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EXAMINING THE ENDANGERED SPECIES ACT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ENERGY POLICY, 

HEALTH CARE AND ENTITLEMENTS 

OF THE

COMMITTEE ON OVERSIGHT 

AND GOVERNMENT REFORM 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

FEBRUARY 27, 2014 

Serial No. 113–107 

Printed for the use of the Committee on Oversight and Government Reform 

( 

Available via the World Wide Web: http://www.fdsys.gov 

http://www.house.gov/reform 

(II) 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 

DARRELL E. ISSA, California, Chairman 

JOHN L. MICA, Florida 

MICHAEL R. TURNER, Ohio 

JOHN J. DUNCAN, JR., Tennessee 

PATRICK T. MCHENRY, North Carolina 

JIM JORDAN, Ohio 

JASON CHAFFETZ, Utah 

TIM WALBERG, Michigan 

JAMES LANKFORD, Oklahoma 

JUSTIN AMASH, Michigan 

PAUL A. GOSAR, Arizona 

PATRICK MEEHAN, Pennsylvania 

SCOTT DESJARLAIS, Tennessee 

TREY GOWDY, South Carolina 

BLAKE FARENTHOLD, Texas 

DOC HASTINGS, Washington 

CYNTHIA M. LUMMIS, Wyoming 

ROB WOODALL, Georgia 

THOMAS MASSIE, Kentucky 

DOUG COLLINS, Georgia 

MARK MEADOWS, North Carolina 

KERRY L. BENTIVOLIO, Michigan 

RON DESANTIS, Florida 

ELIJAH E. CUMMINGS, Maryland, Ranking 

Minority Member 

CAROLYN B. MALONEY, New York 

ELEANOR HOLMES NORTON, District of 

Columbia 

JOHN F. TIERNEY, Massachusetts 

WM. LACY CLAY, Missouri 

STEPHEN F. LYNCH, Massachusetts 

JIM COOPER, Tennessee 

GERALD E. CONNOLLY, Virginia 

JACKIE SPEIER, California 

MATTHEW A. CARTWRIGHT, Pennsylvania 

TAMMY DUCKWORTH, Illinois 

ROBIN L. KELLY, Illinois 

DANNY K. DAVIS, Illinois 

PETER WELCH, Vermont 

TONY CARDENAS, California 

STEVEN A. HORSFORD, Nevada 

MICHELLE LUJAN GRISHAM, New Mexico 

Vacancy 

LAWRENCE J. BRADY, Staff Director 

JOHN D. CUADERES, Deputy Staff Director 

STEPHEN CASTOR, General Counsel 

LINDA A. GOOD, Chief Clerk 

DAVID RAPALLO, Minority Staff Director 

SUBCOMMITTEE ON ENERGY POLICY, HEALTH CARE AND ENTITLEMENTS

JAMES LANKFORD, Oklahoma, Chairman 

PATRICK T. MCHENRY, North Carolina 

PAUL GOSAR, Arizona 

JIM JORDAN, Ohio 

JASON CHAFFETZ, Utah 

TIM WALBERG, Michigan 

PATRICK MEEHAN, Pennsylvania 

SCOTT DESJARLAIS, Tennessee 

BLAKE FARENTHOLD, Texas 

DOC HASTINGS, Washington 

ROB WOODALL, Georgia 

THOMAS MASSIE, Kentucky 

JACKIE SPEIER, California, Ranking 

Minority Member 

ELEANOR HOLMES NORTON, District of 

Columbia 

JIM COOPER, Tennessee 

MATTHEW CARTWRIGHT, Pennsylvania 

TAMMY DUCKWORTH, Illinois 

DANNY K. DAVIS, Illinois 

TONY CARDENAS, California 

STEVEN A. HORSFORD, Nevada 

MICHELLE LUJAN GRISHAM, New Mexico 

(III) 

C O N T E N T S 

Page 

Hearing held on February 27, 2014 ....................................................................... 1 

WITNESSES 

Mr. Samuel Rauch, Deputy Assistant Administrator for Regulatory Programs, 

National Oceanic and Atmospheric Administration Fisheries Service, U.S. 

Department of Commerce 

Oral Statement ................................................................................................. 5 

Written Statement ............................................................................................ 7 

Mr. Michael Bean, Counselor, Fish and Wildlife and Parks, U.S. Department 

of the Interior 

Oral Statement ................................................................................................. 11 

Written Statement ............................................................................................ 13 

APPENDIX 

Opening Statement of Chairman James Lankford ............................................... 50 

Opening Statement of Rep. Lujan Grisham submitted for the record ................ 52 

Feb. 27, 2014, Statement of the U.S. Chamber of Commerce submitted for 

the record by Chairman James Lankford .......................................................... 53 

Statement of Mr. William L. Kovacs ...................................................................... 55 

Responses from the Dept. of the Interior to questions by Rep. Speier, submitted for the record ............................................................................................ 61 

U.S. Fish and Wildlife Service Endangered Species information ........................ 66 

‘‘Lesser Prairie Chicken; A Technical Conservation Assessment’’ Prepared 

for the USDA Forest Service ............................................................................... 70 

(1) 

EXAMINING THE ENDANGERED SPECIES ACT 

Thursday, February 27, 2014 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON ENERGY POLICY, HEALTH CARE, AND

ENTITLEMENTS, 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, 

Washington, D.C. 

The subcommittee met, pursuant to call, at 2:47 p.m., in Room 

2154, Rayburn House Office Building, Hon. James Lankford [chairman of the subcommittee] presiding. 

Present: Representatives Lankford, Chaffetz, Walberg, Woodall, 

and Speier. 

Also Present: Representative Lummis. 

Staff Present: Joseph A. Brazauskas, Counsel; Sharon Casey, 

Senior Assistant Clerk; Ryan M. Hambleton, Senior Professional 

Staff Member; Matt Mulder, Counsel; Jessica Seale, Digital Director; Jaron Bourke, Minority Director of Administration; Courtney 

Cochran, Minority Press Secretary; and Juan McCullum, Minority 

Clerk. 

Mr. LANKFORD. Ladies and gentlemen, we are going to go ahead 

and start. I know Jackie is on her way here. We have three Members here, so technically we can begin. And I am going to do an 

opening statement, so let me go ahead and get started. 

The committee will come to order. 

I would like to begin this hearing by stating the Oversight Committee mission statement. 

We exist to secure two fundamental principles. First, Americans 

have the right to know the money Washington takes from them is 

well-spent. And, second, Americans deserve an efficient, effective 

government that works for them. Our duty in the Oversight and 

Government Reform Committee is to protect these rights. 

Our solemn responsibility is to hold the government accountable 

to taxpayers, because taxpayers have the right to know what they 

will get from their government. We will work tirelessly in partnership with citizen watchdogs to deliver the facts to the American 

people and bring genuine reform to the Federal bureaucracy. 

This is the mission of the Oversight and Government Reform 

Committee. 

I will walk through a quick opening statement, and then I will 

yield the floor to our ranking member to do the same. 

We are here today to discuss the Endangered Species Act, which 

is now in its 40th year. Happy birthday. 

The ESA was enacted to conserve habitats and species that are 

considered endangered or threatened. President Nixon signed it 

2 

into law with the support of 99 percent of Congress. At the time, 

there were high expectations for the Endangered Species Act, 

President Nixon saying this new law will protect an irreplaceable 

part of our national heritage and threatened wildlife. 

However, over the years, some flaws of the Endangered Species 

Act have surfaced. There is a significant concern that some are 

using the act to advance other policy goals, such as stopping development, instead of for its intended purpose of protecting threatened 

animal and plant species. 

Concerns also abound over whether or not the law gives the implementing agencies enough time to properly process the candidates for species listing. In one instance, Fish and Wildlife Service was asked in a petition to examine 374 separate aquatic species, all from 1 petition, in the statutory 90-day timeframe. As a 

result, the Agency admitted that it was only able to conduct cursory reviews of the information in their files and the literature 

cited in the petition. 

This put the Agencies in a very difficult position: Process the 

enormous work brought in by a petition within 90 days or face a 

lawsuit for missing the deadline from the same groups bringing the 

petition in the first place. 

The mass amount of petitions lead to a transition toward sueand-settle agreements. Whether by choice or not, the Federal Government faces lawsuits that are very often settled to the financial 

benefit of environmental groups and their lawyers. In many of 

these cases, States and other affected stakeholders are not even 

aware of the negotiations or what is being discussed until they are 

resolved. 

Also, there have been instances where much of the basis of these 

settlements remains sealed. Thus, communities and stakeholders 

affected by these listings don’t have a full view of what all occurred. In general, the lack of transparency of the data used to justify a species’ listing remains a major problem. In some cases, data 

gathered at taxpayer expense has not been publicly released. 

Transparency is essential to public faith in government. The less 

information the public has to understand the Endangered Species 

Act and how it is carried out, the less support the act will have, 

and it will be even more difficult to process in the future. 

The general success rate of the ESA has also come under criticism, as well: only a 2-percent recovery rate of the approximately 

2,100 species listed on the endangered/threatened list since 1973. 

As I discussed previously, we have seen how we get species on the 

list. However, the above statistic begs the question, how do species 

graduate off the list? Is 2 percent enough for success? 

Like all Federal agencies in this time of belt-tightening, Fish and 

Wildlife Service and NOAA Fisheries have finite resources. They 

are spending all their time and resources getting species on the 

list. It is unclear if they are able to spend the time necessary and 

the finances necessary to get species off the list, which was the reason this law was passed in the first place 40 years ago. 

Some claim that success can be measured by adding species to 

the list, as their prospects will benefit once they get there. I hope 

that is the case. However, the goal of the law enacted 40 years ago 

3 

was to rehabilitate species and to move them off the list, not perpetual staying on it. 

If Americans are going to have faith in the Endangered Species 

Act, they need to see how it works and that it works at all. Constantly heaping more species on the listings while barely moving 

any off of it will undermine that faith and raise questions about 

the act’s effectiveness. 

We also have to deal with the issues of: How do we determine 

if the act is being effective? And when things are moved off, are 

they moved off because of habitat or because of population numbers? Are those goals set in advance? And do the different communities even know how to have those goals achieved at all? 

The ESA is jointly administered by Fish and Wildlife Service, the 

Department of the Interior, the National Marine Fisheries Service, 

and the National Oceanic and Atmospheric Administration at the 

Department of Commerce. I am pleased that we have representatives of both agencies here today as witnesses, and I thank them 

for coming and look forward to hearing their answers to the subcommittee questions and to the conversation we will have today. 

And I recognize our ranking member, Mrs. Speier, for her opening statement. 

Ms. SPEIER. Mr. Chairman, thank you for holding this very important hearing. 

And thank you to the witnesses who are here to testify. 

You know, 40 years ago, the Endangered Species Act was passed 

with overwhelming bipartisan support from Congress. As President 

Nixon signed it into law, he said, ‘‘Nothing is more priceless and 

more worthy of preservation than the rich array of animal life with 

which our country has been blessed.’’ 

The Endangered Species Act, or ESA, has preserved our country’s rich natural heritage, preventing the extinction of 99 percent 

of the plants and animals it protects. Without this landmark legislation, scientists estimate that as many as 227 U.S. species would 

have disappeared. My own State of California would be much poorer without our brown pelicans, our sea otters, and our bighorn 

sheep, all of which were saved by the ESA. 

Too often in Congress, the ESA is invoked as some kind of legislative boogeyman. My colleagues on the other side of the aisle have 

on occasion been known to imply we would all be better off if we 

didn’t have to protect this insignificant bird or that ugly flower. 

During the debate over the recovery package in 2009, the salt 

marsh harvest mouse, anendangered species found around San 

Francisco Bay, was blamed for an entirely fictitious spending boondoggle. Now, I do not want to find a salt marsh harvest mouse inhabiting my kitchen, but when they are living where they belong, 

these lesser-known species act as sentinels for the health of our 

ecosystems. When these species decline, they act as an early-warning system for problems that will harm us, as well. 

Species like the salt marsh harvest mouse or the endangered San 

Francisco garter snake that also lives in my district simply need 

healthy wetlands. This is a win-win since the people of the Bay 

Area also need healthy wetlands to filter out pollution, buffer 

homes and businesses from storm surge and floods, and support 

thousands of fishing, tourism, and recreational jobs around the bay. 

4 

This holds for other threatened ecosystems, too, from the heights 

of the Sierra Nevada to the Great Plains shortgrass prairie. 

The ESA is also protecting future technological and biomedical 

advances. Bacteria found in a hot spring in Yellowstone National 

Park led to the discovery of an enzyme that underpins all basic genetic research and forensic techniques. Protein from a jellyfish supports advances in almost every aspect of biomedical science. 

To be clear, the bacteria and jellyfish that I mentioned are not 

listed under the ESA. But we do not know where the next discovery might come from. An endangered species could lead to the 

next medical breakthrough. By preventing extinction, the ESA preserves a natural medicine chest for the coming generations. 

Frequently, the ESA is blamed for tying up the courts in wasteful litigation. My colleagues on the other side of the aisle claim 

that the Department of Justice litigates an average of at least 

three cases a week dealing just with citizen suits under the ESA. 

However, Department of Justice data shows that civil litigation 

filed by industry and nonprofit organizations is far less than that 

rate. A hundred and nineteen lawsuits were filed in 2009, 111 in 

2010, 57 in 2012, and only 23 through April 2012. 

Let’s stick to the facts. The implementation of the ESA has not 

been perfect. ESA programs have been chronically underfunded. 

The fiscal year 2013 appropriation approved by Congress for endangered-species work at the Fish and Wildlife Service was $45.7 

million less than the administration’s 2013 request. This has led to 

a substantial backlog of candidate species which continues to decline, making recovery more difficult and expensive. 

Species also can’t recover if there is no place for them to live. 

Since the passage of the ESA in 1973, 25 million acres of land have 

been converted from undeveloped to developed and 22 million acres 

have been converted from forested to nonforested, areas roughly 

the size of Virginia and South Carolina respectively. But the answer to the limited resources is cooperation and coordination, not 

rolling back protections for vulnerable species. 

You know, when I was on the Board of Supervisors in San Mateo 

County way back in the 1980s, I helped to develop what was then 

called the Habitat Conservation Plan. It was the very first in this 

Nation, and it was an experiment, in part. But we had endangered 

butterflies: the Mission Blue, the San Bruno Elfin, and the Callippe 

Silverspot. They were inhabiting an area where a developer wanted 

to build homes. So we came up with a habitat conservation plan, 

created an opportunity for all of those endangered species to live 

and to thrive, and were able to build homes as well. 

So we worked with the developer and with the environmental 

community to achieve both housing and habitat conservation. 

These are the kinds of win-win situations that the ESA can help 

facilitate when we commit to protecting species instead of arguing 

about whether species should be protected. 

Thank you, Mr. Chairman, and I yield back the balance of my 

time. 

Mr. LANKFORD. I would love to discuss at a future date how local 

leadership could make decisions about how to protect species, as 

well. So we will continue that maybe throughout the course of the 

day, as well. 

5 

Members will have 7 days to submit opening statements for the 

record. 

Mr. LANKFORD. We will now recognize our first and only panel 

of the day today. 

Mr. Sam Rauch is the—it is ‘‘Rauch,’’ right? Okay, I said it 

wrong the first time—Rauch is the Deputy Assistant Administrator 

for Regulatory Programs at the National Oceanic and Atmospheric 

Administration’s National Marine Fisheries Service in the Department of Commerce. It is a very long business card, by the way. 

Mr. Michael Bean is the Counselor to the Assistant Secretary for 

Fish and Wildlife and Parks at the Department of the Interior. 

Gentlemen, thank you both for being here. Look forward to our 

conversation. 

And pursuant to committee rules, all witnesses are sworn in before they testify. So if you would please stand, raise your right 

hand, please. 

Do you solemnly swear or affirm that the testimony you are 

about to give will be the truth, the whole truth, and nothing but 

the truth, so help you God? 

Thank you. You may be seated. 

Let the record reflect the witnesses have answered in the affirmative. 

In order to allow time for discussion, I would like you to limit 

your initial testimony to 5 minutes. You have a clock in front of 

you there. Your entire written statement—thank you so much for 

submitting that—will be a part of the permanent record. And then 

we will go into a dialogue from that point. 

Mr. Rauch? 

WITNESS STATEMENTS 

STATEMENT OF SAMUEL RAUCH 

Mr. RAUCH. Good afternoon, Mr. Chairman and members of the 

committee. Thank you for the opportunity to testify before you 

today. 

My name is Sam Rauch, and I am the Deputy Assistant Administrator for Regulatory Programs for the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service. We 

co-administer the ESA with the Fish and Wildlife Service. 

The purpose of the Endangered Species Act is to conserve threatened and endangered species and their ecosystems. Congress 

passed this law on December 28th, 1973, recognizing that the natural heritage of the United States was of aesthetic, ecological, educational, recreational, and scientific value to our Nation and its 

people. It was understood that, without protection, many of our Nation’s living resources would become extinct. 

The Endangered Species Act has been successful in preventing 

species extinction. Less than 1 percent of the species listed under 

the law have gone extinct, and over 30 species have recovered. 

The National Marine Fisheries Services has recently delisted the 

eastern population of Steller sea lion. This is the first delisting that 

has occurred because of recovery for the National Marine Fisheries 

Service since 1994 when we delisted the now-thriving eastern population of Pacific gray whales. 

6 

Actions taken under the Endangered Species Act have also stabilized and improved the downward population trend of many marine species. For example, in 2013, we saw record returns of nearly 

820,000 adult fall Chinook salmon passing the Bonneville Dam on 

their way up the Columbia River to spawn. This is the most fall 

Chinook salmon to pass the dam in a single year since the dam 

was completed in 1938, more than twice the 10-year average. 

Recovery of threatened and endangered species is a complex and 

challenging process. We engage in a range of activities under the 

Endangered Species Act that include listing species and designating critical habitat, consulting on Federal actions that may affect enlisted species or its designated habitat, and authorizing research to learn more about protected species. 

We also partner with a variety of stakeholders, including private 

citizens; Federal, State, and local agencies; tribes; interested organizations and industry, that have been critical to implementing recovery actions and achieving species recovery goals. 

For example, several NMFS programs provide support to our 

partners to assist with achieving recovery goals. From 2000 to 

2012, the Pacific Coastal Salmon Recovery Fund provided $1.02 billion in funding to support partnerships in the recovery of listed 

salmon and steelhead. From 2003 to 2013, the species recovery 

grants to States awarded $37 million to support State recovery and 

research projects for our listed species. And from 2001 to 2013, the 

Prescott Program awarded over $44.8 million in funding through 

483 grants to Stranding Network members to respond to and care 

for stranded marine mammals. 

The National Fisheries Service is dedicated to the stewardship of 

living marine resources through science-based conservation and 

management. The Endangered Species Act is a mechanism that 

helps guide our conservation efforts and reminds us that our children deserve the opportunity to enjoy the same natural world we 

experience. 

Thank you again for the opportunity to discuss implementation 

of the Endangered Species Act, and I am available to answer any 

questions you may have. 

Mr. LANKFORD. Thank you, Mr. Rauch. 

[Prepared statement of Mr. Rauch follows:] 

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Mr. LANKFORD. Mr. Bean? 

STATEMENT OF MICHAEL BEAN 

Mr. BEAN. Thank you, Mr. Chairman, Ranking Member Speier, 

members of the committee. It is a pleasure to appear before you. 

My name is Michael Bean. I am Counselor for Fish and Wildlife 

and Parks at the Interior Department. 

Rather than read my statement, sir, I would like to simply summarize what I think are some of the key points for you. 

Congress set an ambitious goal when it passed the Endangered 

Species Act, and that was simply to halt the slide toward extinction 

and to provide a more secure future for the wildlife and plant life 

that comprise our Nation’s natural heritage. And, to perhaps a surprising degree, it is working. 

A recent example that I included in my testimony concerns the 

Oregon chub, a fish, one of four species that the Fish and Wildlife 

Service in this month has proposed to delist from the endangered 

species list. I want to note three aspects of that particular fish and 

its recovery that I think are noteworthy. 

First, that the listing and recovery of that fish generated little 

controversy. There were no major headlines, there were no major 

conflicts. Like most endangered species, the work that was done to 

recover it was done in a way that was both successful and generated few conflicts. 

Secondly, the recovery of that species benefited greatly from the 

help of private landowners who took advantage of new, administratively created mechanisms to work with the Fish and Wildlife Service to cooperate in conserving that fish. Those agreements, called 

safe harbor agreements, are the same sorts of agreements that 

ranchers in Texas have used to help reintroduce the Aplomado falcon to that State after an absence from the U.S. of more than 50 

years. Those same safe harbor agreements are akin to the ones 

that over 300 forestland owners in the Southeast, including some 

28 forestland owners in Georgia, Mr. Woodall’s State, who are in 

effect laying out the welcome mat on their property for an endangered species, the red-cockaded woodpecker. And as a result of 

their efforts, that species is growing in numbers on private land for 

the first time in a very long time. 

The third thing I want to note about the Oregon chub recovery 

is that it took over 2 decades to happen. And that is actually rather 

speedy, because, unfortunately, for many endangered species, by 

the time we start efforts to conserve them, they are so reduced in 

numbers that the prospects of recovering them will inevitably take 

a very long time. 

I will give you a few examples: the whooping crane. This country 

has, since the mid-1940s when the numbers of that bird were fewer 

than 20, been engaged in a steadfast effort to recover it. And that 

has been successful, although it has taken some 70 years. We now 

have a wild population of roughly 400 or so whooping cranes in 3 

populations, 2 of which were created through conservation actions. 

The California condor, in Ms. Speier’s home State and is now 

also in Utah and Arizona due to a translocation effort, is a species 

that, like the black-footed ferret, was once extinct in the wild. That 

is to say, all the wild specimens were gone. The only specimens of 

12 

those two species that survived were in captivity. And those two 

species became the subject of successful reintroduction—captive 

rearing and reintroduction programs. They are both now reintroduced in the wild. They are both reproducing in the wild. They 

both have a better shot at recovery than ever in their history. 

These and other examples of clear progress being made show 

that recovery is possible, even for species that only a few decades 

ago seemed to face inevitable extinction. 

A few lessons that I draw from these experiences are: First, don’t 

wait until species are in extremis. Get started early. That is when 

you have the best chance and you have the most options to succeed. 

And, secondly, take advantage of what I argue will be the inherent flexibility of the Endangered Species Act to craft innovative solutions, like the safe harbor agreements I have described; like the 

candidate conservation agreements that have made possible the decision not to list the dune sagebrush lizards in Texas; like the experimental population provisions of Section 10(j) of the act that 

have helped restore both the whooping crane and the California 

condor; and like the flexibility provided through Section 4(d) of the 

Endangered Species Act to tailor requirements to the needs of 

threatened species. 

If we can learn from these lessons and if we can heed Congress’ 

own admonition when it passed this law to temper our economic 

growth and development with adequate concern and conservation, 

then we can continue to make progress in reversing the slide toward extinction and getting on the road to recovery. 

Thank you, sir. 

Mr. LANKFORD. Thank you. 

[Prepared statement of Mr. Bean follows:] 

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Mr. LANKFORD. I recognize myself for a line of questioning. 

As I mentioned to both of you in advance, we will do the 5 minutes of questioning, and then when we get into our second round 

we are going to open it up for more open colloquy. 

Let me just ask a couple quick questions. Species at this point, 

how are they identified for concern? I know that is not an official 

term, but how does the initial process come out in both of the agencies to say, we now recognize this species as something we need to 

look at closer? Can you tell me the process of how it gets into that? 

Mr. BEAN. I would be happy to give an answer to that to start. 

Two ways the Fish and Wildlife Service addresses species that 

may be in need of the act’s protection. First, the Service itself 

sometimes generates its own priorities of species based on the information it has—— 

Mr. LANKFORD. So I am asking, where is that information coming 

from? 

Mr. BEAN. Oh—— 

Mr. LANKFORD. So you don’t have a population count of every 

species of plant and animal and fish in North America, I would assume, that there is not some such listing somewhere, correct? 

Mr. BEAN. That is correct. Instead, what—— 

Mr. LANKFORD. Then there has to be some way to be able to 

identify a certain plant, fish, or animal to say, okay, this is something we want to look at. 

Mr. BEAN. Yes. There are a variety of published and unpublished 

studies about the status of species. Certainly, every State has a 

fish and wildlife agency that tends to keep careful track of the 

trends of species in the State. And the Fish and Wildlife Service 

utilizes and accesses that information to determine whether any of 

those species may be declining or facing threats that warrant protection of the act. So that is a very common mechanism. 

Secondly, the act provides for citizen petitions, and any person 

can petition the Fish and Wildlife Service to consider for listing a 

species. And if the petition presents substantial evidence, the Service then does a status review to determine, based upon all the evidence that is available from all sources, whether a proposal to list 

is appropriate. 

Mr. LANKFORD. Okay. I am going to a couple quick questions, 

and then we will move on to Mr. Rauch on that, as well. 

What percentage do you think come from State agencies that are 

saying that there is a concern here? And what percentage of those 

currently—and you can take the last couple years. And I know it 

is going to be an estimate. What are coming from State agencies 

identifying and what are coming from citizen petitions? 

Mr. BEAN. We have in the last several years been heavily weighted toward citizen petitions. As you noted in your opening statement, we have received some petitions to list multiple species, and 

those have occupied the great majority of the attention of the Fish 

and Wildlife Service. 

Mr. LANKFORD. So, in the past, if you go back, were the species 

that were citizen suits coming, they would bring one or two species 

at a time, and you have seen a trend difference, where now they 

are bringing hundreds at a time? 

20 

Mr. BEAN. We, beginning 5 or 6 years ago, began to receive 

multi-species petitions, which were atypical prior to that. 

Mr. LANKFORD. I know Ms. Speier had mentioned that the number of lawsuits is dropping dramatically, but you are saying the 

number of species included in each of those lawsuits, in those petitions, seem to be much higher? 

Mr. BEAN. I am not talking about lawsuits, sir. I am talking 

about petitions. 

Mr. LANKFORD. Okay. So the actual petition to request to get into 

it, you are seeing this big jump of the number? 

Mr. BEAN. There have been a few large petitions that have required a fair amount of attention from the Fish and Wildlife Service because of the number of species protected. 

Mr. LANKFORD. Okay. So how many do you think right now of 

the citizen petitions that are sitting out there that citizens have 

brought in the last couple of years even? Are we talking 200? Are 

we talking 700? 

Mr. BEAN. Species subject to petition? 

Mr. LANKFORD. Yes. 

Mr. BEAN. I don’t have that number. It is probably in the hundreds, but I don’t have a precise number. 

Mr. LANKFORD. Okay. So we have 2,100 total that are currently 

threatened or endangered at this point, and we are having hundreds coming in citizen petitions at this point asking to be listed 

in additional? 

Mr. BEAN. Yes. A petition does not mean a species will become 

listed. 

Mr. LANKFORD. Correct. But it starts your review process. 

Mr. BEAN. It starts the review process, that is true. 

Mr. LANKFORD. Okay. 

Mr. Rauch—thank you, by the way. 

Mr. Rauch, what is the process for you all? 

Mr. RAUCH. Thank you, sir. 

We follow much the same process that the Fish and Wildlife 

Service follows by looking at different sources of information. The 

petition process in recent years has largely driven our listings. 

But before we get to the listing process, we do maintain a species-of-concern list, which we look at—as Mr. Bean said, the time 

to act to protect these species, when you can do it at the least cost 

to the greatest effect, is before they get critically imperiled. And so 

the point of our species-of-concern list is it identifies issues where 

we can work with the States and our partners well before the Endangered Species Act kicks in to try to deal with that. 

The one difference between us and the Fish and Wildlife Service 

is we do maintain a series of marine surveys of marine life in Federal waters, and oftentimes our own surveys can feed into some of 

our analysis. 

Mr. LANKFORD. So it is not necessarily a State bringing species 

that are specific to that. It is more often your own population 

counts. Because that is what I am trying to determine; how do they 

get on this species of concern? It is something you are tracking, a 

certain number in a population? 

Mr. RAUCH. That is something that we track. I am not aware 

that a State has petitioned us in recent memory. 

21 

Mr. LANKFORD. Okay. 

Then the big question we will deal with as we come through this 

is obviously getting on and then it is a matter of getting off in the 

process. 

And I want to yield to my ranking member, Mrs. Speier, for her 

questioning. 

Ms. SPEIER. Thank you both for your service and for your participation here today. 

I guess I would love to have an understanding of how we can 

measure the success of the Endangered Species Act. Some might 

suggest that you have to either prevent extinction or you have to 

delist a species to show that there has been some kind of success. 

And, as you have mentioned, in many cases, they don’t even get 

to the list until they are truly almost extinct, which makes it that 

much more difficult to recover. And I am thinking, in part, of the 

bald eagle and the American alligator and their status. 

So I guess to each of you I would like to ask you, what would 

you count as success? 

Mr. BEAN. I would be happy to begin. Thank you for the question. 

Clearly, the examples that I gave earlier of the California condor, 

the whooping crane, the black-footed ferret, we are making extraordinary progress in giving those species a more secure future. But 

they are still endangered, and they will remain endangered probably for many more years. And so anyone who suggests that that 

is a failure, because they have not been recovered yet, is really 

blind to the major progress that has been accomplished. So, for me, 

I think an important indicia is simply: Are they more secure? Are 

they more abundant? Are they more widespread? Have the threats 

to them been reduced? 

Clearly, we would like to get and hope to get and intend to get 

to a point where we can take these species off the list because they 

are no longer endangered. But, as I suggested in my testimony, 

that is often a very long process, and what is important is that we 

make progress over the course of the years, as we have done for 

a great many of these species. 

Ms. SPEIER. Mr. Rauch? 

Mr. RAUCH. For the Fisheries Service, the Marine Fisheries Service, we currently have 94 species on the list that our Fisheries 

Service is managing. Of those, only one of them has gone extinct 

over the time, and it may well have been extinct at the time of listing in 1973. 

Since then, we do measure our success in terms of the number 

of stable or increasing populations. The species are critically imperiled, and many of them are in a steep decline at the time that they 

are listed. If we can stabilize them at all, that is a sign of success. 

And the majority of our species are either stable or increasing. We 

only have a few of those 94 that still are exhibiting a decline. 

And so I think that is how we—that is how we measure our success at this point. I would love to measure it in terms of more recovered species, like the Steller sea lion that we just did, but, as 

Mr. Bean said, that is a long process. 

Ms. SPEIER. So, of these citizen petitions, how much time is afforded the review of these petitions? 

22 

I think, Mr. Rauch, you indicated that most of your listings now 

come from citizen petitions, not from anywhere else. So is that a 

lion’s share of the time that you spent doing your work, is reviewing these petitions? 

Mr. RAUCH. No. We do spend a substantial amount of time reviewing petitions, and most of our listing work does come through 

the petition process. But we spent a substantial amount of resources working on recovery. I listed at the beginning some of the 

resources working on salmon recovery in the western United 

States. We have made great strides in recovering monk seals and 

right whales. All of that is done post-listing. 

And so, I don’t have a breakdown. We don’t calculate our resources in terms of how much time on listings versus others. But 

we do spend a substantial amount of resources and time on recovery efforts. 

Ms. SPEIER. Let me just spend a couple minutes on habitat conservation plans, since I cut my teeth on them decades ago. How 

many are there in the country now? 

Mr. BEAN. I don’t have a precise number, but it is well over 500. 

Ms. SPEIER. Is that right. 

Mr. BEAN. Yes. And they have been very widely used in California, they have been widely used by other local governments as 

a way of integrating concerns about endangered species with local 

land-use planning decisions. And they have been quite successful, 

particularly in California, but they are increasingly in use elsewhere, as well. 

Ms. SPEIER. Now, how do they compare to the safe harbor agreements? 

Mr. BEAN. Well, habitat conservation plans, as you know from 

your experience in San Mateo County, are designed for situations 

in which there is some development or other project that is planned 

that is going to cause some degree of harm to an endangered species. And what those plans do is to offset that harm with a mitigation program, typically by protecting certain lands from development. 

Safe harbor agreements are intended for landowners who are 

willing to voluntarily do things that improve or create or restore 

habitat on their land, thus attracting endangered species to it, or 

hopefully attracting endangered species to it, or allowing species already there to expand. And those agreements protect those landowners from any additional regulatory burden for having laid out 

the welcome mat on their land for endangered species. 

So that is the key difference. 

Ms. SPEIER. Thank you. 

My time has expired. 

Mr. LANKFORD. Thank you. 

I recognize the gentleman from Utah, the home of the Utah prairie dog, Mr. Chaffetz. 

Mr. CHAFFETZ. I thank the chairman. We will have to get you 

such a shirt. You will enjoy it. 

Mr. Bean, you are obviously a very accomplished individual. 

Where did you grow up? 

Mr. BEAN. I grew up in a small town in Iowa. 

23 

Mr. CHAFFETZ. Oh, very good. And at some point, I am sure, you 

will look towards retirement, way, way in the future. Where 

would—do you have any idea where you might retire? 

Mr. BEAN. I haven’t the foggiest. 

Mr. CHAFFETZ. My guess is it is probably not in Utah, right? 

Mr. BEAN. Utah is a great place. I would consider it. 

Mr. CHAFFETZ. Oh, well, thank you. 

I guess one of the things we are concerned about is Utahans feel 

like they have lived there—they have lived there for generations, 

they will live there in the future. They want what is best for the 

land, and wildlife is part of that. 

Why is it that there is so much resistance to taking State data 

and information under consideration when you are making these 

types of decisions? 

Mr. BEAN. Respectfully, sir, I don’t think there is much resistance to taking State data. I think the Fish and Wildlife Service 

routinely uses information from the States in making its decisions. 

Mr. CHAFFETZ. We don’t feel like that in Utah, quite frankly. 

Let me ask you this. The 2010 decision by Fish and Wildlife 

Service that the greater sage grouse warrants an ESA listing was 

based, as I understand it, on a 2009 taxpayer-funded Fish and 

Wildlife Service study. The study was cited 62 times in the listing 

decision, yet the data used in the study has still not been made 

publicly available. Do I have that right? 

Mr. BEAN. I don’t know whether you have it right or not. I do 

know as a general matter that some of the underlying data for 

studies that the Fish and Wildlife Service relies upon is not publicly available. 

Mr. CHAFFETZ. Why not? 

Mr. BEAN. Because the—as I understand it, because the researchers who collected that data have it as a proprietary source 

of data. 

Mr. CHAFFETZ. Isn’t that patently unfair? You are making a decision that affects people’s lives and dramatically affects their way 

of living, and yet they can’t see it? 

Mr. BEAN. Well, sir, the decision made in 2010 was not a decision 

to list the species. It had no effect upon anyone’s life. There will 

be a decision forthcoming about whether to list—— 

Mr. CHAFFETZ. It is going to be part of the decision-making process, is it not? 

Mr. BEAN. Well, there will be a decision made in 2015 on the 

sage grouse—— 

Mr. CHAFFETZ. And they are going to rely upon some of that 

data, right? 

Mr. BEAN. Well, I don’t know. 

Mr. CHAFFETZ. But why can’t we look at it? I mean, taxpayers 

paid for it. 

Mr. BEAN. It is not as though the Fish and Wildlife Service is 

withholding it. The Fish and Wildlife Service doesn’t have it to 

give, as I understand. 

Mr. CHAFFETZ. Who paid for it? 

Mr. BEAN. I don’t honestly don’t know. 

Mr. CHAFFETZ. The taxpayers. Taxpayers paid for it. Why can’t 

we see the information? It is not about some North Korean nuclear 

24 

bomb that the military is—we are talking about data that should 

be made publicly available. 

Mr. BEAN. Sir, I can tell you that I am currently aware that the 

Fish and Wildlife Service is working quite closely with the State 

of Utah. Mr. John Harja, representing Governor Herbert, is involved on a regular basis in dialogue with respect to Utah’s efforts 

to protect the sage grouse. And any information from Utah or other 

sources relevant to whether that species should be listed will be 

fully taken into account by the Service, I can assure you of that. 

Mr. CHAFFETZ. It seems to be a one-way street. And it shouldn’t 

be. We have spent time with Mr. Harja. He is a very good, talented 

individual. I don’t feel like there is a good, two-way communication. 

This is a taxpayer-funded study with data and information that 

we should be able to review and challenge. That is part of the open 

and transparent process where we are ultimately going to make 

some sort of decision. 

I am running short of time here. I really don’t understand the 

philosophy behind this. I don’t think it is fundamentally fair. I 

think you are hiding something. And I think it should be made 

publicly available. 

And if you would please get back to this committee and try to 

articulate why you are hiding this information, we can’t see it, I 

would greatly appreciate it, because I really don’t understand it. 

The other part I want to ask about is, for instance, with the prairie dogs, how you count them on public lands but not on private 

lands, but then if they are deemed to get on the list, then you have 

to manage them also on the private lands. Explain that philosophy 

to me. 

Mr. BEAN. I think the Fish and Wildlife Service recovery plan for 

the prairie dog relied primarily upon recovering the species on public lands. And that was done, I believe, in part, in recognition of 

the fact that, for the most part, private landowners regard the 

Utah prairie dog as not a desirable thing to have on their lands, 

and therefore the prospects for recovery really depend upon securing its survival on public lands. 

Mr. CHAFFETZ. But when you are assessing—when you are assessing how endangered they might be, you don’t take into account 

what is on the private property. 

Mr. BEAN. Respectfully, sir, I do not think that is correct. I think 

the Fish and Wildlife Service takes into account all the prairie dogs 

in assessing whether or not they belong on the list. 

Mr. CHAFFETZ. All right. Well, that is a question that I would 

like to further explore with you. 

My time is expiring here, but I can tell you in general that the 

good people of Utah, they care deeply about their land. They pass 

this on from generation to generation. It is highly offensive when 

we have people who come in and make fundamental decisions 

about the longevity of the State and don’t properly, I think, can 

take into account the State plans. The State data is not necessarily 

used with the consistency we would like it to. And it seems to be 

a one-way street, because when we ask for data from the Federal 

Government in how they are making these decisions before they 

are finally made—because once they are finally made, it is very difficult—we can’t get our hands on that information. 

25 

And that is the frustration. And it should be an open and collaborative process. I believe the States are in a much better position 

to draw up the plans, come to these conclusions, and gather this 

information. 

But, Mr. Chairman, I appreciate the time. I am well over. Yield 

back. 

Mr. LANKFORD. Thank you. 

Mr. Woodall? 

Mr. WOODALL. Thank you, Mr. Chairman. 

I appreciate you all being here. 

I would encourage you to come look at the great State of Georgia 

when you are thinking about retirement, Mr. Bean. We have everything from close proximity to the oceans to close proximity to the 

mountains and wonderful folks and flora and fauna in between. 

I have great frustration about these ESA debates that we have, 

because I look around my community and I can’t find anybody who 

loves native species more than we do. It is the hunters and the 

fishermen, it is the hikers and the bikers who are invested. I share 

Mr. Chaffetz’s observation that I can’t believe there is anybody in 

the Nation that cares more about preserving the God-given benefits 

of Utah more than the folks who live in Utah. 

Why do you think here 40 years after a bipartisan effort, not just 

bipartisan agreement but really a bipartisan effort, to get the ESA 

passed into law, why are we arguing about it instead of celebrating 

it? 

Mr. Rauch, do you have a—is it obvious to you, from where you 

sit? 

Mr. RAUCH. I don’t have an opinion on why we continue—— 

Mr. LANKFORD. The light should come on there when you hit the 

‘‘talk’’ button. 

Mr. RAUCH. Oh, sorry. Thank you. 

I don’t have an opinion about why we continue to argue about 

it. I do think that both services have done in recent years a—have 

undertaken a significant effort to look for flexibilities in the current 

law, to forge partnerships. I think we both agree that if you are 

going to recover the species, it cannot be solely on the part of the 

Federal Government acting as a regulatory entity but as a conservation partner. And I know that both services have tried in 

many instances to do that. And where we have been able to do that 

successfully, I think it has worked. 

Mr. WOODALL. Well, I think about how suspicion gets created. 

And it is very tough to get anything done around here without 

trust, and you need that basis of trust. 

I am an attorney by training, but I look at the lawsuits in this 

area, where attorneys are suing the Federal Government. I mean, 

you are talking about having a partnership with private-sector entities. I mean, I am just asking us to have a partnership with one 

another as a Federal Government. 

If this is the law of the land, if we are not only personally invested as public servants in making this happen but personally invested as citizens in making this happen, is having the process 

driven by attorneys rather than by individuals, Mr. Bean, a part 

of what undermines public confidence in whether our goal is to preVerDate Aug 31 2005 14:40 Jun 03, 2014 Jkt 000000 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 C:\DOCS\87950.TXT APRIL
26 

serve species or whether our goal is to manipulate a process to 

achieve yet a different goal? 

Mr. BEAN. Mr. Woodall, I think that the most successful efforts 

at conservation are ones that are carried out in cooperation with 

the local landowners. And in your State of Georgia, as I indicated, 

many of the landowners in the Red Hills area in the southwest 

part the State are voluntarily participating in a Fish and Wildlife 

Service agreement, known as a safe harbor agreement, to improve 

the habitat on that land for red-cockaded woodpeckers and other 

wildlife. Because, as you know, they care a great deal about their 

land and about the wildlife on it. And that has been a remarkably 

successful effort. It has been replicated next-door in South Carolina 

and in Florida. 

So I think that is the best way to do things. And where the Fish 

and Wildlife Service has been able to sit down successfully with 

landowners and strike these agreements, great progress is being 

made. And we are committed to doing more of that, just as we have 

been committed to doing much of it in the past. 

Mr. WOODALL. Well, but if you and I are invested in getting this 

done, if at a government level we are invested in getting this done, 

and if, as I would ask that we stipulate is true, if public trust is 

being undermined by not just the amount of litigation on the issue 

but the size and scope and direction of the litigation on this issue, 

what would be the harm in eliminating attorney-fees recovery, say, 

here? 

Because, again, we are invested as individuals, we are invested 

as public servants. What if we took that small step to say, you 

know what, let’s find the right answers, but let’s not finance attorneys who might be doing the wrong thing under the guise of helping to protect native species that we care so much about? 

Any harm in removing those attorney-fees awards today, Mr. 

Rauch? 

Mr. RAUCH. I can’t speak to that. The Justice Department would 

be better. 

I think that—— 

Mr. WOODALL. Well, let me just—I mean, you have these issues 

come across your desk. If what you are saying is that your job 

would be much harder to do without private litigators, you would 

know the answer to that. But if private litigators are not valueadds here, then it seems, you know, we have limited resources, limited opportunities, it is—I know of no one better than you to make 

the determination of whether or not this is mission-critical or 

whether or not this is a case of misapplied resources. 

Mr. RAUCH. I know that the Fish and Wildlife Service has significantly more Endangered Species Act litigation than we do. We do 

have some. We believe that it is—we do devote resources to it, but 

it is not constraining our overall effort towards recovery. 

And I am from Georgia, by the way. I was born and raised there. 

Mr. WOODALL. And will we get you back? 

Mr. RAUCH. In the—probably so. 

Mr. WOODALL. I am glad to hear it. 

Mr. RAUCH. But it was the Ninth District. Sorry. 

Mr. WOODALL. We move the lines around frequently. You and I 

may be teammates yet again down the road. 

27 

Mr. Bean? 

Mr. BEAN. Congressman Woodall, I am a bit worried I am looking older than I am because you are all talking about my retirement here already. 

With respect to the litigation, the Fish and Wildlife Service is an 

equal-opportunity defendant. We get sued not just by environmental groups, but in the last year or 2 we have been sued by the 

National Association of Homebuilders, by Weyerhaeuser Corporation, American Forest Resources Council, which is a timber industry group, and numerous others. 

We don’t like be sued by anybody, but I will say this: The fact 

that people are looking over our shoulder, our left shoulder and our 

right shoulder, does make us pay careful attention to dotting our 

i’s and crossing our t’s and getting it right as best we can. 

So there is a salutary benefit, as much as I hate to admit it, to 

being sued sometimes, because that forces you to pay careful attention to what you are doing. So I think that is something that 

should not be lost sight of. 

Mr. LANKFORD. Ms. Lummis? 

Mrs. LUMMIS. Mr. Bean, have you ever been the one who was 

looking over the agency’s left shoulder? 

Mr. BEAN. I have certainly been one who has closely followed the 

agency’s implementation of the Endangered Species Act, yes. 

Mrs. LUMMIS. Were you the director of wildlife conversation at 

the Environmental Defense Fund from 1977 to 2008? 

Mr. BEAN. Yes, I was. 

Mrs. LUMMIS. During those years, was the Environmental Defense Fund party to at least 138 lawsuits, most of them against the 

Federal Government and some involving the Endangered Species 

Act? 

Mr. BEAN. To my recollection, during the time I was there, there 

were two or three lawsuits involving the Endangered Species Act. 

Mrs. LUMMIS. Has the Environmental Defense Fund been involved in any litigation that was ESA-related since then, since you 

joined the administration? 

Mr. BEAN. Not to my knowledge. 

Mrs. LUMMIS. Has it been party to almost 90 lawsuits against 

the Federal Government? 

Mr. BEAN. Since I left, I have no idea what has happened since 

I have left. 

Mrs. LUMMIS. Do you know what year the gray wolf met Federal 

recovery goals in Wyoming? 

Mr. BEAN. I don’t know the precise year, but it was some years 

ago, yes. 

Mrs. LUMMIS. It was 2002. So here we are, 11 years, numerous 

lawsuits later. The Fish and Wildlife Service proposed national 

delisting in June 2013, correct? 

Mr. BEAN. I believe that is correct, yes. 

Mrs. LUMMIS. Now, the extended public comment period, now 

twice, ends on March 27th of 2014; is that correct? 

Mr. BEAN. Again, I don’t know for sure. That sounds like it is 

in the ballpark, however. 

Mrs. LUMMIS. Do you have a deadline for final decision on 

delisting the gray wolf? 

28 

Mr. BEAN. The statute requires the Fish and Wildlife Service to 

make a final decision within 1 year after publishing a proposed 

rule. 

Mrs. LUMMIS. With the gray wolf having first been introduced 

under Section 10(j) of the Endangered Species Act, which is the 

nonessential experimental populations, having met its first recovery goal in 2002, here it is 2014 and it is still not delisted, does 

that seem like a reasonable amount of time? 

Mr. BEAN. Just for correction, it has been delisted not only in 

Wyoming but throughout the North Rockies. 

Mrs. LUMMIS. But not a national delisting. 

Mr. BEAN. That is correct. 

Mrs. LUMMIS. Is Wyoming’s management plan still being litigated? 

Mr. BEAN. I believe there is a lawsuit pending against the decision to delist. I don’t think there is a challenge, that I am aware 

of at least, to the Wyoming management plan. 

Mrs. LUMMIS. Were you aware that Secretary Salazar promised 

Wyoming a delisting decision of the grizzly bear by 2014? 

Mr. BEAN. I am not aware of what Secretary Salazar may have 

said about—— 

Mrs. LUMMIS. Are you aware that in December of 2013 a panel 

of State and Federal wildlife officials recommended delisting? 

Mr. BEAN. What was the date again? 

Mrs. LUMMIS. December 2013. 

Mr. BEAN. Yes. 

Mrs. LUMMIS. When can we expect a proposal to delist? 

Mr. BEAN. I don’t know precisely when, but I suspect you will see 

a proposal to delist reasonably soon. 

Mrs. LUMMIS. Do you think that a 1 percent delisting rate is indicative of a successful program? 

Mr. BEAN. I don’t think it is an appropriate measure of the success or failure of the program. 

Mrs. LUMMIS. The Endangered Species Act passed over 40 years 

ago, and the last time it was amended, even tweaked, was in 1988. 

I have never heard a Republican or a Democrat suggest that the 

Endangered Species Act should be repealed. But I have heard people suggest in testimony before the Natural Resources Committee 

and before a committee which Doc Hastings, who is chairman of 

the Natural Resources Committee, and I co-chair, that it should be 

amended and tweaked. 

And let me give you some ideas about some of the areas that we 

heard about from people testifying. We heard that local, State, and 

tribal governments should be involved in species management listing decisions. Do you agree with that? 

Mr. BEAN. They should be, and they are. 

Mrs. LUMMIS. We heard that they aren’t at least adequately involved at the front end and that they were not party to the multispecies listing petitions and the resultant settlement agreements 

that set the priorities and the time periods for delisting the hundreds of species that were included in the multi-species listing petitions. 

Is that true? Were they involved or not? Were they part of the 

discussions in the settlement agreements? 

29 

Mr. BEAN. Only the parties to the litigation were involved in 

those settlement agreements. 

Mrs. LUMMIS. And why was that, since the law says that they 

should be involved? 

Mr. BEAN. Well, every opportunity that the law provides for 

States and tribes and citizens, for that matter, to have a say in 

whether or not species should be listed or not listed will be, in fact, 

carried out. Because what the settlement agreement simply did 

was to set a schedule—— 

Mrs. LUMMIS. But the schedules were set without involving 

State, local, and tribal governments. So they were excluded from 

settlements that the Fish and Wildlife Service made with agencies 

that were suing them or nonprofit entities that were suing—— 

Mr. BEAN. They were not involved in setting the schedule, that 

is correct. They will have every right to be involved and will be involved in any proposals that may come pursuant to that schedule. 

Mrs. LUMMIS. Thanks, Mr. Chairman, for running a generous 

clock. 

Mr. LANKFORD. Thank you. 

Second round, I had informed everyone that we will just open 

this up for more of a colloquy setting. And so it is entirely appropriate to be able to interject, during this round, any line of questioning with anyone that is running a line of questions, so let’s feel 

free. Let’s get answers and be able to walk through the dialogue. 

Let me kick it off. There is a question on the data. And Mr. 

Chaffetz brought this up, as well. How common is it that data is 

withheld for the research at the beginning part of that? 

So I understand this is not the listing, but this is part of—the 

beginning part of actual research—the emphasis to be able to look 

at these species. 

Mr. BEAN. Honestly, sir, I don’t know how common it is. It is my 

understanding that the Service typically relies upon published 

studies—— 

Mr. LANKFORD. Right. 

Mr. BEAN. —that are done by researchers who have collected 

data. And those researchers have invested their time, effort, energy, and so forth in collecting that data and want the ability to 

publish additional studies with that data. And, therefore, it is not 

made available by them either to us or to other parties. 

So I think that situation is reasonably common, just as businesses, when they enter into agreements with the Fish and Wildlife 

Service, often seek to protect some of their data as proprietary. 

Mr. LANKFORD. All right, but here is the concern. You take a— 

we have discussed before, you and I, the lesser prairie chicken. The 

lesser prairie chicken—five States are dealing with significant financial changes. It has not been listed, as you have mentioned before. It is not listed as threatened, it is not listed as endangered. 

Just being studied, just being evaluated. Oklahoma alone has spent 

millions of dollars trying to adjust around it, just with the threat 

hovering. 

Now, you deal with the sage grouse in Utah. I know you can say 

it has not been listed, but there is data that exists somewhere that 

no one can look at that a State and private landowners are going 

30 

to spend millions of dollars trying to be able to protect a species 

on there, but no one also has access to the data. 

Do you see what the problem may be? So I am spending millions 

of dollars fighting against data that I have no idea what it is, how 

accurate it is, how well-researched it was, if it was even peer-reviewed. I don’t know what I am fighting against. So I am now suddenly fighting a ghost, and my own Federal Government is bringing the cost on me. 

Mr. BEAN. Well, sir, my understanding is that the Fish and Wildlife Service, before it makes any decision on the sage grouse or, for 

that matter, the lesser prairie chicken, will rely upon all the information from all the sources, the States and others. 

And the studies I think that Mr. Chaffetz is referring to were 

peer-reviewed studies—— 

Mr. LANKFORD. So they were available to other people, just not 

to the State? 

Mr. BEAN. Well, peer reviewers don’t necessarily review underlying data. They review, as I understand it—— 

Mr. LANKFORD. Well, that would be—just to dialogue, how do you 

peer-review something without actually looking at the underlying 

data? Because you then have to rely on their opinion of the data 

rather than the data. 

Mr. BEAN. I think, sir, as I understand this, the typical peer-review situation—peer-review process, rather, involves reviewers 

analyzing the methodologies and the conclusions based upon the 

summaries of the data but not the raw data themselves. 

Mr. LANKFORD. See, I am familiar with peer reviews. It typically 

goes back to evaluate—they are checking their math, not just their 

grammar. They are actually looking back into the documents, as 

well, to say, is this conclusion correct based on the data itself. 

And so, if you have a reviewer that is reviewing based on their— 

they are really doing a grammar check at that point, not a mathematical check. And that becomes a big issue. Again, you have people spending millions of dollars, and it is one person that has 

drawn conclusions that I won’t let you see where I got those conclusions from. 

Mr. BEAN. Well, if I have misstated the situation, I will happily 

correct the record later, but I have described to you what my understanding is. 

Mr. LANKFORD. I understand. Is there a way that we can actually 

get some transparency, though, into the operation so that people 

can see it? 

Because you can understand the situation, if someone were to 

come and say, I believe that Fish and Wildlife Service or NOAA 

should look at this particular species, that there is a major problem 

here and I think you should do a review, which is very costly to 

the American taxpayer and very time-consuming to Fish and Wildlife and NOAA, you should do this review, they are going to bring 

a citizen suit on it, but they are going to tell you, ‘‘I think there 

is a major problem, but, by the way, I am not going to give you 

our data, you can’t look at it, you are just going to have to trust 

me on this one that there is a major problem,’’ you then have to 

kick in and engage. All the people have to then mitigate something 

that may or may not even be a problem. 

31 

Mr. BEAN. Well, I can assure you, it really doesn’t work like that. 

The Service does not simply act upon somebody coming to it and 

saying, ‘‘Here is what I think; I am not showing you any data.’’ 

Rather, the Service responds to situations in which there are published, peer-reviewed studies, there are maybe data from the 

States. I mentioned that the States themselves are frequently a 

source of information from—— 

Mr. LANKFORD. Right, but the majority are citizen suits still, not 

from the States. 

Mr. BEAN. They may be citizen petitions—— 

Mr. LANKFORD. All right, petitions. 

Mr. BEAN. —but even those rely upon State-generated data frequently. Because, keep in mind, virtually every State has its own 

endangered species laws—— 

Mr. LANKFORD. Sure. 

Mr. BEAN. —and so every State has data, has information about 

the status of species in that State. Frequently, that information is 

woven into the petitions—— 

Mr. LANKFORD. Could that data originate from someone doing a 

graduate study in their master’s or doctoral work and that becomes 

the study that is then proposed? 

Mr. BEAN. It could be. 

Mr. LANKFORD. So the publishing is not necessarily publishing in 

a research journal; it could be just publishing their dissertation? 

Mr. BEAN. I think, again, it could be. 

Mr. LANKFORD. Okay. 

So, again, we are back to the same issue. A graduate student— 

and I have nothing against graduate students—could do a study 

which could be even fairly recent into the studies of different animals and different biology and such. The best that they know and 

understand as a graduate student, there is a limitation on this, 

they write a paper, they publish it. And then suddenly a State goes 

into millions of dollars of expenses and a tremendous amount of effort. 

It goes back to this conversation that we have as a Nation, balancing the issue of data and this term that I have heard before, 

‘‘best professional judgment.’’ How do we balance those two? 

Because the statute seems to lean towards this requirement that 

we get data. And, you know, we talked about from NOAA that they 

are actually going out and scanning it; they know they have a baseline. With Fish and Wildlife, there is just no way to be able to get 

a baseline of every single species of plant, animal, and fish. We just 

don’t have any way to possibly do that. 

So how do you balance between data and best professional judgment when there is no baseline number to come from, when you 

can actually have someone that is a graduate student someplace 

say, ‘‘I only see 20 of them in this area,’’ and then extrapolate from 

that, ‘‘I assume there used to be millions of them in this area,’’ 

when we really don’t know at that point? 

Mr. BEAN. Well, to address your hypothetical, hypothetically, 

that could happen. In actuality, I am not aware of any examples 

like that. So I—— 

32 

Mr. LANKFORD. You know the first study from the lesser prairie 

chicken, where it came to attention from? Was it from a published 

or was it from a doctoral thesis? 

Mr. BEAN. The first study, I don’t know. 

Mr. LANKFORD. Or the first attention that came to Fish and 

Wildlife on the lesser prairie children. 

Mr. BEAN. I don’t know. 

Mr. LANKFORD. I believe it was from a doctoral dissertation that 

came. 

Mr. BEAN. Okay. 

Mr. LANKFORD. It is this route. This is a route that is occurring. 

And our State has spent millions of dollars and other States have 

spent millions of dollars, and it is not listed. So it is a matter of, 

how do we manage this at this point? How do we manage the difference between data—and I want to pass this—I want others to 

be able to engage in this conversation. 

How do you manage from day to day the difference between having hard data, the science of it, and best professional judgment, 

where you may have some species that there are very few people 

that actually study that particular species, so the best available 

judgment may be three people that are scientists that study this 

particular species? 

Mr. BEAN. Well, the Fish and Wildlife Service seldom has perfect 

data or all the data that it needs to make a decision, so it has to 

rely upon professional judgment in interpreting data often. The 

Service does not use judgment to create data, but it uses judgment 

to interpret and understand the data that it has. 

Mr. LANKFORD. No, I am not accusing you of creating that. It just 

goes back to, if you have very limited data and you have very limited number of people that study that particular species, now you 

have a situation where someone is going into the—trying to determine and then trying to figure out how to mitigate all the issues 

around it, when we really don’t have data and we have very few 

people that have looked at it. You are managing hundreds of things 

that are coming on with the citizen petitions; you don’t have time 

to manage this either. But we are quickly moving an issue that 

was designed to be able to protect species, but we don’t have time 

to study it, we don’t have enough people to look at it, and we don’t 

have enough data to evaluate it. It puts us all in a very difficult 

position, both the species and the people that live around it. 

You and I have talked about the American burying beetle, and 

we can discuss about that more. We can’t really study the American burying beetle much; they live underground. But there is a 

tremendous amount that happens in construction that is now 

slowed—pipeline construction, bridge construction, wind power construction, utility construction that now can’t build in certain times 

of the year because we think maybe, possibly, but we don’t have 

data, that the American burying beetle may be in that area. 

Mr. BEAN. The Fish and Wildlife Service has a pretty good sense 

of the areas that may be occupied by the beetle, for example, and 

it has some techniques to determine presence. You are right, the 

beetle lives underground much of its life, but it spends some of its 

life above ground and is routinely attracted to lights. So there are 

ways to determine whether it is present in an area or not. 

33 

Mr. LANKFORD. Right. 

Mr. BEAN. The Service, to the extent of its ability, bases its decisions upon the best available information that it has. And it puts 

a heavy emphasis upon peer-reviewed and high-quality data and 

analysis, and primarily published data. That isn’t always available, 

but the standard that Congress has given the Service to guide its 

decisions is that of best available scientific information. 

Ms. SPEIER. Can—— 

Mr. LANKFORD. Go ahead, Jackie. 

Ms. SPEIER. Can we talk a little bit—well, first of all, let me 

point out that we just had a discussion about the gray wolf in Wyoming. It is presently delisted—— 

Mr. BEAN. That is correct. 

Ms. SPEIER. —which means the population can be exterminated. 

Mr. BEAN. Well, what it means is that the population is managed 

by the State of Wyoming. The State of Wyoming does not intend 

to exterminate the wolf. They do intend to manage it—— 

Ms. SPEIER. ‘‘Exterminate’’ was not the right word. They can be 

shot. 

Mr. BEAN. They can shoot—they can hunt it, yes. 

Ms. SPEIER. So I have been told that, since delisting, the gray 

wolf population has declined by some 16 percent in Wyoming, 4 

percent in Montana, and 11 percent in Idaho. Now, I don’t know 

what that percent means. Is that a percent that should be of concern to us, or is that healthy? 

My understanding, also, is that there are fewer than 1,600 of 

these animals in those 3 States. So I realize they are predatory animals and that, you know, if they are killing your herd or your cattle that that is problematic. But I also would like to have a better 

understanding of, now that it has been delisted—Ms. Lummis is 

concerned about the length of time it is taking, but it is already 

delisted, the numbers have been declining. 

Is this anything that we should be concerned about? 

Mr. BEAN. Representative Speier, since the wolf was delisted not 

only in Wyoming but Idaho and Montana, all of those three 

States—each of those three States has managed the wolf and has 

allowed hunting and has reduced somewhat the populations, although the populations are still well above a level that the Fish 

and Wildlife Service regards as safe, in the sense that the Service 

doesn’t need to reconsider putting it back on the endangered species list. They are well above that number. 

Ms. SPEIER. Okay. 

So let’s move on to the lawsuit issue, which, you know, by numbers that I mentioned in my opening statement would suggest 

there is—the numbers have declined dramatically. But even if you 

do file a lawsuit, it does not mean that if you win the lawsuit that 

the Fish and Wildlife Service will delist or list the creature. Is that 

correct? 

Mr. BEAN. I think you are referring to the deadline lawsuits, of 

which there have been many filed against the Fish and Wildlife 

Service for its failure to meet the statutory deadlines for responding to petitions. The statute has some explicit statutory deadlines 

for responding to a petition. And because of the volume of petitions, 

the Service has sometimes missed those deadlines, and then the 

34 

petitioner has sued the Fish and Wildlife Service for the purpose 

of getting a court-ordered deadline. 

So you are right that those lawsuits do not result in decisions to 

list species. They result in decisions to either propose or not propose the listing of the species by a certain date. 

Ms. SPEIER. And, finally—and, Mr. Chairman, I am going to have 

to leave to go to another meeting, so I thank you for indulging my 

questions here. 

If everyone is supportive of retaining the Endangered Species 

Act, which is what I was hearing from some of my colleagues, and 

there are opportunities to allow for development and protection of 

the endangered species, habitat conservation plans being a great 

way of doing so and I guess been used very successfully, what 

things should you have, what tools should you have to create greater flexibility so that we can protect endangered species, development can happen, hunting can happen, and we can all sing 

Kumbayah? 

Mr. BEAN. Well, thank you for the question. 

And I certainly agree with the premise that habitat conservation 

plans have been a very effective way of reconciling development interests with conservation interests. 

I think, frankly, more understanding of the potential application 

of that tool to solve various problems and more understanding of 

the availability of tools like safe harbor agreements that Georgia 

landowners are using, California landowners are using, and others, 

will be helpful in bringing to the attention of the public, particularly the landowning public, the whole panoply of tools that are potentially available to help them live compatibly and successfully 

with endangered species on or near their land. 

Ms. SPEIER. Well, I guess I am asking if you want any additional 

tools. Would it be helpful to give you any additional tools of flexibility beyond those that exist? 

Mr. BEAN. I think the Fish and Wildlife Service is currently exploring some administrative initiatives much like safe harbor 

agreements and candidate conservation agreements which were administratively developed. 

It is exploring the use of mitigation banking in a more aggressive 

manner to allow some landowners to basically invest in conservation on their land as a way of offsetting the impacts of development 

on others’ lands. That is an idea that has been used widely in California, as well. It is something the Fish and Wildlife Service is currently exploring ways to improve or expand the availability of that. 

So that would be one example. 

Ms. SPEIER. And you could do that without legislation? 

Mr. BEAN. Yes, I believe we could. 

Ms. SPEIER. Okay. Thank you. 

Mr. LANKFORD. Can I ask a quick follow-up? I don’t want to interrupt. I know others want to be able to—when will we be able 

to see those proposed ideas? Will that come out through the rulemaking process, or will that just appear? 

Mr. BEAN. No, it will come out as a proposal in the Federal Register. There will be opportunity for any interested person to weigh 

in it. 

35 

Mr. LANKFORD. Okay. Can you give me a timeframe on that? Are 

we talking 2014? 2015? 2016? 

Mr. BEAN. We are definitely—well, I very strongly belive it will 

be 2014, and probably early 2014. 

Mr. LANKFORD. Okay. Thank you. 

Other Members who want to contribute? 

Mrs. LUMMIS. Mr. Chairman? 

What percentage of species for which listing petitions have been 

filed have been listed? 

Mr. BEAN. I don’t know the precise percentage. 

Mrs. LUMMIS. More than not? 

Mr. BEAN. Of those for which decisions have been made, yes, 

more than not, a majority. Well, actually, I am not certain. I will 

have to—— 

Mrs. LUMMIS. The information I have is that it is about 85 percent. 

Mr. BEAN. Of all petitions since the act was passed? I don’t really 

know. 

Mrs. LUMMIS. The mitigation banking that you mentioned, that 

is something we are using in Wyoming that the private sector is 

using pretty substantially. Is Federal land going to be allowed to 

participate in mitigation banks? 

Because you know about our irrational, I would call it, landownership patterns in Wyoming, where you have private land commingled with Federal land, with State land. And so it does make 

some sense if you have a landscape-sized mitigation project—— 

Mr. BEAN. Uh-huh. 

Mrs. LUMMIS. —that where there is BLM land, for example, 

interspersed with private land, that the BLM land should be considered part of the mitigation bank. 

Mr. BEAN. Ms. Lummis, I met with some of your Wyoming constituents just this week to discuss mitigation banking, and they are 

developing a proposal, as I understand it, that would include both 

private and BLM and maybe State lands. And I think the Fish and 

Wildlife Service will, when it is presented with that proposal, assuming it is, be sort of welcoming of that idea. Until we see the 

details, we can’t say for sure whether it will be approved or not, 

but it certainly, on the face of it, seems like a good idea. 

Mrs. LUMMIS. Well, since we do know that on a landscape scale 

we can probably achieve better results for protection of habitat, 

which equals protection of species a lot of the time, it seems to 

make a lot of sense to me that the Federal Government would cooperate with private landowners who wish to provide mitigation 

banking lands at a landscape scale. It seems to be working pretty 

well. 

Our science, our ability to understand science has improved, in 

your opinion, since the Endangered Species Act passed, correct? 

Mr. BEAN. I suppose so, yes. 

Mrs. LUMMIS. You suppose so? Do you not really believe that? 

Mr. BEAN. I am not sure how you would measure it, but I suppose it would be, yes. 

Mrs. LUMMIS. Okay. Well, let me ask it this way: Do you think 

science has been static since 1973? 

Mr. BEAN. Of course not. 

36 

Mrs. LUMMIS. Do you think that people’s environmental ethic has 

been static since 1973? 

Mr. BEAN. Probably not. 

Mrs. LUMMIS. Do you think that people in general are more attuned to their stewardship responsibilities to the environment than 

they were in 1973? 

Mr. BEAN. Probably so. 

Mrs. LUMMIS. I think so, too. In fact, I think it has become embedded, it is cultural now, much more so than it was when the Endangered Species Act was passed. I think that the culture has 

grown in its sensitivity and its stewardship obligations to species, 

to clean water, clean air, clean land. And I think that is why things 

like our compliance with the Kyoto protocols for clean air have 

been met. And we are the only country that met those Kyoto protocols, even though we didn’t sign on to the Kyoto protocols. 

Americans have a marvelous stewardship and an environmental 

sensitivity that is cultural; it is embedded. And, to that extent, litigation, in my opinion, that puts briefcases in courtrooms but not 

species on conserved habitat isn’t the answer in the 21st century. 

To me, the answer in the 21st century is boots-on-the-ground conservation by people who are culturally attuned to preserve species, 

be they tribal members or State government employees or private 

landowners working together to conserve species. 

So to take an act that passed in 1973 and was last amended in 

1988, where the people, the culture has gone far beyond the ethos 

of the act, and expect that act and its litigation-driven model to be 

the way we should administer the law in the 21st century is a lot 

like driving an Edsel in 2014 and thinking that it ought to perform 

like a 2014 car. The performance of automobiles is better. The performance of the American people with regard to science and culture 

and the ethics of species conservation have improved. 

So I would really like to see the Endangered Species Act updated 

to acquaint it with and harmonize it with the culture and the ethos 

and the ethics and the stewardship that the American people are 

quite capable of providing. It doesn’t need to be done in the courtroom anymore. Those funds that are so difficult to come by can be 

spent on habitat conservation and boots-on-the-ground species recovery without lawyers in the courtroom earning the money and 

taking that precious financial resource that is so hard to come by 

away from the very species that the Endangered Species Act was 

designed to protect. 

Mr. Chairman, thank you. I yield back. 

Mr. WOODALL. Mr. Chairman, if I could follow up on that? I want 

to ask, because listening to both Ms. Lummis and the chairman, 

it felt oddly adversarial to me. I am thinking, for Pete’s sakes, the 

chairman’s talking about millions of dollars that are being spent 

that are not directed at something that we have come together on 

and tried to unify our might to solve but directed towards ambiguities. 

Ms. Lummis doesn’t just live this every day back home but, you 

know, isn’t talking through her hat when she talks about a conservation ethos. And, obviously, things have changed over the last 

40 years. Obviously, what President Nixon envisioned is not where 

we are today. Are we close, are we further? We could have that 

37 

conversation, but, obviously, we are not exactly where folks 

thought we would be 40 years later. 

Why does it feel adversarial? Why isn’t it a big Kumbayah session to say, let’s make some changes and let’s refocus our resources 

on those most critical missions? 

I can’t think of the last time I was involved in an ESA problemsolving session that was on its way to fruition. I can think of many 

ESA arguments that I have been involved in. Tell me why that is. 

Why aren’t we moving closer to a common goal today? 

Mr. BEAN. Well, sir, I will be happy to offer my own experience 

in answer to your question. 

My own experience is I have worked with landowners in your 

State; I mentioned the forest landowners in the Red Hills area. I 

have worked with forest landowners in North Carolina in the 

Sandhills area. I have worked in ranchland in Texas. In particular, 

I mentioned to Mr. Lankford yesterday a gentleman named Bob 

Long, who was chairman of the Republican Party of Bastrop County, Texas—local bank president, fundamentalist minister, extreme 

conservative, but somebody who was willing to manage his land to 

help recover an endangered amphibian called the Houston toad. 

And what I learned from that work with him and those other 

landowners is that a lot of this acrimony or contention that has 

been talked about today in this room doesn’t really exist at that 

level. People are willing to roll up their sleeves and work together 

with the Fish and Wildlife Service, with the organization for which 

I work which Mrs. Lummis mentioned. And one doesn’t get that 

sense often out on the ground talking to people where these efforts 

are ongoing. 

So I can only answer based on my experience, but my experience 

is that when you offer landowners an opportunity to work constructively with the Fish and Wildlife Service in a way that each understands the needs of the others and tries to accommodate them, you 

can have success. 

Mr. WOODALL. I am afraid you are making my point exactly. 

That is my experience on the ground, too. 

So when the chairman says he sees millions of dollars being 

wasted on efforts that we are not directing together, why aren’t we 

equally incensed about that? 

When Ms. Lummis says that there are dollars being errantly directed to litigation instead of mitigation, and you talk about your 

successful experiences one-on-one on the ground, why aren’t we 

rushing to agree with Ms. Lummis and talk about proposed 

changes to the statute to foster what is the most hard-fought commodity in this Nation, not the all-precious and incredibly too limited American dollar, but the all-precious and incredibly limited 

trust that goes between citizens and their government? 

What you say I will stipulate is true. So what next? Why isn’t 

the next conversation, then, that collaborative sitting around the 

table making changes to the statute to amplify those successes and 

mitigate these failures? 

Mr. BEAN. Well, sir, perhaps the answer is that all the examples 

I gave—or none of the examples I gave required amending the law. 

All of the examples I gave required creatively interpreting and applying the law. 

38 

And I think what this act has shown, despite the fact that it has 

remained unchanged by Congress since 1988, it has been changed 

substantially by the Fish and Wildlife Service in its implementation, in its use of new tools that didn’t exist in 1973 or 1988 in 

order to engage landowners as partners, in order to better engage 

States, in order to make use of the flexible authorities I described. 

The act has been, in my judgment, remarkably flexible and 

adaptive. I don’t for a minute mean to suggest that there aren’t 

controversies, but as I tried to make the point with respect to the 

Oregon chub at the outset, most of the species most of the time 

don’t generate those controversies. Progress is being made without 

lots of headlines, without lots of heat, without lots of rancor. 

Mr. WOODALL. If I could just take one last stab at it. You are absolutely right; the successes that you mentioned don’t require 

changing the statute at all, but the failures that my colleagues 

mentioned did. 

I don’t know why it is that somehow we have to choose between 

having both the successes and the failures or having neither the 

success nor the failures. I don’t think that is the world that we live 

in. I think we can have the successes, and even greater successes, 

and eliminate those failures. 

But, again, just one last effort: Am I wrong about that? Again, 

you are talking about successes that don’t require changes. My colleagues are talking about failures that do require changes. Why 

aren’t we coming together around eliminating the failures and amplifying the successes? 

Mr. BEAN. We may have a disagreement about the failures. In 

Mr. Lankford’s case, I don’t think the money that is being spent is 

being wasted. I think the money is being invested to find out what 

the status of the lesser prairie chicken really is. And I think that 

will be very helpful to us in deciding whether we need to protect 

it and, if so, how we need to protect it. 

So I don’t for a minute suggest that it isn’t oftentimes difficult 

and sometimes expensive in order to get answers to these questions, but I think investing in finding out the answers is not necessarily a waste of resources or money or time. 

Mr. WOODALL. Mr. Chairman, I thank you. 

Mr. LANKFORD. No, it is most—thank you, Mr. Woodall—but it 

is most certainly not a waste of time to able to protect species. We 

wholeheartedly agree with that. 

A couple of challenges just on the intensity of it. One is this 

sense of, as you mentioned, the creative interpretation of the law 

and how flexible the law is and how many times it has changed in 

its application over the past 40 years brings some concerns to individuals that just want consistency. They just want to know, here 

is the law and here is how it is applied and I know what it is. 

When it changes at different points, then there is great consternation. People just want to know, here is the law, here is how it is 

going to be applied. 

That is some of the conversation up here, as well, to say—and 

there may be needs for fixes in the law, because it seems to change 

often, though it hasn’t actually changed. Does that make sense? 

Mr. BEAN. I understand your point. However, the examples I 

gave are all examples in which the law was made to be more flexiVerDate Aug 31 2005 14:40 Jun 03, 2014 Jkt 000000 PO 00000 Frm 00042 Fmt 6633 Sfmt 6633 C:\DOCS\87950.TXT APRIL
39 

ble and accommodating to landowner or regulated interest concerns. So I think, as a practical matter, nobody objected to those 

changes, people welcomed those changes. 

Mr. LANKFORD. It is the how they are coming out and how the 

species are being identified and put up in front of landowners. 

Let me just read part of a statement here. And I know every 

State has its own unique species that they get a chance to have significant conversations about. Let me read you a document. It is the 

summary of key components—this is an official Federal document 

coming out—summary of key components for conservation of lesser 

prairie chicken. And here is just the summary of it, from the executive summary. 

The primary threats dealing with the lesser prairie chicken. 

There are five areas here—six. Inappropriate timing and intensity 

of livestock grazing. In other words, grazing in the wrong place, 

wrong time. Conversion of native prairie for development in crop 

production, which I thought was interesting. In other words, we are 

having issues with this because we are planting crops there instead. Alteration of fire regimes. By the way, if you go into the details of the study, the study assumes that in Oklahoma there used 

be wildfires all the time and no one stopped them and that was 

good for the chicken. I would assume—I have had very well-cooked 

chicken over a fire before, and I don’t know if that was good for 

it, but that is a whole different issue. Introduction and expansion 

of noxious weeds; fragmentation of habitat with roads, utility corridors, fences, towers, turbines, or energy development; and the 

planting of trees. 

So when folks in Oklahoma read this, here is what they read as 

the next paragraph. ‘‘Features associated with human development’’ is the quote here. And then the quote before that is the issue 

being, ‘‘Returning the situation to prior European settlement status.’’ 

So I want you to understand that people get a little concerned 

when a document comes out and says, if we are going to protect 

the lesser prairie chicken, we need to return western Oklahoma to 

a situation that looks like prior European settlement status, and 

that there may be a problem with planting of trees, building roads, 

planting crops, or grazing cattle. Those are, kind of, things that 

people do. 

And so you understand the situation here and why the immediate frustration comes up when you—if you were to read this and 

think, that is my land, there would be a concern immediately. 

Mr. BEAN. Yes, indeed. I don’t know what document you are referring to, but I can assure you that the Fish and Wildlife Service 

has no intention of trying to return to pre-European conditions in 

Oklahoma or elsewhere. We recognize that isn’t going to happen, 

and that isn’t going to be the strategy that the service pursues. 

Mr. LANKFORD. I will bring you the document. I won’t add this 

to the record, but I will bring you the document and be able to 

walk through it. But if you go through the original study that triggered this, it is loaded throughout the entire study. 

There are also great statements in there about that lesser prairie 

chickens are concerned about anything taller than 13 feet, and so 

they don’t want have any construction in western Oklahoma taller 

40 

than 13 feet. I am not sure how they knew that lesser prairie 

chickens were okay with something 12 feet but not 14 feet, but it 

is loaded throughout the entire study. 

This becomes a big issue for individuals as we spend millions of 

dollars based around a study that is not based on—as it comes 

through this over and over again, that is not based on population 

count, it is based on habitat. And that is an issue I want to be able 

to deal with both of you on. 

How do we balance this issue? When a species comes to light, 

there is an assumption always, we have only found so many, and 

so you assume there used to be more, though oftentimes there is 

not a count. Now, you have mentioned NOAA occasionally, you all 

have done population counts and you are tracking those, and in 

certain areas at certain times you are aware of a certain population 

count. Many times in Fish and Wildlife, that is just not possible 

with every plant species to know what was the population count 

100 years ago based on what it is right now. 

But some assumptions are made. So we need to protect this habitat, but then there is also—correct me if I am wrong here. Oftentimes when we have listing, we are not listing it and saying, to 

come off delisting, we need to go to a certain population. It seems 

to state that this species is listed because the habitat is diminishing. The only way to be able to delist them, it would sound like, 

would be for the habitat to increase. 

Tell me where I am wrong on that. 

Mr. BEAN. The way to delist a species once it is listed is to remove the threats. And those threats may be addressed in manners 

other than what you suggest. 

Mr. LANKFORD. Could those threats be a road or a utility pole or 

a house taller than 13 feet? 

Mr. BEAN. Likely not, in the sense that simply—well, in the 

sense that what needs to be done is to remove enough threats in 

enough places in order to ensure that the species has a good chance 

of surviving. That may mean protecting some land in perpetuity. 

It may mean securing cooperative agreements with willing private 

landowners to manage their lands in ways compatible with the 

needs of the species. 

It certainly doesn’t mean removing all trees, removing all development, and what have you. As I said a moment ago, this notion 

of returning to pre-European conditions is not the goal or strategy 

or intent of the Fish and Wildlife Service. 

Mr. LANKFORD. Okay. 

Mr. Rauch, you have been graciously quiet on this. We have had 

a lot of conversations with Mr. Bean. Let’s talk a little bit about 

the habitat issue and numerical counts. How are you tracking that, 

as far as dealing with a species and getting them delisted? 

Mr. RAUCH. Thank you, Mr. Chairman. 

We do, when we set recovery plans, we try to set standards for 

recovery, and many of those do have numerical counts. We do 

have—— 

Mr. LANKFORD. Is that typical at the beginning, that everyone 

kind of knows, we think the population is decreasing; if we get to 

this number, we are going to delist? 

41 

Mr. RAUCH. No. It is typical when we do a recovery plan, which 

is often not when we do the listing. Sometimes it takes a while to 

do the recovery plan after the listing, and we do it in consult with 

some of our State partners. Private landowners and other kinds of 

people are all involved in that process. 

Mr. LANKFORD. Can you just help me—‘‘it takes a while.’’ Is that 

6 months? A year? Is that 10 years? How long is that? 

Mr. RAUCH. It can vary. Sometimes it is quicker. 

Mr. LANKFORD. ‘‘Quicker’’ meaning? 

Mr. RAUCH. More than 6 months. 

Mr. LANKFORD. Okay. So give me some timeframes here. A year? 

Ten years? 

Mr. RAUCH. A year to 10 years would—somewhere in there. And 

it varies by species. And we have some species, particularly foreign 

species, since there is very little the U.S. can do about them, that 

we don’t prioritize in our recovery plans. For the U.S., we tend to 

prioritize them higher. 

But there is no particular deadline for doing a recovery plan. Because it is designed and we try to maximize the participation of 

landowners and States in that, we often can’t dictate the timeframe. We come to the table when they come to the table, and we 

have these discussions. And sometimes that takes a while to get to 

a common vision of what it needs to recover the species. 

But it is often—it is almost certainly longer than a year. Hopefully it is less than 10 years in most instances. 

Mr. LANKFORD. Is it the same thing for Fish and Wildlife, Mr. 

Bean? The recovery plan may take a year to 10 years, and that is 

where the numerical population goal is set? 

Mr. BEAN. I think the Fish and Wildlife Service informal goal is 

to try to have recovery plans done within 3 years of listing, which 

it is able to do in most instances. 

Mr. LANKFORD. Population goals attached to that? 

Mr. BEAN. Sometimes, but rarely, if ever, is a recovery plan goal 

expressed solely in terms of population. There are almost always 

other objectives, as well, beyond population goals. 

Mr. LANKFORD. Let’s go back to Mr. Chaffetz’s comment earlier 

when we were talking about the fabulous Utah prairie dog. The 

last thing that I read on it, it was estimated the population is 

somewhere around 40,000. Is that number correct, not correct? I 

don’t know how your—— 

Mr. BEAN. I—— 

Mr. LANKFORD. —quick facts and figures on prairie dogs here, 

but—— 

Mr. BEAN. Yes, sir. I don’t know, but I believe it is much lower 

than that, sir. 

Mr. LANKFORD. Okay. We will try to pull the number. The last 

thing I saw here, around 40,000 total on that. That may be the 

issue between public lands and private lands. Larger survey done 

with both at 40,000. Public lands may be lower than that. And that 

becomes still the study of we are trying to recovery them in public 

lands, where they may or may not prefer to be; they may prefer 

to be more in someone’s flower bed than they would in public 

lands, where it is not necessarily a flower bed, as well, based on 

the preference of it. 

42 

How do they know when that animal is coming off? 

Mr. BEAN. I don’t know the recovery goals and the recovery plan, 

but there is a recovery plan for the Utah prairie dog, and it does 

set forth goals for delisting. And the Fish and Wildlife Service will 

keep track of trends with respect to both population, habitat condition, and so forth. And either when those goals are met or when 

the Fish and Wildlife Service has other reason to conclude that the 

species no longer is endangered, it would initiate a status review 

and a proposal to delist. 

Mr. LANKFORD. Yeah, it is a challenge with a species like the 

prairie dog, obviously, that is a nuisance creature, quite frankly. 

Cute as can be on someone else’s yard, but in yours it is a problem. 

Mr. BEAN. Most landowners in Utah look at it that way, but not 

all. I worked with one named Allen Henrie, who entered into a safe 

harbor agreement basically to allow Utah prairie dogs to occupy 

some of his land. And there were other landowners, as well. So 

while what you say is generally true, it is not true of all of the 

landowners. 

Mr. LANKFORD. At my house in Oklahoma, a couple years ago I 

distinctly remember complaining to my next-door neighbor about 

armadillos, which will shred your yard, and in my particular yard 

was absolutely shredding them overnight. And he chastised me for 

saying that and said, armadillos are so slow, you can just get a 

trash can, load them up, go get them because they are so slow, and 

go haul them out in the country and drop them off. And about 2 

weeks later, at about 9 o’clock at night, I heard a shotgun blast 

next door and walked outside and found my neighbor standing over 

a dead armadillo who was shredding his yard. 

And so, yeah, at times, there is this perception of that. I get that. 

But there is something unique when we are dealing with how we 

are trying to recover a species. And I don’t want to talk about 

shooting armadillos, but there are some serious issues that we deal 

with in recovering a species, that once landowners are pushing 

back significantly, saying, we are being overrun, how do we manage that, whether that be a gray wolf that is taking down significant parts of a herd or whether that is a prairie dog that they are 

being overrun with in certain communities and can do nothing 

about. 

I am going to run through a couple things quickly. I want to be 

attentive to our time, as well. I want to go through solutions. I am 

interested in two sets of things: One that I can bring to say, what 

do you think about this? One is ideas that you have. 

You have already mentioned one of those, Mr. Bean, as well, of 

ways to be able to create an environment for more collaboration 

that you said is going to be an issue that will be put out in the 

Federal Register in the coming days. 

Can we form a clear definition of the difference between ‘‘threatened’’ and ‘‘endangered’’ and how they are handled with landowners and status? Because we seem to have an emerging, from 

my understanding—and, really, I am no professional on it—from 

its history, is that ‘‘threatened’’ and ‘‘endangered’’ used to be really 

distinct. And now there seems to be a third category that is created 

with, ‘‘We are looking at listing this,’’ and so it kicks in a whole 

43 

series of things. And then we have a threatened listing and an endangered listing. 

It appears to me that ‘‘threatened’’ used to be this other status 

that was created in the past, that now we have grown into three 

statuses. Am I correct or not correct on that, historically? 

Mr. BEAN. Well, for listed species—— 

Mr. LANKFORD. Can you pull the microphone a little closer, as 

well? 

Mr. BEAN. Yeah, excuse me. For listed species, there have always 

been just two categories: threatened and endangered. Recently, the 

two services, I believe, have utilized this notion of candidate species—— 

Mr. LANKFORD. Right. 

Mr. BEAN. —species under consideration for possible—— 

Mr. LANKFORD. Has ‘‘threatened’’ always meant the same thing, 

though? ‘‘Threatened’’ seems to be candidate level now, and candidate seems to be something new that has been added to it. 

Mr. BEAN. I wouldn’t characterize it that way. I would say that 

threatened species have always been species that aren’t yet endangered but they are likely to become so in the foreseeable future. 

Candidate species are species for which there is concern that they 

may warrant listing as threatened or endangered. 

It is worth pointing out there are no regulatory requirements 

that attach to candidate species, no Federal regulatory requirements. 

Mr. LANKFORD. And that is one of my questions on it, is, where 

did that come from, the candidate-type listing? Is that from statute? Is that from regulation or—— 

Mr. BEAN. It originated as a response to the fact that the Fish 

and Wildlife Service responded to petitions by acknowledging that 

certain species that had been petitioned may warrant listing but 

there were higher priorities to deal with first. And so, those basically were put in queue, and those in queue were considered to be 

candidate species. 

I think the word ‘‘candidate’’ now appears in the statute, but it 

did not originally appear in the statute. 

Mr. LANKFORD. In the statute or the regulations? 

Mr. BEAN. I think in the statute, if I recall correctly. 

Mr. LANKFORD. Mr. Rauch, do you know in that one, or how you 

are handling that, where this—the candidate has risen up? 

Mr. RAUCH. I cannot recall where it has risen up. But I can confirm that we do, as well as the Fish and Wildlife Service, use those 

species to try to engage with landowners in a nonregulatory fashion ahead of the listing so that we can avoid listing. There are a 

lot more options that you can do while the species is not—— 

Mr. LANKFORD. Uh-huh. Are we having a better recovery of species in the candidate phase or in the threatened phase? 

Mr. RAUCH. I am not sure that we completely track recovery in 

the threatened phase, because recovery means, under the statute, 

recovery to the point where the ESA mandates are no longer needed. Since the candidate species did not become listed in the first 

place—— 

Mr. LANKFORD. Right. 

44 

Mr. RAUCH. —they are technically—the distinction doesn’t really 

apply. 

Mr. LANKFORD. We are back to Mr. Bean’s comment earlier; it is 

better to catch it earlier and to be able to go after it. 

Mr. RAUCH. I completely agree with that. 

Mr. LANKFORD. Sure. But at that point, it is the State that is 

also managing it, is that correct, other than in Federal waters? 

Mr. RAUCH. Yes. 

Mr. LANKFORD. Okay. So we need some clarification what ‘‘candidate’’ means, because that is one of the areas that there is some 

concern nationwide in different entities, that when something suddenly becomes a candidate, no one really knows what that means 

fully. They just know the hammer is coming down quickly on them, 

and they are trying to figure out what do we do. And that is a nebulous threat, so we do need some clarification on that in the days 

ahead. 

Making data publicly available, I know we have had some conversation about this in the research part of it. I am trying to figure 

out why that is still a bad idea, that we can peer-review data, and 

if someone is going to bring an issue and say, I have studied this, 

but no one else can second-guess me on it, and because this data 

is proprietary, there is a major problem with that, when individuals and States, counties, and tribes are going to spend millions of 

dollars mitigating for a risk that they can’t actually verify. 

Any disagreement on that? Or any solutions on how we resolve 

that? 

Mr. BEAN. All I would say beyond what I have said already is 

I will be happy to explore this further within the agency to see, 

first of all, if my understanding is correct and, secondly, if there 

are reasonable solutions. 

Mr. LANKFORD. Mr. Rauch, anything you can share with that? 

Mr. RAUCH. I can’t speak to the discussions about the sage 

grouse or the specific instances you are talking about. We do value 

public and peer-reviewed data. We recently, when we were dealing 

with the core listing, we put all our science out in a broad peerreviewed document, to the extent that we had it, and made it available. 

I can confirm that there are instances in which we would like to 

release data but we don’t have it, because the researchers won’t 

give it to us. So that appears to be what is happening to the Fish 

and Wildlife Service. That does happen to us on occasion; it does 

create issues. But we would prefer, and where we can, we try to 

make all of our data publicly available. 

Mr. LANKFORD. I can tell you what you we do with anonymous 

letters, where people don’t give us backup. We don’t take them seriously. If I can’t verify your number, if I can’t verify your information, I am not going to take it seriously. Because I am not going 

to take ‘‘trust me’’ as an answer. 

Even if you are you a respected researcher, every person makes 

mistakes and every bit of data should be peer-reviewed and should 

be public. And if States and individuals are going to be put into 

a status where they have to spend millions of dollars to mitigate 

for something, they should be able to back it up and to be able to 

disagree or disagree, and you can’t do that. 

45 

That is the basic American principle of I should be able to face 

my accuser, and if suddenly the accuser says, no, there is a problem, but I can’t tell you why, we have a problem as a Nation. That 

is one we have to resolve. 

States getting involved and the affected parties being involved, 

they need, kind of, the consent decree or the research of an entity 

at the start rather than finding out much later. How do we get affected parties involved at the very beginning of this and accelerate 

that process? 

And you have mentioned several times, Mr. Bean, that States are 

made aware of this and they are engaged. How do we get them at 

the very beginning engaged? Any ideas on that? 

Mr. RAUCH. I will say that we are currently engaged in a joint 

State-Federal task force with the States to talk about their involvement. We have a series of ongoing meetings—the next one is coming up next month in Denver—where we talk with them about that 

exact question, about how they can be not just engaged but meaningfully engaged in this process. 

There are many roles, as Mr. Bean said, for the States to become 

involved in the process, the substantive decision. And we do take 

that seriously and look to make sure that that is meaningful and 

that we can fully take account of the data, that they have the expertise and that they have them bring that to the decision. 

Mr. LANKFORD. Right. Again, you are going back to a basic American principle: The Federal Government exists to be able to serve 

the people. And affected parties should be at the table and should 

be very aware of that. So getting them there at the very beginning 

makes a huge difference. 

Mr. Bean, any comments on that? We will move on to other 

things if not. 

Mr. BEAN. Just one comment. The Interior Department has provided support to the western States to develop what are known as 

crucial habitat assessment tools; the acronym is CHATs. These are 

Internet-accessible databases of the most important areas in those 

western States for a variety of purposes—wildlife habitats, wildlife 

migratory corridors, and the like. 

So that investment by the Federal Government to assist the 

States in developing that data is proving very useful in identifying 

those places on the map where conflicts are likely to be most acute 

and, conversely, those places on the map where conflicts are likely 

to be least likely. So I think that is a good way to further your goal 

of having State and Federal cooperation. 

Mr. LANKFORD. Right. And you are fully aware, once we get into 

the western United States, my State included, that the push is on 

in many areas to be able to protect where we are now. And it 

leaves the implication that right where we are in the level of development we are is the right level of development. And we are pushing through habitat. And it has the feeling in the western part of 

the United States of, ‘‘We don’t want you to grow. You are going 

to stay right where you are.’’ 

Now, I understand the words are that we can coexist, but when 

the focus is on habitat erosion rather than population counts, it 

sends the clear signal: Not developing energy in this area, not developing wind power in this area, not developing homes or cities or 

46 

roads in this area. Sends a pretty clear signal, you have to stay at 

this spot. And that becomes a concern, when the focus is habitat 

rather than population. 

A couple things. Is there a way to be able to move to an arbitration system for the citizen petitions to expedite this process, to be 

able to help clear the deck? If you have a high number of these 

that don’t end up going through the rest of the process that are 

cleared, is there a faster route to do this and be more efficient for 

the services to take care of this? 

Mr. BEAN. That is an idea I have not heard discussed, so I don’t 

have—I haven’t given it much thought, but I will be happy to give 

it some thought. 

Mr. LANKFORD. Okay. 

Mr. Rauch? 

Mr. RAUCH. I have not thought about it either. And as I mentioned I think earlier, we do have listing petitions, not merely as 

many as Fish and Wildlife Service. So we believe we are able to 

perform our work and stay in general on schedule. We don’t have 

the backlog that they have had. 

Mr. LANKFORD. Right. Because there is nothing to stop a group 

coming to you with 2,000 species in a petition at this point. I mean, 

the continual ramp-up is larger and larger, which becomes more irrational and unachievable. There has to be a way to be able to 

manage and to be able to mitigate this in the days ahead. 

Last piece on it I want to—I have a couple other quick notes on 

it. The issue of data versus best professional judgment, how do we 

manage between the two to be able to create the maximum amount 

of trust? 

Because, again, if individuals and businesses and cities and 

States and tribes are going to spend millions of dollars in mitigation and they don’t have data on it, they have someone’s best professional judgment, and it may be species where there is a very 

small group of individuals that are specialists in that species, how 

do we manage that to be able to create trust? 

Mr. BEAN. Mr. Chairman, I think that it is rarely the case, and 

is probably never the case, that the Fish and Wildlife Service 

makes decisions just based upon somebody’s opinion, devoid of reference to published studies or other real data. 

As I indicated in an earlier answer, there is often an absence of 

definitive data on many of the questions the Service has to answer, 

and, thus, it has to use judgment in how its interprets or applies 

the information and data that exists. But the Service takes seriously the statutory command to base its decisions on the best available scientific information and tries to do that consistently. 

Mr. LANKFORD. Yeah. That is the grand challenge again. When 

you are dealing with a species, when you are dealing with someone 

who has published a paper that no one else has tracked before, and 

it, again, assumes it used to be higher than what it is now, ‘‘It is 

only this; certainly it was larger than that at some point,’’ no one 

knows. And how do you track that? And now what do we do as a 

reaction to that? 

Again, no one is looking to be able to wipe out a species, but neither are we looking for all of our lives to be turned upsidedown beVerDate Aug 31 2005 14:40 Jun 03, 2014 Jkt 000000 PO 00000 Frm 00050 Fmt 6633 Sfmt 6633 C:\DOCS\87950.TXT APRIL
47 

cause someone wrote a research paper that was published. We 

have to be able to find a balance between those two. 

Mr. BEAN. Certainly. 

May I just offer the observation that, while it is obviously impossible to say what the population may have been at some point in 

the past, it is possible to determine that a species was present in 

certain places in the past where it is no longer present today. We 

have that from collection records, from museum records, from accounts from explorers and others. So it is possible to document loss 

of range for many of these species. 

Mr. LANKFORD. Right. And we also have a documentation of loss 

of range for dinosaurs that we can document, as well, that was not 

due to human activity or whatever it may be. And so species come 

and go; we are very aware of that. And we have every obligation 

to be able to protect a species. As an Evangelical Christian myself, 

I have this overwhelming sense that we have a responsibility to 

take care of what God has given us. But it is also a challenge to 

be able to do that, in an economic sense, that also allows for the 

movement of people to be able to process through that. 

There is a statement and there are several questions that I wanted to be able to put in the record. I think both of you all may have 

heard of a group called the U.S. Chamber of Commerce. They occasionally have disagreements on some of the ESA applications. I 

would like to ask unanimous consent, which I am pretty confident 

I will get, to be able to put this into the record, as well, and some 

of the other questions and thoughts that they had as a part of this. 

Mr. LANKFORD. Final statements that either of you gentlemen 

would like to make, or observations or ideas? 

Mr. BEAN. Just thank you for your interest. As you indicated 

when I talked to you yesterday, you wanted to have, you know, an 

honest, candid discussion, and I think we have had that. So I appreciate that very much. 

Mr. LANKFORD. You bet. Thank you. 

Mr. Rauch? 

Mr. RAUCH. Thank you for the opportunity to come here and 

share our views with you. 

Mr. LANKFORD. Thank you. 

Obviously, this conversation is not done. We will continue to 

work on solutions and how we resolve some issues to be able to 

make this as clear as possible in the days ahead. 

With that, this hearing is adjourned. 

[Whereupon, at 4:31 p.m., the subcommittee was adjourned.] 

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