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94–995 PDF 2015

S. HRG. 114–37 

THE PRESIDENT’S FISCAL YEAR 2016 BUDGET 

REQUEST FOR THE FISH AND WILDLIFE 

SERVICE AND LEGISLATIVE HEARING ON 

ENDANGERED SPECIES BILLS 

HEARING 

BEFORE THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

MAY 6, 2015 

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

( 

Available via the World Wide Web: http://www.gpo.gov/fdsys 
(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

JAMES M. INHOFE, Oklahoma, Chairman 

DAVID VITTER, Louisiana 

JOHN BARRASSO, Wyoming 

SHELLEY MOORE CAPITO, West Virginia 

MIKE CRAPO, Idaho 

JOHN BOOZMAN, Arkansas 

JEFF SESSIONS, Alabama 

ROGER WICKER, Mississippi 

DEB FISCHER, Nebraska 

MIKE ROUNDS, South Dakota 

DAN SULLIVAN, Alaska 

BARBARA BOXER, California 

THOMAS R. CARPER, Delaware 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

SHELDON WHITEHOUSE, Rhode Island 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

CORY A. BOOKER, New Jersey 

EDWARD J. MARKEY, Massachusetts 

RYAN JACKSON, Majority Staff Director 

BETTINA POIRIER, Democratic Staff Director 
(III) 

C O N T E N T S 

Page 

MAY 6, 2015 

OPENING STATEMENTS 

Enzi, Hon. Mike B., U.S. Senator from the State of Wyoming ............................ 1 

Heller, Hon. Dean, U.S. Senator from the State of Nevada ................................. 3 

Gardner, Hon. Cory S., U.S. Senator from the State of Colorado ....................... 5 

Booker, Hon. Cory A., U.S. Senator from the State of New Jersey ..................... 23 

Thune, Hon. John, U.S. Senator from the State of South Dakota ...................... 29 

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma .................... 30 

Boxer, Hon. Barbara, U.S. Senator from the State of California ........................ 32 

WITNESSES 

Ashe, Hon. Dan, Director, U.S. Fish and Wildlife Service ................................... 44 

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

Responses to additional questions from: 

Senator Inhofe ........................................................................................... 63 

Senator Booker .......................................................................................... 86 

Senator Cardin .......................................................................................... 100 

Senator Sessions ........................................................................................ 101 

Senator Vitter ............................................................................................ 102 

Bernhardt, David, Partner, Brownstein Hyatt Farber Schreck, Former Solicitor, Department of the Interior .......................................................................... 136 

Prepared statement .......................................................................................... 138 

Cruickshank, Gordon, County Commissioner, Valley County, Idaho .................. 143 

Prepared statement .......................................................................................... 146 

Barry, Donald, Senior Vice President, Conservation Program, Defenders of 

Wildlife .................................................................................................................. 153 

Prepared statement .......................................................................................... 155 

ADDITIONAL MATERIAL 

May 5, 2015, letter to Senator Inhofe from the Texas General Land Office ...... 170 

May 6, 2015, statement by the Fur Industries of North America ....................... 172 

(1) 

THE PRESIDENT’S FISCAL YEAR 2016 BUDGET 

REQUEST FOR THE FISH AND WILDLIFE 

SERVICE AND LEGISLATIVE HEARING ON 

ENDANGERED SPECIES BILLS 

WEDNESDAY, MAY 6, 2015 

U.S. SENATE, 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, 

Washington, DC. 

The committee met, pursuant to notice, at 9:30 a.m. in room 406, 

Dirksen Senate Building, Hon. James M. Inhofe (chairman of the 

committee) presiding. 

Present: Senators Inhofe, Boxer, Wicker, Fischer, Rounds, 

Barrasso, Crapo, Boozman, Sullivan, Capito, Cardin, Merkley, 

Whitehouse, Booker, Markey, and Gillibrand. 

Senator INHOFE. Our meeting will come to order. 

Let’s do this. We have five members. One is Senator Enzi, one 

is Senator Booker and the other three will be here, who have legislation that they have introduced that does affect Fish and Wildlife. 

So we have said we would be happy to have them make a brief 

statement as to their legislation. And this is your opportunity, 

since you are the first one here, Senator Enzi, we will recognize 

you. 

OPENING STATEMENT OF HON. MIKE B. ENZI, 

U.S. SENATOR FROM THE STATE OF WYOMING 

Senator ENZI. Thank you, Mr. Chairman, Ranking Member. I appreciate this opportunity to testify before you on S. 736, the State, 

Tribal and Local Species Transparency Act. I appreciate the committee’s efforts to focus on the Endangered Species Act. We have 

some of the richest wildlife habitat in North America and it supports a number of industries, including tourism, guiding, recreation, agriculture, just to name a few. 

The successes in Wyoming have come from State management of 

wildlife based on science collected from State, local, tribal and Federal wildlife officials. An example of that is we have recovered an 

extinct species. The black-footed ferret was considered extinct. 

Near Meeteetse, Wyoming, I think its population is about 85, they 

found a few of these, they captured them, they put them into captivity for a while so they could get the best genetic breeding on 

them. They have expanded dramatically and they have been released back into the wild and they are doing well out there now. 
2 

That is an effort that relied on science from a variety of sources, 

including State and Federal biologists. It has resulted in restoring 

North America’s only ferret species. 

However, these types of partnerships aren’t the norm. In too 

many cases, the data Federal agencies rely on to make a listing are 

not shared with the key State partners. Making matters worse, 

there are instances when State, local and tribal science is ignored 

completely. 

For that reason, I introduced this bill to include those people. I 

did it last year with a number of my colleagues and again in this 

Congress. It is designed to ensure that the Federal Government adheres to its statutory responsibilities to cooperate with the States 

under the Endangered Species Act and second, to ensure that the 

best available scientific data is used in the listing decisions. 

Section 6 of ESA already requires the Secretary to ‘‘cooperate to 

the maximum extent practicable with the States.’’ Despite the statutory charge on the Federal Government, States have noted cases 

where the ESA listing decisions are made in the dark, and express 

that Federal agencies often duplicate analyses in conservation 

plans that are already generated by the States. 

We know that science from State, local and tribal officials plays 

an effective role in wildlife management. For example, in December, 2010, the Fish and Wildlife Service proposed to list the dune 

sagebrush lizard as endangered under the ESA. Texas officials 

raised concerns that the Fish and Wildlife listing proposal depended on scant, outdated data from the 1960s to determine the 

lizard’s known distribution and assumed that the lizard was locally 

extinct in certain areas where the State of Texas had verified that 

it was present. 

After research and field surveys conducted in cooperation with 

the States, the local government and other affected stakeholders, 

the Fish and Wildlife Service reversed its earlier determination to 

list the dune sagebrush lizard as endangered in June 2012. As a 

result, the lizard continues to co-exist with State economic activities in the area that produces 14 percent of the Nation’s oil and 

47,000 jobs. 

The bill also ensures that the best scientific and commercial data 

available to the Secretaries of Interior or Commerce is used in ESA 

listing decisions. Hearings on this bill in the House during the last 

session of Congress revealed numerous examples of Federal agencies not including data or information in decisions where they are 

required to utilize the best scientific and commercial data available. 

I can go into an example of grizzlies in Wyoming, they were 

measuring footprints instead of checking the DNA of the hair of the 

bears in the feeding areas. 

The legislation you are considering today is designed to address 

such inadequacies. S. 736 does not favor one science over another 

or require multiple county or State submissions of conflicting data. 

The Secretary of Interior or Commerce would continue to have the 

final decision on what constitutes best available scientific and commercial data. However, S. 736 would ensure that they incorporate 

and provide proper respect for data provided to them by States, 

tribes and local governments. 
3 

I will keep my comments short because I know you are covering 

a number of different things today. You are going to be taking testimony from others, including Director Ashe. I have to say that he 

has been extremely helpful with the Wyoming wolves, improving 

the Wyoming plan for wolves, which has led to an increase in the 

number of wolves but a decrease in the number of conflicts. 

I will say there are a number of these other bills I have co-sponsored as well as helped author. In particular, I want to recognize 

Senator Gardner for his work with the Wyoming delegation to ensure that States with existing approved or endorsed plans are adequately protected under this legislation. I thank you, Mr. Chair. 

Senator INHOFE. Thank you, Senator Enzi. Consider me a cosponsor. 

Senator Booker. 

Senator BOOKER. Mr. Chairman, I would happily defer to Senator Heller. I know he will want to speak and leave. I am going 

to be here for the entire hearing. And there is a tradition; we are 

both from the PAC 12. We always let USC go before Stanford, because you save the best for last. 

[Laughter.] 

Senator INHOFE. We also have Senator Gardner here, so we will 

go ahead with you, Senator Heller. 

OPENING STATEMENT OF HON. DEAN HELLER, 

U.S. SENATOR FROM THE STATE OF NEVADA 

Senator HELLER. Mr. Chairman, thank you. 

Senator INHOFE. And I say to my fellow Senator, try to keep it 

within 5 minutes. We have a big agenda today. 

Senator HELLER. Certainly, I will give it my best effort, my best 

PAC 12 effort, let’s put it that way. 

I do want to thank my friend from New Jersey for his help and 

support and for his efforts for his school. I know how important 

that is to him as it is for all of us. Thank you very much. 

Again, Mr. Chairman, thanks for holding this hearing today. I 

know you have a number of pieces of legislation on today’s agenda. 

My bill, the Common Sense in Species Protection Act, is one of 

them. 

As you are well aware, I grew up in the State of Nevada. We understand the importance of being good stewards of our natural 

treasures. We are very blessed in our State. But we also understand the importance of economic development. As you are probably well aware, hunting, camping, horseback riding in your State 

is just as revered in our State. We still to this day, my wife and 

I, when opportunity avails itself, get our horses out and we will 

pack our horses into the Sierras, or take some crest trail that 

spooks my wife a little bit. But we continue to do so. 

Needless to say, I just want to make sure that the activities that 

I have enjoyed over the years, my family, my children, are continued for future generations. I think that is why we are here today. 

I again appreciate, Mr. Chairman, your efforts to hold this hearing. 

I think it is important that we have effective environmental laws 

that balance the need to protect wildlife and the environment while 

allowing for reasonable economic development. Unfortunately, the 

Endangered Species Act, I believe, is a prime example of a law that 
4 

has proven to be out of date and frankly, ineffective. Since the last 

time it was reformed 30 years ago, it has less than a 2 percent effective recovery rate. I know these days you get medals for just 

participating, but when I was in school, 2 percent definitely was a 

failing grade. It is clear the law is not serving wildlife or frankly, 

our western ways of life as it should. 

While my bill is not a cure-all, it is a simple reform aimed at 

modernizing the ESA, making the listing process more transparent. 

When the U.S. Fish and Wildlife makes a listing decision, it not 

only aims to protect the species itself, it also affords some protection to the ecosystems that these species rely upon. 

They frequently make what is called a critical habitat designation, which of the lands that are essential for the conservation of 

that particular species. Activities on these lands, as you can imagine, Mr. Chairman, are heavily restricted. States like Nevada, 

where mining, ranching, energy production and outdoor recreation 

all serve as a central component to our local economy, these restrictions have been and can be very devastating. 

My bill does not take away from Interior’s to limit these types 

of activities. What it does require, though, is that the Department 

of Interior report the full economic impact of any proposed critical 

habitat designation to the public before it makes a decision. Specifically, rather than a very limited economic analysis that they can 

currently conduct, which by the way is very limited, the Service 

must determine the effect a designation would have on property 

use and values, employment and revenues for the States and local 

governments. Additionally, it requires the Service to exclude areas 

from critical habitat designation if the benefit of keeping it a multiuse purpose far exceeds the benefits a restriction would have for 

the wildlife. 

Access to all lands, particularly public lands, is vital to Nevada’s 

character and its economy. Restricting the multiple use of those 

lands in a non-transparent and irrational fashion is not an option 

for Nevadans who rely heavily on them for their livelihood. Whether it is the greater sage grouse, the long-eared bat, the lesser prairie chicken or any other species the agency is making a decision 

on, it is critical that at a minimum that we had this simple common sense step to that process. 

So before I conclude, I would like to briefly touch on Senator 

Cory Gardner’s Sage Grouse Protection and Conservation Act. I 

will let him discuss the details of his bill. But as an original cosponsor, I want to underscore the importance of this measure to 

the State of Nevada. Fish and Wildlife is expected to make a decision on whether to protect the greater sage grouse under the Endangered Species Act this fall. Should it get listed, our rural way 

of life and our local economies would be devastated. All grazing, all 

hunting, all recreation, all mining and energy production in over 19 

million acres of public lands in Nevada would all come to a screeching halt. 

Given the threat of a listing, the 11 western States, home to sage 

grouse, have been working diligently on State-specific conservation 

plans. These plans specifically aim to address each State’s unique 

threats to sage grouse while protecting their local economies. So it 
5 

is important to States and the Interior has said they play a major 

factor in their listing determinations. 

My time has run out, Mr. Chairman, and I will cut my comments 

short. I again want to thank you for our efforts on hearing these 

bills. I think it is important. We are determined in these western 

States that our rural way of life can be strengthened. I think we 

can work together to make this happen. 

So thank you, and again I want to thank the gentlemen to my 

right and left for their efforts and your committee for hearing these 

bills. 

Senator INHOFE. Very good. Thank you. Senator Gardner. 

OPENING STATEMENT OF HON. CORY S. GARDNER, 

U.S. SENATOR FROM THE STATE OF COLORADO 

Senator GARDNER. Thank you, Chairman Inhofe. To Senator 

Booker, not everybody can be in the Mountain West Conference. 

We understand that. 

[Laughter.] 

Senator GARDNER. Thank you, Chairman Inhofe and Ranking 

Member Boxer, for this hearing today on the Endangered Species 

Act, including my legislation, S. 1036. It has been just around 10 

years ago that I first testified before the EPW committee on the 

need to look at how we can do a better job of recovering the species 

under the Endangered Species Act. The Sage Grouse Protection 

and Conservation Act is a part of that continuing effort. 

Thank you to co-sponsors here, Senator Heller and others, about 

this discussion and the importance of this legislation. I certainly 

welcome the opportunity to make this a truly successful bipartisan 

effort. 

The Act that we have introduced is designed to allow States to 

create and implement State-specific conservation and management 

plans, State-specific plans that would allow us to protect and restore greater sage grouse populations and their habitats and require Federal agencies to honor the hard work and massive investments by the States to protect sage grouse within their borders. It 

is important to note that this legislation is not a mandate. Again, 

this is an optional approach. A State may choose to defer to Federal agencies for sage grouse protection. A State opts into this legislation. 

In 2011, Secretary of the Interior Salazar invited western States 

to craft State plans for the management of sage grouse on all 

lands, State and Federal. These plans were to be submitted and 

considered by the Secretary as the preferred management alternative for sage grouse within each State as part of the land use 

plan process. My legislation keeps that promise and allows States 

to prescribe management of sage grouse within their borders. 

Colorado and other States have spent years crafting these plans 

and spent hundreds of millions of dollars, all with the cooperation 

and participation of interested stakeholders and the Federal agencies. Since 2010, States, Federal agencies, landowners and stakeholders are voluntarily protecting over 4.4 million acres of private 

property for sage grouse. We have made tremendous progress, and 

my legislation seeks to keep that momentum moving forward. 
6 

This incredible cooperation among States, the Federal agencies, 

landowners and stakeholders will no doubt end the moment that 

there is a listing of the sage grouse this September when the Federal land use plans are released in May or June, because those 

land use plan amendments will largely ignore the efforts of the 

States. 

The Sage Grouse Protection and Conservation Act ensures that 

sage grouse will be managed appropriately, whether they occur on 

Federal, State or private lands. It will prohibit the Secretary’s proposed withdrawal of 16.5 million acres across the west from agricultural activity, energy development and outdoor recreation, which 

will cost jobs and devastate our local economies. 

This legislation represents an extremely important effort to keep 

all parties at the table to conserve the species. I look forward to 

working with members of the committee and colleagues in a bipartisan fashion to get this important legislation across the finish line 

and signed into law. I would like to submit a series of letters we 

have in support of the Sage Grouse Protection and Conservation 

Act, if I may do so. 

Senator INHOFE. We will put that into the record of this hearing. 

[The referenced information follows:] 
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Senator GARDNER. I thank you, Chairman and Ranking Member, 

for the opportunity to be with you today. 

Senator INHOFE. Thank you, Senator Gardner. 

Senator Booker. 

OPENING STATEMENT OF HON. CORY A. BOOKER, 

U.S. SENATOR FROM THE STATE OF NEW JERSEY 

Senator BOOKER. Thank you very much, Chairman Inhofe and 

Ranking Member Boxer, for giving me a chance to talk about my 

Refuge Cruel Trapping Act, which would ban the use of body-gripping traps in the national wildlife refuge system. 

Leg-hold traps have been banned in over 90 countries. Again, 

that is 90 countries that have banned the cruel leg-holding traps. 

Yet even in the United States they are not banned in wildlife refuges. 

Jaw traps operate by slamming shut with bone-crushing force on 

any animal that trips the device. Terrified animals break legs, 

chew off limbs, dislocate shoulders and tear muscles as they try to 

break free of these traps. 

Strangulation neck snares are perhaps the cruelest of all the 

trapping devices. The snare is designed to tighten around an animal’s neck as he or she struggles. Animals trapped in neck snares 

suffer for days and days and the death is often slow and painful. 

Not only are body-gripping traps gruel but they also are indiscriminate. Too often the animals caught in these traps are not the 

animals that are actually targeted. 

I will give one example of this. In 1989, a New York State Department of Agriculture study examined the effectiveness of using 

leg-hold traps for coyote control. The study found that 10.8 non-targeted animals were trapped for every coyote. That is more than 10 

to 1, the animals caught in these cruel traps were not their intended targets. 

And what types of non-targeted animals are being maimed and 

killed by these cruel body-trapping traps? Here are some illustrations. The endangered species, such as the lynx, are being maimed 

and killed. The lynx is caught, in this picture, in a strangulation 

snare trap that I mentioned earlier. 

Iconic species, such as the bald eagles, are being maimed and 

killed. At the time this picture was taken, the bald eagle was still 

listed as an endangered species. 

Common, everyday animals, even such as raccoons, are being 

maimed and killed, as we see in this picture. This is a leg-hold trap 

shown here. Last month in Missouri on public land a mountain lion 

paw was found torn off in one of these traps. They found nothing 

but the torn paw of a mountain lion. 

And common animals, such as our pets, cats and dogs, are regularly, routinely caught and killed in these cruel traps. 

This last picture is an animal, a beagle named Bella. Bella was 

a 20-month old hunting dog who was killed in the steel jaws of a 

conibear trap. Bella’s owner was devastated and obviously with 

anger asked, what was this type of deadly trap doing on public 

land? I wonder that too. 

Our wildlife refuges attract more than 47 million visitors a year. 

Nearly all those visitors, more than 99 percent, are using our ref-
24 

uge system for recreational purposes, not for trapping. Why would 

those 47 million visitors need to worry about the safety of their pet 

or even worse, the safety of their children? Just 2 days ago a 12- 

year old boy in North Carolina was taken to an emergency room 

after a body-gripping snare snapped shut on his hand while he was 

doing chores by a pond in his neighborhood. It took six doctors 

hours to release this boy from the trap. 

An American public overwhelmingly agrees that we should not 

be using these traps. Seventy-nine percent of Americans believe 

trapping on wildlife refuges should be prohibited. Charles Darwin 

called the leg-hold trap one of the cruelest devices ever invented by 

man. He said, ‘‘Few men can endure to watch for 5 minutes an animal struggling in a trap with a torn limb. Some will wonder how 

this cruelty can have been permitted to continue in these days of 

civilization.’’ 

He said that in 1863. And I echo those words now today. How 

can such cruelty be permitted on wildlife refuges, of all places, 

where we are trying to preserve wildlife habitat? I urge my colleagues to support S. 1081 and join me in banning these cruel 

body-gripping traps from wildlife refuges. Thank you very much. 

[The referenced information follows:] 
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Senator INHOFE. Thank you, Senator Booker. That is a wake-up 

call. 

Our last presenter here with legislation will be a part of this 

committee, he is coming to this committee. Senator Thune. 

OPENING STATEMENT OF HON. JOHN THUNE, 

U.S. SENATOR FROM THE STATE OF SOUTH DAKOTA 

Senator THUNE. Thank you, Mr. Chairman. I appreciate you and 

Senator Boxer holding this hearing today, and particularly giving 

me the opportunity to make a couple of comments about this bill. 

On March 4th, I introduced S. 655, which is a bill to prohibit the 

use of funds by the Secretary of the Interior to make a final determination on the listing of the northern long-eared bat under the 

Endangered Species Act of 1973. Listing the northern long-eared 

bat under the Endangered Species Act is a misguided attempt by 

the Fish and Wildlife Service to protect the species which is suffering death loss and reduction in numbers from a fungus called 

white nose syndrome, not because of habitat loss. 

Mr. Chairman, even the Fish and Wildlife Service has acknowledged that ‘‘White nose syndrome alone has led to dramatic and 

rapid population level effects on the northern long-eared bat. The 

species likely would not be imperiled were it not for this disease.’’ 

The Congressional Research Service has informed me that during 

the last 10 years, no species has been listed in the United States 

under the Endangered Species Act naming disease as a primary 

factor for reduction in numbers in the listing. 

I point that out, that the white nose syndrome has been detected 

in only 25 of the 39 States included in the northern long-eared 

bat’s range. Yet as a result of this misguided listing of the species, 

thousands of jobs are going to be placed at risk, including more 

than 1,500 timber industry jobs in my home State of South Dakota. 

My concern is that the Fish and Wildlife Service has insufficient 

supporting data to warrant listing the northern long-eared bat as 

a threatened species, particularly given the absence of white nose 

syndrome in so much of its range. 

In addition, I believe the Fish and Wildlife Service failed to adequately gather and consider credible information available from 

State government entities and other non-Federal sources before 

making its decision to list the northern long-eared bat. 

Mr. Chairman, let me just say, what concerns me the most is 

that with the listing of this northern long-eared bat, once again we 

have a Federal agency that is throwing aside common sense and 

listening to special interest groups that, based on their actions, do 

not have the best interests of the people of this Country in mind. 

Along with the listing of the northern long-eared bat, the Fish 

and Wildlife Service has also published a proposed rule called the 

4(d) rule which was designed to offer protection to forest management practices that would actually enhance the northern longeared bat’s habitat. It is my understanding that litigation filed by 

the Center for Biological Diversity regarding the 4(d) rule raises a 

purely procedural claim that is that the Fish and Wildlife Service 

must perform NEPA analysis on the 4(d) rule prior to finalizing it. 

It is likely that the Center for Biological Diversity will seek a 

stay or preliminary injunction request on the interim 4(d) rule. If 
30 

an injunction is granted, forestry practices would not be exempt 

from the take prohibitions of the Endangered Species Act, which 

would be an uncalled for blow to the timber industry and other industries in the eastern two-thirds of the United States. 

Mr. Chairman, to summarize, many of my colleagues and I are 

deeply disappointed that in listing the northern long-eared bat, the 

Fish and Wildlife Service has failed to adequately address the real 

reason even it recognizes the decline of the northern long-eared 

bat, and that is white nose syndrome, and not the loss of habitat. 

I believe much more progress could have been made if the Fish and 

Wildlife Service had taken the funds it is using the list the northern long-eared bat and use those funds for research and other tools 

to diminish the effects of the white nose syndrome. 

We all know that Congress stepped in and took control of another ESA listing by removing the northern Rockies gray wolf off 

the ESA list because the Fish and Wildlife Service was too timid 

to do it. That may be what is necessary regarding the northern 

long-eared bat. In the case of the northern Rockies gray wolf, the 

Congress stepped in because nearly everyone acknowledged that 

the wolf was a recovered species. 

In the case of the northern long-eared bat, the issue isn’t whether the species is in trouble, it is whether the ESA listing provides 

the kind of help the species needs and other species like it. The answer to that is a firm no. 

So I would hope, Mr. Chairman, that you all could work with me 

on this issue. It has a very detrimental impact on the economy of 

the Black Hills of South Dakota. And it doesn’t address the fundamental problem, which is the disease that this bat is facing, not the 

habitat. This will have profound impacts on the habitat and on our 

ability to continue to produce timber in the Black Hills, something 

that is very important to the economy of that region and a lot of 

jobs. 

Thank you, Mr. Chairman. 

Senator INHOFE. Thank you, Senator Thune. We look forward to 

working on your legislation in this committee. I am sure it didn’t 

go unnoticed to Director Ashe that of all the comments that were 

made in legislation that is being proposed here, it brings up the 

problem of a lack of transparency, secrecy, local input, these are 

things that people are concerned about, myself included. 

OPENING STATEMENT OF HON. JAMES M. INHOFE, 

U.S. SENATOR FROM THE STATE OF OKLAHOMA 

Senator INHOFE. So we will have our opening statements here. 

The last time that we had a hearing on the Fish and Wildlife Service budget was when I was chairman many years ago, in 2003. It 

has been that much time since we have had a hearing on this. The 

Endangered Species Act has gone from a well-intentioned piece of 

legislation in the 1970s to one that is dictated by environmental activist groups taking advantage of the adversarial system. 

In 2011, the Service entered into closed door settlements with environmental groups that has required the Service to make final 

listing decisions on hundreds of species but has not provided documents about how these settlements were developed despite repeated requests from Congress. The species covered by these settle-
31 

ments is staggering, covering almost the entire Country, as we 

have been observing. It includes the lesser prairie chicken, the 

northern long-eared bat, the greater sage grouse and numerous 

freshwater mussels and fish. 

The ESA recovery rate is a mere 2 percent, even though the en- tire Federal Government spent $1.2 billion on species conservation 

in 2013. This Administration touts its success as delisting more 

species than any other Administration and it has. Yet, when you 

look at the math on this thing, you note that it has delisted 12 species and yet listed several hundred at the same time. So we are 

getting deeper and deeper in that hole. 

In recent years, the Service has been too focused on listing more 

species instead of focusing on the goal of the Act to recover species. 

The Fish and Wildlife Service is forced to designate habitat because 

of lawsuits instead of a comprehensive understanding of the species 

and its surroundings. 

The Endangered Species Act has to be reformed to clarify the 

focus and achieve real results. It can no longer be an ATM machine 

for environmental groups looking to make money off statutory 

deadlines. 

In addition to a conversation with Director Ashe about the budget and how ESA can be fixed, I would like to use this opportunity 

today to examine all legislation within the Endangered Species Act 

nexus. That has been referred to this committee. 

Some of these bills are very narrowly tailored to address local 

issues. Others are bills that address overarching problems with the 

direction of ESA. In examining these bills, I hope to have a more 

clear direction in moving forward as to how we can modify the Endangered Species Act and return to its purpose. 

As a part of the ESA modernization, I want to bring the conservation efforts to a more local level. I think we heard that from 

those who are proposing legislation, Director Ashe. The Five-State 

Plan among Colorado, New Mexico, Oklahoma, Kansas and Texas 

to address the lesser prairie chicken was a thoughtful, thorough 

plan. It was a plan developed by local communities who know the 

land and the animal population. But the Fish and Wildlife Service 

has listed the lesser prairie chicken as threatened, which only 

works to discourage the efforts. And you know the efforts that took 

place in those five States. 

That is demoralizing, when they all come together, they work, 

they spend their money, their resources. I am not saying they are 

totally ignored. Because it could have been an even worse outcome. 

But anyway, communities are not incentivized to develop their 

own plans if the Fish and Wildlife Service will systematically reject 

them. I hope we do not see Fish and Wildlife make the same mistakes on the sage grouse and other species. 

I want to thank our witnesses for their time today. I would like 

to extend a special welcome to Director Ashe. Director Ashe came 

to Oklahoma at my request and we were pleased to show him the 

way that Oklahomans are working to protect and develop the species. I believe when you came that you really did listen and actually learn some yourself. So I thank you for that. 

Senator Boxer. 

[The prepared statement of Senator Inhofe follows:] 
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STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM THE STATE OF OKLAHOMA

I said at the beginning of this Congress that our Committee would conduct vigorous oversight of the Obama administration’s environmental policies, and there are 

few issues more in need of oversight than the Endangered Species Act. This Committee has not held a hearing on the Fish and Wildlife Service budget since 2003, 

the last time I was Chairman. I am pleased to have this hearing today, to hear from 

Director Ashe and our other witnesses about how ESA can be improved and Fish 

and Wildlife Service can be better managed. 

The Endangered Species Act has gone from a well-intentioned piece of legislation 

in the 1970s to one that is dictated by environmental activist groups taking advantage of the adversarial system. In 2011, the Service entered into closed-door settlements with environmental groups that has required the Service to make final listing 

decisions on hundreds of species, but has not provided documents about how these 

settlements were developed despite repeated requests from Congress. 

The species covered by these settlements is staggering, covering almost the entire 

country, and includes the lesser prairie-chicken, the northern long-eared bat, the 

greater sage-grouse, and numerous freshwater mussels and fish. 

The ESA recovery rate is a mere 2 percent, even though the entire Federal Government spent $1.2 billion on species conservation in fiscal year 2013. This administration touts its success as delisting more species than any other administration. 

And it has. Yet when you note that it has delisted 12 species yet listed hundreds, 

with hundreds more to be considered, their claim is far less impressive. 

In recent years, the Service has been too focused on listing more species, instead 

of focusing on the goal of the Act: to recover species. The Fish and Wildlife Service 

is forced to designate habitat because of lawsuits, instead of a comprehensive understanding of the species and its surroundings. The Endangered Species Act must be 

reformed to clarify the focus and achieve real results. It can no longer be an ATM 

machine for environmental groups looking to make money off of statutory deadlines. 

In addition to a conversation with Director Ashe about the budget and how ESA 

can be fixed, I would like to use this opportunity today to examine all legislation 

with an Endangered Species Act nexus that has been referred to this Committee. 

Some of these bills are very narrowly tailored to address local issues. Others are 

bills that address overarching problems with the direction of the ESA. In examining 

these bills, I hope to have a more clear direction in moving forward as to how we 

can modify the Endangered Species Act and return it to its purpose. 

As a part of the ESA modernization, I want to bring the conservation efforts to 

a more local level. The Five-State Plan among Colorado, New Mexico, Oklahoma, 

Kansas, and Texas to address the lesser prairie chicken was a thoughtful, thorough 

plan. And it was a plan developed by local communities who know the land and the 

animal populations. But the Fish and Wildlife Service listed the lesser prairie chicken, which only works to discourage local efforts. Communities are not incentivized 

to develop their own plans if FWS will systematically reject them. I hope we do not 

see the FWS make the same mistakes with the sage grouse and other species. 

I want to thank our witnesses for their time today. I’d like to extend a special 

welcome to Director Ashe. Director Ashe came to Oklahoma at my request and we 

were pleased to show him the ways in which Oklahomans are working to protect 

our development and species alike. I think he would agree that the Endangered Species Act can—and must be—improved and that States and local governments have 

answers and real-world experience we should be relying on to modernize the law. 

I look forward to hearing from our witnesses and my fellow Committee members 

on this important issue. 

OPENING STATEMENT OF HON. BARBARA BOXER, 

U.S. SENATOR FROM THE STATE OF CALIFORNIA 

Senator BOXER. Thanks so much. 

Director Ashe, thank you for dedicating your working life to protecting God’s species. I heard them called by Senator Thune, I 

think he said a special interest. Well, let’s take a look at what they 

look like. The American eagle, which was saved by the ESA, the 

very symbol of America. If we listen to the folks on this side of the 

aisle and they were here then, the ESA never would have passed 

and we might have lost this great symbol. And the lesser prairie 

chicken also needs to be checked out as well. 
33 

So thank you for that and taking all the heat that you take. That 

is a compliment, because it means you are doing something and 

you are fighting for what you promised you would fight for. 

Now, I think it is important to note that today, we are looking 

at a series of bills, eight Republican bills and one Democratic bill. 

I want to say to Senator Booker, thank you. That is, you know, a 

heart stopping presentation. I hope we will all work together on 

that bill. 

But today, I received a letter from the following organizations 

against every single Republican bill on the agenda. And these are 

bipartisan groups. Many of these groups were started by Republicans. 

We have to remember, I think it was Richard Nixon who signed 

the Endangered Species Act, Richard Nixon. And all these backdoor efforts we are looking at today have to stop. 

So here are the groups that wrote against every single Republican bill. You know, sometimes I have to pinch myself that this is 

really the Environment and Public Works Committee, not the AntiEnvironment and Public Works Committee. Today it feels like the 

Anti-Environment and Public Works Committee. It is a bad, bad 

thing. 

So let me tell you the groups that wrote against these Republican 

bills. The American Bird Conservancy, the Animal Welfare Institute, The Audubon Society, Born Free USA, the Center for Biological Diversity, the Center for Food Safety, Clean Water Action, Defenders of Wildlife, Earth Island Institute, Earth Justice, Endangered Species Coalition, Friends of the Earth. The Humane Society 

of the United States of America, the International Federation of 

Fly Fishers, the International Fund for Animal Welfare, the 

League of Conservation Voters, the National Resources Defense 

Council, Oceanus, Sierra Club, Southern Environmental Law Center, the Union of Concerned Scientists, the Wild Earth Guardians 

and the Wyoming Wildlife Advocates. 

I ask unanimous consent to place these into the record. 

Senator INHOFE. Without objection. 

[The referenced information follows:] 
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Senator BOXER. Then there is a Denver Post article, Cory Gardner Wrong on Greater Sage Grouse, and an explanation of why 

that is wrong. 

So I just really want to say this, Mr. Chairman. I respect your 

views, I disagree strongly with them, and we will have hand to 

hand combat on the floor if these bills get that far, which they may 

get voted out of this committee. 

But I want to make a point here. Recent polling of the American 

people shows that 84 percent support the Act that was signed in 

a bipartisan way by an overwhelming voice vote in the Senate. And 

again, signed into law by Richard Nixon. It has a strong record of 

success. I showed you the eagle. It is the whooping crane, the California condor, the brown pelican, species of sea turtle, this is a heritage for America. This is just as much a heritage, frankly, as our 

magnificent rivers and streams and mountains and forests. 

So wildlife-related recreation is a significant industry. And they 

are expressing their concern, the fishermen are, about some of 

these radical bills. Wildlife-related recreation was a $145 billion activity in America in 2011. Native plants and animals can provide 

life-saving medicines. So this Endangered Species Act shouldn’t be 

back-door repealed this way with oh, you have to consider even 

more economics, you have to say that State scientists know more 

than national scientists. 

Let’s not turn everyone against everyone. Let’s work together for 

the best science and very clear moves to protect a species where it 

makes sense. Where it doesn’t make sense, the law is already clear, 

they can’t do it. 

So I look forward to working together maybe to moderate some 

of these radical bills. But if we don’t moderate these radical bills, 

then we are going to have to get all of the people out there in this 

Country motivated to weigh in against what the Republicans are 

trying to do here today with this series of bills that really are a 

back-door repeal of the Endangered Species Act. 

Thank you, Mr. Chairman. 

[The referenced information follows:] 
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[The prepared statement of Senator Boxer follows:] 

STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM THE STATE OF CALIFORNIA

Director Ashe, thank you for dedicating your working life to protecting God’s species. Thank you taking all the heat that you take. That is a compliment, because 

it means you are doing something and are fighting for what you promised you would 

fight for. 

If we listen to the folks on the other side of the aisle, and if they were here in 

Congress when the Endangered Species Act (ESA) was considered four decades ago, 

it never would have been passed into law. A recent poll of the American people 

shows that 84 percent support the ESA, which was passed by an overwhelmingly 

bipartisan voice vote in the Senate, and signed into law by President Richard Nixon. 

All the back door efforts by special interests to undermine the ESA have to stop. 

The ESA has a strong record of success, and without it, we might have lost the 

very symbol of our nation—the bald eagle. And the ESA helped to save other species, including the lesser prairie chicken, the whooping crane, the California condor, 

the brown pelican, and the Kemp’s Ridley sea turtle. These species are part of 

America’s heritage. They are just as much a part of our heritage as our magnificent 

rivers, streams, mountains, and forests. 

Further, wildlife-related recreation is a significant industry—accounting for nearly $145 billion in 2011. In addition, native plants and animals can provide life-saving medicines. 

I think it is important to note that today we are looking at a series of bills—eight 

Republican bills and one Democratic bill. I wanted to say thank you to Senator 

Booker for introducing his bill to ban inhumane traps in National Wildlife Refuges. 

I hope we will all work together on that bill. 

Today, I received a letter from several organizations that oppose every single Republican bill on the agenda. The groups include: American Bird Conservancy, the 

Animal Welfare Institute, the Audubon Society, Born Free USA, the Center for Biological Diversity, the Center for Food Safety, Clean Water Action, Defenders of 

Wildlife, Earth Island Institute, Earthjustice, Endangered Species Coalition, Friends 

of the Earth, Humane Society, National Federation of Fly Fishers, the International 

Fund for Animal Welfare, League of Conservation Voters, NRDC, Sierra Club, 

OCEANA, Southern Environmental Law Center, Union of Concerned Scientists, the 

WildEarth Guardians, and the Wyoming Wildlife Advocates. I ask unanimous consent to enter this into the record. 

I would also like to introduce into the record a Denver Post Op-Ed, ‘‘Cory Gardner 

wrong on greater sage grouse,’’ which explains why his legislation is the wrong approach. 

Let us work together using the best available science to protect species where and 

when it makes sense. 

I want to say this, Mr. Chairman, while I respect your views, I disagree strongly. 

We will have hand-to-hand combat on the floor if these bills are voted out of this 

committee. The Endangered Species Act should not be repealed in this backdoor 

way. 

I look forward to working together to moderate some of these radical bills. If we 

do not make significant changes, we are going to have to get the American people 

motivated to weigh in against what the Republicans are trying to do—repeal the 

Endangered Species Act. 

Senator INHOFE. Director Ashe, you are recognized for 5 minutes. 

STATEMENT OF HON. DAN ASHE, DIRECTOR, U.S. FISH AND 

WILDLIFE SERVICE 

Mr. ASHE. Thank you, Senator. It is a joy to be here in front of 

the committee again. I am going to spend my time this morning 

just talking to you about the budget and the context for our budget 

for this year. 

The President’s budget is about a $135 million increase for the 

U.S. Fish and Wildlife Service, a 9 percent increase. We certainly 

realize that in these difficult times that that is a significant investment. I hope that you will agree with me that it is a good investment. 
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When you think about our budget, it really is a budget that is 

built on priority. And that is priority landscapes and priority species. We are putting those priorities behind efforts grounded in 

partnership and really epic scale partnership. 

The best example of that is the greater sage grouse. We started 

more than 5 years ago by reaching out to our State partners and 

building a framework for cooperative management of the sage 

grouse to hopefully avoid the need for a listing. We have worked 

hand in glove with former Governor Dave Friedenthal, a Democrat 

from Wyoming, and we are working today with Governor Matt 

Meade, a Republican from Wyoming. Wyoming has built a great 

framework for sage grouse conservation. 

We built a sage grouse task force with the Western Governors 

Association, which is chaired by Governor Hickenlooper from Colorado, a Democrat and Governor Meade from Wyoming, a Republican. We built a conservation objectives team report jointly with 

our State colleagues to identify the actions that will be necessary 

to conserve the sage grouse and hopefully avoid the necessity to list 

it under the Endangered Species Act. 

We reached out to the BLM and the U.S. Forest Service and they 

began a public and transparent process of land management planning to help conserve the sage grouse. We reached out to the U.S. 

Department of Agriculture and the Natural Resource Conservation 

Service has been an exemplary partner, putting over 4 million 

acres, almost $400 million of investment in private lands, to 

incentivize and encourage conservation of the sage grouse. 

Another example is in Harney County, Oregon, where we are 

signing candidate conservation agreements with assurances for 

ranchers. We now have nearly a million acres of private ranch land 

signed up in Oregon to conserve the sage grouse. We had a rancher, Tom Strong, who coined perhaps the best conservation phrase 

of the year last year, What’s Good for the Bird Is Good for the 

Herd, recognizing that there is an economy between good, sustainable ranching and good conservation of the sage grouse. 

Examples of working with the EPA and the Corps of Engineers 

and the USDA and NOAA and the Great Lakes States to keep the 

Asian carp out of the Great Lakes, and our budget provides enhancement for that. Examples in the Great Plains, working with 

the range States to conserve the lesser prairie chicken, as the 

chairman said, not through Fish and Wildlife Service, Federal regulation, but by standing behind a five-State, range-wide plan. 

These types of examples require field capacity. They require innovative, energetic, professional people in the field and that is 

what our budget will do for us. 

Monday, a Washington Post editorial writer, E.J. Dionne, began 

his column with the observation that there are few moments of 

grace in our politics these days. But Mr. Chairman and members, 

I am here to tell you that there are many moments of grace every 

day by the men and women in the United States Fish and Wildlife 

Service and their partners, people like Angela Sitz, who forged 

those relationships and those candidate conservation agreements in 

Harney County Oregon. People like Andy Ewing, the manager of 

San Diego Bay National Wildlife Refuge, and San Diego County de-
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clared May 20th, 2014, as Andy Ewing Day because of his exceptional work with local communities. 

People like Jeremy Coleman, our white nose syndrome coordinator, who despite this devastating disease in bats, maintains an 

infectious enthusiasm that we can be successful. People like Greg 

Noydecker, who has worked with the ranchers in the Big Hole Valley in Montana to avoid the need to list the Arctic grayling and 

who has forged friendships with ranchers like Don Reese, lasting, 

durable friendships. People like Pam Scruggs, in our International 

Affairs program, who worked 2 years ago in the Convention on 

International Trade and Endangered Species on the listing of 

sharks to prevent the finning practice in sharks. When we went to 

the CITES COP and she met for the first time some of her international counterparts, one of them from Germany said, oh, you are 

the famous Pam Scruggs, because she had done such good work 

with them. 

People like Dave Hendricks, who is the manager of Neosho National Fish Hatchery. When I went to Neosho, Missouri and met 

with Dave, the mayor came and the city and town councilmen came 

and told me of the role that Dave and his team plan in that community. So these are the people and the work of the U.S. Fish and 

Wildlife Service. And they deserve your support. 

[The prepared statement of Mr. Ashe follows:] 
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Senator INHOFE. Thank you, Director Ashe. We will have a 5- 

minute round of questions, we will not have a second round. Because we do have another panel. 

First of all, as I said in my opening statement, Director Ashe, the 

Fish and Wildlife request for fiscal year 2016 is another $23 million specifically for listing alone. Now, the Service’s budget justification references a backlog of 609 other petitions for listing that 

are in addition to settlement agreements. I would just say, if you 

look, for example, at the burying beetle, that originally came from 

the east coast and the populations now have been expanded and 

are found in my State of Oklahoma and Nebraska, in Arkansas and 

some other areas. We went through this thing. 

When I go back to Oklahoma, it doesn’t matter who we talk to 

in the rural areas. It can be farmers who are concerned about, can 

they go out and plow their fields without disrupting this critter’s 

habitat? People who might be drilling, people who might be doing 

anything on the land, it is something that is very, very costly. 

What about the delisting? You are requesting more money for 

listing, and yet that is not the problem. It is the delisting. Do you 

think that we have an adequate system to address the delisting 

and when is that going to be set in place? 

Mr. ASHE. Mr. Chairman, the increases in our budget are actually, we are directed to fulfilling our responsibilities, like 5-year 

status review, which support the analysis of species that are already listed and will support our review to determine if they 

should be downlisted or delisted. 

For instance, with the American burying beetle, we are initiating 

next month a range-wide comprehensive status review for the species. So we will engage the Service’s experts, the States, other experts, and we will use that status review to determine whether 

delisting or downlisting of the American burying beetle—— 

Senator INHOFE. No, wait a minute. You are going to do this 

study to see how many should be delisted? Is this what we are 

looking at? 

Mr. ASHE. We are going to do it to determine the status of the 

species, and then based on that, we could make a proposal to 

downlist—— 

Senator INHOFE. Well, no, we are talking about having listed, remember the 12 versus hundreds that I used in my opening statement? Why is it that we are spending all this time on listing and 

not delisting? We have talked about this for a long period of time. 

I can remember letters sent back, and I have copies right here, 

back to 2011, addressing this, along with some sue and settle problems that we have. 

But it is the delisting. What is my answer to the people when 

I go back to western Oklahoma and they say, how much longer is 

it going to be until we do something with this vast, this growing 

beetle or whatever you want to refer to it as? 

Mr. ASHE. It will be this coming month, when we start the status 

review. 

Senator INHOFE. How long do you think that review will take? 

Mr. ASHE. I can’t really give you that answer right now, Mr. 

Chairman. 
106 

Senator INHOFE. Can you tell me within 6 months how long it 

will take? 

Mr. ASHE. I could tell you it would take 6 to 18 months, would 

be my guess, to do the status review. 

Senator INHOFE. All right, 6 to 18 months, somebody write that 

down. We want to get some conclusion on this thing. 

So the backlog for delisting or downlisting the species, right now 

you can’t tell us what the specific backlog is for delisting or for 

downlisting species today? 

Mr. ASHE. I can tell you we have a backlog of species, we have 

over 200 species that are already listed and for which we have not 

developed recovery plans. 

Senator INHOFE. OK. 

Mr. ASHE. And so we have, we definitely have a backlog of need 

to deal with status assessment of species to consider delisting or 

downlisting. But Mr. Chairman, I think what you realize, and I 

hope all the other members realize, we have an affirmative duty 

to list. The law requires us to deal with petitions. The law requires 

us to make 12-month findings on listing. 

So by law, our highest priority is to consider the listing of species. The law does not give us any latitude to do that. When I have 

a petition, I have 90 days to make a determination on the petition. 

If I make a positive finding on that at 90 days, I have 1 year to 

do a status review. 

Senator INHOFE. The mission, though, originally, and you probably have done a lot of study on this, all the way back to 1970, was 

to list, but also to delist if you are successful. You could almost 

come to the conclusion that you are not successful if you haven’t 

found an opportunity to delist some amount, some numbers of species, or downlist them, and yet we keep adding more and more to 

the list. 

So that is what I think everyone wants to see, the results. I 

think you would say this morning, recognize the fact that sometimes you list something and all of a sudden some programs are 

successful, as in, I would say, the burying beetle, because it is now 

found in places where it never was found back when it was originally listed from east coast information. Is that correct? 

Mr. ASHE. But in order to show that, Senator, you or I or others 

may believe that. But in order to propose a delisting or a 

downlisting, I have to show that. So that is the purpose of a 5-year 

review. 

Senator INHOFE. So it might be a flaw in the process, though. 

You are doing your job but perhaps we need to make some changes 

in the Act. 

Mr. ASHE. I think the most important things, Mr. Chairman, are 

the resources to do the job. The job is doable, and I think we are 

showing, as you acknowledge, in this Administration, by the end of 

this Administration if we stay on course we will not just have 

delisted more species than any other Administration. We will have 

delisted more, due to recovery, more species than all previous Administrations combined. So I think we are focusing on delisting. We 

need the resources to do the 5-year status assessments. We need 

the resources to do the recovery planning. We need the resources 

to do the delisting. 
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So when you are looking at our delisting budget, or our listing 

budget, that is our budget for listing and delisting. And so we need 

the resources to do that. 

Senator INHOFE. My time has expired, but I will show you where 

we got the information in terms of the listing. And that is why I 

wanted to bring it up this morning. 

Senator Boxer. 

Senator BOXER. Thanks so much, Mr. Chairman. 

Well, the fact that you are delisting shows that the ESA is working. I am just looking at the different Administrations. Ronald 

Reagan administration, they delisted 5 due to recovery, Bush 1, 

Clinton 6, Bush 2, 7 and Obama 11. So that says to me you have 

flexibility in this law. And yet all these bills that the Republicans 

have filed say, well, we just need more flexibility. That is just a 

cover. That is just a cover. That is just what they say. They just 

want to stop this Act from functioning. 

I feel that the way the Obama administration has proven that 

this Act works is when you see this recovery. So I want to ask you 

about Senator Gardner’s bill which is so controversial that there 

has been a big op-ed in his own paper back home, and all these 

groups oppose it. He basically says, for 6 years, you can’t do a thing 

about the greater sage grouse. And as I look at the ESA, its beauty 

is its flexibility. I think we are proving it in real terms on the 

ground. 

So I would like to ask you, what would it mean to this particular 

species if all of a sudden your hands were tied for 6 years? It would 

mean that the States would develop the plans, you are out of it 

completely for whatever God knows reason, and then the States decide what we can do on Federal lands. So if you could tell me how 

you think that would impact the recovery of the sage grouse, the 

saving of the sage grouse? 

Mr. ASHE. I think as you said, the Gardner bill essentially defers 

completely to State plans that do not exist other than in the State 

of Wyoming, as I said, we have a very good plan for sage grouse 

conservation. But it defers to State plans that don’t exist and provides no standards for those plans at all. So there is no functional 

standard that goes into place for those plans. 

So my sense about the Gardner bill is that it is simply delay. In 

the meantime, what we will see for sage grouse is more fragmentation, more loss of habitat and we will move toward a crisis by 

delay. 

Senator BOXER. Right. Well, this bill is even worse. It says for 

6 years you can’t do any listing. So it basically, what it does for 

the sage grouse, it repeals the Endangered Species Act for 6 years. 

It is a make believe there is none because we don’t like what is 

happening. 

But your comment, what’s good for the bird is good for the herd 

I thought was a real takeaway. The fact is, when we work together 

on this with the flexibility that we have, everybody is a winner. I 

don’t see a situation where that hasn’t been the case. 

In my own State, the Federal Government acting as a catalyst 

has brought together everybody in terms of our endangered species. 

My God, we have had huge successes with conservation plans 

drawn up by the entire region. 
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You are pointing out that employees in your shop are being cited 

in San Diego as heroes, this is what it is. This shouldn’t be about, 

well, my State scientists know better than your State scientists. 

This isn’t about that. It is about let’s do what is right to protect 

God’s species. That is our job. We inherited them. And they are glorious. 

And what right do we have to sit here and say that, who cares 

how many species die off? Well, that is not right. It is a moral issue 

to me. It may not be to the next person, and I don’t preach about 

it. They can decide what they think is moral and what they don’t 

think is moral. 

But the fact is, if we work together, it is a win-win all across the 

board. So can you tell us a little bit about the flexibility in the law 

that so many people are excited to see changed, either changing it 

by the back door or even perhaps as Senator Inhofe said, maybe 

the law needs to be changed so that you have more flexibility. Tell 

us about the flexibility in that visionary law that was signed by 

Richard Nixon that has been supported across the board by bipartisanship and 82 percent of the people support it in the Nation. Tell 

us about the flexibility. 

Mr. ASHE. There are some key flexibilities in the law, one of 

which was mentioned earlier. When we listed the northern longeared bat, we did so with the 4(d) rule that clarifies that white 

nose syndrome is the principal threat and therefore we can provide, 

we can insulate a broad range of activities from the regulatory restrictions in the law. We used the same tool with the lesser prairie 

chicken range-wide plan, where we listed the bird as threatened 

but we deferred largely to the well-designed, comprehensive conservation strategy that five States worked together on. 

When we designate critical habitat, we can remove areas from 

critical habitat for economic, for social or for reasons or national security. And we do that on a regular basis. So there are many flexibilities in the law. We provide a candidate conservation agreement 

with assurances, tells a rancher that if a species is listed and you 

continue to implement this voluntary agreement, then you need do 

nothing further in the law, so we can provide regulatory predictability for ranchers and farmers. We are doing that throughout the 

Country today. 

Senator BOXER. Thank you, Mr. Chairman. 

Senator INHOFE. Thank you, Senator. Senator Rounds. 

Senator ROUNDS. Thank you, Mr. Chairman. 

Director Ashe, the challenge in South Dakota in a lot of cases is 

one of trying to coordinate between the agency and individual 

farmers and ranchers that have contracts established for landownership or at least the availability for leases and so forth. Sometimes there are permanent leases on land. The relationship becomes strained on an occasional basis, and it is unfortunate. 

Part of it is because of the tactics that in many cases are being 

employed by law enforcement officers who are also doing what I believe is their best to make communications with landowners. But 

in this time in which we see across the Country a concern about 

interaction between law enforcement personnel and individuals in 

the public, let me just share with you a letter that we got. I have 

tried to abbreviate a little bit. But I want to share with you some 
109 

of the frustration that individual farmers and ranchers that have 

had leases for years with U.S. Fish and Wildlife, what they have 

shared with us. 

South Dakota landowners and farmers have allowed waterfowl 

production area easements with U.S. Fish and Wildlife Service for 

years. They believe that they have found in many cases a rather 

difficult and uncooperative approach in determining which acres 

are actually protected by the Federal easements. In some cases 

there is no math, it is simply an agreement that had been done 

perhaps back in the 1940s. 

Now, in the particular case that I am going to share, the constituent related to us that he had a story about a Fish and Wildlife 

agent appearing in their front yard with a flak jacket and side 

arms, intimidating them simply by his appearance and his tone. I 

am particularly troubled as the taxpayer dollars are funding this 

type of aggressive approach to citizens who are voluntarily and 

proactively enacting conservation measures on their own land as 

they have been doing for generations. 

How do I respond to them when they ask me why they are being 

made to feel as if they are law breakers, as if they are at risk? And 

as if rather than being a partner they are being seen in almost an 

adversarial type of role? 

It is just one example. I have a lot of examples, literally relating 

back to the time in which I was Governor. In fact, I actually asked 

to have one of your officers removed from his post because of the 

interaction with local sportsmen in the central South Dakota area. 

But there seems to be a breakdown in terms of the attitude of 

who knows best. Whether or not it is simply a matter of if you are 

a Federal officer, he seemed to have the upper hand when it came 

to the citizens that are literally paying the bill for the services. And 

in a lot of cases, trying to cooperate in allowing for easements for 

waterfowl production areas. 

How do I respond? 

Mr. ASHE. I don’t know the specifics of the case, so I would like 

to find those out and I can come talk to you personally about that, 

Senator. I would like to do that. 

Senator ROUNDS. Yes, sir. 

Mr. ASHE. But I will theorize here that if a law enforcement officer goes to a landowner in South Dakota, it would be because we 

have purchased an easement. So it would not be voluntary. So that 

would have been an easement that we have purchased and the taxpayer has paid for. 

Senator ROUNDS. On a voluntary basis. 

Mr. ASHE. Sure. It was a voluntary transaction. But the taxpayer 

has an interest in that property because we have paid for it. So we 

do aerial surveys and so they must have seen something on the 

ground that caused them concern. Because we don’t send a law enforcement officer unless they have observed what they believe to be 

an easement violation. 

Senator ROUNDS. For an easement violation you would send an 

armed officer in a flak jacket? 

Mr. ASHE. Not always, but it, I mean, our officers are like, if a 

Montgomery County police officer were to come to my home, they 

would have a side arm and they would be wearing protective gear 
110 

that sworn officers wear. So I understand that that can be intimidating to people. I do understand that. 

Senator ROUNDS. It is not a way to get more easements, that is 

for sure. 

Mr. ASHE. But I would say overall, we have an extraordinarily 

positive relationship with landowners in South Dakota. We have 

hundreds of people waiting to have the Fish and Wildlife Service 

secure easements on their property because of the relationship that 

we have. 

So this could be an exception and I would like to look at it and 

come talk to you personally. 

Senator ROUNDS. I would like that opportunity. My tie is expired, 

but I would like an opportunity to visit further. 

Mr. ASHE. Thank you, Senator. 

Senator ROUNDS. Thank you, Mr. Chairman. 

Senator INHOFE. Thank you, Senator Rounds. 

Senator Booker. 

Senator BOOKER. Thank you very much, Chairman Inhofe. 

Senator Boxer keeps talking about Richard Nixon. I would rather 

talk, this was passed in 1973 to a unanimous vote in the Senate, 

as well as a 355 to 4 vote in the House. And President Nixon said 

there is nothing more priceless and more worthy of preservation 

than the rich animal array of life with which our Country has been 

blessed. And that is very true. 

And the success that this legislation has had, it has had more 

success, frankly, than most governmental departments can have: 

99 percent of the wildlife under its protections have been preserved. But more importantly, when it comes to the time line, it 

has often taken the huge task of recovering species over decades 

and the majority of the ones that you are recovering are within the 

original time lines that were projected. It didn’t go over. This often 

takes decades to accomplish this. 

And you have saved countless species. Senator Boxer put up the 

bald eagle. But there is the Florida panther, the California condor, 

the gray wolf, the American alligator. And while these successes 

are impressive, the reality is we are in a global crisis of species extinction that is shocking. Shocking. Most people have no idea that 

it is estimate between one-sixth and one-half of all the species of 

all species on the planet earth are threatened with extinction in 

this very century. That is chilling. 

Scientists now believe that the planet is currently faced with a 

mounting loss of extinctions that threaten to rival the five great 

mass extinctions of the past. People are saying we are now in the 

next major mass global planetary extinction. And that is unacceptable. 

According to a Living Planet report released in 2014 by the 

World Wildlife Fund, it is estimated that the world’s populations 

of fish, birds, mammals, amphibians and reptiles fell by over 52 

percent of all life on earth, 52 percent between 1970 and 2010. 

Stated another way, our planet earth lost half of its wildlife in 40 

years. That is shocking and stunning and has implications that 

cannot be monetized. 

So I think our focus should be on strengthening rather than 

weakening the ESA. You have talked about flexibilities, you have 
111 

talked about how under the Obama administration, delisting has 

been done more than the previous Presidents since this has passed. 

So I would like to run through questions, keeping your answers as 

short as possible, because the great Senator Inhofe runs a tight 

ship here. Can you do that for me? 

Mr. ASHE. I can try. 

Senator BOOKER. In relation to the Refuge From Cruel Trapping 

Act that I spoke about earlier, you would agree with me that wildlife management within the refuge system should be as humane as 

possible, yes or no? 

Mr. ASHE. Yes. 

Senator BOOKER. OK. And Director, in your written testimony, 

you describe some trapping activity on the refuge system in New 

Jersey. But I know you are aware that New Jersey, similar to other 

States, has banned the use of leg-hold traps. 

Mr. ASHE. Yes. 

Senator BOOKER. Yes, you are aware, OK. And in some States 

like New Jersey the ban on leg-hold traps, the Fish and Wildlife 

Service complies with those States’ bans and currently prohibits 

the use of leg-hold traps. 

Mr. ASHE. Yes. 

Senator BOOKER. Go ahead, give a little flavor. 

Mr. ASHE. We reserve the right to do our job. In some cases, with 

States like California and other places where they have large-scale 

bans on certain trapping methods, we do in some cases use methods that are not authorized by State law. Where we have to for 

conservation of the endangered clapper rail or other things. 

Senator BOOKER. Very narrowly tailored. 

Mr. ASHE. Very narrowly defined. 

Senator BOOKER. Very narrowly defined, not the kind of trapping 

that is being proposed to be done on our refuges. So Director, in 

relation to the Endangered Species Act, you would agree that listing and delisting decisions are best made by science and the available science there is, right? 

Mr. ASHE. Yes. 

Senator BOOKER. So you would agree that listing and delisting 

decisions should be made by experts, scientists, not by Congress? 

Mr. ASHE. Correct, yes. 

Senator BOOKER. And this is especially true that these decisions 

should be made based on science by the agency, not by all the political forces that often work, the science of the agency best is insightful in cases like the sage grouse, the gray wolf, where political emotions often run awry? But the design of your regulatory regime is 

that science should prevail, is that correct? 

Mr. ASHE. That is correct. 

Senator BOOKER. OK. So finally, in my last 30 seconds, Director, 

I note that funding levels for the Federal Endangered Species program have been insufficient, not just for listing, but also for the 

delisting process. So can you please describe the importance, especially for those people who are looking for delisting, that we have 

better funding for you to implement the ESA? 

Mr. ASHE. As I said to the Chairman, I think that the major impediment to further progress on delisting of species is our capacity 

to drive recovery. One of the big increases in our budget for this 
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year is in our cooperative recovery program, where we are looking 

for species in and around national wildlife refuges, where a relatively small investment can make a quantum leap in terms of recovery and getting species off the list. 

Just this last year, we delisted the first fish ever due to recovery, 

the Oregon chub, because of that little effort, little bit of funding 

that got it over the edge. So we are showing that by some relatively 

modest effort, we can make quantum leaps in recovery and 

delisting. Those increases are reflected in our budget. 

Senator BOOKER. Mr. Chairman, thank you for indulging me. 

The more resources you have, the more delisting you could probably do. Thank you, sir. 

Mr. ASHE. Exactly. 

Senator INHOFE. Thank you, Senator Booker. 

Senator Fischer. 

Senator FISCHER. Thank you, Mr. Chairman, and thank you Director, for being here today. The Fish and Wildlife Service budget request seeks $164.8 mil- lion for land acquisition. That is $58.5 million in discretionary 

funding and $106.3 million in mandatory funding in fiscal year 

2016. That is an increase of $117.2 million from your 2015 levels. 

Now, the national wildlife refuge system has a deferred mainte- nance backlog totaling $1.28 billion. So why are you proposing to 

acquire more Federal land when we have this huge maintenance 

backlog? I think we should be addressing that. What is your response? 

Mr. ASHE. Two-fold. First with regard to the maintenance backlog, I need to note that in the last 5 years, we have decreased our 

maintenance backlog by 50 percent, one-half. So 5 years ago our 

maintenance backlog was $2.6 billion. We have managed that effectively. We got a lot of help from the American Reinvestment and 

Recovery Act. We have scrubbed projects throughout the refuge 

system, we have placed priority where necessary. And we have reduced our backlog by 50 percent. 

So I feel like the Fish and Wildlife Service has been an excellent 

steward of our maintenance backlog. Our total maintenance backlog now is less than 4 percent of our asset value, which I would 

say any private company would envy that type of maintenance 

backlog. 

So I think we are a very good steward of national wildlife refuges. 

Senator FISCHER. I have a bunch of questions. With the recovery 

funds, wasn’t that just a one-time shot, though? So how much of 

that backlog was reduced due to a one-time shot? 

Mr. ASHE. I can’t give you the exact figure, but a substantial 

amount. Because we got a substantial funding for facilities and for 

roads through the Reinvestment Act. 

Senator FISCHER. Moving forward then, you still have to look at 

that $1.28 billion that I don’t anticipate you are going to get another one-time shot to address it. 

Mr. ASHE. But I would say that our acquisitions, those planned 

acquisitions, are not going to substantially increase our maintenance backlog. We are actually very careful now too, as we acquire 

lands, that we don’t acquire liabilities. So we look before we leap 
113 

in terms of land protection and conservation. I think we are doing 

an excellent job. 

The other thing is, a lot of our effort is geared toward easement, 

particularly in the Dakotas. Our principal investment is to conserve lands through easement, conservation, where we don’t inherit 

a maintenance backlog. Because we have good stewards, those 

ranchers and farmers on the landscape. 

Senator FISCHER. In my State as well. You are looking, I believe, 

at supporting 34 land acquisitions and over 100,000 acres. Do you 

have plans for any acquisitions in the State of Nebraska? 

Mr. ASHE. We have active conservation projects in the rainwater 

Basin, which we have conservation projects along the Platte River. 

I don’t think we have any specific proposals in this budget for Nebraska, but we do have active acquisition efforts through the North 

American Wetlands Conservation Act and with our Federal Duck 

Stamp funding and other measures. 

Senator FISCHER. Senator Rounds and I were discussing the 

Niobrara Confluence in the Ponca Bluffs Conservation Area. He 

and I have, as you know, a directed interest there. Are you moving 

ahead with plans there on acquiring that land through easements? 

As you know, both Senator Rounds and I have heard from hundreds of landowners who have concerns with that. 

Mr. ASHE. I am not aware of that in particular, but let me get 

back to you for the record. 

Senator FISCHER. That would be good. Are you going to move forward with any acquisition plans or plans to establish a refuge or 

conservation areas if you do meet local State opposition? 

Mr. ASHE. Our longstanding policy is that we do not establish 

refuges over the objections of State and local parties, and certainly 

not Members of Congress. I believe we have a very strong record 

in that regard. Just in the last year, we have withdrawn efforts in 

California, in Alabama, and we have moved through public controversy in places like the Everglades headwaters in Florida where 

we had significant opposition. But we sat down, we worked through 

those efforts. 

So I think we have a very good track record. 

Senator FISCHER. I appreciate that. In the area that I live in, we 

do have wildlife refuges, and it is important to have that local buyin so that you can have a more welcoming atmosphere for people 

to come and enjoy the beauty that surrounds us as well. 

Mr. ASHE. We believe the same thing, Senator. I believe we have 

proven that, as I mentioned, Andy Ewing and his role in San 

Diego. Andy is an exceptional individual, but that is not the exception in the Fish and Wildlife Service; by and large it is the rule. 

Senator FISCHER. Thank you, sir. Thank you, Mr. Chairman. 

Senator INHOFE. Senator Merkley. 

Senator MERKLEY. Thank you, Mr. Chairman. 

The Endangered Species Act is not broken. Since this bipartisan 

law was enacted in 1973 under President Nixon, it has been 99 

percent successful in recovering listed species. I am a firm believer 

that our policy should be driven by science, especially when it 

comes to preserving biodiversity in our American heritage. No one 

wants to see a species get listed. 
114 

For example, I don’t want to see the sage grouse listed. I can tell 

you a lot of folks in Oregon don’t want to see it listed. And you can 

bet the sage grouse doesn’t want to see it listed. So that means 

they are close to, or inching closer to extinction. 

The fact is that it is our responsibility not to politicize the 

science or the biology needed to recover a particular species, but to 

heed the warning signs given to us by science and address the 

issues so a species can recover. So I am very pleased that you are 

here to testify today. 

I wanted to focus specifically on the sage grouse. I understand 

the Federal plans for sage grouse conservation on BLM lands are 

going to be finalized and we will have that later this month? 

Mr. ASHE. Senator, their schedule right now is to finalize the 

plans in early June. 

Senator MERKLEY. OK, I look forward to that. My understanding 

is that these plans have been developed collaboratively with input 

from States and local stakeholders to help inform how it should be 

designed. 

Mr. ASHE. There has been, over the course of three full, more 

than 3 years, been exhaustive public process. 

Senator MERKLEY. So there is a genetically distinct group of sage 

grouse in California and Nevada. My understanding is that the efforts to preserve them have led to a not warranted decision in 

terms of listing. Are there lessons learned from that population 

that can be applied to the balance of the population of sage grouse? 

Mr. ASHE. There certainly are, the bi-State sage grouse is shared 

between Nevada and California. They suffer from the same types 

of threats, largely habitat disturbance. In that case we have BLM 

and the Forest Service commit to conservation plans that will conserve the sage grouse. We have Natural Resource Conservation 

Service also engaged there on private lands. We had cooperation 

from the two States. 

So that is a microcosm of the larger discussion and public process 

that we have going on with the greater sage grouse. 

Senator MERKLEY. There is a plan in Oregon that is called 

SageCon, that is about Oregon working with stakeholders on private lands and State lands to try to stabilize the population and 

hopefully to prevent the necessity of being listed. Are there insights 

from that that have been incorporated into the plans for the BLM 

lands? 

Mr. ASHE. Yes, I think the State of Oregon has been a great 

partner in this context. We expect to have a very substantive, 

strong program through the SageCon effort in Oregon. Again, they 

are a very close collaborative relationship between the planning at 

the State level and the planning that BLM and the Forest Service 

are doing. So that kind of ongoing discussion, so that the planning 

process that BLM is doing and the Forest Service is doing are informed by the planning process at the State level and vice versa. 

Senator MERKLEY. Excellent. That sort of collaboration gives the 

best chances for success. One of the things that we have really 

been encouraging are the candidate conservation agreements with 

assurances. The Secretary of Interior came out and publicized those 

agreements. Ranchers have taken a close look at them. Many have 
115 

signed up. But few have been fully enrolled. That enrollment process has yet to be completed. 

Is there anything that we should do to encourage the acceleration of the enrollment process so that these ranchers who are willing to enter these agreements on how they manage their own lands 

are protected from future ill effects, if you will, of a listing? 

Mr. ASHE. I think some of that is a little bit organic. We have 

to continue to build spokespeople in the ranching community, people with whom we have a trust relationship, who can help us kind 

of expand that relationship. I think that is happening. 

The other thing is the topic of the day, which is the budget resources. We have to have the people in the field who can go out 

and meet with these people. Because a lot of times they are not 

going to sign up—— 

Senator MERKLEY. I am almost running out of time. The point 

I want to make is, many ranchers have signed up. But it is up to 

the Fish and Wildlife Service to complete the enrollment process. 

Mr. ASHE. Right. 

Senator MERKLEY. They are waiting. They are willing partners, 

ready partners. But we need to complete and honor the deal. 

Mr. ASHE. That is our resource constraint. 

Senator MERKLEY. Well, I will certainly work with my colleagues. 

I think both sides of the aisle benefit greatly from these sorts of 

voluntary efforts. Now my time has expired, but I hope that these 

collaborative efforts that are going on in Oregon will be effective 

in stabilizing the population preventing the necessity to have a listing. 

Mr. ASHE. Thank you, sir. 

Senator MERKLEY. Thank you. 

Senator INHOFE. Thank you, Senator Merkley. Senator Crapo. 

Senator CRAPO. Thank you, Mr. Chairman. 

Director Ashe, I want to use my time to talk with you about the 

greater sage grouse. As I am sure you are very well aware, in 

March 2012, the U.S. Fish and Wildlife determined that the greater sage grouse across the 11 western State range was warranted 

for listing under the Endangered Species Act, but precluded because of other, higher priorities. This decision placed the greater 

sage grouse on a candidate list whereby, due to court order, the 

Service must address its conservation status and decide by September 30th of this year whether to list the species. 

As a result of that, States across the west, including Idaho, have 

been working with various Federal agencies involved, namely Fish 

and Wildlife Service and the Bureau of Land Management, on conservation management plans that will protect the grouse and take 

into account unique circumstances within each State. It has been 

the hope of all of those discussing this that we could use this collaborative process to avoid a listing and if any kind of activity was 

required, to work on something collaboratively to make it successful. 

However, what I want to focus my questions on is a letter that 

came from your office in October 2014. I ask unanimous consent to 

make this letter a part of the record. 

Senator INHOFE. Without objection. 

[The referenced information follows:] 
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Senator CRAPO. You are probably familiar with the letter I am 

referring to. I have a copy for you if you want it, but I know you 

are familiar with it. In this letter, the Fish and Wildlife Service 

seems to have once again moved the goalpost and basically acted, 

at least many of us in Idaho feel, unilaterally by proposing land 

withdrawals on millions of acres in sage brush focal areas. 

That seems to us to be contradictory to the collaborative effort 

that we are all seeking to engage in, because now the maps that 

came in conjunction with this letter have essentially put parameters on the entire discussion about how to come up with sage 

grouse protection plans that we feel are impediments to the collaborative process, rather than helping that process move forward. 

I would appreciate your observation on this. 

Mr. ASHE. Sir, the letter there refers to what we would call 

strongholds, what the BLM has called sage grouse focal areas in 

their planning process. It doesn’t move the goalpost. What that is 

is a refinement. Previously we had identified priority habitat for 

the sage grouse. We were looking for protections. If we are going 

to avoid the need to list, then we have to show that there are 

meaningful protections in place across the priority habitat. 

The BLM asked us to refine that. Is there a best of the best habitat? And so that is what we did. We provided them with really 

what is the very best, highest quality habitat where we do need the 

strongest protections possible. 

So if we are going to reach a not warranted conclusion, then we 

need to see large pieces of the landscape where sage grouse, where 

we are highly confident that sage grouse are going to persist into 

the future. So those strongholds, or sage grouse focal areas, are key 

to that. 

It doesn’t mean nothing can happen in there. It means that we 

will have, with oil and gas, we will have no surface occupancy without exceptions. It means with grazing that those areas will receive 

priority in terms of the BLM’s analysis. Because grazing, as we 

saw in Harney County, Oregon, can be helpful to sage grouse conservation. But they will receive priority in terms of the evaluation 

process to make sure that we are meeting our grazing standards. 

Senator CRAPO. Let me interrupt there. Are you telling me that 

in these areas that there are not necessarily going to be automatic 

withdrawals, but a State like Idaho, for example, could propose 

management plans that would satisfy the requirement that these 

areas would require for proper treatment? 

Mr. ASHE. We have recommended that they be withdrawn from 

the Mineral Leasing Act. So from hard rock mining, we have recommended that those areas be withdrawn. Because the Mineral 

Leasing Act provides us with no way, once a claim is made under 

the Mineral Leasing Act, provides us with very limited tools to protect sage grouse. 

Senator CRAPO. So Idaho is more focused primarily on the grazing side of this question. 

Mr. ASHE. Correct. And I believe they came to us with some legitimate questions and concerns about how grazing would be managed. I think we have answered those questions. Many of them. 

Senator CRAPO. My time has run out. I would just say, there is 

still a very high level of anxiety. 
126 

Mr. ASHE. I understand. 

Senator CRAPO. We have a very strong and I think a very capable and effective plan and planning process underway. We want to 

be able to collaborate with you to be able to make that happen, 

rather than having rigid edicts come down that interfere with our 

ability to do exactly what the objective is, which is to protect the 

sage grouse. 

Senator INHOFE. Senator Whitehouse. 

Senator WHITEHOUSE. Thank you very much, Chairman. 

Today’s hearing unfortunately continues something that would 

have dismayed the predecessor in my seat, John Chaffee of Rhode 

Island, who is to this day revered as an environmental leader by 

his home State. But by my count, we have Republican amendments 

which, eight to zero, go against the protections of the Endangered 

Species Act. We recently had a hearing on the Clean Power Plan 

in which the majority’s witnesses were completely stacked in favor 

of the polluter interests. We have an absolutely Republican wall of 

antagonism to the new EPA rule protecting the waters of the 

United States. And their budget efforts are a relentless attack 

against those who protect our resources and our godly heritage of 

nature. 

It causes me to wonder, is there a single Federal environmental 

protection that our Republican friends like today. When I consider 

the Republicans in the past who helped build these protections, 

again, I am somewhat dismayed that there is this relentless singlemindedness, apparently as is the case now. 

I don’t have a sage grouse in Rhode Island. There is not one to 

be found. 

Mr. ASHE. There used to be a sage hen. 

Senator WHITEHOUSE. Was there a sage hen? 

Mr. ASHE. A heath hen, it was the eastern sage grouse. It is no 

longer with us. 

Senator WHITEHOUSE. Well, there is an instructive point that I 

did not know. Helps remind us why we do the Endangered Species 

Act. 

I want to ask you a different question. Rhode Island is a coastal 

State. Coastal States are seeing a triple whammy coming from climate change. We are seeing the same land habitat changes that 

non-coastal States experience. We are also seeing that the margin 

between land and sea, sea level rise that is threatening to or beginning to overwhelm features like salt marsh. And third, we are seeing the changes in the seat itself, the warming temperatures, the 

increased acidification. We haven’t seen acidification of the oceans 

measured to increase like this in, forget the lifetime of our species 

on the planet and millions and millions of years. 

So what particular attention should the Fish and Wildlife Service 

be giving to those coastal areas where the climate effects are coming at us through so many different vectors? 

Mr. ASHE. You have hit many nails on the head there, Senator. 

I think the phenomenon of climate change is one which is an overarching threat to the conservation of species. Sea level rise being 

one actually where we have given better tools to managers than 

anywhere else. 
127 

So we actually see innovation in places like the Albemarle Peninsula in North Carolina where we are working with Duke Power 

and the State of North Carolina and the Nature Conservancy and 

others to begin to plan for an orderly transition of that landscape. 

We manage nearly half a million acres of national wildlife refuges 

there. The future for those refuges is to become estuarine habitat, 

not the pocosin bogs that they are today. 

So we are working with partners to kind of realize that and plan 

for the future. But that as well is a resource constraint. We need 

better science. We need more people in the field to work with local 

communities in terms of how we can adapt, how we can build alliance with private landowners to better manage land, so that we 

can make an orderly transition occur. 

So certainly sea level rise, whether it is sea turtle or piping plover or red knot and horseshoe crabs, climate change is a large, overarching factor that we have to understand better if we are going 

to be good stewards of these creatures. 

Senator WHITEHOUSE. With 8 seconds remaining, I don’t think I 

can top the way you ended. So I will leave it there. Thank you very 

much. 

Senator INHOFE. Thank you, Senator Whitehouse. Senator Sullivan. 

Senator SULLIVAN. Thank you, Mr. Chairman. Director Ashe, 

good to see you. I have so many questions for you that I could 

spend the next 3 days asking you questions. So we are going to 

submit a number for the record, and if you can try to answer these 

succinctly, it would be helpful so we can get through at least a couple in the 5-minutes that I have. 

First, I want to talk about the Alaska National Interest Lands 

Conservation Act. Are you familiar with ANILCA? 

Mr. ASHE. I am. 

Senator SULLIVAN. Great. There are a lot of Alaskans who actually don’t think your agency is that familiar with ANILCA, because 

there is a strong sense in my State that your agency continually 

violates that important Act. And to Senator Whitehouse’s comments, I will tell you this, today’s hearing but more your actions 

would bring great dismay to one of Alaska’s great predecessors in 

the U.S. Senate, Ted Stevens, who crafted ANILCA, knew it was 

a finely crafted balance and yet, it is being ignored by your agency, 

I think, on a daily basis. 

Let me give you the latest example. The President’s recent announcements on the 1001 area, ANWR. As you know, the coastal 

area of ANWR, the 1002 area of ANWR, very important place, laid 

out in ANILCA, whole chapters on it in ANILCA. And critical that 

the Federal Government was tasked with either looking at developing it for oil and gas, looking at the resources there, recommendations to Congress, or perhaps someday making it a wilderness. 

But do you think there is any other branch of government in the 

Federal Government that has the power to either develop the 1002 

area for oil and gas or make it a wilderness besides this body, Congress? 

Mr. ASHE. No, I do not. 
128 

Senator SULLIVAN. OK, then how can the President of the United 

States a couple of months ago say he is going to submit a bill to 

make the 1002 area wilderness, which is fine, he has a right to do 

that, it has to be approved here, it won’t go anywhere, but then in 

the meantime say, I am going to ‘‘manage’’ the 1002 area for wilderness anyway? That is what he said on Air Force One to big fanfare. 

How can he manage the 1002 area for wilderness when you don’t 

have the authority to do that? Can you explain that to me? This 

is a huge issue for my State. I think you are violating the law, I 

think the President is violating the law. How do you do that? 

Senator BOXER. Can we have order? 

Senator INHOFE. We have order already. 

Senator BOXER. He wouldn’t let him answer the question. 

Senator INHOFE. Stop the clock and give him at least 1 more 

minute. 

Senator SULLIVAN. How do you manage the 1002 area for wilderness when you don’t have the authority to designate wilderness, 

the 1002 area? Go read ANILCA. There is not a lawyer in town 

who thinks your agency has that authority. 

Mr. ASHE. There are lawyers who in the Interior Department 

who agree very much. Mr. Sullivan, we are managing the 1002 

area as we are managing it today for what we call minimal management. 

Senator SULLIVAN. No agency, Republican or Democrat, has ever 

said they are going to manage the 1002 area for wilderness with 

the exception of yours. First time ever. 

Mr. ASHE. We are managing the 1002 area to protect the wilderness value that is represented there. That is our duty. 

Senator SULLIVAN. Let me ask a follow up question. If there is 

a President in 2017, he is a Republican, he submits legislation to 

develop the 1002 area for oil and gas development. It doesn’t go 

anywhere, it is a tough issue. Can that President, say it is President Cruz, President Rubio, President Paul, can that President say, 

I am now going to ‘‘manage’’ the 1002 area for oil and gas development? 

Mr. ASHE. We have produced a comprehensive conservation plan. 

Senator SULLIVAN. Can you answer that question? 

Mr. ASHE. The President would have to, we would have to 

change our conservation plan. We have gone through the lawful administrative process of developing a comprehensive plan. 

Senator SULLIVAN. Not designating 1002 as wilderness without 

congressional approval. 

Mr. ASHE. We have a comprehensive conservation plan for the 

management of the refuge which has been developed through a 

public process. 

Senator SULLIVAN. Can a President in 2017 manage the 1002 

area for oil and gas, even through a comprehensive management 

plan? 

Mr. ASHE. No. 

Senator SULLIVAN. Can a President now manage the 1002 area 

for wilderness? The answer has to be no if you said no to the other 

question. 

Mr. ASHE. The President is not managing it. 
129 

Senator SULLIVAN. The President said he was going to manage 

the 1002 area for wilderness. He doesn’t have the authority to do 

that. 

Mr. ASHE. The United States Fish and Wildlife Service is managing the Arctic National Wildlife Refuge. 

Senator SULLIVAN. No, the 1002 area is different. Look at 

ANILCA. 

Mr. ASHE. No. The 1002 area is part of the Arctic National Wildlife Refuge. The law makes no distinction between the 1002 area 

and the remainder of the refuge. 

Senator SULLIVAN. It makes a huge distinction. There is an entire chapter called the 1002 chapter in ANILCA. That is why it is 

called the 1002 area. There is a gigantic distinction. Director Ashe, 

I think that your agency has been violating the law. I have so 

many other questions, Mr. Chairman. We will submit them for the 

record. This is incredibly disturbing and a whole host of different 

ANILCA sections. 

I am going to ask one more question, Mr. Chairman, if I may. 

Senator INHOFE. Senator Sullivan, you have another good 

minute, because you were interrupted. Please go ahead. 

Senator SULLIVAN. So in Alaska there is a provision, what we believe is the ‘‘no more’’ provision of ANILCA. Do you believe that 

that exists? 

Mr. ASHE. It does exist. 

Senator SULLIVAN. So the ‘‘no more’’ clause says there should be, 

that ANILCA, according to Ted Stevens and others, was a finely 

balanced designation. We have almost 60 million acres of wilderness. We have State parks that are bigger than Rhode Island, individual State parks. We have a lot of wilderness; we love our wilderness. 

But we don’t think there should be any more, and neither did the 

Congress. Do you think that there can be any more wilderness, 

managed, designated or otherwise, without the express permission 

of this body? 

Mr. ASHE. There can be no designated wilderness without congressional action. 

Senator SULLIVAN. Then how can the President of the United 

States say he is going to manage the 1002 area for wilderness? He 

can’t. 

Mr. ASHE. The President has said, the U.S. Fish and Wildlife 

Service is going to manage the refuge to protect the wilderness 

value that resides there. We have ample authority to manage the 

refuge in a way that preserves and protects its wilderness character. 

That does not mean it is congressionally designated wilderness. 

We have gone through a lawful administrative—— 

Senator SULLIVAN. Are you familiar with 1002(e) of ANILCA? 

Mr. ASHE. Not the number, no. 

Senator SULLIVAN. That is the one that says there are exploration plans that have to be approved by the Secretary in the 1002 

area. The State of Alaska put together an exploration plan under 

that provision. You rejected it. Why wouldn’t you want to work 

with the State of Alaska on a plan like this? 
130 

Mr. Chairman, I will submit the additional questions I have for 

the record. 

Senator INHOFE. Thank you, Senator Sullivan. Senator Markey. 

Now, I think, Senator Markey, it might be a good time for us to 

relate our story from last week. 

Senator MARKEY. Please. 

Senator INHOFE. Oddly enough, while we disagree on a lot of 

issues, I have always felt Senator Markey to be a very close friend. 

We bumped into each other with our wives last week. He was joking around, I guess I was joking more than he was, after meeting 

his wife, who was really dolled up. She looked really good. I told 

her that, too. 

[Laughter.] 

Senator INHOFE. And they kidded me because my wife was wearing blue jeans and her Save the Ridley Sea Turtle tee-shirt. Now, 

are you paying attention to this? The sea turtle, yes. 

Senator BOXER. I hope she is not out here today for this hearing. 

Senator INHOFE. But anyway, I think sometimes people try to 

say that conservatives or Republicans are not concerned about a 

species. In fact, when you say how many people would answer yes, 

we need a U.S. Fish and Wildlife, I think most Republicans would 

be on that list. It is just that we need some reforms there. We will 

talk about the Ridley sea turtle at a later time. 

Senator Markey. 

Senator MARKEY. Thank you, Mr. Chairman, very much. And by 

the way, your wife looked tremendous that day as well. 

[Laughter.] 

Senator MARKEY. There will be no graciousness gap that opens 

up in this hearing. And like you are saying, it did demonstrate that 

there areas of common agreement where we can work together. 

And your wife gave me a deep insight into you, that you have been 

married to her for 56 years. Is that right? 

Senator INHOFE. That is correct. 

Senator MARKEY. Incredible. That is a reason to believe that we 

can find areas of agreement. 

Senator INHOFE. So welcome, sir, we appreciate your being here. 

Senator MARKEY. On the 1002 issue, as we know, that question 

of whether or not that area is so special, so important that there 

should not be some extra protections, especially if there is going to 

be oil drilling and especially if the oil companies then want to export the oil overseas. It is one thing to say that they want to drill 

for America, but to drill and simultaneously be saying that we have 

a surplus in America, let’s export our oil while drilling on this special land is a big question for the Country, very big question. And 

that deserves a big, big debate. 

With regard to Chatham, Massachusetts, which you know very 

well from your long service with the great Congressman Gerry 

Studds, there has been work done on the Monomoy Refuge for decades to support conservation efforts while maintaining historic fishing practices and small scale bay scalloping. I appreciate the Service’s work with Chatham as the Monomoy Refuge has developed its 

comprehensive conservation plan. My hope is that the final plan 

will continue the partnership between Chatham and the Fish and 

Wildlife Service that has worked so well over the years. Can I get 
131 

a commitment from you that you will keep me informed of the plan 

developments as it moves toward being finalized, so that we can 

understand how closely you are going to be working with Chatham 

in order to ensure that there is a continued comprehensive partnership? 

Mr. ASHE. Senator, I would be glad to come up personally and 

talk to you before we make any final decisions. 

Senator MARKEY. That is a very important issue to me. 

Critics of the Endangered Species Act and the Fish and Wildlife 

Service’s efforts to implement it are often concerned with the 

amount of funds that the President’s budget requests for supporting endangered species conservation. How do inadequate resources hinder the species conservation and delisting efforts of the 

Service? 

Mr. ASHE. I think the lack of support for doing 5-year assessments, inadequate support for the scientific investigation and information that we need, we have increases in our budget this year for 

our State college, for State and tribal wildlife grants. That would 

be an important investment in our State partners’ capacity to do 

work in endangered species conservation and to provide us the 

work or the information that we need to make better listing and 

better delisting decisions. 

So resource constraints, in my view, are the principal reason that 

we are not making the progress that we could otherwise make. 

Senator MARKEY. So several of the bills being considered today 

will likely cause the cost of managing the Endangered Species program to increase dramatically. Do you believe the agency has the 

capacity to absorb these costs without requiring additional Federal 

funds? 

Mr. ASHE. No, we don’t. Several of the bills that are before you 

today would essentially create separate causes of action. I hear constant criticism of the sale of litigation that we have to deal with 

now. But if these bills pass, it would establish new causes of action 

against the United States Fish and Wildlife Service. 

Senator MARKEY. And again, I will just list the bills. S. 112 

would require the agency to produce separate economic impact 

analyses for each State and locality affected by critical habitat designations. S. 292, 736, 855 would require the agency to publish 

massive amounts of raw scientific data. S. 293 would make litigation more cumbersome and delay court decisions. S. 736 would 

force the agency to review potentially massive amounts of unqualified scientific information. And S. 855 would raise takings compensation above fair market value and require the agency to relist 

species every 5 years until recovery. Those are massive additional 

costs that the Fish and Wildlife would have to absorb without any 

increase in appropriations. 

Mr. ASHE. Correct. 

Senator MARKEY. And finally, Director Ashe, last week my colleagues on the other side of the aisle passed out a bill from this 

committee that would raise barriers to EPA using science to inform 

its decisions. Today we are considering a bill that would require 

the Fish and Wildlife Service to use any information, any information submitted to it by State, tribal or county governments in its 

decisions. Has the current best available science and commercial 
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data standard served the conservation of wildlife well over the 

years, or do we need to change it? 

Mr. ASHE. I think it has served us very well. And we are held 

accountable. So if a State or local government or tribe provides us 

with information that represents the best available and we ignore 

it, I mean, we are held accountable for that by the courts. So I believe that provision has worked miraculously well to make sure 

that these decisions are science-driven. 

Senator MARKEY. And I agree with you, I think any data would 

just paralyze you. The best available data allows you to ensure that 

you are hearing all of those views that actually could substantively 

impact on the decision which you have to make. I agree with you 

100 percent, and I yield back, Mr. Chairman. Thank you. 

Senator INHOFE. Thank you, Senator Markey. Senator Barrasso. 

Senator BARRASSO. Thank you very much, Mr. Chairman. 

Director Ashe, welcome. A couple of questions on the grizzly 

bear, sage grouse and the gray wolf. On the grizzly bear, the grizzly bear reached their population goal I believe several years ago 

in Wyoming, were delisted. The population goal at the time was 

500 bears. 

Subsequently, a lawsuit forced your agency to backtrack on the 

delisting to complete a study on white bark pine. The result of the 

study showed that white bark pine was largely a non-issue, ultimately you could still move forward with the delisting. 

But my question is, what is the current target population goal 

for that same population today? It was 500 initially. 

Mr. ASHE. The 500 was one part of the recovery standard. We 

said a minimum of 500 bears to ensure that the population would 

be genetically connected to the larger grizzly bear population in the 

lower 48 and Canada. So that was one part of our recovery standard. We don’t have a number that we are shooting for, but I can 

tell you, we agree that grizzly bears are recovered. We are working 

with the State of Wyoming and Idaho and Montana literally as we 

speak to try to put together the frame for a potential delisting proposal. 

Senator BARRASSO. That would be helpful. People in my State 

feel that the bar has been raised, the goalpost has been moved in 

terms of the total counts. Thank you on your efforts there. 

The sage grouse, the State of Wyoming, as you know, said that 

it has worked very hard to create a plan to protect the sage grouse. 

Your office has been very helpful to us in that regard. You have 

worked collaboratively with our State. Just last week, your staff 

praised Wyoming’s plan in a meeting with my staff. Wyoming, as 

you know, has worked in good faith to create a workable plan. Because we know that such a listing of sage grouse would be economically bad for our State, and because we believe we know best how 

to protect the bird in Wyoming. 

With that said, isn’t it true that despite all this good work, Wyoming’s plan isn’t enough to avoid a listing that my State has tied 

to all the other States that have to develop plans to protect the 

sage grouse? And if their plans don’t add up, that Wyoming could 

still face a listing? 

Mr. ASHE. The Wyoming plan by itself would not be sufficient to 

avoid a listing. So that is why we have come together with all 11 
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range States and the BLM and the Forest Service and the Natural 

Resource Conservation Service. It is through that collaborative, 

comprehensive process that we have the potential to get to a notwarranted determination. 

But like with Wyoming, Wyoming made difficult decisions to conserve the sage grouse. So conservation involves sacrifice. At some 

level we have to make tradeoffs. Wyoming has made them well. 

And the BLM and the Forest Service are now in the process, and 

I believe they are doing an extraordinary job. 

Idaho has been a good partner. Hopefully we will see other 

States, their plans take shape here very quickly, Oregon, Montana, 

Colorado. But it is that collective effort that will get us across the 

finish line. 

Senator BARRASSO. Is it also true that even if all the States meet 

Wyoming’s standard and the bird isn’t listed by Fish and Wildlife 

that the agency could still be sued, could lose in court the position 

that Wyoming has already faced with the wolf delisting and the 

grizzly bear delisting? 

Mr. ASHE. It is possible. 

Senator BARRASSO. We are just concerned, because it seems in 

spite of the agency’s best efforts, sometimes the lawyers don’t have 

the winning record that we would like in these cases when it comes 

to defending and delisting. 

Mr. ASHE. And I would say, in that context of that question, we have a $4 million increase proposed in our budget. Because if we 

were to get to a not-warranted, then we are going to have to defend 

that record. So we are going to have to be able to put together an 

administrative record that we can bring to court. We are going to 

have to have the people power to implement the agreements that 

we have forged in the context of this collaborative effort. So we 

need that capacity dearly. 

Senator BARRASSO. And in terms of the gray wolf, has Wyoming 

met every goal that Fish and Wildlife has set to protect the gray 

wolf, including developing a wolf protection plan that lives up to 

your agency’s standards? 

Mr. ASHE. Yes. 

Senator BARRASSO. So do you believe it is time to once again 

delist the wolf? 

Mr. ASHE. I do. 

Senator BARRASSO. Thank you. Thank you, Mr. Chairman. No 

further questions. 

Senator INHOFE. Thank you, Senator Barrasso. Senator Capito. 

Senator CAPITO. Thank you. Thank you, Mr. Chairman, thank 

you, Director, for being with us today. 

I am going to talk about the northern long-eared bat, no surprise 

there, we talked about it when you came to visit me. It is in 37 

different States. I am interested to know what steps the Service 

has taken to prepare for the flood of new Section 7 consultations 

that will be required for the development of new transportation 

projects, additional renewable energy exploration, commercial and 

residential construction, electricity transmission projects, forest 

management projects. In this budget that you have put before us 

today, are you making any adjustments there to try to meet this 

heavy demand? 
134 

Mr. ASHE. Makes me tired just listening to you. 

[Laughter.] 

Mr. ASHE. Yes, I mean, one of the largest increases in our budget 

is for our consultation and planning function within what we call 

ecological services. So I think yes, we are preparing for that. One 

of the things that we have been trying to do through the budget 

is to build that capacity. We know as the economy continues to recover that the demands on the Fish and Wildlife Service increase. 

We are anticipating significant additional need to have field capacity to deal with it. 

But with the long-eared bat, I think the 4(d) rule, the interim 

4(d) rule provides significant flexibility. I think with the increases 

that are proposed in the President’s budget, I anticipate that we 

will be able to manage that workload well. 

Senator CAPITO. When do you expect to have the final rule? You 

have an interim rule now? 

Mr. ASHE. We have an interim rule now. We will be going 

through a public comment process. I am thinking by the end of the 

year we should have a final rule. 

Senator CAPITO. Obviously, the concern there since it is such a 

wide-ranging species and it being in 37 States, and in the eastern 

part of the United States, obviously where West Virginia is located, 

the backlog of consultations and I know you are short-staffed in 

West Virginia anyway. It concerns me in terms of being able to 

move these projects forward. 

Mr. ASHE. Thank you. It does concern me too. I think we have 

built in a responsible increase in the budget that will help. The increase that we have in the budget I think is going to allow us to 

hire an additional 50 people in this area. Of course, that would be 

nationwide. But I think that capacity is going to be key to us dealing effectively with the northern long-eared bat and the lesser prairie chicken and the other species that we have listed. But I think 

again, our record shows that we can do that. 

I will note with the long-eared bat that the Indiana bat has been 

listed for over 20 years as an endangered species. It occupies much 

of the same habitat, has the same basic life history as the northern 

long-eared bat. And we have been managing that well and without 

significant controversy. So I think with the northern long-eared bat 

we have excellent cooperation from our State partners. And we 

have been working not just with State fish and wildlife agencies, 

but with State forestry agencies and I think we have laid the 

groundwork for a very cooperative, successful endeavor. 

And we will learn as we go along. The interim final rule is another innovation in flexibility that the law allows us. We put in 

place an interim rule, now we are going to hear additional public 

comment and make adjustments if necessary in the final rule. 

Senator CAPITO. Thank you so much. 

Senator INHOFE. Thank you, Senator. 

Director Ashe, thank you very much for the time that we have 

had here. You did an excellent job. I would ask you, if you don’t 

mind, to come back to the anteroom so we could have a real quick 

word on something unrelated. 

Mr. ASHE. Thank you, Senator, always, for your kindness when 

I am here. 
135 

Senator INHOFE. Senator Boxer. 

Senator BOXER. I want to add my voice of thanks. I think that 

you showed us today you are a voice of reason. I think you showed 

us today the flexibility that you bring to this job that is in the Act. 

And I think you proved today that this number of bills that have 

been put into play in this committee, which are very sad to me, because I think they undermine the ESA, are not necessary. Because 

we can deal with you as a human being who is smart, you know 

your way around the block, you understand, you have a broad 

range of knowledge on these issues. Plus, you know how to keep 

your cool under what I thought was rude questioning. 

Senator INHOFE. That is getting a little out of hand there, Senator. 

Senator BOXER. I have the right of free speech. And that is my 

opinion, and I will say it again, I thought you held your cool under 

what I thought was rude questioning. 

I have done my share of that kind of questioning, so I think I 

can say I know it when I see it. 

So thank you, Mr. Ashe, and thank you, Mr. Chairman. 

Senator INHOFE. Let me applaud Senator Sullivan for his passion, his representation of his State. It means a lot to us and to 

the system. 

Mr. ASHE. And Senators, if I could, I would just say last night 

I was looking back, because I do believe that the Endangered Species Act should be reauthorized, and I think there could be room 

for improvement of the law. I looked back and the last time it was 

reauthorized was in 1998. You are both former members of the 

Committee on Merchant Marine and Fisheries in the House of Representatives. 

The base legislation for that was H.R. 1497 in the 100th Congress. The sponsors were Gerry Studds, Democrat from Massachusetts, Don Young, Republican from Alaska, Walter Jones, the committee chairman, a Democrat from North Carolina, and Bob Davis, 

the ranking Republican on the committee from Michigan. So I 

think it is possible to bring people of goodwill together. And we 

could do the same thing and we could pass legislation that improves the law. 

Senator INHOFE. Thank you very much, Director Ashe. Would 

you mind coming up to the anteroom now, because I want to have 

a real quick word with you. I would ask the second panel to please 

be seated. 

The second panel is David Bernhardt, partner in Brownstein 

Hyatt Farber Schreck. He is the former solicitor for the Department of Interior. Gordon Cruickshank, the County Commissioner 

from the Valley County in Idaho; and Donald Barry, Senior Vice 

President, Conservation Program, Defenders of Wildlife. 

What I would like to ask you to do is go ahead. Let’s start with 

you, Mr. Bernhardt, for your opening statement. 
136 

STATEMENT OF DAVID BERNHARDT, PARTNER, BROWNSTEIN 

HYATT FARBER SCHRECK, FORMER SOLICITOR, DEPARTMENT OF THE INTERIOR 

Mr. BERNHARDT. Good morning, Mr. Chairman, members of the 

committee. I appreciate the invitation to testify before you today. 

I request that my written statement be included in the record. 

Senator CRAPO [presiding]. Without objection. 

Mr. BERNHARDT. By way of background, I have worked on ESA 

issues for over 20 years, including while serving as the Solicit of 

the Department of the Interior, as an attorney in private law practice, and as a congressional aide. Given the scope of the hearing 

and the time, I will make four brief points. 

First, many of the decisions made by the Fish and Wildlife Service are decisions of great public consequence, and as such they 

should be made with as much care and as much forethought and 

foresight as our Government can muster. These decisions have the 

potential to greatly impact the particular species at issue, but 

equally important, if not even more so, also people and communities where the particular species are present. 

Unfortunately, at times these decisions are driven by deadlines, 

some imposed by statute, some established by courts, and some imposed by the Service’s own agreement with imposing litigants. 

In my opinion, these deadlines often have as their consequence 

less care and thought in crafting the underlying decision, less review of the legal sufficiency of the decision to be made, and I believe that the arbitrary time lines often undermine the credibility 

of the merits of the decision itself with the public. 

But you don’t need to take my word for that. Recently, the Ninth 

Circuit Court of Appeals provided a view of a biological opinion prepared under a court deadline on a very significant matter. It 

upheld the legality of the opinion, but it questioned whether anyone is served by the imposition of tight deadlines in matters of 

such consequence. The court explained the biological opinion as a 

jumble of disjointed facts and analysis. It further pointed out that 

deadlines become a substantive constraint on what an agency can 

reasonably do. And it said that future analysis should be given the 

time and the attention that these serious issues deserve. I ask your 

committee to look at the validity of maintaining these deadlines. 

Second, despite the significant conflict and acrimony that exists 

in the implementation of the Act, I believe things might have been 

a lot worse. We must recognize that over the last 20 years, those 

charges with implementing the Act, including Don Barry, who sits 

to my left, have developed and significantly expanded initiatives 

primarily related to sections 7 and 10 of the Act, such as multi-species conservation plans, safe harbor agreements, no surprises policies. Director Ashe talked about these earlier today. 

These administrative changes have been meaningful to the individuals, to entities, and even entire communities who have been 

able to use these tools to successfully resolve their particular challenges while providing the species protections under the Act. But, 

unquestionably, much more can and should be done to incentivize 

private landowners and States to be encouraged to engage in meaningful conservation efforts, and we should strive to further efforts 

that minimize conflict while still protecting species. 
137 

Third, the controversy and conflict associated with the implementation of the Act may actually get much worse than it is today if 

the current Administration finalizes two regulations and one policy. 

One of the regulations is related to the designation of critical habitat; one regards the interpretation of a term called ‘‘adverse modification’’; and the policy is one that describes how the Service intends to utilize its authority to exclude areas from critical habitat 

designation. 

While the Service and NOAA Fisheries should be commended for 

making the effort to provide greater clarity to its employees and to 

the public on these issues, they have missed the mark and they 

have developed proposals that are untethered to the text of the Act 

itself. 

Finally, regarding the legislative proposals before you today, they 

are quite varied. Some reflect longstanding policy debates and others raise new questions. But they should be welcomed in the course 

of a meaningful dialog framed by whether the Act of today can or 

should be improved after the decades of experience that we have 

actually living under it. 

I think we can incentivize and create improvements to the Act 

while at the same time effectively protecting species. 

I welcome your questions. 

[The prepared statement of Mr. Bernhardt follows:] 
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Senator INHOFE [presiding]. Thank you very much. 

We will recognize Senator Crapo for the purpose of an introduction. 

Senator CRAPO. Thank you very much, Mr. Chairman. It is really 

an honor for me today to be able to introduce my good friend, Commissioner Gordon Cruickshank. Today the committee is going to 

hear from Commissioner Cruickshank from the Valley County of 

Idaho, representing the National Association of Counties. Commissioner Cruickshank has been a county commissioner in Valley 

County since 2007. Prior to joining Valley County’s Commission, 

Commissioner Cruickshank spent 16 years with the Valley County 

Road Department, with much of that time spent as the road superintendent managing 750 miles of roadways and bridges. 

Commissioner Cruickshank’s experience as a county commissioner and road superintendent enables him to present a valuable 

perspective on the impact of the Endangered Species Act on local 

governments, especially rural counties throughout the West with 

the large presence of ESA-listed species and large tracts of federally managed land in their jurisdictions. 

As Commissioner Cruickshank will testify, county governments 

are responsible for a wide range of responsibilities, including county government buildings, roads and bridges, schools, and municipal 

water systems. Compliance actions and costs associated with ESA 

listing species present challenges to all of these government functions, and the challenges are exacerbated when such listings are 

the result of closed door settlements that do not properly address 

the best available science or economic impacts. 

County governments across Idaho and the County are committed 

to clean air and water, and the proper stewardship of our natural 

resources, but ESA listing determinations lacking in transparency 

and absent a proper accounting to the socioeconomics and costs to 

local governments do not help commissioners such as Commissioner Cruickshank to manage county resources while also preserving viable wildlife populations. 

Again, I thank Commissioner Cruickshank for coming here to 

testify. I think we are going to learn a lot from his wisdom, Mr. 

Chairman. 

Senator INHOFE. Thank you. 

Commissioner Cruickshank, let me just observe that I am sure, 

as you watched the first panel, there is a tendency for people in 

Washington to think all the wisdom comes from Washington. I can 

assure you that the majority on this committee don’t agree with 

that. We welcome you and your local perspective on the problems 

that we are faced with. 

STATEMENT OF GORDON CRUICKSHANK, COUNTY 

COMMISSIONER, VALLEY COUNTY, IDAHO 

Mr. CRUICKSHANK. Thank you, Mr. Chairman. 

Chairman Inhofe, Ranking Member Boxer, and distinguished 

members of the committee, thank you for inviting me to be here 

today on behalf of the National Association of Counties to share 

with you why the Endangered Species Act matters to counties. 

Through both my career in public service and involvement with 

NACo, I have seen firsthand the impacts of the ESA on my county, 
144 

my State, and counties nationwide. In the 40 years since the ESA 

was enacted, our Nation has learned many lessons about how to 

protect endangered and threatened species. The ESA should be updated and improved to reflect those lessons. 

NACo has identified three key elements that should be considered as Congress examines the legislation to update and improve 

the ESA. 

First, ESA decisions must consider the socioeconomic impacts, as 

well as species impacts. Counties recognize the importance of the 

ESA; however, its requirements often result in unintended impacts 

on our local economies and the people we serve. For example, Valley County was recently identified as the potential site of a mine 

that could create over 400 jobs, 1,000 indirect jobs, and provide $20 

million in annual wages. However, concerns over mine impacts on 

listed salmon populations and threats of litigation have slowed approval of the project and the hundreds of jobs that could come with 

it. 

My county’s ability to promote economic growth through outdoor 

recreation and tourism has also been impacted by the ESA. Recreation activities in Idaho contribute over $6 billion in direct consumer spending and support 77,000 jobs statewide. Recent decisions by the Forest Service have resulted in the closure of many 

roads that people rely on. Access has been restricted during our 

peak tourist seasons due to concerns over sedimentation impacts on 

listed species. 

Like 70 percent of counties in the United States, we are a rural 

county, and our natural resources are a vital part of our economy. 

Limiting access to outdoor recreation and natural resources limits 

our ability to grow and thrive. 

Again, the impacts on the local economy must be considered by 

Federal agencies as part of the ESA decisionmaking process. 

Second, the Federal Government must reduce the cost of ESA 

compliance to local governments. Permitting requirements and extended review time substantially increase project costs and delay 

project delivery, diverting limited funds from other critical county 

services. In general, for every year a project is delayed, the construction costs increase by approximately 10 percent. 

For example, in Attawa County, Oklahoma, the Stepps Ford 

bridge project was ready to move forward after receiving the necessary Federal environmental permits. Construction was halted by 

the U.S. Fish and Wildlife Service after it decided to reconsider the 

project’s impact on a listed species of catfish. Construction sat idle 

for over 170 days and cost an additional $270,000. 

For counties, every dollar spent on regulatory compliance or 

project delays takes away from funds available for other critical 

services like law enforcement, firefighting, and ensuring public 

health. 

Third, State and county governments must be treated as cooperating agencies when enacting conservation measures and settling 

ESA litigation. Local governments have every incentive to work 

with the Federal Government to promote species conservation, and 

this collaborative approach has been successful. 

For example, a listing of the Bi-State sage grouse would have impacted nearly 82 percent of Mono County, California’s land area. 
145 

The county took a leadership role in the Bi-State sage grouse conservation and cooperated with relevant Federal and State agencies 

in California and Nevada to provide technical support to landowners to limit local impacts on grouse populations. The county’s 

efforts led to the announcement that the Bi-State sage grouse 

would not be listed. Clearly, solutions can be found. 

Counties work every day to protect and preserve their natural resources and environment. We are keenly aware of the historical, 

economic, and aesthetic values of our local environment, and work 

diligently to provide a sustainable future for our communities. Collaboration and consultation between all levels of government is 

critical to the success of the species conservation efforts. Locally 

driven conservation must be given time to work. 

Counties must also be confident that their collaborative efforts 

will be defended in court by Federal agencies and that they will 

have a seat at the table during settlement negotiations. Counties 

stand ready to work with the committee and Congress to better 

promote species conservation while safeguarding local economic 

stability. 

Thank you. 

[The prepared statement of Mr. Cruickshank follows:] 
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Senator INHOFE. Thank you, Commissioner. 

Mr. Barry. 

STATEMENT OF DONALD BARRY, SENIOR VICE PRESIDENT, 

CONSERVATION PROGRAM, DEFENDERS OF WILDLIFE 

Mr. BARRY. Mr. Chairman, I would like to submit my written testimony for the record and just make a few oral remarks. 

Senator INHOFE. Without objection. 

Mr. BARRY. I would like to make basically six key points today. 

First of all, not one of the bills before this committee would actually promote the conservation and recovery of listed species, with 

the possible exception of the one from Senator Hatch, which would 

authorize the waiver of NEPA provisions for doing juniper removal, 

although the BLM already has that adequate authority. Collectively, we think that all of the proposals in front of this committee 

would become the equivalent of a legislative wrecking ball, accelerating extinctions and not promoting recovery. 

In my testimony I quote Mark Twain, who once said that I have 

lived through many terrible things, some of which actually happened. And I have a feeling that when you hear a lot of the dire 

predictions of widespread economic ruin from listings, you find that 

they rarely, if ever, come to pass. 

I would like to submit for the record a copy of an ENE news article from last June which highlighted some of the consequences that 

were anticipated for the listing of the Lesser prairie chicken that 

includes a number of quotes from folks from the oil and gas industry describing the likely ruin that would occur from it; and then it 

includes quotes from them a few months after the listing of the 

prairie chicken where they are basically saying everything is working just fine. 

That, to me, is an example of how, frequently, the predicted dire 

economic consequences really seem to happen. 

Many of these proposals also seem to be extreme solutions in 

search of problems, ostensibly addressing problems while in fact 

the Fish and Wildlife Service already has adequate authority and 

flexibility for dealing with the type of issues that are addressed. A 

good example of that has to do with provisions mandating the exclusion of areas from proposed critical habitat because of economic 

consequences. This is the one area of the Act where Congress, back 

in 1973, specifically gave permission and authority for the Fish and 

Wildlife Service to take economics into account, and the Service 

does this quite frequently. 

When they designated a critical habitat for the Northern Spotted 

Owl, they cut out 4.2 million acres of land because of the economic 

impacts from including those areas in the critical habitat. I think 

when they designated a critical habitat for the jaguar, they cut out 

something like 94,000 acres of land, again, because of economic impacts. 

So the Act currently works for the Fish and Wildlife Service and 

gives them authority for taking economics into account with critical 

habitat. 

I think one of the other big concerns that we have in the conservation community is that a number of the provisions in front of 

the committee today really distort and attack the concept of science 
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and best available science. They decree and define what is best 

available science. In the case of State or local and county data, it 

all is decreed to be best. There is an example, I believe, that the 

Fish and Wildlife Service encountered with regards to the Gunnison sage grouse where the State said one thing and one of the local 

counties said something exactly opposite. 

So if the Fish and Wildlife Service is required to consider them 

both best available, but they are conflicting, how do reconcile something like that? 

We may disagree with a number of the decisions the Fish and 

Wildlife Service makes, but they have the ability right now to 

weigh the strength of the science that they have in front of them, 

to discount those that they think those recommendations that come 

in that they believe are weaker than others. And I think that to 

have Congress coming in and putting its thumb on the scale and 

decreeing some things as best available science is inappropriate. 

I think Dan Ashe also, earlier, really hit the nail on the head 

when he said that the big problem here is resources. They endangered species program is not broken, it is just starved. Over the 

last, I think, back to about 2007 or 2004, there has been an 11 percent actual decrease in funding for the Endangered Species Act 

when you take into account inflation. So the level of funding has 

been coming down while their responsibilities have been going up, 

and I think some of the problems that have been discussed before 

are really a representation of the fact that you have way too few 

people trying to do too much. They are doing the best job they can, 

but they are not going to be getting everything at A+ if they are 

stretched to the breaking point. 

Last, I would just say that the ESA, I think, has been a success. 

It has been mentioned that 99 percent of the species that are listed 

are still in existence and have been preserved. 

Dan brought up the last time the ESA was reauthorized. I was 

on the floor of the House with Walter Jones, Sr., the chair of the 

House committee that had jurisdiction over the ESA, and we had 

broad bipartisan support for that bill. I think it is possible at times 

to think back on those days as the way it ought to be, but it is hard 

for me to envision or to imagine how even a reasonable package of 

endangered species amendments could make it through this Congress and retain that sense of reasonableness and balance. 

Thank you very much. 

[The prepared statement of Mr. Barry follows:] 
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Senator INHOFE. Thank you, Mr. Barry. 

You know, I know what you are saying there, but I think from 

a local perspective you have heard several of us talk about problems that we have. 

And, Commissioner, when you mentioned a seat at the table, 

that kind of drove home to me a problem that I think we have said 

in several other ways during the course of this hearing. Dan Ashe, 

as I mentioned, came out to Oklahoma and was good enough to sit 

down and talk to the people. We had, on the lesser prairie chicken, 

five States involved, and the five States all came in. I think if they 

were to complain about one thing in the way the process worked, 

and I say this to all who are in the audience also, is that they 

didn’t really have a seat at the table when a decision was made. 

They would come in and they will present their case, and then that 

is evaluated by the Fish and Wildlife. All of a sudden they pick up 

the paper and their decision has come out, and they weren’t a part 

of that, they didn’t have the opportunity, and I think you said it 

well, to have a seat at the table. 

Is this kind of what you are getting at? 

Mr. CRUICKSHANK. Mr. Chairman, yes, it is. Quite often we are 

heard, but, however, when those decisions are made, we are not at 

the table; and then that impacts our local residents and could impact our economy. And by not having a seat at the table, how do 

you go back to the people that we are closest to? We are the part 

of the government that is closest to the people, and you try to explain to them or they try to come back to you and say why didn’t 

you fight for us better, when we weren’t at the table of the decisions to understand why the decision was made the way it was. 

So that is all we are asking, is to be involved all the time, clear 

through the entire process, so that it doesn’t have that big of an 

impact on the county; and just to be listened and to be heard and 

understand why those reasonings happen. We need a seat at the 

table and we have shown with the Bi-State example that came in. 

And I can give you another example in Washington State where 

counties got together and they brought 200 stakeholders and 

helped to restore 3,400 acres of salmon habitat. It took the counties 

to be involved. They were there, they were helping with it, and 

that was a success story. 

So we are just asking to be involved, be educated, and we are 

there to help in any way. 

Senator INHOFE. Obviously, you are an elected official, so you 

have a lot of people saying you must not have the power that you 

should have in this position if you were able to present a better 

case. Is that somewhat accurate of the complaints that you hear 

from your constituents? 

Mr. CRUICKSHANK. Yes, Mr. Chairman. 

Senator INHOFE. Because I think we have been through the same 

thing, those of us up at this table. The other area that has been 

brought up by this committee is a lot of the things that are done 

in secret and, again, not having a seat at the table on the settlements that are made on sue and settle, and this is something that 

a couple of those bills would address that for transparency purposes. 
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Mr. Bernhardt, do you kind of agree to the seat at the table argument? 

Mr. BERNHARDT. I think there are certainly ways that the Service can—yes, Mr. Chairman. As a matter of fact, there are various 

places in the Act where the Act guarantees a seat of the table, for 

example, certain places in section 7 an applicant has a seat at the 

table. There had been policies developed to include State and local 

governments in decisionmaking, but I think what you are hearing 

here today is a view that those don’t go far enough; and certainly 

that is something that Congress can look at. 

In terms of the settlements themselves, as any lawyer will tell 

you, you often are looking at best ways to clear your docket, and 

at times when I was solicitor I went down and visited with the 

Service about these large listing cases, and what struck me on one 

of those visits is I sat down with Dale Hall, who had been both a 

career employee in the Fish and Wildlife Service and then subsequently was the director during the last half of the Bush administration. I went to Dale and I said, Dale, look, we have all these 

cases. There is probably an opportunity to settle them. I would 

really like to get your thoughts on this. 

And Dale said to me something that I will never forget; he said, 

absolutely there is no way we should settle those cases. And I said, 

why, Dale? And he turned to me and he said, look, I was here the 

last time as a career employee the last time a major settlement 

was initiated, and I can tell you that there was no additional resources and there was a priority of timelines that were put down 

on all of the local offices; and I know, I know that packages were 

developed and sent upstairs that didn’t pass muster, but went 

ahead and went into the Federal Register because no one was reviewing them, and I don’t think we should repeat that. 

And I think that was very good advice by Dale Hall, and I turned 

around and walked back up to my office and went on to other 

issues. 

Senator INHOFE. Dale Hall was a very good Oklahoman. 

Mr. BERNHARDT. Yes, he is. 

Senator INHOFE. Well, in your testimony, Mr. Bernhardt, you discuss the problems with the critical habitat rules, and I would ask 

you do you have any specific suggestions on how to overcome that 

objection or that problem that we are having. 

Mr. BERNHARDT. Well, I think Mr. Barry inadvertently misspoke 

when he said that critical habitat exclusions were developed in 

1973. They actually, if you look at the legislative history, you will 

see that there were changes made in 1978 and they were a direct 

result of Congress seeing the TVA v. Hill decision by the Supreme 

Court and essentially saying, oh my goodness, what did we do. So 

when they looked at the Act to revise or improve it, their thought 

was as follows: let’s leave the listing part pretty much intact, we 

think that is OK. But at this point of critical habitat designation, 

we would like that determination made at essentially the same 

time as the listing, or commensurate with it; and when you do that, 

secretary, you must look at the economics of the consequences of 

listing plus the critical habitat designation, and for other issues we 

are going to give you the authority, we are going to delegate you 

the authority to exclude certain areas, as Mr. Barry said. 
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Now, what has happened over the last many years is at times 

the secretary has used that; at other times they have not, and it 

is entirely discretionary. So one thing to look at is should that provision be beefed up in some way. 

This Administration has a proposal that would actually say there 

are laying out a policy on how to do these exclusions so there is 

more clarity to their employees, and that is good. At the same time, 

if you are from a western State, their proposal is essentially to not 

use these exclusions on Federal lands, or at least use them very 

rarely. So that is an area that you can look at in terms of how you 

structure an act and ensure that these decisions regarding economics that are important to people are more robustly factored in. But 

that is something that Congress looked at in 1978 and came to 

where they wanted to be, and maybe the balance needs to be a little differently. 

Senator INHOFE. Thank you. 

Senator Crapo. 

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

Commissioner Cruickshank, I have a couple of questions for you. 

I want to focus on the idea of the value or utility of relying on people who live where the land is or live on the land and in the neighborhood being able to come up with the kinds of solutions and protections to put in place to protect their land. You have heard even 

here today where some we will call those who think that we need 

to make some improvements or some fixes anti-fish and wildlife or 

anti-environmental protection or species, and that has always frustrated me, coming from a beautiful State like Idaho. I first want 

to just ask your observation on this. I would assume that you live 

in Valley County because you think it is a beautiful, wonderful 

place, and that you would like to be able to protect and preserve 

the species and the environmental heritage that is there as much 

as any Washington, DC, or Californian or person from any other 

part of Idaho. Would you agree with that? 

Mr. CRUICKSHANK. Yes, I would, Senator. 

Senator CRAPO. And you would also like to have a local resourcebased economy be able to thrive there, correct? 

Mr. CRUICKSHANK. Yes, I would. 

Senator CRAPO. And the question I have is do you believe that 

it is possible for people to live in Valley County and protect the 

beautiful place that they live in and still have jobs and build businesses and have an economic future? 

Mr. CRUICKSHANK. Yes, Senator, I do. Over the years, like I have 

stated, we have learned many valuable lessons on how we treat the 

natural resources or how we protect the land. I grew up farming, 

so I grew up nurturing the ground and knowing how it could 

produce, and that is how we made our living. So the counties are 

there. We want to safeguard our Nation’s wildlife and our fish and 

our plants, and in my county alone we have spent millions of dollars to either resurface roadways or change culverts out to make 

more fish-friendly passageways for the salmon recovery and things 

like that; and I am proud to say that the salmon river that flows 

through Valley County is some of the prime spawning areas for 

that salmon, but while we still maintain access to our residents to 

enjoy that area. And that is some of the concerns, because some of 
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those accesses have been closed. You can imagine if the road was 

closed going to your home, you would be upset too, and the residents come to us and say why is this happening to us. So that is 

why we are involved. 

But we are seeing where we are doing the best we can and then 

being told we are not doing enough. And this all comes at a cost 

to the county, to the time and the efforts that we do, but we are 

not being recognized as we are doing anything to really help. But 

in essence we are, we are doing what we can within our financial 

means. So when you talk about what can we do better, when you 

talk to the local stakeholders, sometimes it may not be all about 

the science; it may be that the local stakeholder knows where that 

population thrives better than other areas that have been looked 

at. 

Senator CRAPO. Well, there certainly, I don’t think, is any substitute for involving people who know the land and who know the 

circumstances around it. I just wanted to get that out because 

sometimes it is a little frustrating to have your motives challenged 

and to have your commitment to protecting our wonderful earth 

challenged because you believe there may be a better way to do it. 

Another criticism that happens, though, and happens quite often, 

is that it is said, well, maybe the people who live there in Idaho, 

or maybe the people who live in Wyoming or Oklahoma, maybe 

they really do love the land and really do love the environment, but 

they don’t have the capacity, they don’t have the education, they 

don’t have the experience to really protect the land; we have to 

bring in the Federal Government or we have to bring in the experts 

from somewhere to tell them how to do it. 

My question is do you believe that local governments, working in 

conjunction with the Federal agencies and the others who are involved in the land management have the capacity to provide the 

necessary protection of the environment and the species that we 

seek to protect? 

Mr. CRUICKSHANK. I believe that it all has to be taken into consideration. The science can be brought into the equation, but I 

think what is lacking is that the Federal Government explaining 

how that science works to the local stakeholders and the local people that live there. They love the land and they love everything 

about it, and they understand what they see on the ground; and 

quite often what they see on the ground doesn’t maybe match with 

what the science says. So I think working together, sitting down 

together, and I have done this with groups as well, and we can 

come and find a lot of common ground that we all agree on. Sometimes it is a little bit of that right at the very end, the 10 percent 

or so that we may have to try to work out, but a lot of times we 

agree, but it is just a matter of getting around the table, educating, 

understanding what we are trying to accomplish. I believe we can 

get there, and that is why we are asking to be involved all the way 

through the process, and I think the counties are willing to do that. 

Senator CRAPO. Well, thank you. And I appreciate you taking 

your time to come here to Washington, DC, to share this with us. 

Mr. CRUICKSHANK. Thank you, Senator, and thank you, Chairman. 
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Senator INHOFE. Well, thank you. Just kind of building on what 

Senator Crapo is saying, there is kind of an irresistible temptation 

by a lot of people, when their argument is not too good, to start 

name-calling, and I sit here and it is very difficult, very difficult 

to have someone say, well, they probably just don’t care about endangered species, they don’t care about the environment. It is just 

not true at all. That is why I brought up this thing with Senator 

Markey. He and I are good friends, and yet we don’t agree on very 

much. 

But when our wives ran into each other and my wife was wearing her Save the Ridley sea turtle t-shirt, I was kind of reminded. 

You might remember, in fact, Dan, you might remember this, Ila 

Loetscher was the turtle lady, very famous. She died at 100 years 

old. She was lauded in National Geographic and everything else, 

and the reason is the Ridley sea turtle at that time only laid its 

eggs in two places in the world: Vera Cruz and very south Texas, 

on South Padre Island. 

I can remember growing up as a small child, and with my kids, 

teaching them to do the same thing. During the hatching season, 

we would actually spend the night up there and make sure that 

those little critters that would get out, they would hatch and they 

can make it to the ocean without other people either trying to get 

them for boots or critters trying to get them. 

Anyway, I hope people keep in mind that Republicans and Democrats are both very sensitive to this beautiful world that we have 

and the environment that we live in. 

You were squirming a little bit, Mr. Barry, when Mr. Bernhardt 

made some comments. Did you want to make any response to that? 

Mr. BARRY. Well, one of the big challenges, I think, for the State 

fish and wildlife agencies is having adequate resources to accomplish their work as well. I was sort of paying attention to what was 

happening with a lot of the State fish and wildlife agencies’ budgets when the recession hit, and they all took a huge beating. There 

is a wide variation among State fish and wildlife agencies as to the 

amount of resources that they have available for fish and wildlife 

conservation. You have some States like California and Florida 

that are putting in a lot of money. Idaho is another one of those 

States that puts in a lot of money. But there are other States that 

are putting in next to nothing. I think Kansas put in something 

like $34,000 last year or in 2013 on endangered and threatened 

species conservation. So there is a wide variation from State to 

State to State, and that is one reason why, I think, having sort of 

a uniform one-size-fits-all approach to activities under the Endangered Species Act can be ill advised at times, because not every single State, even if they have the desire, has the resources to be able 

to engage as actively as they would like to. 

David and I were talking before the hearing. I logged in 12 years 

at the Interior Department as an attorney, I was a chief counsel 

for the Fish and Wildlife Service for a number of years. I was Jim 

Watts’ wildlife lawyer, if you will. And I think the Endangered Species Act has been a remarkably successful statute given the 

amount of work that is involved in it. When I spent 8 years under 

Secretary Babbitt, we adopted almost all of the reforms that David 

referred to, and spent many, many years working with State and 
169 

local officials. I spent half my time probably walking in the woods 

with private landowners that owned large forest areas and that. So 

the Act is a challenge. I think it can work. I think it just needs 

more resources. 

Senator INHOFE. Well, I just would observe that the complaints 

that you hear up here and that you heard during the course of this 

hearing really wouldn’t be corrected by more resources, in my opinion. We are talking about transparency; we are talking about getting involved in these lawsuits. The sue and settle thing is out in 

the open. We can participate, and then when the decisions are 

made, to have local participation. That doesn’t, in my opinion, cost 

any more. 

Mr. Bernhardt, did you want to say anything about that, since 

you brought that subject up? 

Mr. BERNHARDT. Well, first off, I think that a lot has changed in 

our society since 1973, too. If you look at the number of biologists 

at the BLM or the Forest Service, what you would see that wildlife 

considerations, and I think this is laudable, wildlife considerations 

are an important aspect of their decisionmaking, irrespective of the 

Endangered Species Act. And that is not to minimize the importance of the Act, that is just a reality of where we are as a Country. I think that it is very important for these decisions, because 

I think they are important decisions and I think they have great 

consequence, and my view is that it is important for those decisions 

to be transparent, that the transparency facilitates public confidence in the decision. 

And I think that there should be ways for a broader public to be 

able to see things like settlement documents, if that is required. 

There are means for Congress to be able to see those. There is an 

ability in this day of electronic media and electronic availability to 

ensure that the underlying basis of decisions is available, while 

still protecting those interests that Mr. Ashe raises in his testimony, such as copyright and State disclosure requirements and the 

protection of the species. Those things can be worked through. And 

I think what we should do is strive to make improvements that enhance public confidence in the Act, while at the same time protecting species and trying to minimize conflict. 

Senator INHOFE. That is a good statement. 

Senator Crapo, do you have anything further? 

Let me apologize to the second panel, because we were late in 

getting you started and, as you can see, there is not as much participation as there should be. However, every Senator up here is 

represented by staff, and I can assure you that your testimony will 

be very seriously taken into consideration on the acts that we are 

putting together for the future. And I thank you very much for 

being here. 

We are now adjourned. 

[Whereupon, at 12:03 p.m. the committee was adjourned.] 

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