39–006 

113TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 113–539 

STATE, TRIBAL, AND LOCAL SPECIES TRANSPARENCY 

AND RECOVERY ACT 

JULY 17, 2014.—Committed to the Committee of the Whole House on the State of 

the Union and ordered to be printed 

Mr. HASTINGS of Washington, from the Committee on Natural 

Resources, submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS 

[To accompany H.R. 4317] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Natural Resources, to whom was referred the 

bill (H.R. 4317) to amend the Endangered Species Act of 1973 to 

require disclosure to States of the basis of determinations under 

such Act, to ensure use of information provided by State, tribal, 

and county governments in decisionmaking under such Act, and for 

other purposes, having considered the same, report favorably thereon without amendment and recommend that the bill do pass. 

PURPOSE OF THE BILL

The purpose of H.R. 4317 is to amend the Endangered Species 

Act of 1973 to require disclosure to States of the basis of determinations under such Act, and to ensure use of information provided by State, tribal, and county governments in decisionmaking 

under such Act. 

BACKGROUND AND NEED FOR LEGISLATION

H.R. 4317 is intended to ensure the federal government adheres 

to statutory responsibilities to: (1) cooperate with States under the 

Endangered Species Act (ESA), specifically regarding data used in 

listing proposals and regulations; and (2) ensure the best available 

scientific and commercial data used in ESA listing decisions inVerDate Mar 15 2010 00:50 Jul 22, 2014 Jkt 039006 PO 00000 Frm 00001 Fmt 6659 Sfmt 6602 E:\HR\OC\HR539.XXX HR539

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cludes data made available to the federal government from affected 

States, local county governments and tribal governments. 

The bill addresses two basic, but important goals. First, it would 

require the federal government to adhere to the clear language of 

section 6(a) of the ESA, which provides that: ‘‘in carrying out the 

program authorized by the Act, the Secretary shall cooperate to the 

maximum extent practicable with the States’’ (emphasis added). 

In testimony before the Committee on Natural Resources, States 

have expressed concerns that the federal agencies’ handling of species listing petitions has not been conducive to State participation, 

that the federal agencies often duplicate analyses and conservation 

plans already generated by States, and that data provided by the 

States is sometimes ignored by the federal agencies in ESA activities. 

ESA listing and delisting decisions typically result in transferring the jurisdiction for management of a species between State 

and federal authority. States have argued that full State involvement is needed, since the States either were the species managers 

prior to a listing decision or will become the managers after a 

delisting decision. States also have extensive experience and expertise in science-based wildlife management principles and the application of public policy in managing wildlife as a public asset. States 

should be afforded every opportunity to provide input to laws, regulations and policies in implementing the ESA before they are final. 

In current potential listings evolving out of the Department of 

the Interior’s 2011 multi-district litigation settlements with the 

Center for Biological Diversity and WildEarth Guardians, many 

States continue to face regulatory uncertainty, despite significant 

State investment and collaborative partnerships with private landowners and other entities to conserve species and prevent the need 

for a federal ESA listing. 

For example, the Bureau of Land Management (BLM), the U.S. 

Forest Service and the Fish and Wildlife Service (FWS) are in the 

midst of revising federal resource management plans affecting millions of acres of lands in western states in anticipation of a 2015 

listing determination deadline for the Greater Sage Grouse imposed by the 2011 settlement. The Committee has received extensive testimony during multiple hearings about federal agencies’ reliance on the National Technical Team (NTT) Report. Issued in 

2011, the NTT Report has been criticized for imposing ‘‘one-sizefits-all’’ regulatory prescriptions, including invalid assumptions, 

mischaracterizing and misrepresenting sources, omitting existing 

programs benefitting sage grouse, and injecting personal opinion 

over science. The NTT Report has been used to justify four-mile 

buffers around areas identified as necessary for breeding sage 

grouse, known as ‘‘leks.’’ This standard could shut down access to 

large swaths of economic, energy and recreational activities in the 

western United States. States dispute the data and information in 

the report. Further, in 2012, the FWS issued a ‘‘Conservation Objectives Team’’ Report which has also drawn criticism for omitting 

independent data/analyses on the causes of decline for the sage 

grouse, and for failing to use the most current state and local 

maps. 

In December 2010, the FWS proposed to list the Dunes Sagebrush Lizard as endangered under the ESA. Texas officials raised 


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concerns that the FWS’ listing proposal depended on scant, outdated data from the 1960s to determine the lizard’s known distribution, and assumed that the lizard was ‘‘locally extinct’’ in certain areas where the State of Texas had verified it was present. 

After further research and data surveys conducted in cooperation 

with States, local governments and other affected stakeholders, the 

FWS reversed its earlier determination to list the Dunes Sagebrush 

Lizard as endangered in June 2012. As a result, the lizard continues to co-exist with State economic activities in an area that 

produces 14% of the nation’s oil, and 47,000 jobs. Earlier this year, despite over $50 million spent for conservation, 

research and other activities, and more than 10 million acres enrolled, and the FWS’ ‘‘endorsement’’ of a five-state plan in Texas, 

Oklahoma, Kansas, New Mexico and Colorado, the FWS finalized 

a federal listing of the Lesser Prairie Chicken under the ESA. 

These States, which clearly have proven their intent to make Lesser Prairie Chicken conservation a priority, should have a greater 

opportunity to demonstrate the success of their activities rather 

than be forced into a federal listing by an arbitrary, court-settlement deadline negotiated without their approval by the FWS. 

Second, H.R. 4317 would ensure that the best scientific and commercial data available to the Secretaries of the Interior or Commerce and used by them in ESA listing decisions includes data 

from those closest to the ground and most impacted by the listings: 

the States, local governments and tribes. The Natural Resources 

Committee, through State, local and tribal testimony, has received 

several examples of the federal agencies not including data or information in decisions where they are required to utilize the ‘‘best 

scientific and commercial data available.’’ 

For example, in 2012, the FWS issued a revised recovery plan for 

the Utah Prairie Dog which required that prairie dogs located only 

on federal lands would be counted for purposes of recovery. Two 

Utah counties and private landowners have been unable to control 

an influx of prairie dogs that have destroyed private lands, and 

have requested the FWS to count prairie dogs on State, local, and 

private lands for recovery, which the FWS has refused or ignored. 

This FWS interpretation has created significant costs for rural electric cooperatives to maneuver transmission poles around federal 

lands that have been designated for Utah Prairie Dogs. 

In 2008, the National Oceanic and Atmospheric Administration’s 

National Marine Fisheries Service (NMFS) concluded in ESA biological opinions that 28 listed salmon populations would be ‘‘jeopardized’’ by continued use of crop protection products long registered and labeled by the EPA. NMFS’ requirements included 

nearly a quarter-mile buffer around water bodies affecting as much 

as 60 percent of agricultural lands in Washington state alone, 

which, according to an estimate by the U.S. Department of Agriculture, could result in lost revenues of over $580 million. State agriculture agencies expressed concerns that NMFS failed to utilize 

current state data and information and did not allow transparency 

and review to ensure use of best available scientific and commercial data. 

In 2012, Garfield County, Colorado’s Board of Commissioners 

questioned the accuracy of a map developed by the FWS for Greater Sage Grouse habitat in Colorado after FWS refused the County’s 


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request to verify data used by the FWS in its NTT report. In more 

than one example, a court order has been required to enforce Freedom of Information Act requests to obtain the data from federal officials. 

Tribal governments also play a significant role in species conservation and recovery activities, and some tribes have testified 

about concerns that their own data and science are not being 

factored into ESA listing decisions. In the Columbia and Snake 

Rivers, where NMFS listed 13 sub-populations of salmon as threatened or endangered under ESA, tribal hatchery managers have 

successfully utilized hatchery supplementation to enhance salmon 

and steelhead recovery for several years. The Snake River fall chinook run has rebounded to record levels due in large part to the 

Nez Perce and Umatilla Tribe hatchery programs (expanding from 

500 adult fish in 1975 to more than 41,000 in 2010). NMFS has 

refused tribal requests that the agency factor its scientific data 

highlighting the positive benefits of hatchery fish in its listing determinations for recovering salmon in the Northwest. 

H.R. 4317 does not favor one science over another or require that 

multiple county or State’s submission of conflicting data be deemed 

‘‘best available’’ to the exclusion of another. The Secretaries of the 

Interior or Commerce would continue to have final discretion on 

what constitutes ‘‘best available scientific and commercial data.’’ 

However, H.R. 4317 would ensure that they incorporate and provide proper respect for data provided to them by States, tribes and 

local governments. 

COMMITTEE ACTION

H.R. 4317 was introduced on March 27, 2014, by Congressman 

Randy Neugebauer (R–TX). The bill was referred to the Committee 

on Natural Resources. On April 8, 2014, the Committee held a 

hearing on the bill, and on April 30, 2014, the Committee met to 

consider the bill. Congressman Jared Huffman (D–CA) offered an 

amendment designated .001 to the bill; the amendment was not 

adopted by voice vote. No further amendments were offered, and 

the bill was then adopted and ordered favorably reported to the 

House of Representatives by a rollcall vote of 26 to 16, as follows: 


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COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of rule XIII 

of the Rules of the House of Representatives, the Committee on 

Natural Resources’ oversight findings and recommendations are reflected in the body of this report. 

COMPLIANCE WITH HOUSE RULE XIII 

1. Cost of Legislation. Clause 3(d)(1) of rule XIII of the Rules of 

the House of Representatives requires an estimate and a comparison by the Committee of the costs which would be incurred in carrying out this bill. However, clause 3(d)(2)(B) of that rule provides 

that this requirement does not apply when the Committee has included in its report a timely submitted cost estimate of the bill prepared by the Director of the Congressional Budget Office under section 402 of the Congressional Budget Act of 1974. Under clause 

3(c)(3) of rule XIII of the Rules of the House of Representatives and 

section 403 of the Congressional Budget Act of 1974, the Committee has received the following cost estimate for this bill from the 

Director of the Congressional Budget Office: 

H.R. 4317—State, Tribal, and Local Species Transparency and Recovery Act 

H.R. 4317 would require the Secretaries of the Interior and Commerce to make data used as the basis for each listing determination under the Endangered Species Act (ESA) available to states. 

Determinations under the ESA are made on the basis of the best 

scientific and commercial data available. H.R. 4317 would clarify 

that such data includes data provided by state, local, and tribal 

governments. Based on information provided by the affected agencies, CBO estimates that implementing the legislation would have 

no significant effect on the federal budget. Enacting the bill would 

not affect direct spending or revenues; therefore, pay-as-you-go procedures do not apply. 

H.R. 4317 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

not affect the budgets of state, local, or tribal governments. 

The CBO staff contact for this estimate is Jeff LaFave. The estimate was approved by Theresa Gullo, Deputy Assistant Director 

for Budget Analysis. 

2. Section 308(a) of Congressional Budget Act. As required by 

clause 3(c)(2) of rule XIII of the Rules of the House of Representatives and section 308(a) of the Congressional Budget Act of 1974, 

this bill does not contain any new budget authority, spending authority, credit authority, or an increase or decrease in revenues or 

tax expenditures. Based on information provided by the affected 

agencies, CBO estimates that implementing the legislation would 

have no significant effect on the federal budget. 

3. General Performance Goals and Objectives. As required by 

clause 3(c)(4) of rule XIII, the general performance goal or objective 

of this bill is to amend the Endangered Species Act of 1973 to require disclosure to States of the basis of determinations under such 

Act, and to ensure use of information provided by State, tribal, and 

county governments in decisionmaking under such Act. 


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EARMARK STATEMENT

This bill does not contain any Congressional earmarks, limited 

tax benefits, or limited tariff benefits as defined under clause 9(e), 

9(f), and 9(g) of rule XXI of the Rules of the House of Representatives. 

COMPLIANCE WITH PUBLIC LAW 104–4 

This bill contains no unfunded mandates. 

COMPLIANCE WITH H. RES. 5 

Directed Rule Making. The Chairman does not believe that this 

bill directs any executive branch official to conduct any specific 

rule-making proceedings. 

Duplication of Existing Programs. This bill does not establish or 

reauthorize a program of the federal government known to be duplicative of another program. Such program was not included in 

any report from the Government Accountability Office to Congress 

pursuant to section 21 of Public Law 111–139 or identified in the 

most recent Catalog of Federal Domestic Assistance published pursuant to the Federal Program Information Act (Public Law 95–220, 

as amended by Public Law 98–169) as relating to other programs. 

PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

This bill is not intended to preempt any State, local or tribal law. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic, 

existing law in which no change is proposed is shown in roman): 

ENDANGERED SPECIES ACT OF 1973 

* * * * * * * 

DEFINITIONS

SEC. 3. For the purposes of this Act— 

(1) * * * 

(2) The term ‘‘best scientific and commercial data available’’ includes all such data submitted by a State, tribal, or county government. 

ø(2)¿ (3) The term ‘‘commercial activity’’ means all activities of 

industry and trade, including, but not limited to, the buying or selling of commodities and activities conducted for the purpose of facilitating such buying and selling: Provided, however, That it does 

not include exhibitions of commodities by museums or similar cultural or historical organizations. 

ø(3)¿ (4) The terms ‘‘conserve,’’ ‘‘conserving,’’ and ‘‘conservation’’ 

mean to use and the use of all methods and procedures which are 

necessary to bring any endangered species or threatened species to 

the point at which the measures provided pursuant to this Act are 

no longer necessary. Such methods and procedures include, but are 


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not limited to, all activities associated with scientific resources 

management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may 

include regulated taking. 

ø(4)¿ (5) The term ‘‘Convention’’ means the Convention on International Trade in Endangered Species of Wild Fauna and Flora, 

signed on March 3, 1973, and the appendices thereto. 

ø(5)¿ (6)(A) * * * 

* * * * * * * 

ø(6)¿ (7) The term ‘‘endangered species’’ means any species which 

is in danger of extinction throughout all or a significant portion of 

its range other than a species of the Class Insecta determined by 

the Secretary to constitute a pest whose protection under the provisions of this Act would present an overwhelming and overriding 

risk to man. 

ø(7)¿ (8) The term ‘‘Federal agency’’ means any department, 

agency, or instrumentality of the United States. 

ø(8)¿ (9) The term ‘‘fish or wildlife’’ means any member of the 

animal kingdom, including without limitation any mammal, fish, 

bird (including any migratory, nonmigratory, or endangered bird 

for which protection is also afforded by treaty or other international agreement), amphibian, reptile, mollusk, crustacean, arthropod or other invertebrate, and includes any part, product, egg, 

or offspring thereof, or the dead body or parts thereof. 

ø(9)¿ (10) The term ‘‘foreign commerce’’ includes, among other 

things, any transaction— 

(A) * * * 

* * * * * * * 

ø(10)¿ (11) The term ‘‘import’’ means to land on, bring into, or 

introduce into or attempt to land on, bring into, or introduce into, 

any place subject to the jurisdiction of the United States, whether 

or not such landing, bringing, or introduction constitutes an importation within the meaning of the customs laws of the United 

States. 

ø(12)¿ (12) The term ‘‘permit or license applicant’’ means, when 

used with respect to an action of a Federal agency for which exemption is sought under section 7, any person whose application to 

such agency for a permit or license has been denied primarily because of the application of section 7(a) to such agency action. 

ø(13)¿ (13) The term ‘‘person’’ means an individual, corporation, 

partnership, trust, association, or any other private entity; or any 

officer, employee, agent, department, or instrumentality of the Federal Government, of any State, municipality, or political subdivision of a State, or of any foreign government; any State, municipality, or political subdivision of a State; or any other entity subject 

to the jurisdiction of the United States. 

ø(14)¿ (14) The term ‘‘plant’’ means any member of the plant 

kingdom, including seeds, roots and other parts thereof. 

ø(15)¿ (15) The term ‘‘Secretary’’ means, except as otherwise 

herein provided, the Secretary of the Interior or the Secretary of 

Commerce as program responsibilities are vested pursuant to the 

provisions of Reorganization Plan Numbered 4 of 1970; except that 


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with respect to the enforcement of the provisions of this Act and 

the Convention which pertain to the importation or exportation of 

terrestrial plants, the term also means the Secretary of Agriculture. 

ø(16)¿ (16) The term ‘‘species’’ includes any subspecies of fish or 

wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature. 

ø(17)¿ (17) The term ‘‘State’’ means any of the several States, the 

District of Columbia, the Commonwealth of Puerto Rico, American 

Samoa, the Virgin Islands, Guam, and the Trust Territory of the 

Pacific Islands. 

ø(18)¿ (18) The term ‘‘State agency’’ means any State agency, department, board, commission, or other governmental entity which 

is responsible for the management and conservation of fish, plant, 

or wildlife resources within a State. 

ø(19)¿ (19) The term ‘‘take’’ means to harass, harm, pursue, 

hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to 

engage in any such conduct. 

ø(20)¿ (20) The term ‘‘threatened species’’ means any species 

which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. 

ø(21)¿ (21) The term ‘‘United States,’’ when used in a geographical context, includes all States. 

* * * * * * * 

COOPERATION WITH THE STATES

SEC. 6. (a) GENERAL.—(1) In carrying out the program authorized 

by this Act, the Secretary shall cooperate to the maximum extent 

practicable with the States. øSuch cooperation shall include¿ 

(2) Such cooperation shall include— 

(A) before making a determination under section 4(a), providing to States affected by such determination all data that is 

the basis of the determination; and 

(B) consultation with the States concerned before acquiring 

any land or water, or interest therein, for the purpose of conserving any endangered species or threatened species. 

* * * * * * * 

INTERAGENCY COOPERATION

SEC. 7. (a) * * * 

* * * * * * * 

(n) JUDICIAL REVIEW.—Any person, as defined by øsection 3(13)¿ 

section 3(14) of this Act, may obtain judicial review, under chapter 

7 of title 5 of the United States Code, of any decision of the Endangered Species Committee under subsection (h) in the United States 

Court of Appeals for (1) any circuit wherein the agency action concerned will be, or is being, carried out, or (2) in any case in which 

the agency action will be, or is being, carried out outside of any circuit, the District of Columbia, by filing in such court within 90 

days after the date of issuance of the decision, a written petition 

for review. A copy of such petition shall be transmitted by the clerk 

of the court to the Committee and the Committee shall file in the 

court the record in the proceeding, as provided in section 2112, of 


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title 28, United States Code. Attorneys designated by the Endangered Species Committee may appear for, and represent the Committee in any action for review under this subsection. 

* * * * * * * 


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(11) 

DISSENTING VIEWS 

H.R. 4317 decrees that all data submitted by states, tribes or 

local governments be considered the ‘‘best scientific data available.’’ 

The bill would also require that all data that is the basis of a listing determination under the Endangered Species Act be provided 

to any state affected by the listing prior to the final determination 

being made. 

These provisions are troubling on a number of levels. Forcing 

Federal agencies to accept as the best available science anything 

that states, localities or tribes submit is both preposterous and impractical. The lack of quality control would invite the submission 

of incomplete, shoddy, or falsified information in support of political 

positions, not scientific realities. 

Further, H.R. 4317 opens up a whole new avenue for litigation 

under the ESA, particularly in cases where states, localities, or 

tribes submit conflicting data. There is no scientific basis whatsoever for Congress to establish any particular source of data as 

being the ‘‘best’’ when in fact it may not be. Agency decision-makers must constantly evaluate data from all sources to ensure they 

are making decisions based on the best information available, and 

we should encourage them to continue doing so. 

At Committee markup, the Majority argued that the bill would 

only require Federal agencies to ‘‘consider’’ this data as the best 

available, not mandate it. Unfortunately, an honest reading of H.R. 

4317 in the context of the ESA does not support such an argument. 

If we are to believe the Majority’s stated intent, we find it strange 

that they rejected our amendment to explicitly require this data to 

be considered, rather than automatically deemed to be the best, 

sight unseen. 

By dictating what constitutes sound science based on its source 

rather than its merit, this bill creates more problems than it solves. 

The decision on whether or not any particular study or data set has 

scientific merit with respect to an individual species listing should 

be made in the context of on-the-ground conservation work, not by 

politicians in Washington, DC. For these reasons, we oppose H.R. 

4317 as reported. 

PETER DEFAZIO, 

Ranking Member, Committee 

on Natural Resources. 

RAU ́ L M. GRIJALVA. 

JARED HUFFMAN. 

ALAN S. LOWENTHAL. 

KATHERINE M. CLARK. 

MATT CARTWRIGHT. 

RUSH HOLT. 

GRACE F. NAPOLITANO. 


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GREGORIO KILILI CAMACHO

SABLAN. ENI F. H. FALEOMAVAEGA. PEDRO R. PIERLUISI. 

Æ 


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