas within their historic range. Following the 

preparation of an Environmental Impact Statement (EIS), the Secretary of the Interior signed a Record of Decision in early 1997 authorizing the release of one experimental non-essential population (per Section 10(j) of the ESA) into the Blue Range 

Wolf Recovery Area (BRWRA; Figure 2). 

Section 10(j) of the ESA allows the Secretary of the Interior to authorize such releases of experimental populations only ‘‘if the Secretary determines that such release will further the conservation of such species.’’ The ESA defines ‘‘conservation’’ 

as: the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided 

pursuant to this Act are no longer necessary—in other words, recovery and delisting 

of the species. 

The BRWRA comprises all of the Gila National Forest in southwestern New Mexico and all of the Apache portion of the Apache-Sitgreaves National Forest in southeastern Arizona—an area of about 7,000 square miles (Figure 2). Ninety-five percent 

of the area consists of public national forest lands. 

The release of wolves began in 1998, and 99 wolves were released to the BRWRA 

by the end of 2006. None were released in 2007. 

A special rule (50 C.F.R. § 17.84(k)), promulgated under provisions of Section 10(j) 

of the ESA, specifies circumstances under which Mexican wolves in the BRWRA 

population may be harassed, killed, or removed: 

• Wolves may be harassed when in proximity to people, livestock, and pets. 

• Wolves may be killed in self defense or in defense of the lives of other humans; 

when wolves are in the act of attacking livestock on private or tribal property; 

and when wolves are killed by livestock guarding dogs. 

• The rule authorizes, but does not require, the FWS to implement management 

measures for additional taking (including killing) of wolves for various purposes 

specified in the rule, primarily to resolve conflicts between wolf restoration and 

human activities, especially livestock grazing. But this additional taking must 

not preclude progress toward recovery of Mexican wolves (ESA § 10(j)(2)(A)). 

The final EIS (page 2-16) affirms the FWS’s recognition, in 1996, of its duty to 

conserve and recover Mexican wolves by stating that it will use the ‘‘greatest degree 

of management flexibility’’ granted through discretionary rule provisions to achieve 

‘‘the least impact on private activity consistent with wolf recovery’’ (emphasis 

added). 

Project authorizing documents mandate the use of an ‘‘adaptive management’’ 

process for project decisions. Under adaptive management, actions and policies are 

to be treated as scientific experiments where certain outcomes are hypothesized. Anticipated outcomes are compared with actual outcomes and adaptations are guided 

by what has been learned through research, monitoring, and data assessment. 

Since October 31, 2003, management of the BRWRA wolf population has been carried out by a six-agency decision-making body, the Mexican Wolf Adaptive Management Oversight Committee (AMOC), established by a Memorandum of Understanding. 

The most notable management measure authorizing the killing and permanent removal of wolves is Standard Operating Procedure 13 (SOP 13), a discretionary management measure adopted by the AMOC and approved by the FWS which requires 

159 

the removal or killing of wolves involved in three fatal livestock depredation incidents in the span of one year, even if recovery is precluded by its implementation. 

STANDARD OPERATING PROCEDURE 13 

In October 2005, the AMOC, with FWS approval, formally adopted SOP 13. 

Under provisions of SOP 13, ‘‘Wolves known or likely to have committed three 

depredation incidents within a period of 365 days shall be permanently removed 

from the wild as expeditiously as possible.’’ Permanent removal includes live capture 

with subsequent placement in captivity and shooting wolves in the wild. Wolf removals under SOP 13 are punitive and mandatory. 

SOP 13 requires permanent removal of each offending wolf regardless of important biological factors such as population numbers, genetic value, reproductive status, or the presence of dependent pups. 

SOP 13 places no cap on the number of wolves that will be permanently removed 

from the BRWRA and establishes no population floor below which its provisions 

would be suspended. 

Since its implementation, Mexican wolf removals have spiked, undoing all 

progress towards their recovery in the wild (Figures 1 and 4). 

FWS approved SOP 13 despite warnings from experts in the Three-Year Review 

(2001; ‘‘Paquet Report’’) that progress towards recovery would not occur without a 

reduction in wolf mortalities and management removals. 

MEXICAN WOLF REINTRODUCTION PROJECT—STATUS REVIEW 

The objective of the authorized reintroduction project is to establish a viable, selfsustaining wild population of at least 100 Mexican wolves in the BRWRA by the 

end of 2006—nine years following the initial releases in 1998. Such a population 

was predicted to include 18 breeding pairs. 

The FWS has failed to meet this objective by all measures; and there is no evidence that the population is on a growth trajectory. 

The estimated population at the end of 2007 was 52 wolves and only 3 breeding 

pairs. The population has actually declined since the end of 2003, and the number 

of breeding pairs has not increased over this 4-year period (Figure 1). 

Permanent removal and lethal control by agency managers of wolves that depredate livestock is the most significant cause of the population decline and lack of 

progress toward the reintroduction objective (Figure 3). 

Given that all Mexican wolves stem from only 7 founders, management of population genetics is critically important. Recent peer-reviewed research has documented genetic deficiencies and reduced reproductive fitness in the wild population 

and recommended measures to restore the genetic integrity and fitness of the wild 

population—a process referred to as ‘‘genetic rescue.’’ Yet, the FWS has established 

no formal objectives or procedures for managing and improving the genetic composition of the wild population. 

The Association of Zoos and Aquariums, which manages the captive population of 

Mexican wolves, requested that the FWS implement ‘‘a moratorium on lethal 

control and permanent removal (rescind or suspend SOP13) of Mexican wolves 

in the Blue Range Wolf Recovery Area until an expert taskforce on genetic issues 

can be convened to provide guidance to these actions.’’ (Letter to Dr. Benjamin 

Tuggle, SW Regional Director, January 2, 2008; emphasis added). 

A formal resolution unanimously passed by the American Society of 

Mammalogists at its 2007 annual meeting calls upon the FWS to expedite a revision 

of the Mexican Wolf Recovery Plan; suspend all predator control directed at Mexican 

gray wolves (currently carried out under SOP 13) at least until the 100-wolf goal 

of the current reintroduction program has been achieved; and protect wolves from 

the consequences of scavenging on livestock carcasses, which can habituate wolves 

to preying on stock causing preventable conflicts. 

New Mexico Governor Bill Richardson has called for the immediate suspension of 

and ultimately revising SOP 13, but his request has not been acceded to. In his July 

6, 2007, statement, the Governor said: ‘‘The lethal removal of a female wolf, 

that leaves pups with a single parent, is a setback to the Mexican Gray 

Wolf Recovery Program, and signals that it is time to reexamine the protocols 

under which wolves are removed from the wild’’ (emphasis added). Recent peer-reviewed research has confirmed the Governor’s judgment. 

The wild population of Mexican wolves is not ‘‘self-sustaining.’’ In fact, the population is lower now than at the end of 2003. 

The FWS contracted with the International Union for the Conservation of Nature 

(IUCN) for the required three-year review of the BRWRA reintroduction project. A 

team of scientists led by world-renowned wolf ecologist Dr. Paul C. Paquet issued 

their report in June 2001; they concluded that ‘‘Survival and recruitment rates are 

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far too low to ensure population growth or persistence. Without dramatic improvement in these vital rates, the population will fall short of predictions for upcoming 

years.’’ 

The FWS took no action on the substantive recommendations of the three-year review or any of the many subsequent requests to rescind SOP 13, and the Paquet 

Report’s prediction became the current reality. 

THE BRWRA POPULATION OF MEXICAN WOLVES IS ‘‘ESSENTIAL’’ TO 

THEIR RECOVERY 

Mexican wolf recovery will ultimately require the establishment of at least three 

or more viable, self-sustaining ‘‘core’’ populations with habitat connectivity among 

the core populations. 

An analysis of five potential reintroduction areas presented in the final EIS found 

the BRWRA to be the most suitable site capable of meeting the 100+ wolf objective 

within the probable historic range of the subspecies. The Paquet Report estimated 

that the BRWRA could support 200 to 400 Mexican wolves. 

A recent peer-reviewed analysis of areas suitable for wolf recovery in western U.S. 

confirms the high importance of the BRWRA to the recovery of the Mexican wolf 

in the Southwest. 

Given that the BRWRA is arguably the best place to initiate wolf recovery in the 

Southwest and that restoration of a viable, self-sustaining population of Mexican 

wolves in the BRWRA is arguably a critically essential component to any future recovery plan for the Mexican wolf, the FWS can no longer justify an ‘‘experimental 

non-essential’’ classification for the BRWRA population. 

In the final rule, the FWS states: ‘‘This reintroduction will establish a wild population of at least 100 Mexican wolves and reduce the potential effects of keeping 

them in captivity in perpetuity. If captive Mexican wolves are not reintroduced to the wild within a reasonable period of time, genetic, physical, or 

behavioral changes resulting from prolonged captivity could diminish their 

prospects for recovery’’ (emphasis added). 

Recent peer-reviewed research has confirmed genetic deterioration of captive populations over time and recommends the return of captive animals to the wild as rapidly as possible. 

Endangered species recovery takes place in the wild, not in captivity. There is absolutely no legal or biological basis for asserting that a captive breeding program 

alone satisfies the mandate of the ESA. Clearly, the existing BRWRA population or 

any future wild population of Mexican gray wolves can no longer be considered 

‘‘nonessential’’ to the continued existence of the subspecies. If there ever is a case 

to be made for the first ever designated ‘‘essential’’ experimental population under 

Section 10(j) of the ESA, this is it. 

RECOVERY PLANNING 

The ESA (Section 4(f)(1)) mandates that the Secretary ‘‘shall develop and implement...‘recovery plans’ for the conservation and survival of endangered species.’’ The 

Mexican Wolf Recovery Plan was approved and adopted in 1982. FWS policy requires that recovery plans be reviewed every five years and updated or revised if 

they are out of date or not in compliance with the ESA. The 1982 Mexican Wolf 

Recovery Plan has never been updated or revised even though it does not contain 

‘‘objective, measurable criteria which, when met, would result in a determination...that the species be removed from the list’’ (ESA Section 4(f)(2)(B)(ii)) nor a detailed plan for fully recovering Mexican wolves throughout a significant portion of 

their historic range to a population status that warrants delisting from the ESA. 

The FWS initiated a recovery plan revision process in October 2003 but suspended 

that effort in January 2005. The FWS has shown no intent to reinitiate the recovery 

planning process for the critically endangered Mexican wolf. 

The FWS has indefinitely suspended recovery planning that would apply the best 

available science to future decisions for achieving recovery of the Mexican wolf. 

SELECTED EXAMPLES OF MISMANAGEMENT BY FWS 

Genetics: 

The unnecessary government killing of the alpha male of the Saddle Pack 

(AM574) illustrates the punitive management that imperils this population and the 

subspecies as a whole. This wolf killed four head of cattle by mid April 2004 and 

plans were made to remove him from the wild. The FWS was aware that he was 

the sixth most genetically valuable Mexican wolf for his genetic attributes among 

the combined wild and captive populations. He was the single most genetically valuable wolf in the wild; and was, in fact, irreplaceable genetically. This important information was documented in internal FWS communications. If captured alive, he 

161 

could have been bred in captivity, and would have perpetuated his valuable genetic 

heritage. Over the next three months this wolf ceased killing cattle, and was observed feeding on an elk; it may be that, like other wolves that switch prey preferences, he would never have killed another cow. Nevertheless, on July 11, 2004, 

he was shot and killed as per FWS instructions. 

Adaptive Management: 

On February 12, 2005, Congressman Steve Pearce (NM) convened two meetings, 

in Glenwood and Socorro, New Mexico, to hear constituents’ concerns about Mexican 

wolf recovery efforts in New Mexico. Invited participants were primarily members 

or supporters of the livestock industry in New Mexico. At the Congressman’s request, senior staff from FWS’s Southwest Region attended the meetings. Conservation stakeholders’ requests for similar access to FWS officials through formal public 

hearings were denied. 

On April 22, 2005, the AMOC proposed a moratorium on new releases of Mexican 

wolves into the BRWRA, and the new Standard Operating Procedure 13. The Rewilding Institute concluded that the proposed release moratorium and new wolf control procedures ‘‘will likely increase mortality and removal of wolves while reducing 

population supplementation.’’ Following public review, AMOC issued a final release 

moratorium and a final SOP 13 with no substantive changes from the proposed procedures, despite the fact that project monitoring had documented a population decline of about 20% at the end of 2004. 

The Rewilding Institute found that ‘‘[t]he proposed moratorium on releases and 

translocations appears politically motivated, premature, and unjustified on the basis 

of findings of the 3-year review and preliminary findings of the 5-year review’’. We 

fail to find any compelling justification in support of the necessity or urgency of the 

proposed moratorium and we recommend that it be rescinded immediately.’’ (Letter 

to FWS and Arizona Game and Fish Department dated May 25, 2005). The Rewilding Institute’s comments were formally endorsed by several prominent (some 

world renowned) conservation scientists, including Dr. Paul Paquet. Neither the 

FWS nor the AMOC paid any heed to our science-based and expert-endorsed comments. 

LITIGATION 

Frustrated over the FWS’s failure to conserve and recover the federally endangered Mexican gray wolf, twelve conservation organizations filed two lawsuits in the 

United States District Court for the District of Arizona on April 30, 2008. Complaints are summarized below. 

WildEarth Guardians and the Rewilding Institute vs. United States Fish and 

Wildlife Service and United States Forest Service. [2:08-cv-00820-ECV] 

• FWS has failed to meet the conservation standard of the ESA § 10(j). Since the 

beginning of 2005, permanent wolf removals under SOP 13 have precluded 

progress towards recovery. 

• FWS has acted, and is acting, unreasonably and with clear error of judgment 

by adopting and continuing to implement its SOP 13 wolf removal campaign in 

the face of a crashing wolf population. 

• FWS has arbitrarily and capriciously overstepped the bounds of management 

flexibility and entered into the realm of unlawful endangered species predator 

control. 

• FWS’s management strategy of killing and trapping its way to recovering the 

Mexican gray wolf, as manifested by its adoption and implementation of SOP 

13, has not—and cannot—further the conservation of the subspecies. 

• The Forest Service has failed to meet the conservation duty of ESA § 7(a)(1). 

• Permanent wolf removals directly resulting from conflicts with Forest Service 

permitted livestock are precluding the attainment of recovery benchmarks for 

the only wild population of Mexican gray wolves. 

• The Forest Service has unlawfully refused or unreasonably delayed developing 

and implementing a program for the conservation of this endangered subspecies. 

Defenders of Wildlife; Center for Biological Diversity; Western Watersheds Project; New Mexico Audubon Council; New Mexico Wilderness Alliance; University of New Mexico Wilderness Alliance; The Wildlands Project; 

Sierra Club; Southwest Environmental Center; and Grand Canyon 

Wildlands Council vs. Benjamin Tuggle, Region 2, USFWS; Dale Hall, Director, USFWS; Dirk Kempthorne, Secretary U.S. Department of The Interior; 

U.S. Fish and Wildlife Service. [4:08-cv-00280-DCB] 

• Defendants failed to carry out environmental analysis and public review, as required under NEPA, 42 U.S.C. § 4331 et seq., of its decision or decisions to esVerDate Aug 31 2005 15:00 Sep 25, 2008 Jkt 098700 PO 00000 Frm 00165 Fmt 6633 Sfmt 6621 L:\DOCS\42492.TXT Hresour1 PsN: KATHY
162 

tablish the Adaptive Management Oversight Committee under a Memorandum 

of Understanding. 

• Defendants’ decision or decisions to delegate FWS’s statutory duties and responsibilities to administer the Mexican gray wolf reintroduction project will and 

have harmed the environment and will and has caused adverse impacts to the 

Mexican gray wolf and the reintroduction project. 

• Defendants failed to carry out environmental analysis and public review, as required under NEPA, 42 U.S.C. § 4331 et seq., of its decision or decisions to approve and implement SOP 13. 

• Defendants’ decision or decisions to establish SOP 13 will and have harmed the 

environment and will and have caused adverse impacts to the Mexican gray 

wolf and the reintroduction project. Further, because there is no other Mexican 

gray wolf population in the wild, the harm extends not just to the reintroduction project but to the prospects for the ultimate recovery of the subspecies. 

• By the AMOC MOU, Defendants unlawfully subdelegated to the other AMOC 

lead agencies their statutory duty and responsibility to ‘‘implement...the objectives and strategies’’ of the most central facets of the Mexican gray wolf 

recovery. 

• The Defendants’ decision or decisions to establish the Adaptive Management 

Oversight Committee under a Memorandum of Understanding and to approve 

and implement SOP 13 are counter to the FWS’s reintroduction environmental 

impact statement and record of decision, final ESA § 10(j) rule, the 1998 Interagency Management Plan, and Defendant’s overriding ESA obligation to recover 

the species in the wild. 

RECOMMENDATIONS 

Direct FWS to abolish SOP 13.0 and develop management protocols for addressing 

wolf conflicts in ways that take into account population genetics, demographics and 

other factors important for making progress towards recovery of the critically endangered Mexican gray wolf. Benchmarks for population growth must be established. We recommend an annual population increase of at least 15% and an annual 

increase of at least 2 breeding pairs. 

Direct FWS to abolish the AMOC and establish a new model for interagency participation, reclaim full decision authority for the BRWRA reintroduction project, and 

carry out its duty to conserve Mexican gray wolves per the ESA. 

Direct FWS to prepare a legally sufficient recovery plan, under the 1988 revisions 

to the ESA, based on modern conservation science within the next year. 

Develop and introduce legislation to compensate livestock operators within the 

BRWRA, on a voluntary basis, in exchange for the permanent retirement of the public grazing allotments they lease. 

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Mrs. NAPOLITANO. Thank you so much, Mr. Parsons. We appreciate that. 

We have now Mr. Larry Irwin, Principal Scientist, National 

Council for Air & Stream Improvement. Thank you for being here, 

sir. 

STATEMENT OF LARRY L. IRWIN, PH.D., PRINCIPAL SCIENTIST, 

NATIONAL COUNCIL FOR AIR & STREAM IMPROVEMENT, INC. 

Mr. IRWIN. Thank you, Madam Chairman. It is really a delight 

for me to be here today. Like Jerry Franklin, I have been involved 

with the spotted owl for over 20 years and involved in providing 

scientific information to most of the governmental deliberations on 

behalf of that species. 

As most everyone knows, many species that are listed under the 

Endangered Species Act are listed largely because of habitat loss 

and associated population declines. Marking progress toward recovery therefore involves reliable answers to two primary questions. 

How many animals are needed, and how much habitat is needed 

to support them? Valid answers to those questions require a predictive link between habitat and population performance. 

In the case of the northern spotted owl and the recovery plan released last week, maps of late successional and old growth forests 

form the backbone of the recovery strategy. That is important and 

reasonable, but it may well surprise you that maps of late successional and old growth forests do not predict barred owl abundance 

or their distributions or their population performance very well. 

As a result, there are no confident estimates of how much habitat is necessary. The same is true for estimating consequences to 

the owl populations from habitat changes from implementing Federal forest management plans, such as the BLM’s whopper. Maps 

of late successional and old growth forests fail the basic scientific 

litmus of reliability. There remains then an unsettling amount of 

scientific uncertainty for recovery planning. 

Now, I concur with the primary elements, the nuts and bolts of 

the recovery plan, but in my view the picture is incomplete, and 

some parts of the picture are underemphasized. I think this Committee can do something about that. 

Two primary topics I want to talk about are risk assessment and 

adaptive management. I would like to elaborate just a little bit. 

The threat to recovery from uncharacteristically intense wildfires 

has been raised in this hearing two or three times today. I think 

it remains underestimated. 

Since the 1994 Northwest Forest Plan was implemented, unnaturally intense wildfires destroyed several dozen spotted owl sites 

and degraded many more. Certainly climate changes portend additional severe fires in the future that would disrupt the recovery 

network and be a problem for recovery. 

Concern for these fires is even elevated because the most productive spotted owls occur in the forests that are at the highest degree 

of risk. Recurring drought, forest insect and disease epidemics and, 

as we heard, invading barred owls exacerbate those risks. 

The final recovery plan identified them certainly, but recommended qualitative or informal analyses of risks within the fire 

prone landscapes. I believe the need for management of these landVerDate Aug 31 2005 15:00 Sep 25, 2008 Jkt 098700 PO 00000 Frm 00169 Fmt 6633 Sfmt 6602 L:\DOCS\42492.TXT Hresour1 PsN: KATHY
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scapes is higher than that, and doing so requires formal, quantitative assessments of risk. 

Certainly chronic changes in these forests have created negative 

consequences for the owls that are not well accounted for in the 

final recovery plan. These sites have been classified as suitable. 

The owls are abandoning them. They look to us because they have 

large trees and dense cover as suitable habitat. The owls are saying otherwise. 

Something is happening internally, so there is a difficult problem 

we have to attend and, in fact, it is a paradox in that the treatments that might improve the habitat for these owls and reduce 

the risk of fire could also degrade habitat quality for the owl. That 

is a first order paradox that requires formal attention. 

We have learned recently that habitat for the owl is indeed more 

than late successional and old growth forests. Details of forest 

stand structure, tree species composition, density of the vegetation 

on the ground matter. 

The final plan described adaptive management as a means of 

identifying what those features are and how to apply them in management. My concern here is that adaptive management was first 

identified in 1990 to be applied to spotted owls. It has yet to be applied, even after three Administrations have gone by the wayside. 

So I ask that this Committee provide the funding for the appropriate research and the appropriate technical personnel to, in fact, 

do formal risk assessments and truly apply adaptive management. 

Thank you very much. 

[The prepared statement of Mr. Irwin follows:] 

Statement of Larry L. Irwin, Ph.D., Principal Scientist, National Council for 

Air and Stream Improvement, Inc., Stevensville, Montana 

Chairman Rahall and distinguished committee members. I am truly honored to 

speak to you today. I am Larry Irwin, Principal Scientist and Western Wildlife Program Manager for the National Council for Air and Stream Improvement, Inc., or 

NCASI. NCASI is a non-profit, 501(c)6 environmental management and research organization with headquarters in Research Triangle Park, North Carolina. Since 

1986, I have conducted research and contracted other scientists to conduct research 

on topics associated with forestry and various wildlife species, including the threatened Northern Spotted Owl, or NSO. Approximately half of our research funding 

comes from member companies; the remainder comes from collaborating private, 

state, or federal natural resource organizations. 

I have conducted scientific studies involving habitat relationships and population 

dynamics among Spotted Owls throughout the 3 affected states, emphasizing the 

NSO. I have published over 30 scientific papers on NSOs, some 2 dozen of which 

appeared in peer-reviewed publications. Also, I am currently conducting three cooperative studies that involve measuring details of habitat conditions for Barred Owls 

and NSOs that occupy the same areas. Barred Owls recently invaded the Pacific 

Northwest and are strongly implicated in ongoing declines of NSO populations via 

competitive interactions. 

By invitation from Dr. Jack Ward Thomas, now an Emeritus Chief of the U.S. 

Forest Service, I served as an observer/advisor to the Interagency Committee of Scientists who proposed the primary conservation strategy for the NSO in 1990. I 

wrote the chapter on adaptive management for that conservation strategy. The fundamental premises of that strategy have endured through subsequent iterations, including the recovery plan that was released late last week. 

Like many species, habitat loss and associated population declines were among 

the major reasons the NSO was listed under the ESA. Recovery for the Northern 

Spotted Owl is predicated on preserving and restoring late-successional and oldgrowth forests (LSOG). Yet, a recurring challenge with recovering the Northern 

Spotted Owl and many other species in peril involves reliable answers to questions 

regarding how many animals and how much habitat are needed. 

167 

No one questions that LSOG forests are highly important to the ecology of NSOs. Yet, it may surprise you that after at least $50million of investment in research and 

monitoring over the past 30 years, maps of LSOG forests do not predict NSO distributions very well. Perhaps more surprising, there are no strong correlations between NSO demographic performance and LSOG forests that would allow confident 

predictions of NSO population response to the recovery plan or to federal forest 

management plans based upon amounts and distributions of such habitat. Make no 

mistake, enormous scientific progress has been made, but an unsettling amount of 

scientific uncertainty remains. 

Therefore, my purposes today are to address two topics described within the Final 

Recovery Plan for the Northern Spotted Owl that could be boosted by this Committee: 

1. Risk Assessment as a means of responding to threats to NSO populations in 

fire-prone forests; and 

2. Adaptive Management as a means of rapidly reducing scientific uncertainty by 

improving the ability to predict owl demographic performance in response to 

habitat provided through the recovery strategy. 

A major take-home message is that there is a great deal of ecological variability 

within and among various forest types occupied by the NSO. Much of that variability was acknowledged but incompletely described in the Recovery Plan. Ecological 

variability means that a sustainable recovery strategy for NSOs must be multi-faceted and specifically orchestrated to learn from experience. I illustrate my points by 

briefly reporting on examples from research on NSOs. 

I. RISK ASSESSMENT FOR SPOTTED OWLS IN FIRE-PRONE FORESTS 

I concur with recent views expressed by Courtney et al. (2008) that the threat to 

NSO populations from uncharacteristically intense wildfires was been widely underestimated in the draft recovery plan, and I find that remains true in the Final Recovery Plan as well. That may have occurred because habitat loss via clearcut logging was considered to be a greater and more immediate concern. Also, a significant 

portion of the geographic range of the NSO involves moist forests less prone to 

uncharacteristic fires. Or, it may have occurred because NSOs have been observed 

persisting through some wildfires. Moreover, it might have seemed logical that 

wildfires are natural and therefore perhaps an important part of sustaining some 

forest ecosystems. I share the latter view to a limited extent. 

However, dry fire-prone forests comprise perhaps as much as 40% of the geographic range of the NSO, so their contributions to recovery are paramount. And 

we know that intense wildfires destroy habitats. For example, unnaturally intense 

fires, such as the Tyee fires in the eastern Washington Cascades in 1994 and the 

Biscuit fires in southwestern Oregon in 2002, destroyed several dozen NSO sites. 

The NSOs in the most intensively burned areas either died or emigrated. With ongoing climate changes, we can expect more such severe fire events in the future. 

The Final Recovery Plan, acknowledging significant threats to NSOs in dry, fireprone forests, calls for a ‘‘landscape management’’ strategy for the eastern Cascades 

through the California Cascades part of the range of the owl, and recommended informal analyses of associated risks. Below, I use examples to summarize the need 

for pre-emptive management and scientific support for formal risk assessments associated with active management of NSO habitat. After that, I end my presentation 

with a section describing options for reducing scientific and management uncertainty via adaptive management experiments. 

A majority of NSO nesting sites in Washington’s eastern Cascades was selectively 

harvested several decades ago. These sites now support dense pole-sized thickets 

under the remaining, often disease-ridden trees. Such small-diameter thickets in the 

sub-canopies of Douglas-fir forests mixed with Ponderosa pine trees are consistent 

with changes that occurred after the onset of fire suppression. The combination of 

selective harvesting and fire suppression most likely inadvertently resulted in suitable NSO habitat. However, those owl sites are now at great risk of extensive habitat loss to uncharacteristic wildfires. The risk is of high concern because those forests include the areas where NSO reproductive rates are highest, a point left out 

of the Final Recovery Plan. An extended insect epidemic exacerbates the risk of intense wildfires. 

The result is a ‘‘wicked’’ ecological problem in that the most productive NSOs exist 

in forests at greatest risk to uncharacteristic wildfires, yet fuel reduction treatments 

could conceivably reduce habitat quality for the owls, at least in the short run. That 

is a paradox of the first order. 

It gets worse. Natural, late-successional dry forests in the eastern side of the Cascades and parts of the Klamath region contained frequent gaps in the forest canopies and patches of forest-floor shrubs. These features apparently resulted from freVerDate Aug 31 2005 15:00 Sep 25, 2008 Jkt 098700 PO 00000 Frm 00171 Fmt 6633 Sfmt 6621 L:\DOCS\42492.TXT Hresour1 PsN: KATHY
168 

quent light- to moderate intensity fires. Now, after decades of fire suppression combined with recurring drought and epidemics of insects and forest diseases, the old 

Douglas-fir trees are gradually being replaced by grand fir or white fir trees, which 

are more shade-tolerant. Forest ecologists have labeled that process ‘‘fragmentation 

in reverse’’. It might also be labeled retrogressive succession. 

These subtle and chronic changes resulted in negative consequences to NSOs that 

were not considered in the Final Recovery Plan. In a recent publication, we documented reduced reproductive performance by NSOs as well as site abandonment in 

such forests. Those events occurred even though the predominant overstory grand 

fir trees are old and large and no logging occurred during our study (the sites are 

in Late Successional Reserves, or LSRs, under the 1994 Northwest Forest Plan). 

Now, the increasing populations of Barred Owls seem likely to exacerbate the situation. 

The negative effects of this subtle and chronic phenomenon of fragmentation in 

reverse or retrogressive succession on NSO population performance in dry grand fir 

or white fir forests are not widely understood or accepted. Possibly that has occurred 

because it runs counter to the preponderance of scientific research in the moist 

Douglas-fir/Western Hemlock zone that demonstrated the strong association between NSOs and pristine, late-successional and old-growth forests. The west-side 

paradigm has been extrapolated to dry-forests that are not pristine. Many of these 

eastside forests have features that characterize old forests, so they are deemed to 

be high-quality habitat. However, the owls are telling us otherwise. There, a custodial strategy for such forests is sub-optimal. The internal quality of those habitats 

has eroded over time and many owls (50 pairs in our study) have abandoned the 

affected stands. 

The consequences of such chronic habitat quality loss to NSOs are seriously 

under-estimated. In the section below on relative risk assessment, I provide additional information that supports my view that the details of tree species composition 

and density matter greatly to NSOs, in addition to trees of large size and old age. 

To date, however, conservation planning and recovery for NSOs has made little or 

no distinctions among the species of trees that may dominate a forest. Fortunately, 

the Final Recovery Plan does acknowledge the possibility that composition may matter, and if so, it would be determined via adaptive management activities. I will get 

to that later. 

It is important to note here that, in addition to providing for NSO recovery, the 

LSR network was developed to support other species that are associated with latesuccessional and old-growth forests. However, research by other scientists recently 

demonstrated that such unnaturally dense conditions and related compositional 

changes in dry grand fir forests are associated with reduced songbird species diversity and abundance, even though large old trees are present. 

Both forest conditions that I’ve described—that is, forests at-risk to 

uncharacteristically intense wildfires and those in retrogressively advanced 

situations—are not sustainable. The decision to be made for such forests is not 

whether or not to manage them; the decision involves how to manage. 

A. BUT WHAT SHOULD THE ACTIVE MANAGEMENT LOOK LIKE? 

Aldo Leopold, the father of modern wildlife management, developed the central 

thesis of wildlife management, which holds that the same factors that historically 

destroyed wildlife and their habitats—logging, livestock grazing, farming, hunting, 

and wildfire—can be used judiciously and creatively to restore them. Many participants in endangered species recovery have forgotten that axiom. On the other hand, 

and in accordance with Leopold’s view, many forest-wildlife scientists do suggest 

that careful harvesting of trees can emulate some spatial fire patterns, or can approximate stand structures and composition similar to those created by fires. 

Mind you, judicious logging alone cannot be expected to replicate all aspects of 

natural fires, due, among other things, to multiple successional trajectories that depend upon a variety of ecological processes associated with soils, moisture, activities 

of herbivores and post-disturbance weather patterns. Therefore, it seems reasonable 

to anticipate that prescribed burning might well be part of the NSO recovery toolbox, at least in areas with natural fuel loads. Here, I emphasize forests where prescribed fires constitute an unacceptable risk of growing into catastrophic fires until 

distribution and abundance of forest fuels, both live and dead, are treated mechanically. 

As noted in the 2008 Final Recovery Plan, there is indirect evidence to support 

silvicultural programs that emphasize fuel reductions in the Eastern Cascades ecological province. For example, we found that understory hardwood (shrubs) were 

comparatively abundant around NSO nest sites in fire-prone Douglas-fir/Ponderosa 

pine forests. These hardwood species all increase after forest thinning as well as 

169 

burning. In addition, group seed-tree and patch-cut systems have been demonstrated to maintain the abundance, species richness and diversity of many small 

mammals, suggesting that important prey species can be maintained. In one eastern 

Washington Cascades study densities of northern flying squirrels, the NSO’s primary prey, increased after partial harvesting that left large snags and downed 

woody debris. 

B. EMBRACING RISK AND UNCERTAINTY: TECHNOLOGY EXISTS TO 

SUPPORT FORMAL COMPARATIVE RISK ASSESSMENTS 

Recent assessments of the status of the NSO, such as the draft and final recovery 

plan and federal forest planning activities such as the BLM’s Western Oregon Plan 

Revision (WOPR), included informal assessments of risks of uncharacteristic wildfire 

in fire-prone forests. To my knowledge, no assessments for the NSO have attempted 

formal risk analyses that might balance short- and long-term risks and benefits to 

NSOs of ecological restoration relative to minimizing uncharacteristically intense 

wildfires or reversing successional retrogression. 

Fortunately, a special issue in Forest Ecology and Management in 2005 (vol. 211) 

illustrated analytical tools and decision-making procedures that can provide land 

and resource managers, and Congress, greater confidence in displaying short and 

long-term consequences of proposed actions. The special issue summarized the discipline of relative risk assessment, described state-or-the-art methods for predicting 

hazards and risks of uncharacteristic wildfires, and provided several case-histories 

for conservation of important ecosystems or species in peril that are subject to 

uncharacteristic wildfire. Two case-study examples were illustrated for spotted owls. 

A lack of necessary and reliable analytical tools is often invoked by federal regulatory agencies to justify short-term custodial management (i.e., ‘‘preservation’’) over 

long-term restoration and dismiss formal risk assessment. NCASI, several federal 

and state agencies, and several private companies have been working since 1998 to 

develop new decision-support tools that can better quantify the relative risks of 

short-term preservation versus actively addressing long-term risks of 

uncharacteristic disturbances. In that endeavor, we asked a different question: ‘‘Do 

details for forest-stand structure and tree- and understory species composition matter to NSOs?’’ Such a question must be answered for describing habitat in terms 

understood by forest ecologists and managers. That effort, which I supervise, includes 9 individual study areas in western Oregon and northern California where 

over 250 spotted owls have been radio-tagged. That information has been combined 

into a model that now can be linked with established tools used by foresters for formal relative risk assessments: forest growth models, fire-risk models, and harvest 

scheduling with spatial constraints. 

During that research we learned that habitat for spotted owls is more than latesuccessional and old-growth conifer forests. Hardwoods, particularly in forest stands 

near riparian zones in small-order watersheds are very important to spotted owls. 

In fact, habitat for the NSO is even broader than forests: in winter, some NSOs in 

the Medford, Oregon area descend to lower-elevations where they forage at night 

within south-slope manazanita brushfields. These brushfields contain only a few 

scattered trees and are maintained by frequent fires. There, they acquire woodrats, 

a major prey item. 

We have also learned in early analyses that the likelihood of an owl using a forest 

stand varies with increases in basal area of Douglas-fir trees. As shown in the attachment graphics, the pattern is hump-backed, which means that Douglas-fir 

stands can be either too sparse or too dense. Other important factors include distance from nest sites, snag density, downed woody debris, understory shrubs, and 

tree species composition. For example, in mixed conifer stands, Ponderosa pine 

seems to exert a negative influence on NSOs. That suggests that ecological restoration that removes small-diameter Douglas-fir trees to promote old-growth Ponderosa 

pine is likely to work against recovery of the NSO. Importantly, densities of large 

trees and overstory canopy cover, 2 primary factors often used to map suitable NSO 

habitat, were not strong predictors. 

In my opinion, deeper understanding and stronger technology for formal comparative risk assessments that include active management will help promote recovery 

of the NSO. It will also result in more-informed natural resource plans regarding 

treatments that provide satisfactory protection while also reducing risk of catastrophic wildfire. 

Because of high variation among physiographic provinces, these topics are best 

addressed at the level of a national forest or BLM district. Thus, I encourage this 

committee to consider promoting and funding the necessary personnel and additional risk-assessment technology that could accelerate both the recovery efforts and 

170 

judicious federal land management planning in forests occupied by NSOs that also 

are prone to uncharacteristic wildfires. 

II. REDUCING SCIENTIFIC UNCERTAINTY: ADAPTIVE MANAGEMENT 

CAN PROMOTE A MORE SUSTAINABLE FOREST AND MORE 

EFFECTIVE RECOVERY 

Prior to widespread application in site-specific or watershed planning for silvicultural intervention within or near NSO sites, models such as that described above 

should properly be considered as ‘‘working hypotheses’’ for testing and refinement 

via well-designed adaptive management experiments. Such ideas about utilizing 

adaptive management were emphasized in the Final Recovery Plan, but only for the 

Klamath region in southwestern Oregon and Northern California. However, I believe the Plan may have been overly optimistic in presuming that adaptive management will truly serve NSO recovery. 

The Interagency Scientific Committee (ISC), the Forest Ecosystem Management 

and Assessment Team (FEMAT), and previous recovery plans all recognized and 

promoted adaptive management as a means for identifying silvicultural practices on 

federal lands that might hasten re-growth of LSOG forests and thereby sustain species such as NSOs. And 10 federal Adaptive Management Areas were established 

via President Clinton’s Northwest Forest Plan in 1994. Unfortunately, recent reviews point out that adaptive management has become a buzzword and its promises 

have not been fully realized. 

For example, it is now nearly 15 years since adoption of the Northwest Forest 

Plan, and no federal research has been undertaken to evaluate how NSOs might respond to habitat manipulation in an adaptive management framework. Wildlife scientists have repeatedly demonstrated the negative consequences clearcutting within 

owl habitats, but know almost nothing about the effects of numerous combinations 

of other forest management practices such as thinning, selection, or shelterwood systems of silviculture. 

Further, the 1994 Northwest Forest Plan assumed that the interim no-touch, ‘‘default buffers’’ along stream courses would be altered and some management allowed 

once watershed assessments were completed. That would have afforded additional 

opportunities for ‘‘adaptive management tests’’. However, these redundant buffers 

remain in place, and are predicted to lose their hardwoods over the next 50 years. 

As stated above, this could have negative effects on NSO recovery because hardwoods are important to them via their prey. 

The crucial aspects of the Northwest Forest Plan related to ‘‘adaptive management’’, that is, the 10 adaptive management areas, thinning or partial harvesting 

in stands in LSRs, and adjustments in widths and silvicultural practices related to 

riparian buffers, have not been aggressively utilized to provide practical insights 

and new technical information. There is little to suggest that yet another recommendation for adaptive management, as indicated in the Final Recovery Plan, 

will actually be implemented. 

I remain firmly convinced that new scientific information is crucial to developing 

responsive management to promote recovery of NSOs over the long run, while taking into account the dynamic nature of their habitats. The ‘‘static habitat’’ approach 

has dominated and the risk of loss of those habitats from catastrophic fire or degradation of habitat quality via successional replacement, has progressively increased. 

Diverging a bit from the Final Recovery Plan, I believe that the success of innovative forest management strategies for dry, fire-prone forests requires research and 

monitoring within an adaptive management framework in the eastern Cascades as 

well as the Klamath region. Success depends upon integrating the knowledge of 

forest managers and scientists. A complete agenda must address landscape-scale effects on northern spotted owls as well as other wide-ranging species. 

However, some observers have wondered if it is truly possible that adaptive management, in concert with collaborative and social natural resource management, can 

account adequately for real and perceived risks and scientific uncertainty in addition to environmental and social values over long- and as well as the short term. 

The biggest challenge could well lie in promoting the public will for implementing 

active forest management programs that seek to balance short-term conservation 

needs with long term forest ecosystem sustainability. Yet, in practice, most of these 

‘‘collaborative’’ efforts have not held together for long. To date, little interest has 

been forthcoming among federal regulatory wildlife biologists and scientists for conducting adaptive management experiments on behalf of the Northern Spotted Owl. 

This Committee can do something about that. I concur with the Recovery Plan’s 

recommendation for a panel of wildlife ecologists, forest ecologists and forest managers to generate the salient questions and appropriate designs that can address 

171 

them ways that maximize effective communications among what traditionally has 

been somewhat disparate disciplines. Basically, that requires significant investments in research funding. Active adaptive management requires simultaneously 

implementing more than one recovery option in areas such as the 10 federal Adaptive Management areas, the Klamath or eastern Cascades. Those options that demonstrably provide greater success can be refined and applied more broadly. 

SOME POTENTIAL TOPICS FOR ADAPTIVE MANAGEMENT 

The predictive relation between NSOs and habitat conditions is weak and must 

be improved if we are ever to use habitat as a surrogate for monitoring progress 

toward recovery. Doing so will require manipulative experiments within an adaptive 

management framework. Maps of LSOG forests provided a useful and commonsense 

place to begin designing a sustainable recovery strategy and articulating that strategy to Congress and the public. Yet, LSOG is a categorical description of a particular forest successional stage, and successional stages have never been demonstrated to have reliable predictive relationships with demography of any wildlife 

species. In fact, a habitat modeling effort in northwestern California that included 

only LSOG ranked about 50th among a suite of more than 100 candidate models 

that were tested against field data on NSO locations. In my opinion, habitat for the 

NSO, at least in fire-prone mixed composition coniferous forests, has been measured 

and modeled poorly, whereas NSO demography has been well-captured by sophisticated statistical models. 

It is oft-stated that the ‘‘devil lurks in the details’’. In the case of the Northern 

Spotted Owl recovery, details that matter greatly to the owl were overlooked in our 

zeal to protect LSOG forests. As noted above, details of composition of forest trees, 

tree density, understory vegetation and abiotic conditions must be accounted for. 

Linking those features with measures of NSO population performance involves detailed forest inventories, which generally have not been available to federal researchers at a spatial scale that has been matched temporally with information on 

the owl. Therefore, in addition to supporting formal relative risk assessments, I urge 

this committee to identify and allocate the necessary resources for improved forest 

inventories on federal lands. Such details also provide an important means for 

blending wildlife science with forest ecology. 

Finally, a note about the invading Barrel Owl. As reported in the Final Recovery 

Plan, some observers believe, with some limited supporting evidence, that the 

Barred Owl is now the biggest threat to NSO recovery. As a result, some believe 

that lethal control of Barred Owls is necessary, at least in the short term. There 

is also evidence that the Spotted Owl might be better able to exploit drier, mixed 

conifer forests than Barred Owls. If that is so, it places an even greater premium 

on active management to restore dry, fire-prone forests at risk to uncharacteristic 

wildfires and those degraded by retrogressive succession. This will require adaptive 

management experiments to determine if forest restoration may tilt the balance in 

favor of the NSO. 

The Northern Spotted Owl stands a good chance of recovery if the right questions 

are asked, if the habitat features that matter to owls are measured and provided, 

and if Congress directs regulatory and land management agencies in ways that can 

embrace and reduce scientific uncertainty. Without such direction and without adequate funding, I fear a legacy of benign neglect will prevail. We’ve made outstanding 

strides. Yet there is much work, good work, still to be done. 

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174 

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ATTACHMENT 1 

This attachment provides graphics that display a portion of a computer-based 

model that summarizes factors influencing habitat selection by Northern Spotted 

Owls at Medford, Oregon (A), and by California Spotted Owls near Chico California 

(B). The data came from following radio-tagged spotted owls for up to 5 years in 

each area. The model is known as a ‘‘resource selection function, or RSF. The graphs 

show that forest stands can be too dense for optimal use by spotted owls, and also 

that different tree species have different effects on spotted owls. 

The vertical Y-axis in each graph represents the relative likelihood of a forest 

stand being used by a spotted owl for nocturnal foraging. The BASAL.FIR X-axis 

in each graph indicates likelihood of use of an individual forest stand by an owl is 

highest at intermediate levels of basal area of Douglas-fir trees, and suggests an optimal range of approximately 150-225 square feet of basal area per acre. Basal area 

is the sum of the cross-sectional area occupied by individual trees. In A, the CEDAR 

X-axis indicates that basal area of Incense cedar trees has a weak, but positive influence. 

In B, the likelihood of use of a forest stand by a spotted owl increased with increasing basal area of hardwoods, exemplified in the graph by the axis labeled 

BASAL.HW. Hardwoods are known to be important to the owl’s small mammal 

prey. 

The overall computer models include other factors, such as distance to streams 

and basal areas of other tree species. They can be used in conjunction with forest 

managers’ tools such as forest-growth and fire-risk models to estimate the relative 

effects on spotted owls in the short- and long runs from thinning or partial harvests 

that reduce tree densities or fuel loads. Both graphs indicate relatively high values 

for forest stands with high basal areas, which often characterize old-growth forests. 


42492.055
175 

Response to questions submitted for the record by Larry L. Irwin, 

Principal Scientist, NCAS 

Questions from Congressman DeFazio 

1. Do you agree with Dr. Franklin’s testimony that the science in the Draft 

Plan on habitat goals was flawed, and the Final Plan largely remedies 

these flaws? 

Scientists are risk averse by nature, and it is easy for a scientist to identify sections of forest management or recovery plans that may not apply all of the relevant 

science. Despite that, I generally agree with Dr. Franklin, although I would describe 

the science in both Plans as more or less incomplete rather than flawed. 

2. Do you agree that it is in the public interest for science-based plans 

such as Recovery Plan and WOPR to be evaluated and reviewed by eminent scientists? 

No. I would agree to the question if the eminent scientists chosen for reviewers 

are thoroughly aware of the crucial and locally important details. The scientific 

record on spotted owls, for example, is not entirely complete, clean or clear, and the 

details matter greatly. In such cases, general scientific knowledge cannot replace intimate personal familiarity. 

3. Do you agree that there are still uncertainties as to whether the Final 

Plan is as effective as the Northwest Forest Plan at protecting owl habitat? 

Of course, there will always be scientific uncertainty as well as management-decision uncertainty. I believe the Northwest Forest Plan was deficient in several topics 

relative to owl habitat, and its implementation relative to question 4 below was 

lacking. The new Recovery Plan makes a reasoned attempt to remedy some important uncertainties, yet it remains to be seen if those suggestions can be fully implemented. 


42492.056
176 

4. The plan relies heavily on ‘‘adaptive management’’, which is a sciencebased approach. Given the answers to 1, 2, and 3, should we leave implementation of WOPR and the Recovery Plan in the hands of government 

agencies? 

Of course, both the WOPR and the Recovery Plan are government constructs and 

therefore should be implemented by cooperating government agencies. Yet, I believe 

that scientists should be closer to the proverbial driver’s seat in informing land 

manager’s decision making. I continue to encourage both the BLM and U.S. Fish 

and Wildlife Service managers to skillfully engage academic and other scientists in 

formally identifying, managing, and implementing forest management in ways that 

reduce the attendant risks, as stated in my testimony. In fact, I remain hopeful that 

Congress can accelerate the direct application of science as part and parcel of land 

management policy as a continuous learning process, which is true adaptive management. Adaptive management was proposed by the ISC in 1990, included in the 

Northwest Forest Plan, and promoted in the Final Recovery Plan for the Northern 

Spotted Owl. It was applied passively to a rather limited extent, via trail-and-error. 

It has yet to be executed actively—doing so involves embracing uncertainty in a formal manner. 

5. Dr. Irwin, Dr. Franklin’s testimony expresses the concern that fire represents a great threat to spotted owls in dry forests and in southern Oregon. Do you share this concern? 

Yes. One needs to look no further than the 2002 Biscuit fires, which apparently 

forced some 50 pairs of spotted owls to seek other habitat, which, of course, doesn’t 

exist or is already occupied. 

Mrs. NAPOLITANO. Thank you very much for your testimony, sir. 

I have a question to pose to all of you. Are you in a hurry to return to where you came from? We are going to be voting for about 

45 minutes to possibly an hour. I would like to come back and continue a line of questioning for the record. If you are with me, I 

would like to know if you can be back. Those that can, fine. 

I will return then and be with you, so I will recess until we have 

votes. We have about six votes. It may take about 45 minutes, and 

then we will be back and resume the line of questioning. Thank 

you. 

This will be for the record. Thank you. 

[Recess.] 

Mrs. NAPOLITANO.The oversight hearing on ‘‘Deception: Do Endangered Species Have a Chance?’’ will reconvene. I apologize for 

the delay and thank you very much for standing by and coming 

back. 

This is a matter of great importance to this Committee, especially to people like me who have a great concern about some of the 

Administration’s findings or nonfindings, if you will, over the last 

few years that have placed some of our protected species in the endangered area and how do we work cooperatively, both the farmers, 

the business, the fishermen, with the environmentalists and the 

scientists to be able to ensure that we do not lose any more species 

forever. 

I have children and grandchildren and a great-grandson, and to 

me it is important that they are able to enjoy and, if you will, see 

these species that still are with us, so with that I will move on to 

the questions. Part of what I would like to do, and I hope some of 

the other Members will come in shortly. Most of them that I talked 

to have meetings, so we will accept them as they come in. 

First, to Mr. Scott Kraus. In regard to NOAA, they have raised 

concerns with the sensitivity analysis conducted by the White 

House Council of Economic Advisors. Apparently, the Council 

177 

changed the National Marine Fisheries Service findings that five 

endangered right whales were seriously injured by ship strikes to 

‘‘not serious.’’ What is the significance to this change, and what can 

happen? 

Mr. KRAUS. Well, it is perplexing at very best. Normally when 

you run a sensitivity analysis on any kind of model like this you 

want to select your data randomly, and they didn’t do that. They 

selected five animals. They changed their status. 

I don’t really understand the reasoning behind it because it 

doesn’t follow any accepted statistical procedures. I don’t understand the rationale. We don’t understand it. 

Mrs. NAPOLITANO. Was there any explanation? Was anything 

questioned? 

Mr. KRAUS. Not to my knowledge. 

Mrs. NAPOLITANO. Was this brought up to them at one point or 

another about being too focused and not using normal and standard procedure? 

Mr. KRAUS. I only have secondhand information, which indicates 

that the NOAA scientists challenged the analysis as inappropriate. 

That is all I know. I don’t know. 

You know, the scientific review that is being challenged by the 

Council on Economic Advisors, we are not privy to that external. 

There is no external peer review by scientists who actually work 

in the field, so we don’t know what they are doing. 

Mrs. NAPOLITANO. There were no findings revealed, none shared? 

Mr. KRAUS. There is no call for public review of the findings, and 

there is no information that we are aware of in the public domain. 

Mrs. NAPOLITANO. What would benefit? If there were a change, 

what would you feel would be necessary to be able to have that information shared so that there would be more—how would I say— 

openness and—— 

Mr. KRAUS. Well, transparency would help, but it also helps to 

have expertise in the field in which you are being critical, you 

know. 

The whole field of biostatistics is quite complex and sophisticated. It is not something that you pick up overnight, and it is certainly not something that nonbiostatisticians should be challenging 

without a comprehensive understanding of the questions. 

Mrs. NAPOLITANO. I am assuming the economic advisors do not 

have qualified scientists or scientists working for them? 

Mr. KRAUS. I honestly don’t know but, if I were a biostatistician, 

that is not the first place I would look for a job. 

Mrs. NAPOLITANO. Thank you for your honesty, sir. 

Mr. Parsons, you stated that the current management practices 

and Agency policies may cause the extinction of the Mexican wolf 

in the wild. Are we at the point principally because of political calculations favoring special interests? A failure of leadership? A lack 

of resources? All of the above or any other reasons? 

Mr. PARSONS. Madam Chairman, I believe probably all of those 

reasons have some application. I can give you a specific example 

of how politics might have influenced some decisions back in February of 2005. 

This would have been at a period when the population had just 

been documented by the Agency to have declined by 20 percent 

178 

over the previous year. Congressman Pearce held some meetings in 

the region for constituents who were opposed to the wolf recovery 

program, primarily livestock interests, and invited high level Fish 

and Wildlife Service officials to attend those meetings. 

Within three months of those meetings, new procedures were 

proposed. One was a moratorium against any new releases of 

wolves. The other was this Standard Operating Procedure 13, 

which we have shown as clearly the cause for the population decline. 

So if you are applying science to an adaptive management process and you are looking at a declining population you would want 

to implement measures that would give wolves more protection and 

reduce the amount of taking by the Agency because that is the primary cause for the population decline. Rather, the Agency issued 

these new procedures that would have the opposite effect. 

Now, interestingly they issued these procedures while they were 

in the middle of a broader public review, an open public comment 

period on their internal five-year review of the program where they 

had made 37 recommendations for changes that would be looked at 

in a proposed rule revision process. 

In the middle of that public process, the purpose of which was 

to provide the Agency with the data they needed to make appropriate changes to the program, they interrupted that with this 

process within a process to implement these new rules that we 

clearly pointed out to them in our comments, which I have submitted for the record, would cause further decline in the population. So that is a political, I think, example. 

Mrs. NAPOLITANO. Are you aware, sir, if this interruption, this 

new process that was injected in between, was added to the review 

for a review of those that were supposed to—— 

Mr. PARSONS. It was not. It was carried out as a wholly separate 

process. We pointed that out in our comments that it seems kind 

of odd to have a process within a process, particularly when the 

overarching process is the one that is providing you with the information to make well-considered changes in the program. 

Mrs. NAPOLITANO. Is that five-year review a mandate? 

Mr. PARSONS. It is not a mandate, but it is published and accepted now. 

That was finished in I think July of 2006 with 37 specific recommendations—these are internal—from this Adaptive Management Oversight Committee which the Service adopted exactly as 

presented, even though there was a large body of science-based 

public comment that countered many of those. Those are now 

adopted and will actually guide the Service internally in this rule 

revision process. 

Mrs. NAPOLITANO. So, in essence, the recall for a five-year review 

is not something that they are going to be utilizing. Rather, they 

will use the new process? 

Mr. PARSONS. Well, they should be utilizing it. It is actually required in the regulation that reviews be done at three and five 

years and so that is why they were doing that review. It was a 

legal requirement. 

Mrs. NAPOLITANO. Well, that is why I asked initially if it was a 

mandate, a legal requirement. 

179 

Mr. PARSONS. Sorry. I misunderstood. Yes. 

Mrs. NAPOLITANO. OK. 

Mr. PARSONS. Resources you asked about, if I may. So far there 

have been 26 wolves taken illegally by nongovernment personnel— 

poaching, if you will. Only one of those cases has been resolved 

from a law enforcement perspective. 

In other words, there has only been one arrest and conviction on 

26 cases and so that might suggest that from a resource standpoint 

they could use some more law enforcement help out there to try to 

catch these poachers. 

Turnover in the personnel in the program both at the Federal 

and the state level is rampant. There is constant turnover, and 

right now they are in the middle of catching up again and staffing 

up to adequately run the program. 

Mrs. NAPOLITANO. OK. So there are other inherent issues involved in being able to protect the Mexican wolf I am hearing? 

Mr. PARSONS. Yes. Law enforcement is a big one, but I should 

point out that the amount of wolves being taken out by the Agency 

through these management measures that I think are out of line 

is three times those that have been taken out by illegal activities. 

Mrs. NAPOLITANO. Are you aware of any instances where the 

wolves may have been enticed or baited into situations resulting in 

livestock depredations? 

Mr. PARSONS. Yes, ma’am. There was an article published in the 

High Country News late last year, late December, where a rancher 

in the area, according to the reporter, explained to him how he conducted a branding operation within a half mile of a known den site 

for the Mexican wolves and then later that evening left a pregnant 

cow who was expected to give birth that night out unprotected on 

the open range in the vicinity of that den with the idea that it 

would cause a depredation. 

This was a situation where the wolves in the area had two depredations already. A third would mean that the Agency took them 

out. In fact, that depredation did occur that night. The Agency, not 

knowing that it was a set-up, went in and actually killed a wolf, 

the alpha female of a pack there called the Durango pack. 

As a result, the rancher submitted claims to the Defenders of 

Wildlife for compensation for those animals and received I believe 

$2,400—$2,000 for the mother cow and $400 for the calf as if it 

would have grown up and be sold at market. 

Whether it is true or not, because the rancher has since denied 

having said those things once the article came out. Whether it is 

true or not it illustrates the perverse incentive of having a wolf 

control program operating simultaneously with a wolf compensation program. 

You know, I in my own mind predicted that such a scenario 

might play out, and it looks like it has. 

Mrs. NAPOLITANO. OK. Thank you very much. 

For Mr. Scott Hoffman Black. GAO’s review found that someone 

besides Julie MacDonald overrode scientists’ recommendations to 

list the Miami blue butterfly. Scientists had found that three of the 

five factors determining whether the listing is warranted were met. 

180 

Does the Endangered Species Act allow listing officials to ignore 

scientists’ recommendations to list a species because a state management plan or captive bred population exists? 

Mr. BLACK. No, it does not. The Endangered Species Act does not 

allow for the Federal government to pass off responsibility to the 

states, which is basically what that official in this case was saying 

that he did. He was passing off responsibility for management of 

this species from the Federal government to the state. 

Also, I would contend that even though the state—and I want to 

commend the state—the state stepped in where the Federal government would not, and has actually tried to be a good actor in 

protecting the species. That said, their Endangered Species Act is 

not nearly as strong as the Federal endangered species statute, so 

they are not able to truly protect this animal. 

When the U.S. Fish and Wildlife Service made this decision, or 

one official it seems made this decision, there were less than 100 

butterflies out there. I mean, we are talking about 100 butterflies. 

They are almost gone, yet the Federal government said that this 

species did not meet the definition of being endangered under the 

Endangered Species Act. 

Mrs. NAPOLITANO. Based on what findings? 

Mr. BLACK. Well, they based it—and we have been seeing more 

of this—they have based it on what state government was going to 

do for the species. They based it on a future projection that the 

state would be able to manage and protect this species and recover 

it is basically what they did. 

Mrs. NAPOLITANO. But was there consultation with the state to 

be able to come to that decision? 

Mr. BLACK. I wasn’t in between them and the state, but as far 

as I know, no. The state moved forward on their own because the 

Federal government was not moving forward. The state stepped up. 

They were a good actor. They listed the species. They funded a captive rearing program. 

As we know from Dr. Jaret Daniels, who is the world expert on 

this species, that has not been enough. We really needed the Federal listing of the species so that we could really come up with good 

recovery areas, have the funding to actually recover the species. 

Also a big issue has been mosquito control. We are all concerned 

about mosquitos and mosquito borne diseases, but in Florida mosquito control trumps their endangered species law so there are 

areas that you cannot recover this butterfly under the state statute 

because there is mosquito control going on at those sites, so an endangered species listing was truly warranted, and they should have 

taken action. 

Mrs. NAPOLITANO. But did the mosquito control abatement possibly hurt the butterfly? 

Mr. BLACK. Undoubtedly. One of the stated reasons for the decline in this butterfly is pesticide use for mosquito abatement. They 

think that largely losses on the mainland were due over decades 

to mosquito control. 

Mrs. NAPOLITANO. That is interesting because in my area, back 

in my former days, we worked with vector control, and part of that 

was mosquito abatement. What they did was they sterilized mosquitoes and released them. 

181 

That seemed to be very, very effective at that point. This is I am 

talking 10 or 12 years ago. I am not sure whether any technology 

is being used, but certainly there are predatory animals for mosquitoes that possibly could be bred to be maybe more—I don’t know. 

I am just reaching. Besides using pesticides that are going to harm 

other species. 

Mr. BLACK. There are many other options for mosquito control 

other than broad spectrum insecticides. The problem often is county governments who often run the vector control boards want to 

look like they are taking action, and having spray out there looks 

like they are taking action, even when oftentimes the efficacy, the 

effectiveness, of that spraying program nobody has even seen 

whether they are working or not. So that said, there are other options. 

Mrs. NAPOLITANO. Yes. I think you go beyond that because some 

of those pesticides are going to go into your groundwater. 

Mr. BLACK. Yes, undoubtedly in the future. You know, it is an 

interesting conundrum because we have ramped up pesticide use 

for mosquitoes. We are getting a little off the Endangered Species 

Act, but for mosquitoes because of West Nile virus. 

I feel really bad for anybody whose family member has died of 

West Nile. I have two children. I would not want to see that happen. That said, we really don’t know the ramifications of this 

ramped up pesticide use on our water quality, on cancer rates or 

on the decline in species. 

Mrs. NAPOLITANO. Has the state done any research, done any 

kind of R&D, to be able to determine whether or not that has hurt 

more than helped? 

Mr. BLACK. Most states do not, and I don’t know if the State of 

Florida has done that research on that efficacy, but the problem 

usually is that most of these mosquito abatement boards are county so that it is this diffuse network of county boards that do mosquito abatement, oftentimes communicating some with other counties, but there is usually not an umbrella in many states, and 

again in Florida. 

But the main issue is the Fish and Wildlife Service had jurisdiction over that species. It was truly endangered. Everybody in the 

Agency from the field office to the regional office to the national office agreed that it should be listed, and it sounds like one person 

made a decision that it shouldn’t. 

Mrs. NAPOLITANO. Thank you very much. 

I would like to call on my colleague, Mr. Holt. Thank you for 

coming, sir. 

Mr. HOLT. Thank you, Madam Chair. I thank the witnesses for 

coming today on this serious issue. 

There is so much to talk about regarding science and environmental protection in general, but let me begin in the limited time 

I have to direct a couple questions at Scott Kraus if I may. 

In documents we have, NOAA has raised concerns with the sensitivity analysis conducted by the Council of Economic Advisors. 

Evidently the Council changed the determinations made by the National Marine Fisheries Service from a category of ‘‘seriously injured’’ for whales to ‘‘not serious.’’ 

182 

I would like to know what is the assessment of the process that 

the National Marine Fisheries Service uses to determine the seriousness of an injury and whether this change was appropriate or 

how it came about. It seems a little puzzling to me that someone 

within the Beltway would somehow change the designation of 

something that happened in the field. 

Mr. KRAUS. Well, the serious injury determinations are made by 

a panel of veterinarians and biologists familiar with the animals, 

and they have a pretty rigorous review process that goes on as animals are being assessed. It is actually an on-line process. 

It is pretty much informed by the science. That is to say because 

we track all right whales in the North Atlantic individually, we 

know a lot about the outcome of injuries that happened in the 

1990s or earlier and so we actually know quite a bit about when 

an injury is serious or not, and all that information is fed into the 

assessment that NMFS makes about whether an injury is serious 

or not. 

As for the way the Council looked at or pulled out or changed 

the assessment, it appears to be wholly inappropriate. 

Mr. HOLT. How did the change actually take place? Do you 

know? 

Mr. KRAUS. I don’t have that information. I understand they 

changed five animals from ‘‘considered to be seriously injured’’ to 

‘‘nonserious injuries,’’ but the rationale for that is not clear. 

Mr. HOLT. Am I correct that this seemed to be a change that was 

made inside the Beltway? 

Mr. KRAUS. I believe that is correct. 

Mr. HOLT. OK. 

Mr. KRAUS. It was done by the Council. 

Mr. HOLT. Not many whales come up the Potomac, I guess. 

Mr. KRAUS. Probably a limited amount of expertise in that area, 

yes. 

Mr. HOLT. OK. Thank you, Madam Chair. If I may, I will proceed 

with some other questions. 

Let me turn if I may to Francesca Grifo. Your organization and 

others have published a great deal about the perversion or misuse 

or abuse of science and a good process for answering questions 

about endangered species and a number of other things. 

What steps should the Department of the Interior and the Fish 

and Wildlife Service take to ensure scientific integrity? Do you 

have specific recommendations that we should somehow codify, 

whether in law or in procedure? 

Ms. GRIFO. Thank you for that question. I like to say that this 

is a very depressing and disheartening problem, but it certainly is 

not a problem without a solution, and I think it is important to 

talk solutions. 

Mr. HOLT. And if I may say, in asking the question really what 

I meant is how we can get both good process for good decisions, but 

also good support and protection for those making the decisions so 

that we can get good decisions. 

Ms. GRIFO. Absolutely. We have solutions that I will get to in a 

second that are very specific to Interior and this particular problem, but I do want to say, because I think what you are referring 

183 

to are these broader issues that really affect Federal science as a 

whole. 

As you say, we have published a lot, and I would just refer you 

to ‘‘Federal Science and the Public Good,’’ which really does have 

a very extensive solution section that cuts across agencies and gets 

at some of the issues that have come up here, issues of protecting 

scientists, issues of transparency, issues of the way science gets 

into the decision-making process and so on, all of which are very 

important. 

Specifically in terms of Interior, I guess it is particularly disheartening to be here a year later, having made a lot of these same 

claims and allegations and provided a lot of evidence a year ago, 

and yet what have we seen? My mind goes to something that perhaps we can do immediately. 

I mean, one is obviously the Whistleblower Protection Act is sitting right now in a conference committee. The House version, 

which was passed by a great majority, has specific protections for 

scientists who want to allow the world to know that this kind of 

interference is taking place. 

The Senate version does not, and obviously it is very important 

that that House language stays in the Senate version. I realize I 

am speaking to the converted here, but nonetheless that is happening right now. 

Another thing that could happen right now is that each of these 

bad decisions has enumerable consequences down the line, biological consequences for the species that we are talking about, as well 

as land use decisions that are made, so when you start with nonrobust science the consequences just explode outward in large, concentric circles, and so I guess I would hope that perhaps this Committee could work closely with the Appropriations Committee to 

say, ‘‘Let’s stop funding the consequences that are coming out of 

these decisions that we know are tainted.’’ 

I mean, we have presented a list of 80 species that are just a 

compilation of many different investigations, so we know there are 

a large number of things happening, a lot of species that were 

interfered with in Interior, and it seems that perhaps that tool 

might help us to slow down those consequences while we systemically and systematically go back in and take away the causes. 

But in addition to that, obviously the ethics policies that are out 

there are not working. There are problems with both the Professional Code of Conduct at Fish and Wildlife in that it is only Fish 

and Wildlife. It doesn’t extend to Interior. It doesn’t extend to those 

very important conversations between Interior and Fish and Wildlife and so on. 

Mr. HOLT. Would you say that code of conduct is worth extending? 

Ms. GRIFO. Yes. I believe there is a basis in there of a good first 

step. I mean, as in all of these things, it would be great if there 

was a process that involved stakeholders and comment on what 

these policies should look like, but it is a very good first step I 

would say. 

Mr. HOLT. Would any of the other witnesses care to comment on 

that request? 

184 

Ms. GRIFO. Yes. I mean, it is not perfect. Don’t get me wrong. 

Yes. 

Mr. HOLT. Yes, sir? 

Mr. IRWIN. Thank you very much for the opportunity. As a scientist, you should know that science isn’t pure. There is good 

science and there is not so good science. The process of delivering 

good science is fraught with human frailty because some people 

don’t like the new science that might be coming out. 

I just want to point out to you that it is a brutal process. We 

muddle through much like the attorneys do and our lawmakers, 

but it is not perfect. 

Mr. BLACK. I would just like to concur. 

Mr. HOLT. Of course, I must say part of the point of science is 

to have a process to protect our ourselves from self-deception and 

imposed deception. It is that process that allows fallible scientists 

to do excellent work. It is the process that appears to me to have 

been compromised and contaminated in a number of instances. 

Yes, sir? 

Ms. GRIFO. Go ahead. 

Mr. BLACK. I just wanted to concur with Dr. Grifo that it is a 

good first step, but even within the U.S. Fish and Wildlife Service 

I am a scientist. We are not an organization that—you know, we 

are not one of the legal eagles out there. We work science-based to 

try to work with scientists on land management issues. 

I get calls from Fish and Wildlife Service scientists from their 

home because they don’t want to speak out—they feel they can’t 

speak out—on some of these issues, and we really do need to extend that code of conduct and maybe even make the code of conduct 

more rigorous so that doesn’t happen. 

I should never get a call at night from somebody who is concerned about their job to tell me something that they should be 

able to tell everybody in the light of day. That is all I wanted to 

say. 

Mr. HOLT. Have you looked at the whistleblower protections that 

are currently in conference here? Do you think that would provide 

enough protection so that the scientists wouldn’t have to call you 

at home and interrupt your weekend? 

Mr. BLACK. From what I know and from the House version, I believe that it would. Of course, Dr. Grifo can speak to that much 

better than I can. 

Mr. HOLT. OK. Thank you. 

Ms. GRIFO. I just want to add that in my testimony there are 

some concerns about that Fish and Wildlife code. It is not perfect. 

I just don’t want to leave that impression. 

Mr. HOLT. Yes. Thank you. 

Mr. PARSONS. If I may briefly? We heard this morning in the 

Agency’s testimony common reference to a term called adaptive 

management, which in fact is a very rigorous, science-based process 

for making decisions where you obtain data through monitoring 

and research, and then you feed that back into the front end of the 

process and make decisions that make sense based on the science. 

Just a brief example from the Mexican wolf program is this fiveyear review that resulted in 37 internal recommendations for improvements to the program. When we analyzed those through the 

185 

Rewilding Institute, and I should add we have a cadre of Fellows, 

some of whom are world-renown scientists like Dr. Michael Soule ́, for example, who look at our comments and sign onto them. 

We found that none of those 37 recommendations would have 

any identifiable positive effect on the status of the Mexican wolf for 

years to come, two to three to perhaps several more years. In fact, 

there were four of those provisions that we expect would have such 

a negative influence on the program that within our community we 

dubbed them the four poison pill provisions of the 37 recommendations for how the project should be changed. 

Now, this is guiding at least the internal process of a rule revision that is now in a NEPA process. The scoping is done, and they 

are going to be developing a draft EIS. They use that term ‘‘adaptive management’’ a lot, but I think it is being used very loosely and 

more as a buzz word to make us think they are doing that when, 

in fact, they are not. 

Mr. HOLT. Thank you. 

Thank you, Madam Chair. 

Mrs. NAPOLITANO. Thank you. 

Mr. Wittman? Thank you for coming, sir. 

Mr. WITTMAN. Thank you, Madam Chair. I have a question for 

Mr. Irwin. 

I am curious if you could explain to us the concept of adaptive 

management and just kind of give us a brief overview of that concept? 

Mr. IRWIN. We just heard a comment on that from my compatriot 

here, but I would broaden it a little bit in that true adaptive management, as it might apply to forest management, links researchers 

and scientists with managers to identify possible solutions to various problems, implement more than one solution or one feasible 

solution simultaneously, evaluate the consequences perhaps on a 

relatively small area and choose which of those options seem to 

work, discard those that do not. That is the true concept of active 

adaptive management. 

The way it has been practiced is passive adaptive management, 

which is what Mr. Parsons just described to you, where learned 

people get together, decide the best direction to take, determine 

later whether that was right or maybe needs some adjustment with 

new information. That is the passive process. 

The active process implements more than one option simultaneously, gathers scientific data and proceeds accordingly. 

Mr. WITTMAN. Another question. You state that in certain forest 

types, such as mixed conifer stands with Ponderosa pines, density 

of large trees and overstory canopy are not strong indicators of 

northern spotted owl preference. 

Has anybody identified what those strong indicators might be 

within certain forest types? Would adaptive management aid in 

discovering accurate indicators? If so, maybe can you explain how? 

Mr. IRWIN. Well, indeed we have been working cooperatively with 

the Forest Service, the BLM, two state forestry agencies and a 

number of private companies who asked that very question. We 

know now that the details matter. 

It turns out that when you examine where spotted owls spend 

their time and compare that to random positions on the landscape 

186 

you find that a number of factors influence their decisions on 

where they go, particularly where they feed. It turns out that large 

trees are not one of those. Canopy cover of overstory trees is also 

not one. Those two are two factors that are used in decision making. 

The owls don’t make their decisions on that basis. They use understory vegetation, shrubs primarily because that is where they 

find their small mammals prey, and they know the difference between apparently whether the tree is an old growth Ponderosa pine 

or an old growth Douglas fir. They don’t like the pine. 

One of the difficulties in forest restoration, particularly in the 

pine/fir zone, is that many folks would like to see these large, old 

growth Ponderosa pine trees with a grassy understory. That is 

wonderful old growth Ponderosa pine. It is very poor spotted owl 

habitat. 

Part of the distinction regarding adaptive management is to understand what those details are and then implement them in management practices. 

Mr. WITTMAN. When you talk about forest management activities 

and spotted owl populations, do you believe that they are mutually 

exclusive? 

Didn’t some of the science used by the draft recovery plan which 

has since been shelved show some scientific support for owls responding positively to a forest management prescription that develops these different types of habitats so that you have some diversity there with habitat as it relates to forest management and owl 

habitat? 

Mr. IRWIN. Very much so. That is especially true in mixed conifer 

zones, on the east slope of the Cascades and Oregon and Washington down to the California Cascades and the conifer forests in 

Oregon and Washington Klamath zone as well. 

We know that a mixture of conditions is important, and I think 

it is going to take adaptive management, monitoring and research 

to identify what the optimal situation is. From our own work 

through the past 10 years, it appears that an intermediate density 

of forest is best for the owl. It allows for the prey to propagate, and 

it allows for the owls to actually capture the prey. 

Most people believe that similar silvicultural applications do not 

apply in the Douglas fir/hemlock zone, the so-called moist forests 

that occur in western Oregon and Washington. I do not agree with 

that. There is strong information now that demonstrates that riparian zones all over the range of the owl are very important. 

These are moist sites close to small streams. Not to major rivers, 

but to small streams. 

In those sites all across Oregon and Washington our custodial 

management strategy—that is no-touch riparian management—is 

not the right thing to do for owls because new research for the 

Forest Service demonstrates that we will lose hardwoods. Hardwoods have been demonstrated to be important to spotted owls and 

their prey, so these sites have to be managed. 

They were, in fact, intended to be managed under the Pacific 

Northwest Plan in 1994, and they were ranged as interim riparian 

zones. The adaptive management never happened. 

187 

Mr. WITTMAN. One more question for Mr. Parsons. When you 

talk about issues with wolves in talking about what role humans 

need to play with wolves, in a situation where a wolf may be jeopardizing a human’s life do you think in that particular situation 

that a taking of a wolf is substantiated? 

Mr. PARSONS. Absolutely. That is written into the Act. It is written into our regulation. 

In fact, one person has used that provision for taking a wolf 

when he thought—it remains to be known for sure if he truly was 

threatened, but he thought he and his family were being threatened when they were camping. It was the very first wolf shot in 

the program. He shot the wolf, and he was not prosecuted for that. 

Mr. WITTMAN. Very good. Just one additional question. In a situation with a rancher, if he has a situation where a Mexican gray 

wolf is killing his livestock, in that situation should that rancher 

be allowed to take that wolf in that situation? 

Mr. PARSONS. There is a provision in the regulation for that as 

well that applies to private property. If the rancher observes a wolf 

attacking livestock on his private property he can kill that wolf 

under the provisions of the rule, no questions asked other than 

there has to be evidence, of course, that that was the situation. 

There is another provision that moves that opportunity onto public grazing lands when and if there are six or more breeding pairs 

present. Then the Fish and Wildlife Service is allowed to issue a 

permit, a limited duration permit, to a rancher to have the same 

opportunity to protect his livestock. 

We have not gotten to the stage where we have enough breeding 

pairs to trigger that regulation for more than just a few months. 

Mrs. NAPOLITANO. All right. Thank you very much for your questions. 

I would like to introduce into the record testimony from an oversight hearing of July 31, 2007, from Mary Kendall, Deputy Inspector General. I would like to quote line numbers 1631 to 1647, and 

I would like to ask the questions based on this. 

This states that: More than five years ago, following our investigation into allegations of tampering in a scientific field samples 

and findings related to an Endangered Species Act study, we recommend that the Secretary ask the Department’s Chief Scientist to 

convene a working group consisting of internal and external scientists to review and make recommendations on how to restore rigorous science to the Endangered Species Program and to design 

and implement a Department of Interior scientific code of ethics. 

Has that been accomplished? Does anybody know? 

Mr. BLACK. Not to my knowledge. It has not. 

Mrs. NAPOLITANO. OK. Then the next one, continuing on 

Line 1640: ‘‘While an effort was undertaken to develop a draft code 

of scientific conduct, it has never been finalized or issued Department-wide. While we believe that this code needs to be revived in 

its present form applicable primarily to employees and volunteers 

who participate in the hands-on scientific activity, we also believe 

that it needs to be expanded to specifically include policymakers 

like Ms. MacDonald.’’ 

Has that draft code been started, implemented or otherwise 

worked on that you know of? 

188 

Ms. GRIFO. Actually I think the bigger issue here is that there 

are a number of these codes that have come and gone, but none of 

them have been publicly available. 

We have been able to get bits and pieces by FOIA and so I think 

that as this procedure happens we need to have a way that when 

these things are in draft, when these things are finalized, they 

come out to the community at large so that we can know. I mean, 

there is a reason why we are not able to really answer these questions because those things have not been broadly shared. 

Mrs. NAPOLITANO. My understanding is that the Inspector General has indicated that they have not been given or implemented 

Department-wide. Is that correct? 

Ms. GRIFO. I am sorry. You know, not over the whole Department of the Interior. 

Mrs. NAPOLITANO. OK. 

Ms. GRIFO. Right. Yes. I mean, within Fish and Wildlife we know 

that one is out, but in terms of Kempthorne’s 10 point—I can’t remember the name of it, but the 10 point thing that he came out 

with. I mean, that one has major problems. It came out and then 

a month later a lot of it was withdrawn in terms of there were lots 

and lots of issues with it. 

As I say, I mean, the key point here is that drafts are not easily 

available. The process is not transparent. I mean, that is the key 

take-home message. 

Mrs. NAPOLITANO. And that is the message from—? 

Ms. GRIFO. Well, from I think those of us on the outside that 

want to understand how Fish and Wildlife works, how Interior 

works, those of us who are taxpayers, citizens, fishermen, hunters. 

I mean, any of the stakeholders or constituencies. 

I think in order for us to do our jobs as being a stakeholder and 

a constituent of this Department and the agencies within that Department, transparency is what allows us to know what is going on 

and be a part of these processes and weigh in. 

Mrs. NAPOLITANO. Thank you. Thank you very much. 

Mr. Wittman, any other questions? 

Mr. WITTMAN. No. 

Mrs. NAPOLITANO. Panel, we want to thank you wholeheartedly 

for your patience and indulgence and for your very insightful testimony. 

We will follow up with questions. We have up to 10 business 

days to submit any additional questions, and I believe I have a 

statement from The Honorable Doug Lamborn for the record dated 

May 21 and also it is a report from the Hoopa Valley Tribal Council for the record. 

Without objection, I will so order. 

With that, you have 10 business days to provide any additional 

information. 

Anybody in the audience who has information to submit or questions to submit, we would appreciate that. 

I appreciate all your participation and your being again so patient with us. With that, this hearing is adjourned. 

[Whereupon, at 2:43 p.m., the Committee was adjourned.] 

[Additional material submitted for the record follows:] 

189 

[A letter submitted for the record by Craig Manson, Former 

Assistant Secretary for Fish and Wildlife and Parks, U.S. 

Department of the Interior, follows:] 

Craig Manson 

Attorney at Law 

P.O. Box 5694 

Sacramento, California 95817 

(916) 844-4979 

bizmanson@aim.com 

CA State Bar No. 102298 

May 29, 2008 

Gene L. Dodaro 

Acting Comptroller General 

Government Accountability Office 

441 G St., NW 

Washington, DC 20548 

Subject: GAP Report 08-6881, U.S. Fish & Wildlife Service, Endangered Species Act 

Decision Making, May 21, 2008 

Dear Mr. Dodaro: 

I am alive. As far as I know, I have been continuously alive since the autumn 

of 1954; that would mean that I was alive, and available for consultation during the 

time that your staff was putting together the above-referenced report. 

I served as Assistant Secretary of the Interior for Fish and Wildlife and Parks 

during most of the time of the events mentioned in that report; therefore, I found 

it remarkable that your staff did not contact me before making the inaccurate and 

ill-informed statements contained in that report. My present whereabouts are publicly available in many sources. 

I was outraged to read in the press that your staff member Robin Nazzaro told 

the Committee on Natural Resources of the House of Representatives that I and 

three other individuals as officials of the Department of the Interior, as The Associated Press reported the matter, ‘‘may have put political pressure on lower-ranking 

employees who were deciding endangered species cases.’’ Having absolutely no evidence of such a conclusion, Ms. Nazzaro eructed this disgusting innuendo and let 

it hang before the Committee and the public, not having had the good manners to 

tell me or the other individuals that she was going to do so. Even in what passes 

for etiquette in official Washington, her action was unprofessional. 

The Endangered Species Act is, by its own terms, the responsibility of the Secretary of the Interior. As Assistant Secretary for Fish and Wildlife and Parks, a 

Presidential appointee confirmed by the Senate, I exercised authority delegated by 

the Secretary. Furthermore, the Assistant Secretary has the statutory responsibility 

to supervise the Director of the United States Fish and Wildlife Service. 16 USC 

§ 742b(b). In carrying’’ the statutory mandates and the delegated powers of the secretary, I alone was responsible for decisions made under the Endangered Species 

Act from February 19, 2002 to December 31, 2005. Your staff either did not know 

this (which would be bad enough) or deliberately disregarded it for reasons I cannot 

fathom. 

There is no ‘‘political interference’’ when a duly appointed official performs his or 

her statutory duties and exercises discretion under the law. As Justice Stevens 

noted in Chevron USA, Inc., v. Natural Resources Defense Council, 467 U.S. 837 

(1984), ‘‘an agency to which Congress has delegated policymaking responsibilities 

may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments.’’ There is a reason that we 

have elections in America. 

Your staff’s report focuses on several determinations under the Endangered Species Act that allegedly were improperly influenced by my deputy, Julie MacDonald. 

In fact, in each of those actions, I either took the final decision or endorsed to the 

Secretary the decision of the Director of the Fish and Wildlife Service. Ms. MacDonald had no power in law or in fact to ‘‘make decisions’’ under the ESA and she 

did not do so. 

Ms. MacDonald*s role, for which I hired her in 2002, was to insure that the Fish 

and Wildlife Service presented credible and reliable data upon which decisions could 

be taken under the law. She did that very well. Indeed, the report illustrates the 

success of her work by this comment: 

190 

Service staff described a climate of ‘‘Julie-proofing’’ where, in response to 

continual questioning by Ms. Mac Donald about their scientific reasoning, 

they eventually learned to anticipate what might be approved and wrote 

their decisions accordingly. 

Anyone with a liberal education will immediately recognize in that comment the 

successful application of a Socratic approach, which in this case yielded documents 

based on better data and led to decisions ultimately based on the best scientific 

data. 

Your staff’s report sets out eight actions in which apparently there was concern 

about ‘‘political interference.’’ All but two of those actions were critical habitat determinations. In most of these, Ms. MacDonald’s involvement is described as ‘‘reducing’’ 

the acreage for the critical habitat. This is incorrect and misleading. 

First, as I have noted, I, and not Ms. MacDonald, made the decision to ‘‘reduce’’ 

the critical habitat acreage. My signature is to be found on those rules. And I did 

not simply rubber-stamp the work of others; that is not my style. I examined the 

rules myself. 

Second, the Endangered Species Act requires that the Secretary take into account 

‘‘the economic impact, the impact on national security, and any other relevant impact,’’ before designating critical habitat for a species. The statute gives the Secretary discretion to ‘‘exclude any area from critical habitat if [the Secretary] determines that the benefits of such exclusion outweigh the benefits of specifying such 

area as part of the critical habitat,’’ unless extinction of the species would otherwise 

result. 16 USC § 1533 (b) (2). In exercising the delegated powers of the Secretary, 

I followed the statutory mandate to consider economics, national security, and other 

relevant factors, and then I exercised discretion in to determine whether certain 

areas should be excluded from critical habitat. This exercise of discretion was informed by the statutory factors, including the best available scientific and commercial data. There is no ‘‘political interference’’ when an official acts within the terms 

of the law and exercises discretion that Congress has granted. 

I must comment also on the case of the Palos Verdes blue butterfly which is mentioned in the briefing annexed to the report. This was the very first ESA matter 

that I handled as Assistant Secretary. Within days of my arrival, I was summoned 

to a meeting with the Member of Congress who represented the district wherein the 

Palos Verdes blue butterfly is found. The Member had also summoned an Assistant 

Secretary of the Navy. The Member was concerned that the Navy’s plans to close 

a facility in that district were being thwarted by the insistence of the Fish and Wildlife Service that a ‘‘consultation’’ under Section 7 of the ESA was required and that 

the Service could require mitigating conditions if the closure action and subsequent 

transfer of the property to the Department of Housing and Urban Development was 

found to ‘‘jeopardize the continued existence’’ of the Palos Verdes blue butterfly. The 

Member’s interest was that the Member wanted to see a program for the homeless 

moved into the soon-to-be vacated Navy facility. 

The ’Navy disagreed with the requirement for a section 7 consultation and so did 

the Member of Congress. However, it seemed clear to me that there had to be a 

consultation, and I said so. The issue then became whether HDD or the Navy had 

to do the consultation. After conferring with Interior lawyers, I determined that 

HUD was the party responsible for the consultation on the facts of this matter. 

HUD resisted doing the consultation and there followed an extended period of negotiations and discussions with HUD and the Fish and Wildlife Service. In the meantime, I continually received telephone calls from the Member or the Member’s staff 

urging that the issue be resolved. By the time I hired Ms. MacDonald, the issue was 

still outstanding and the Member had grown quite frustrated. The Member blamed 

the Fish and Wildlife Service for insisting on the consultation, which to me was required by the law. 

Having little time to devote to the matter personally, I turned the matter over 

to Ms. MacDonald, who handled it efficiently and brought to a satisfactory conclusion, in that conclusion, we did not accede to many of the demands of the Member, 

some of which clearly would have put politics before science. 

In conclusion, there is not a single example in your report of ‘‘political interference’’ with decision-making under the Endangered Species Act. Instead, the report illustrates that some people plainly were unaccustomed to the required rigor 

that my office brought to the decision-making process. This rigor actually improved 

the scientific aspects of the Department’s responsibilities under the Act. 

191 

I find it regrettable that your staff was so easily misled by the uninformed views 

of largely anonymous sources. That creates an impression of sloppy and partisan 

work in contravention of the high regard usually accorded your office. 

Sincerely, 

CRAIG MANSON 

[A statement submitted for the record by Doug Robertson, 

Commissioner, Douglas County, Oregon, follows:] 

Statement of Doug Robertson, Commissioner for Douglas County, Oregon, 

and President, Association of O&C Counties 

The Association of O&C Counties represents the interests of 17 Counties in Western Oregon within which lie 2.1 million acres of BLM managed O&C Lands. This 

Association has represented County interests in the management of these lands for 

over 80 years and was a participant in efforts to secure passage of the O&C Act 

of 1937. The Association is pleased to provide Chairman Rahall and the Committee 

information about this unique category of lands. 

The O&C Lands provide habitat for Northern Spotted Owls and other species listed under the Endangered Species Act (ESA). At the same time, communities are 

very reliant on the O&C Lands for jobs and other economic benefits. County funding 

traceable to the O&C Lands is critically important, in several cases representing 

half or more of all funding for general fund budgets and the many public services 

provided through general fund expenditures. No discussion about the administration 

of the ESA is complete without consideration of the community impact—the human 

impact—that results from strategies for the protection and restoration of listed species. 

Most of the O&C Counties are located in an economically troubled part of the region, where the unemployment rate exceeds the Oregon and the National unemployment rates. This region is dominated by public land ownership that is not subject 

to property taxes. Douglas County, for example, has more than 50 percent of its 

land in public ownership. Some of the O&C Counties have more than 60 percent 

of their land in public ownership. The principal industry in these areas was once 

the timber and wood products industry, which has been in a decline corresponding 

to the period of increasing protections on Federal forest lands for ESA listed species. 

Douglas County is at the center of the O&C region. In 2006, while most of the 

nation was booming and enjoying unparalleled prosperity, Douglas County saw an 

increase in the number of people living in poverty, from 11.8 percent of the population, to 16 percent of the population. During this period, there was a corresponding increase in the number of children living in poverty. By 2007, fully 25 

percent of all children in Douglas County were living in poverty. This is a shocking 

and disturbing statistic that ought to generate a sustained outcry. It is particularly 

disturbing in light of a small increase in the median income in Douglas County during the same period, clearly illustrating that younger families most in need of family 

wage jobs are the ones being left behind. And as the economic conditions in the rest 

of the country have declined over the last year, the conditions in Douglas County 

have declined further as well. 

The need for services provided by County governments increases as the economic 

stresses in the private sector increase. Unfortunately, the decline in private sector 

economic activity attributable to withdrawal of Federal timber resources has been 

paralleled by a decline in shared timber receipts available to County governments 

to pay for health services, law enforcement and corrections, services for veterans, 

drug treatment and prevention programs, libraries, programs for at-risk youth, and 

all the other many services paid for from County general fund budgets reliant on 

O&C shared timber receipts. Federal safety net programs have been much appreciated and are the only way many Counties are avoiding insolvency, but the future 

of the safety net is uncertain, at best. The only hope many of the O&C Counties 

have of sustaining themselves is restoration of a reasonable level of timber harvest 

on the O&C Lands. 

The O&C Counties do not ask that the needs of ESA listed species be ignored. 

To the contrary, we support protection and restoration of ESA listed species as a 

national priority. We ask, however, that those responsible for development of strategies for species protection and recovery reciprocate, acknowledge the unique legal 

mandate applicable to the O&C Lands, and be willing to fully consider the needs 

of local communities, so that adverse impacts are minimized. Any Federal wildlife 

policy that ignores human impacts may succeed in protecting individual species in 

192 

the short term, but it compromises the legitimacy of government and imperils the 

long-term viability of the law driving the policy. 

The importance of the O&C Lands to Counties and communities is best understood in light of the unique history of these lands, which uniqueness is illustrated 

by the differences between BLM managed O&C Lands and National Forests and 

other categories of Federal lands. To summarize the key differences: 

—The O&C Lands were once in private ownership, but were taken back 

into Federal ownership after being on the property tax rolls for decades. 

National Forest lands have never been privately owned. 

—The O&C Lands are dedicated by Federal law to the dominant use of sustained yield timber production for the benefit of local communities. National 

Forests are multiple use lands with no one use being dominant, and are 

managed for the benefit of the nation. 

—The O&C Lands are scattered in small parcels in a checkerboard pattern 

interspersed with private lands across western Oregon. National Forests 

are typically very large, contiguous blocks of land. 

—50 percent of the revenue from the O&C Lands is shared directly with 

all the O&C Counties based on a formula, regardless of where the timber 

harvest occurs. An additional 25 percent of revenues to which the Counties 

were entitled under the O&C Act have been voluntarily returned to the federal government to invest in improvements intended to enhance the land’s 

productivity. Shared revenues from National Forests are limited to 25 percent, which is paid to the State for redistribution to the Counties in which 

the National Forest having the timber harvest occurs. 

—Shared revenue from the O&C Lands is unrestricted and can be used by 

a County for any purpose as part of a County’s general fund. Shared National Forest revenue can be used only for roads and schools. 

A. History of the O&C Lands. 

Between 1866 and 1870, Congress provided for grants of nearly 4,000,000 acres 

of land in Oregon to the Oregon and California (O&C) Railroad Company. The land 

grants were given in exchange for a commitment to build a railroad through Western Oregon from Washington to the California border. The lands were conveyed to 

the Railroad Company with the proviso that they be sold in 160-acre parcels to ‘‘actual settlers’’ for $2.50 per acre. The purpose of the land grants under these conditions was to promote the settlement and development of Western Oregon. 

The railroad was built, but the Railroad Company failed to honor its obligation 

to sell O&C Lands to ‘‘actual settlers,’’ in many cases selling the lands in large 

blocks to speculators, or retaining the land itself. After decades of controversy, including action by the U.S. Attorney General and the U.S. Supreme Court, Congress 

responded with the Chamberlain-Ferris Act of June 9, 1916, ch. 137, 39 Stat. 218, 

which declared that all grant lands still held by the Railroad Company were revested in the United States, and provided for compensation to the Railroad for the 

O&C Lands thus revested. After decades in private ownership and on tax rolls, the 

lands reverted once again to Federal ownership 

Had the lands not been taken back by the Federal government, they would have 

remained in private ownership, providing an economic base for private industry and 

a tax base for local governments. Congress recognized that revestment deprived 

much of Western Oregon of an important part of its economic foundation. The 

Chamberlain-Ferris Act therefore established the ‘‘Oregon and California LandGrant Fund’’ within the United States Treasury, and provided a method for distribution of income from the lands. Once certain debts were paid, funds were to be 

distributed 25 percent to the O&C Counties, 25 percent to the State of Oregon and 

the remainder to the United States. The distribution method was designed to compensate the state and county governments for the fact that they derived no tax benefits from the revested lands. See, Clackamas County, Oregon v. McKay, 219 F.2d 

479, 483 (9th Cir. 1954), judgment vacated as moot 349 U.S. 909 (1955). The policy 

at the time was to continue to dispose of the revested lands, so that they would be 

returned again to private ownership. 

The Chamberlain-Ferris Act distribution method did not work. Between 1916 and 

1926, very little revenue was derived from the O&C Lands. The disposal policy was 

a failure, as the rugged, heavily timbered lands were not attractive for farming or 

for homesites. As a result, payments to the O&C Counties and the State of Oregon 

never materialized. To assist the O&C Counties, Congress passed the Stanfield Act 

of July 13, 1926, 44 Stat. p. 2, 915, which provided for payments from the general 

fund of the U.S. Treasury to the O&C Counties. The payments were in lieu of taxes 

which the O&C Counties could have collected had the O&C Lands been privately 

owned. 

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The Stanfield Act provided that payments would be reimbursed from the O&C 

Counties’ share of funds in the previously-established O&C Land-Grant Fund. To 

the extent that the Stanfield Act payments exceeded the O&C Counties’ share of 

the Fund, the excess became a reimbursable charge against the O&C Counties’ 

share of the Fund. Between 1926 and 1936, the O&C Counties’ share of revenues 

from the O&C Lands was insufficient to reimburse the United States for its Stanfield Act payments. There was therefore an ever-increasing reimbursable charge 

against the O&C Counties’ share of the Fund. The system was not working to provide the Counties with revenues on a long term basis the way it was intended. Congress tried again. 

In 1937, largely at the urging of the Association of O&C Counties and Oregon’s 

Congressional delegation, Congress passed the O&C Act, 43 USC § § 1181a et seq. 

Prior inconsistent legislation was repealed and the system for distributing revenues 

from the O&C Lands was restructured. Once certain debts were satisfied, the O&C 

Counties were entitled to a total of 75 percent of all revenues from the O&C Lands. 

The remaining 25 percent was to be available for the costs of administering the sustained-yield program under which the lands were to be managed by the predecessor 

agency of the Department of the Interior. 

In 1953, the O&C Counties began to receive their full 75 percent share. After 

1953, varying amounts to which the O&C Counties were otherwise entitled were retained by the Federal government with the cooperation of the O&C Counties under 

annual Department of Interior appropriation acts. After 1957, the O&C Counties received 50 percent of the revenues. An additional 25 percent was voluntarily relinquished by the O&C Counties and used for the administration and improvement of 

the O&C Lands. The remainder was deposited in the U.S. Treasury. By ‘‘plowing 

back’’ a portion of the revenue to which they were otherwise entitled, the O&C 

Counties raised the productivity of the lands. This plowback was intended as an investment that would return future dividends to the Counties in the form of a dependable and increased revenue stream from shared timber receipts. The present 

value of the Counties’ ‘‘plowback’’ investment exceeds $2.5 billion. 

Counties received their 50 percent share of revenues and active management of 

the O&C Lands continued until the early 1990s, when timber harvests declined 

radically due to changing policies, environmental concerns and litigation. The Counties have, since the early 1990s been the recipients of ‘‘safety net’’ payments under 

several temporary federal programs designed to replace lost timber receipts. The 

last of the safety net programs expired September 30, 2007. Efforts are being made 

to reauthorize another temporary safety net program, but the Counties have been 

told that, at best, they will have to return to reliance solely on shared timber receipts within a few years. 

B. Statutory Language and Federal Judicial Decisions. 

The purpose of the O&C Act is reflected in the statutory language, which provides 

that any of the lands classified as timberlands 

‘‘...shall be managed...for permanent forest production, and the timber 

thereon shall be sold, cut and removed in conformity with the principal [sic] of sustained yield for the purpose of providing a permanent 

source of timber supply, protecting watersheds, regulating stream flow, and 

contributing to the economic stability of local communities and industries, 

and providing recreational facilities....’’ 43 USC § 1181a. (Emphasis added.) 

The O&C Act goes on to require that ‘‘timber from said lands in an amount not 

less than one-half billion feet board measure, or not less than the annual sustainedyield capacity when the same has been determined and declared, shall be sold annually....’’ 43 USC § 1181a. The O&C Act requires that administration of the lands is 

to ‘‘provide, insofar as practicable, a permanent source of raw materials for the support of dependent communities and local industries of the region.’’ Id. The O&C Act 

further warns that ‘‘[d]ue consideration shall be given to establishing lumbering operations in [administering] such lands when necessary to protect the economic stability of dependent communities.’’ Id. 

The O&C Act has been interpreted many times by the courts as making timber 

production the dominant use for the O&C Lands. The other uses for the lands identified in the O&C Act (protecting watersheds, regulating stream flows, etc.) are secondary uses, to be achieved through sustained-yield timber management. The O&C 

Lands are unlike other Federal lands, which are managed under multiple-use mandates where all possible uses are to receive equal consideration in the planning process. The O&C Act provides for a dominant use, timber production, not unlike legislation setting aside other lands for particular purposes such as wilderness, parks, 

scenic areas or historic preservation. 

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A 1990 Ninth Circuit Court of Appeals case states clearly and unambiguously that 

the overriding purpose of the O&C Act is to provide the O&C Counties with revenues through the sale of timber: 

‘‘...First, the O&C Act was intended to provide the counties in which 

the O&C land was located with the stream of revenue which had 

been promised but not delivered by the Chamberlain-Ferris Revestment 

Act....The counties had failed to derive appreciable revenue from the Chamberlain-Ferris Act primarily because the lands in question were not managed as so to provide a significant revenue stream; the O&C Act sought to 

change this.’’ Headwaters, Inc. v. BLM, Medford Dist., 914 F2d 1174, 

1183-84 (9th Cir. 1990) (citations omitted, emphasis added). 

In Headwaters, the Ninth Circuit made clear that timber production and harvest 

was the way Congress intended to achieve the goals of a sustained revenue stream 

to the counties and support of local economies and industries. In responding to the 

plaintiffs’ argument in that case that the O&C lands should be managed for the discretionary protection of owl habitat, the court stated that: 

‘‘...Nowhere does the legislative history suggest that wildlife habitat conservation or conservation of old growth forest is a goal on a par with timber 

production, or indeed that it is a goal of the O&C Act at all.’’ Headwaters, 

914 F2d at 1184. 

The Court went on to conclude that ‘‘exempting certain timber resources from 

harvesting to serve as wildlife habitat is inconsistent with the principle of 

sustained yield.’’ Id. (Emphasis added.) Headwaters is not the only case in which 

the Ninth Circuit emphasized that the O&C lands have been dedicated to timber 

production. See also, O’Neal v. U.S., 814 F2d 1285, 1287 (9th Cir. 1987); Skoko 

v. Andrus, 638 F2d 1154, 1156 (9th Cir. 1979); United States v. Weyerhaeuser 

Co., 538 F2d 1363, 1364-65 (9th Cir. 1976). 

The focus of the O&C Act on providing benefits to local communities is confirmed 

by historic interpretations given the O&C Act by the BLM itself. For example, in 

a 1939 press release, less than two years after the O&C Act became the management mandate, the BLM’s predecessor agency had a Chief O&C Forester, the equivalent of the BLM State Director, who described the newly adopted sustained yield 

forestry program in these words: 

‘‘This assures the continuous production of timber for the employment of 

Oregon industries without the danger of exhausting the timber supply and 

without the danger of destroying the tax base of the counties. The General 

Land Office administers these lands as a vast estate held in trust.’’ 

Press Release, March 31, 1939, W. H. Horning, O&C Chief Forester. (Emphasis added.) 

In 1940 the O&C Chief Forester elaborated, saying that ‘‘[a]ll the lands best suited 

for the growing of timber will be retained in public ownership and kept at work producing crops of timber. Continuous production of timber of commercial quality in the 

largest possible amount is the goal.’’ W. H. Horning, The O&C Lands and their 

Management, an Important Advance in Forest Conservation (1940). (Emphasis 

added.) 

The dominance of timber production under the O&C Act was preserved by Congress as recently as 1976, when Congress passed the Federal Land Policy and Management Act (‘‘FLPMA’’), which redefined the management direction for nearly all 

lands in the United States under the jurisdiction of the BLM, with the telling exception of lands managed under the O&C Act. FLPMA, P.L. 94-579, is a multiple use 

statute under which all uses for the land are given equal consideration, and the 

BLM has broad discretion in choosing the mix of uses it will adopt for lands managed under FLPMA. But, Congress specifically preserved the dominance of timber 

production on the O&C lands by enacting section 701(b) of FLPMA, which says that 

‘‘[n]otwithstanding any provision of this Act [FLPMA], in the event of conflict with 

or inconsistency between this Act and the...[O&C Act and Coos Bay Wagon Road 

Acts], insofar as they relate to management of timber resources, and the disposition 

of revenues from lands and resources, the latter Acts shall prevail.’’ 

In 1986, the Interior Solicitor was asked if the BLM had authority to implement 

a plan for the protection of spotted owls, prior to that species being listed under the 

ESA. The legal opinion differentiated between lands managed by the BLM pursuant 

to FLPMA, and lands managed pursuant to the O&C Act. The Solicitor’s opinion 

describes the difference as follows: 

‘‘The freedom conferred on the Secretary under FLPMA is limited in one 

important way on certain federally-owned timberlands in western Oregon. 

There, any decision about managing northern spotted owls must be measured against the dominant use of timber production....In deciding whether 

to establish a program for managing northern spotted owls on O&C 

195 

timberlands, the Secretary, then, must decide if it is possible to do so without creating a conflict with the dominant use there—timber production. If 

the Secretary can manage northern spotted owls and still produce timber 

on a sustained yield basis in the O&C timberlands, the O&C Act in no way 

will preclude him from making that choice....The converse, of course, also 

obtains. If a program for managing northern spotted owls conflicts with producing timber on a sustained yield basis in O&C timberlands, the O&C Act 

will preclude the program’s application to that realty.’’ Gale Norton and 

Constance Harriman, Associate Solicitors, Memorandum to James Cason, 

Deputy Assistant Secretary for Land and Minerals Management (October 

28, 1986). 

C. Conclusion. 

The O&C Lands are clearly very different from any other lands managed by the 

Federal government, especially National Forest lands managed by the Forest Service. The agencies responsible for strategies for the protection and recovery of ESA 

listed species should acknowledge the unique history and purposes for these lands, 

and devise strategies that minimize conflicts with the mandates of the O&C Act. 

In every case, throughout the country, implementation of the ESA must take into 

account the human impacts. Long term preservation of threatened and endangered 

species depends on the political willingness of the citizenry to accommodate the 

needs of those species, and if the human price over time is too high and too widespread, the will of the people to support wildlife protections will diminish. 

The Association of O&C Counties thanks Chairman Rahall and all Members of 

the Committee for considering our concerns. 

The following documents submitted for the record have been 

retained in the Committee’s official files. 

List of documents retained in the Committee’s official files 

American Society of Mammalogists—Document entitled ‘‘Reintroduction and Conservation of the Mexican Gray Wolf.’’ 

Carroll, Carlos, Ph.D., Klamath Center for Conservation Research—May 27, 2008— 

USFWS. 2008. Final Recovery Plan for the Northern Spotted Owl, Strix 

occidentalis caurina. 

Carroll, Carlos and Devin S. Johnson, contributed paper: ‘‘The Importance of Being 

Spatial (and Reserved): Assessing Northern Spotted Owl Habitat Relationship 

with Hierarchical Bayesian Models’’—Conservation Biology. 

Diamond, John, and Family—Statement submitted for the record. 

Durkin, Barbara—Letter submitted electronically via email regarding Cape Wind 

Draft EIS / MA Audubon. 

Haynie, Leigh—Documents submitted electronically via email: 

• Civil Action Suit—U.S. District Court—Eastern District Court of Kentucky, 

Heartwood, Inc. vs. Charles L. Myers. 

• Article—‘‘All Bats Are in Trouble.’’ 

Hoopa Valley Tribe—Testimony submitted for the record by Congresswoman 

Napolitano. 

Luce, Dr. Julia Martin—Statement submitted for the record. 

Olson, Steve, Association of Zoos and Aquariums—Letter submitted for the record 

dated January 2, 2008, addressed to Dr. Benjamin Tuggle, Duane Shroufe, 

Bruce Thompson regarding A request for a moratorium on lethal control and 

permanent removal (rescind or suspend SOP13) of Mexican Wolves in the Blue 

Range Wolf Recovery Area until expert task force on genetic issues can be convened to provide guidance to these actions. 

Parsons, David R.—Documents submitted for the record: 

• March 15, 2005—The Rewilding Institute letter addressed to U.S. Fish and 

Wildlife Service regarding Comments on Mexican Gray Wolf Project Five-Year 

Review. 

• May 25, 2005—The Rewilding Institute letter addressed to Terry B. Johnson regarding Comments on Mexican Wold Blue Range Reintroduction Project Adaptive Management Oversight Committee Proposed 1-year Moratorium on New Releases and Proposed Standard Operating Procedure 13. 

• October 10, 2005—Document entitled Mexican Wolf Blue Range Reintroduction 

Project Adaptive Management Oversight Committee Moratorium for Calendar 

Year 2006 (Standard Operating Procedure 0.D). 

196 

• Article by Society for Conservation Biology on ‘‘The Bureaucratically Imperiled 

Mexican Wolf’’—2006. 

• April 17, 2006—The Rewilding Institute letter addressed to Dr. John Morgart, 

FWS. 

• December 24, 2007—Article from High Country News on ‘‘Last Chance for the 

Lobo.’’ 

• December 26, 2007—The Rewilding Institute letter addressed to John Slown, 

FWS. 

• March 7, 2008—The Rewilding Institute letter addressed to Dr. Benjamin 

Tuggle. 

• May 16, 2008—Letter addressed to Terry B. Johnson from Elisabeth A. 

Jannings, etc., regarding Comments on SOP’s. 

Richardson, Hon. Bill, Governor—Press release—‘‘Governor Richardson Seeks to 

Change Protocols for Mexican Wolf Recovery Program’’—dated July 6, 2007. 

Schneberger, Laura—Testimony submitted for the record. 

Smith, Adrian, Congressman—Documents submitted for the record: 

• May 6, 2007—Julie MacDonald letter addressed to Secretary Dirk Kempthorne, 

DOI. 

• May 7, 2007—Julie MacDonald letter addressed to Inspector General Earl 

Devaney, DOI, plus attachments 

Wehrheim, Ed, Catron County Commission—Letter addressed to Dr. Benjamin 

Tuggle on April 26, 2007 regarding Notice of Finding of Imminent Danger, Wolf 

Durgano F924. 

Wehrheim, Ed, Catron County Commission—Letter addressed to the Natural 

Resources Committee. 

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