ENDANGERED SPECIES ACT -RIVERSIDE, CA 

OVERSIGHT HEARING 

BEFORE THE 

TASK FORCE ON ENDANGERED 

SPECIES ACT 

OF THE 

COMMITTEE ON RESOURCES 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTH CONGRESS 

FIRST SESSION 

ON 

THE IMPACT OF THE ENDANGERED SPECIES ACT ON 

THE AREA AROUND RIVERSIDE, CALIFORNIA 

91~16cc .. 

APRIL 26, 1995-RIVERSIDE, CA 

Serial No. 104-11 

Printed for the use of the Committee on Resources 

U.S. GOVERNMENT PRINTING OFFICE 

WASHINGTON : 1995 

For sale by the U.S. Government Printing Office 

Superintendent of Documents, Congressional Sales Otlice, Washington. DC 20402 

ISBN 0-16-047379-9 
COMMITTEE ON RESOURCES 

DON YOUNG, Alaska, Chair17Uln 

JAMES V. HANSEN, Utah 

JIM SAXTON, New Jersey 

ELTON GALLEGLY, California 

JOHN J. DUNCAN, JR., Tennessee 

JOEL HEFLEY, Colorado 

JOHN T. DOOLITTLE, California 

WAYNE ALLARD, Colorado 

WAYNE T. GILCHREST, Maryland 

KEN CALVERT, California 

RICHARD W. POMBO, California 

PETER G. TORKILDSEN, Massachusetts 

J.D. HAYWORTH, Arizona 

FRANK A. CREMEANS, Ohio 

BARBARA CUBIN, Wyoming 

WES COOLEY, Oregon 

HELEN CHENOWETH, Idaho 

LINDA SMITH, Washington 

GEORGE P. RADANOVICH, California 

WALTER B. JONES, JR., North Carolina 

WILLIAM M. (MAC) THORNBERRY, Tens 

RICHARD (DOC) HASTINGS, Washington 

JACK METCALF, Washington 

JAMES B. LONGLEY, JR., Maine 

JOHN B. SHADEGG, Arizona 

JOHN E. ENSIGN, Nevada 

GEORGE MILLER, California 

NICK J. RAHALL II, West Virginia 

BRUCE F. VENTO, Minnesota 

DALE E. KILDEE, Michigan 

PAT WILLIAMS, Montana 

SAM GEJDENSON, Connecticut 

BILL RICHARDSON, New Mexico 

PETER A. DEFAZIO, Oregon 

ENI F.H. FALEOMAVAEGA, American 

Samoa 

TIM JOHNSON, South Dakota 

NEIL ABERCROMBIE, Hawaii 

GERRY E. STUDDS, Massachusetts 

W.J. (BILLY) TAUZIN, Louisiana 

SOLOMON P. ORTIZ, Texas 

OWEN B. PICKETT, Virginia 

FRANK PALLONE, JR., New Jersey 

CALVIN M. DOOLEY, Californi11 

CARLOS A. ROMERO-BARCELO, Puerto 

Rico 

MAURICE D. HINCHEY, New York 

ROBERT A. UNDERWOOD, Guam 

SAM FARR, California 

DANIEL VAL KISH, Chief of Staff 

DAVID DYE, Chief Counsel CHRISTINE KENNEDY, Chief Clerk/Administrator 

JOHN LAWRENCE, Democratic Staff Director 

TASK FORCE ON ENDANGERED SPECIES ACT 

RICHARD POMBO, California, ChairTTUln 

WAYNE T. GILCHREST, Maryland GERRY E. STUDDS, Massachusetts 

JOHN T. DOOLITTLE, California ENI F.H. FALEOMAVAEGA, Am. Samoa 

J.D. HAYWORTH, Arizona CALVIN M. DOOLEY, California 

BARBARA CUBIN, Wyoming MAURICE D. HINCHEY, New York 

WES COOLEY, Oregon W.J. (BILLY) TAUZIN, Louisiana 

HELEN CHENOWETH, Idaho BRUCE F. VENTO, Minnesota 

LINDA SMITH, Washington SOLOMON P. ORTIZ, Texas 

GEORGE P. RADANOVICH, California 

WILLIAM M.(MAC) THORNBERRY, Texas 

RICHARD (DOC) HASTINGS, Washington 

JACK METCALF, Washington 

(II) 
CONTENTS 

~t~~~~~e~1 ~~b;~~: 1995 .................................................................................. . 

Bilbray, Hon. Brian, a U.S. Representative from California .............. .......... 7, Calvert, Hon. Ken, a U.S. Representative from California ......................... .. Chenoweth, Hon. Helen, a U.S. Representative from Idaho ....................... .. Faleomavaega, Hon. Eni, a U.S. Delegate from American Samoa .............. . Lewis, Hon. Jerry, a U.S. Representative from California ......................... .. Pombo, Hon. Richard, a U.S. Representative from California, and Chairman, Task Force on Endangered Species Act ............................................ . Statement of Witnesses: 

Ahrens, Mike, Hemet, CA ................. .............................................................. . Prepared statement ................................................................................. .. Bell, John, businessman, Temecula, CA ............................................... ......... . Ceniceros, Kay, Chairman, Riverside County Board of Commissioners ..... . Prepared statement .................................................................................. . Domenigoni, Cindy, farmer, Winchester, CA ............................................... .. Eaves, Jerry, Fifth District Supervisor, San Bernardino County ............... . Prepared statement ..................... ............................................................. . Edwards, Ken, Riverside County Flood Control and Water Conservation 

District .................... ......................... ....... ................. ........ .................. ........... . Prepared statement .......................... .............................. .......................... . Fowler, Judy, President, San Diego County Farm Bureau .......................... . Harris, Mike, Chief, Riverside County Fire Department ...... ...................... .. Klippstein, Leeona, San Bernardino Sage Friends, Spirit of the Sage 

Council and the National ESAIHCP Network .......................................... .. Prepared statement .................................................................................. . McCrohan, Peter R., Gentry Experimental Farm, Murrieta, CA ............... .. McLaughlin, Mike, San Diego Association of Governments ....................... .. Prepared statement .................................................................................. . Messersmith, Mark, Vice President, Krieger & Stewart, Inc., Riverside, 

CA ........................................................................................ .......................... . Minnich, Richard, Associate Professor of Earth Sciences, University of 

California ............................................................................ .......................... . Powers, Carolyn, Tijuana River Valley Task Force ...................................... . Prepared statement .................................................................................. . Thornton, Robert, Nossaman, Guthner, Knox & Elliot, Irvine, CA ........... .. Prepared statement ............... .......................................................... ........ . . Woodward, Scott, Building Industry Association of Southern California .. .. Appendix to statement ............................................................................. . Additional material supplied: Submissions for the record (names of supplier) ............................................ . 

(III) 

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ENDANGERED SPECIES ACT-RIVERSIDE, CA 

WEDNESDAY, APRIL 26, 1995 

HOUSE OF REPRESENTATIVES 

TASK FORCE ON ENDANGERED SPECIES ACT, 

COMMITTEE ON RESOURCES, 

Riverside, CA. 

The task force met, pursuant to call, at 10:08 a.m., in the Riverside Convention Center, Riverside, California, Hon. Richard W. 

Pombo (Chairman of the Task Force) presiding. 

STATEMENT OF HON. RICHARD POMBO, A U.S. REPRESENTATIVE FROM CALIFORNIA, AND CHAIRMAN, TASK FORCE ON 

ENDANGERED SPECIES ACT 

Mr. POMBO. Good morning. The Task Force on Endangered Spe- cies Act hearing will come to order. I have a prefared statement 

that I will ask to be included in the record and will just make 

a brief opening statement. 

I appreciate a great deal all of you being here today. When we 

sat down several months ago and mapped out the idea behind 

doing a number of field hearings on the Endangered Species Act, 

this is probably exactly what we had in mind-the op:2_ortunity to 

go out to an area that has had some impact from the Endangered Species Act, that has moved along the process to some degree, and 

also, to have the chance to hear from a number of people who live 

within that community. I also think the fact that we have had such 

a great turnout here this morning owes to the fact that this is an 

important issue and that a number of people took their time and 

their effort to tum out for this hearing shows how important it is 

in this area, and I appreciate all of you for taking the time to be 

here this morning. 

As we go through this process of looking at the Endangered Spe- cies Act, reauthorizing the Endangered Species Act, I think one of 

the most important things that we can do is to listen to the people who have been affected by it in one way or another. And I think 

that the process of holding field hearings across the country has 

worked to the degree that we have heard so far from over 100 witnesses who have been affected by the Act, who have ideas for 

changes or reforms, who have ideas for parts of the Act that are 

working well that should be maintained. And I think as we work 

through this process, and hopefully come up with an Endangered Species Act that is going to be supported by the people, that is 

going to work in the real world, that this process has played an important role in that. 

(1) 
2 

I would like to thank my fellow congressmen, men and women, 

for taking their time away from their districts, away from their 

schedules, away from their families to be with me here today in 

Riverside. 

I would like at this time to recognize the ranking Democrat who 

is here with us this morning, Mr. Faleomavaega, for his opening 

comments. 

[The statement of Mr. Pombo follows:] 

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

AND CHAIRMAN, TASK FORCE ON ENDANGERED SPECIES ACT 

Good morning, ladies and gentlemen. It is good to be in Riverside today, and especially good to be back in California after the fast-paced first hundred days of the 

104th Congress. This is the sixth in a series of field hearings on the direction of our national policy on endangered species. 

I would like to welcome all Members, witnesses and guests to this morning's hearing. I am glad that our Resources Chairman, Don Young, has asked that these hearings take place outside Washington, for it is in Riverside-not our nation's Capitolthat the outcome of this Congress' efforts to reform the Endangered Species Act will 

have lasting consequences on both species and people. 

As you know, California is home to more than 30 million Americans. Under the 

Endangered Species Act, it is also home to 1,100 "candidate" species. With such 

large numbers of both people and endangered species, it is inevitable that both have 

increasingly come into contact with one another in California's growing commu- nities. Nowhere is this more true than right here in Riverside, which has agreed 

to develop a Habitat Conservation Plan (HCP) under Section 10 of the Endangered 

Species Act. Many other southern California communities have turned to HCP's as an effort on their part to perform "species friendly planning." As these communities are discovering, however, HCP's are often not good enough for the bureaucrats in 

charge of enforcing this well intended, but often misused law. 

The current Endangered Species Act is being implemented without consideration 

of the social and economic impacts that listings create. In many cases, such as the 

1992 Winchester fires, it is also not being implemented with common sense. The measures taken to protect the kangaroo rat undoubtedly contributed to the fires, en- dangering the lives of the residents of this small community. While thankfully no one was killed, many residents were left homeless. Ironically, so too were the kangaroo rats. Studies prove that the sage habitat that the Fish and Wildlife Service was protecting in this area was what fed the flames of this devastating wildfire. We need to change the Endangered Species Act to provide-in law-a measure of certainty for communities that agree to multispecies planning. We also need to 

provide more flexibility in this law, to prevent once-and-for-all the possibility of en- dangering human lives to protect species. 

As a fourth generation rancher from Tracy, I understand the importance of engaging in a new dialog on how to protect threatened or endangered species. My con- stituents are suffering from the same problems that folks must live with right here 

in Riverside. From the delhi sands-flower loving fly to the kangaroo rat, the citizens 

of Riverside have paid a heavy price for endangered species protection. 

Many of my constituents are frustrated and angry about the law that allows government bureaucrats to put the protection of a rat, or fairy shrimp-or any other 

species-above the lives and safety of human beings. They are frustrated because 

they believe that the balance of wildlife protection has swung too far away from the 

reality of meetin~ the needs of the people of this country for food, clothing, housing, 

fuel, and other VItal public goods and services. 

They are also angry that they are being forced to r·ve up their private property 

rights without any regards to the Fifth Amendment. firmly believe that when the 

government places restrictions on a landowner, as it often does in the name of the 

Endangered Species Act, it has the responsibility to ensure that such laws are equitable and that the public benefits derived from them are paid for by the entire public, not by a select few whose only crime is that they own private property. 

As farmers and ranchers, their entire lives have been shaped by the traditions 

and values associated with the proper stewardship of the land. Yet they are considered to be the bad guys by government bureaucrats who think that only they know 

how to best protect endangered species. 

The people of the 11th Congressional district sent me to Congress to bring some sanity and reason back to the way in which we manage our natural resources-to 
3 

search for a new equilibrium between conserving the land and meeting the needs 

and rights of people. As we conduct these hearings around the country, we want 

to look at the true impacts and costs involved in endangered species protection. 

With your input, the 104th Congress will pass an Endangered Species Act that re- places the regulatory nightmare that this law has become with an incentive based 

approach towards the protection of species. By providing incentives, and not threats, 

the American people will find ways to conserve our biological resources without the 

heavy hand of a central bureaucracy. That, I firmly believe, is how best to save 

threatened or endangered species. 

The job of this task force is to bring together the information that will lead us to good public policy. We hope that the witnesses we will hear from today and over the course of the next two weeks will help us to make the best policy possible for 

achieving both conservation of our resources and compassion for our people. Thank 

you all very much for contributing to this process. 

STATEMENT OF HON. ENI FALEOMAVAEGA, A U.S. DELEGATE 

FROM AMERICAN SAMOA 

Mr. FALEOMAVAEGA. Thank you, Mr. Chairman. I feel like an endangered species amongst my colleagues. 

I certainly would like to say my commendations to Chairman 

Don Young for taking this initiative. Certainly this is a new approach that the Congress is taking by establishing the task force 

system whereby we have this opportunity to certainly reach out to 

the communities, and especially wanting to know from those citizens most affected by the provisions of the Endangered Species Act. 

We are here as part of our ongoing process to re-examine, to review the provisions of the Act, and I might also remind my colleagues, and I am sure it is well known, the fact that this Act has 

been amended almost nine times since it was first enacted in 1966. 

So, I hope that we do not think that this law as written cannot be 

changed. I just want to state that observation to my colleagues and 

to the members of the community here in California. No doubt, Mr. 

Chairman, you agree that those of us on the other side of the aisle 

also want appropriate changes in the law that hopefully will strike 

a balance between our ecosystem, problems affecting the constitutional rights of our citizenry and certainly one that we should take 

the most appropriate action that best fits into the environment that 

we live in. 

Mr. Chairman, from just the sheer numbers alone, it is inevitable 

that we need to re-examine the provisions of this law. This law was 

passed some 30 years ago and at that time our country did not 

have 260 million people to provide for. Thirty years ago, Mr. Chairman, I was on my way to Vietnam, and I do not need to say anything more about that. 

I just would like to offer my personal welcome to our witnesses 

here this morning. I also want to offer my special hello to my colleagues and especially to you, Mr. Chairman, for your initiative 

and your leadership in providing for these hearings. I love the 

great state of California. 

I do not know if some of you have heard of Samoans. I am a 

member of the Samoan tribe. There are not too many of us here 

in the country. I believe the last poll that was taken, there are 

about 10 Samoans that play for the NFL and three made all pro. 

So I think that is not bad for a small community. 
4 

So, Mr. Chairman, I thank you for giving me this opportunity to 

say a few words in our opening comments. I look forward to hearing from our witnesses this morning. 

Mr. POMBO. Thank you. We have been trying to talk Don Young 

into letting us go to your district for a field hearing, but have been 

unsuccessful in that so far. 

Mr. FALEOMAVAEGA. I welcome all of my friends here to come to 

Samoa, but pay for your own ticket. 

[Laughter.] 

Mr. POMBO. I would like at this time to recognize Congressman 

Ken Calvert, who is hosting us here this morning, for his opening 

remarks. 

STATEMENT OF HON. KEN CALVERT, A U.S. REPRESENTATIVE 

FROM CALIFORNIA 

Mr. CALVERT. Thank you, Mr. Chairman. 

I also want to thank Chairman Don Young for allowing us to 

have these Task Force hearings throughout the United States. As 

you can tell by the attendance here today, and from what I understand at all of the Task Force hearings, it has been a full room. 

And a lot of that credit goes to the Chairman for putting together 

this Task Force and for selecting an excellent chairman, Mr. 

Pombo, from our great state of California and getting around the 

country and talking to real people about the effects of the Endangered Species Act. 

I also want to thank Helen Chenoweth. She has been at every 

one of these Task Force hearings, I understand, and that is quite 

a sacrifice. Congresswoman Chenoweth is from the state of Idaho, 

and has been very dedicated in this mission to examine the Endangered Species Act. 

I look forward to the witnesses. I would like to welcome everyone 

to Riverside. It is a wonderful community, and I hope that you will 

have time to look at it a little bit before you leave. But welcome, 

and I look forward to the hearing. 

Thank you very much, Mr. Chairman. 

Mr. POMBO. Thank you. 

Mr. Lewis, do you have an opening statement? 

STATEMENT OF HON. JERRY LEWIS, A U.S. REPRESENTATIVE 

FROM CALIFORNIA 

Mr. LEWIS. Thank you very much, Mr. Chairman, and Ken Calvert for having this hearing in Riverside. Mr. Chairman, I do have 

a few remarks. 

First, I want to express my deep appreciation to you, as well as 

to Don Young and the Committee, for having these hearings which 

are long overdue, I must say. 

Moving away from my prepared statement, I would like to just 

comment to the people in the audience that I see with green shirts, 

especially because they may not know about this background. I 

consider myself to be a rather reasonable environmentalist with 

considerable credentials, as a member of the state legislature. I 

chaired a committee that dealt with the field of air quality and was 

the author of the legislation that created the South Coast Air Quality Management District, which is considered to be the toughest air 
5 

quality district in the country, maybe in the entire world. Above 

and beyond that, I was involved in things like passing legislation 

that we at one time dubbed the Cactus Napper Bill. This legislation essentially strengthened the law whereby we could control people who were coming from out of state to steal cactus plants from 

our desert communities and transfer them to adjacent states. Recently, I was a co-sponsor of legislation that renewed the Clean Air 

Act, strengthening that language that deals with alternative fuels. 

I feel very strongly about the environment. 

Having said that, my district involves most of San Bernardino 

County and all of Inyo County. The Endangered Species Act has 

had a huge impact upon my district. I would like to bring to your 

attention just one piece of that. Out of all the testimony we may 

hear today, this is most disturbing to me. A few years ago we were 

not able to effect the designation as endangered, the Delhi Sands 

Flower-Loving Fly. Please allow me to explain in greater detail 

about that species. 

The Endangered Species Act as applied to the construction of 

San Bernardino County's new medical building in Colton, California; the application of that endangered species designation to this 

flower-loving fly resulted in an expenditure of $3,110,199 to mitigate for the presence of eight Delhi Sands Flower-Loving Flies. The 

extensive mitigation effort resulted in the moving and the redesigning of that medical center to provide for 1.92 acres of protected 

habitat for eight flies believed to be occupying the site. This listing 

resulted in an expenditure of about $413,000 per fly and a one-year 

delay in construction of the medical center. This cost is equivalent 

to the average cost of treatment of 494 in-patients or 23,644 outpatients at that medical center. So we have got a situation where 

we were forced to delay the treatment of human patients because 

we were forced-because some of those people who are relatively 

overzealous in the Bureau of Fish and Wildlife suggesting that this 

expenditure was very important because of the possible presence of 

those eight flies. 

Beyond that, the listing of the Delhi Sands Flower-Loving Fly 

was based on, at best, extremely questionable scientific data. As far 

as I am concerned, this one case is reason enough to provide Congress with the impetus to provide a long overdue fix of ESA. The 

ESA should provide protection to those species such as the bald 

eagle, maybe even my desert tortoise. Protection for those species that truly are in danger and deserve our attention. In the meantime, there is little question that we have seen this pendulum move 

a long ways over the years. 

I was elected to the state legislature in 1968. It was about 1969 

that we learned about the term "environment," one of the more important developments in our society in my judgment. There is little 

doubt that we need to examine where we have been in terms of affecting the environment. We also need to re-examine where we 

have come since 1968. For indeed, the pendulum has swung so far 

that this Act is now under serious, serious review. It is, in my own 

view, important that we review the ESA in no small part, because 

there are some people who would like to throw it out the window. 

But also, we should review it because there are some people who 

actually believe that its implementation has disallowed my chil-
6 

dren, maybe my grandchildren from being able to afford to buy a 

home. 

This discussion is long overdue. I must say, Mr. Chairman, I 

never expected to have such a hearing in Riverside County. I welcome and I look forward to your testimony and am most intrigued 

with legislation that may be the result of this work. 

Thank you. 

Mr. POMBO. Thank you. 

Mrs. Chenoweth, did you have an opening statement? 

STATEMENT OF HON. HELEN CHENOWEm, A U.S. 

REPRESENTATIVE FROM IDAHO 

Ms. CHENOWETH. Well, just very briefly, Mr. Chairman. 

It is wonderful to see the interest. I also reflect what my colleagues have said, that we certainly believe that when the people 

lead the politicians follow. Obviously, we are finally giving the people a chance to say what is on their minds and the direction that 

they want us to take in these fact-finding hearings on the Endangered Species Act. 

I think it is important for the press to realize that in 1973 when 

this Act was passed, it was purposed that it would sunset in 20 

years. In 1993, the prevailing party in the Congress did not have 

the courage to go out and seek the opinions of the people and get 

into reauthorizing the Endangered Species Act. My hat is off to 

Don Young and Richard Pombo for the courage that they have 

taken and the time that they are spending on this particular Act, 

because the Act is without authority right now. It simply was refunded, but it was never reauthorized. So it is not like we are taking a live Act and trying to do something with it. It did sunset in 

1993. 

And, you know, all of us had a dream-all of our forefathers and 

parents had a dream when they came west, and that dream was 

land. It was not like the gold rush in 1849. What really settled the 

west was people who loved the land and realized that when we are 

good to the land, the land is good back to us. I know my parents 

had that same feeling and that is the reason that they came west. 

And right now, we are seeing a number of political scenarios that 

cause us to be separated from our land and our ability to produce 

off the land. We need to be able to strike a balance where we can 

continue making a living and provide incentives for people to not 

only be able to help find endangered species on their property, but 

incentives to keep them alive. And right now, the way the law is 

acting, it is simply too punitive. To make it a crime to step on a 

plant that may be listed is indicative of a burgeoning Federal Government that has gone way too far. 

I want to thank Congressman Lewis, and Congressman Calvert 

and Congressman's Calvert's staff for the wonderful hospitality 

that has been shown to us here in Riverside County. Thank you 

very much. 

Mr. POMBO. Mr. Bilbray. 
7 

STATEMENT OF HON. BRIAN BILBRAY, A U.S. 

REPRESENTATIVE FROM CALIFORNIA 

Mr. BILBRAY. Yes, Mr. Chairman. I would like to thank both 

chairmen for allowing me to participate in this meeting. And actually, I want to thank you for holding these hearings so that people 

across the board can discuss these issues. 

I think it is about time that we do more outreach about "wellintentioned" Federal regulations, and do a reality check. Until January, I was one of those people out there that had to administer 

the law, had to work with the law, had to try to protect the environment with the existing law. And let me tell you, mine were the 

frustrations of somebody who has not only served on the state Air 

Resources Board in California and worked on those environmental 

problems, but somebody who has worked over 20 years on environmental problems along the Mexican border which extensively involved endangered species issues. The frustration of some of us 

that are trying to work to protect the environment comes when we 

run into Federal regulations that were meant to protect the environment, yet have actually become barriers to where the bureaucratic agenda becomes more important than the environmental 

agenda. And as somebody who has had his Miranda rights read to 

him standing up for the environment, it is kind of frustrating. 

I was not going to Vietnam in 1966, I was in junior high school. 

So I get to, you know, claim the Fifth on that. But I think that it 

is sort of an indication that I think of laws and regulations as vehicles, as vehicles to carry us forward into a better future. And I 

would just like us to reflect on the fact that we may want to think 

of the Endangered Species Act as a 1966 Mustang. There may be 

those of us that love it, cherish it and would not give it up no matter what. There are those, like a lot of us with the air pollution issues, who would purport to totally abolish the use of the automobile because it may fulfill an agenda. I think that what we have 

to do is much like the owner of a 1966 Mustang. We may have the 

right to try to preserve it, but we also have the responsibility to 

make sure that it is improved and cleaned up. And I think old, 30-

year old regulations can be just as environmentally damaging as a 

30-year old car that has not been upgraded, has not been maintained. And I think those of us that really want to see the environment protected have a responsibility to improve and to make better 

those things that were designed in the past. 

Mr. Chairman, my real concern here is that we need to update; 

we need to look at this and we need to fine tune. And those of us 

that want to preserve the Act, not only have the right, but we have 

the responsibility to be willing to look for its faults, look at maybe 

the faults of those who are administering the law and try to eliminate those faults. Because I think that those who refuse to change 

are our worst enemies, not those who are screaming at us from the 

other side of the aisle. And as somebody who has been very involved with the environmental movement starting back in the '70s 

when I was in high school, I have to sort of reflect the words of 

the founder of the original Earth Day, Senator Gaylord Nelson, and 

I think he says it quite well. "There are good environmentalists 

who see too much red tape and too many mandates and they think 

it can be improved, and they are right. The environmentalists-
8 

many environmentalists have failed on this. They have not fought 

to ensure environmental laws that are effective without being excessive. They have not done a damned thing about that." 

I think those of us that want to see the Act changed must recog- nize that the Act needs to protect the species, and those of us who 

want to see the Act preserved must recognize that we have an obligation to make sure we fine tune and improve it. And the greatest threat to the Endangered Species Act is those that refuse to improve it, because it will end up being junked like our 1966 Mustang. And so, I hope today that we can keep the dialog and the 

rhetoric pointed at what can we do to take a 30-year old law and 

prepare it for the next century, not only for ourselves but also for 

future generations. And with that, I look forward to the testimony 

so that we can move forward and protect the environment and protect this law and make sure we improve both for the next century. Thank you, Mr. Chairman. 

[The prepared statement of Mr. Bilbray may be found at end of 

hearing.] 

Mr. POMBO. Thank you. 

I would also like to announce at this time that Congressman Bono who was scheduled to be with us here this morning has the 

flu and was unable to make it, but sends his regards to the Task 

Force. 

Our first panel has assembled at the front. We have Kay CenicerosMs. CENICEROS. Ceniceros. 

Mr. POMBO. Pardon? 

Ms. CENICEROS. Ceniceros. 

Mr. POMBO. Ceniceros. Excuse me, if I mess up your names; I 

apologize ahead of time. Ms. Ceniceros is the Chairman of the Riverside County Board of Supervisors. You may begin with your testimony, but I have got to tell you about these lights first. We have 

the lights here and we operate under the five-minute rule. What 

we do is, you get the green light when it is OK to go; the yellow light comes on when it is time to hurry up and then the red light 

comes on when it is time to stop. [Laughter.] 

Mr. PoMBo. I do not want to be rude but we have got to try to 

keep to the five minutes because we do have a long list of people that want to testify and if we do not do it, we do not allow time 

for questions and it will not be fair to the people that are on the 

third panel. So please try to stick to the five minutes. 

Ms. Ceniceros, you may begin. 

STATEMENT OF KAY CENICEROS, CHAIRMAN, RIVERSIDE 

COUNTY BOARD OF COMMISSIONERS, RIVERSIDE, CALIFOR· 

NIA 

Ms. CENICEROS. First, I would-it is not on. 

Mr. POMBO. I think it is on now. 

Ms. CENICEROS. First, I would like to thank you again for coming 

to Riverside County. We have been in may ways a laboratory for 

implementation of the Endangered Species Act. So, Chairman 

Pombo and our own Congressman, Ken Calvert, and our neighbor, 
9 

Congressman Lewis, we appreciate you and those who are less familiar with our area coming before us today. I was asked specifically to speak to Riverside's experience, since 

we have established four habitat conservation plans in full or in 

part. But I want to tell you first that I very much appreciate the 

comments that I hear which talk about the balance that is needed. 

I did include, off the topic I was assigned, a set of principles that 

our board has adopted for altering the Endangered Species Act. 

They are 10 one-liners basically with some backup for discussion 

and they are very much in tune with some of the comments I have 

heard here this morning about trying to create some reform without necessarily losing sight of the original purposes of the Actmaking it work better. 

Now my testimony as requested on our habitat conservation 

agency will illustrate some of the reasons why those reforms are 

necessary. It has been our experience that it is not so much what 

is written on paper but the way that it has been administered that 

has been so terribly burdensome to us. 

The first species that we were asked to protect was the fringed toed lizard, going back to 1980. And I know that Congressman Lewis knows all about that because he represented part of our 

county at that time. It was actually the private sector led by the 

building industry out in the Coachella Valley in the Palm Springs 

area as well as the biologists and environmentalists who asked 

that we in the county put together a program. It was successfully adopted with a goal of avoiding the absolute listing of that specie. Having had relative success in getting that plan adopted, when 

we were told some years later that the Stephens kangaroo rat-a 

squirrel like animal, but not a glamorous bald eagle as was referenced-was going to be listed, the same actors came and talked 

to us. We collected a task force and then a steering committee 

made up of biologists representing developers, as well as the Service, as well as environmental groups and the principals involved in 

those organizations as well to try to put together a plan. This was 

far more complicated because the Stephens kangaroo rat, unlike 

the lizard, did not like cheap land. He liked good developable land. 

He liked areas where we wanted to build schools and roads and 

flood control facilities as well. 

We have labored since 1988 to put together a plan and we have 

had constant complications-! thought of a worse word but I will 

not say it-from the agencies in trying to get them to respect our 

efforts to implement the national objectives reflected in the ESA. 

We have been stopped in doing flood maintenance which contributed significantly to personal property damage. And you will hear 

from our chief engineer of the flood control agency later. We have 

been disallowed the ability to continue a program of requiring disking for fire safety and being allowed only to mow instead, which is not very effective. And you will hear from our chief of our 

fire department later on as well. And you will hear from some of 

those people that were victimized by that process. If our process was flawed, it was not intended. But I do in retrospect believe that we did not bring all of the property owners in 

early enough in that process. Certainly, everybody had availability to our first discussions on the Stephens kangaroo rat habitat con-
10 

servation plan. We anticipated that we would raise about half of 

the money to finance that plan and we, our board of supervisors 

and the Habitat Conservation Agency, adopted formally a consortium of city and county actors, informally, a goal of only acquiring 

land through market purchase, and of trying to concentrate as 

much of the habitat conservation on lands that were already in 

public ownership. 

We have completed that plan-actually, we completed that plan 

some many months ago, nearly a year ago and have had trouble 

in getting it transmitted through the bureaucracy in the Fish and 

Wildlife Service. We have since January-when quite frankly, we 

threw a very public tantrum about our frustration-had a great 

deal of cooperation and we have been assured that that plan willthe goal of the Department of Interior is to adopt that plan no later 

than the end of this calendar year. But it was not moving anywhere. Now the problem that is created is a problem for the public 

agencies trying to provide infrastructure, but more importantly, for 

the private sector who is attempting to do their program. 

One of the other projects, and the reason that we had our well 

publicized tantrum, was that we had worked to avoid listingavoiding the rressures on animals that would require them to be 

listed. One o those examples is the salt bush, where we worked 

with the leadership of private property owners to establish a program that would provide recreation, flood control and development 

and still allow the species to exist. And it was only when we had 

that virtually consummated that the species itself was listed. It 

was not a good faith effort. 

You will see in our principles an effort to try to get the bureaucracy more closely guided to better definition of the program to 

make sure that the taxonomy is correct-the science is correctthat we are not dealing with subtle nuances of species. And most 

of this comes from the philosophy that there is value in maintaining species for the future for man's use as well. But we must remember that one generation should not be responsible for reversing 

the tide of centuries in this country. Thank you. 

[The statement of Ms. Ceniceros may be found at end of hearing.] 

Mr. POMBO. Thank you. 

Mr. Scott Woodward from the BIA of Southern California. You 

may begin. 

STATEMENT OF SCOTT WOODWARD, BUILDING INDUSTRY ASSOCIATION OF SOUTHERN CALIFORNIA, RANCHO SANTA 

MARGUARITA, CALIFORNIA 

Mr. WOODWARD. Good morning, Mr. Chairman, and distinguished members of the panel. My name is Scott Woodward. I am 

the Project Director for Bramalea California, Inc., a landowner here 

in Riverside County and a homebuilding company located in Newport Beach. I am also the Vice President of Governmental Affairs 

for the Building Industry Association of Southern California, the 

Riverside Chapter. On behalf of my fellow 1500 BIA members 

throughout southern California, I am quite pleased this morning to 

have the opportunity to comment on the Federal Endangered Spe-
11 

cies Act, specifically as it relates to the burden the ESA has placed 

on property owners here in Riverside County. 

I have been asked to provide you with two real life stories of how 

the ESA has been affecting the cost of housing here in Riverside. 

Winchester 1800, a project by Coscan/Stewart Partnership, is a 

1800 acre development here in Riverside, California. The proposed 

project is to provide approximately 5000 new homes which will accommodate the growing population demand here in Riverside. As 

part of the development process, the developers have been required 

under the Endangered Species Act to provide mitigation for the 

Stephens kangaroo rat, which was listed in October of 1988. The 

mitigation consists of paying $1950 per acre for the entire 1800 

acres, even though only eight acres of habitat exists on the site. 

This project will pay mitigation fees in excess of $3.5 million to 

save rats. This cost will be passed on to the new home buyer. 

Another BIA member, Republic Development, has suffered 

delays, expense and loss of market opportunity as a result of the 

Endangered Species Act. Their proposed project, Mockingbird Canyon, consists of 272 lots located on 590 acres and has received 

unanimous community support at public hearings, but has been delayed for years because of the ESA Act. Today, the total cost to address the endangered species on this project is exceeding $1.5 million. This adds up to $5500 to the cost of buying a home in Mockingbird Canyon. When this cost is amortized into the home buyer's 

mortgage at today's interest rates, the total amount paid by the 

homeowner is in excess of $15,000. 

On a larger scale, the ESA affects every resident in Riverside 

County. One such example of this in Riverside County is the Riverside County Habitat Conservation Agency. Thus far, the RCHCA 

has collected approximately $30 million to implement the K-rat 

plan. The projected costs to complete the plan may exceed $50 million. You may note that the K-rat is not the only listed species we 

have. We have the fringe toed lizard, the Riverside fairy shrimp 

and the least bell's vireo to name a few. The cost for the Stephens 

kangaroo rat program does not stop at $50 million. No one has accounted for the loss of property tax revenue when public land is 

put aside for ESA implementation. In addition, numerous public 

agencies and utility companies have been severely impacted and required to provide mitigation for their projects. The figure is beginning to exceed $120 million, all being spent for a single species protection. These costs will eventually be paid through utility rate 

hike increases, increases to fees paid by the homeowners. If it is 

in the national interest to protect these species-and I am a believer that it is in the national interest to protect these specieswe must not place the cost solely on the property owners of Riverside County. This in effect is a point of sale tax burden. Imagine, 

just how much habitat for humans we can create with an investment of $120 million. As a homebuilder, I submit to you that we 

could shelter over 2000 people. 

Clearly this was not the intent of the ESA when it was adopted 

in 1973. Financial impacts must be a part of this complex equation. 

In the final analysis, every additional $1000 added to the price of 

a home forces two percent of the buying population here in southern California out of the market. In the Mockingbird Canyon exam-
12 

ple, that will be over 10 percent, because of the $5500, that will 

be locked out of the opportunity to buy the American dream. 

What we need in Riverside is ESA reform. I have attached a list 

of reforms which will bring relief to our industry and the residents 

here in Riverside County. The National Association of Home Builders and our local chapters stand ready to meet with you and your 

staff on the reauthorization of the Endangered Species Act. 

As a final note, the BIA of Riverside County has sponsored a 

comprehensive species strategy. This was a collective effort not 

only by the BIA, but the Farm Bureau, Property Owners Association and the Real Estate Council of Riverside County. This proposal supports a multi-species comprehensive approach to protect 

and preserve the multitude of the County's habitat and the species, 

a concept that is widely regarded as the most sensible way to plan 

for conservation. The strategy focuses on presenting choices to 

landowners which are not economically disruptive and are practical, effective, and in a traditional way of conserving our valuable 

land. We urge Congress to consider this forward thinking concept 

in our proposed strategy in their reauthorization of the ESA. 

Thank you for taking your time from your congressional recess 

and coming here into our community and listening to our concerns, 

not only by the home builders but by the potato growers and most 

of all the people. Only substantive changes to the ESA through significant incentives and respect for private property rights will result in effective and ultimately greater preservation of all species. 

Thank you very much. 

[The appendix to statement of Mr. Woodward may be found at 

end of hearing.] Mr. POMBO. Thank you. Mr. Mike McLaughlin, San Diego Association of Governments. 

You may begin. 

STATEMENT OF MIKE MCLAUGHLIN, SAN DIEGO ASSOCIATION 

OF GOVERNMENTS, SAN DIEGO, CALIFORNIA 

Mr. McLAUGHLIN. Thank you, Mr. Pombo, and panel members. 

Good morning, I am Mike McLaughlin, Director of Planning for 

the San Diego Association of Governments. 

I will briefly describe the San Diego region, emphasizing habitat 

characteristics; summarize habitat conservation planning activities 

in our region; and identify for your consideration some changes in 

the Endangered Species Act that would improve the future of regional conservation planning. I will try to do that in five minutes. 

Although you may have some familiarity with the San Diego region, I need to stress a few basics. San Diego is the place south of 

southern California. [Laughter.] 

Mr. McLAUGHLIN. The time does not count against me for that. 

[Laughter.] 

Mr. McLAUGHLIN. We are defined by our open space. Our open· 

space and habitat are linked to our economic well being. Businesses and industries come to San Diego to enjoy our quality of life. Two needs are pressuring our region. The first is a need to protect 

a rapidly dwindling supply of these natural resources. The San 

Diego has a vast array of habitats that you literally can experience 
13 

in less than an hour's driving time-from lagoons and estuaries 

along the coast to the coastal plains and mesas to the foothills and 

the mountains to the deserts in the far eastern county. It is no 

wonder, but it always seems to come as a surprise to a lot of people 

that with all these micro-climates and habitats, San Diego County 

has more rare, threatened and endangered species than any other 

county in the continental United States. 

The second is a need to ensure our economic well-being. 

SANDAG has projected that our region will grow by over a million 

people and a half million houses and jobs in the next 20 years. This 

growth will consume over 200,000 acres of open space, much of it 

on our urban fringes where our valuable habitat is most abundant. 

The way we have chosen to resolve these issues is through the 

participation and cooperation in large-scale multiple habitat and 

species conservation planning. The San Diego region has two such 

efforts that cover much of the county-the southern half by the 

Multiple Species Conservation Program, the MSCP, and the northern half by the Multiple Habitat Conservation Plan, the MHCP. 

The east county effort will follow at a later date. 

Although a substantial portion of the funding for the preparation 

of these plans has been generated at the local level, especially by 

the City of San Diego as sponsors of the southern effort, we have, 

through the support of Congressman Packard, received assistance 

from the Federal Government during the planning stages. 

While each program reflects its own unique and special conditions, they have a number of common attributes that I want to emphasize and suggest to you as agendas for changes in the Endangered Species Act. 

As you may have inferred from the alphabet soup-MSCP, 

MHCP-they plan for multiple habitat and species-dunes and 

beaches, chaparrals, grasslands, woodlands, forests, riparian, wetlands are all covered by these plans. Thus the plan agreements and 

permits would cover between 60 to 90 species, depending upon the 

design of the final preserve system. 

Our plans cover both listed and unlisted species. It is important 

to deal with threatened resources before they are at the edge of extinction when the options are limited and the solutions are much 

more expensive, as you have heard here today in terms of the Riverside experiences. We need to avoid the "Endangered Species of 

the Month Club" approach. Our plans take a more proactive stance 

and will require agreements for both listed and pre-listed species. 

The plans have involved multiple jurisdiction and agency participation from the very beginning. The program involves all 18 of our 

cities, the county, the San Diego County Water Authority, the California Fish and Game, the U.S. Fish and Wildlife Service, and the 

state Transportation Department. Such participation needs to occur 

and often. It is not acceptable to our planning efforts to have a last 

minute "hit" from the Federal and state agencies. 

We have completely integrated our efforts with the state's Natural Communities Conservation Program, and our plans will be the 

functional equivalent of the state's NCCP program. It is just that 

we are going to cover more than coastal sage and gnatcatchers that 

are associated with the NCCP. 
14 

Our plans have been developed with extensive stakeholder participation. Advisory committees consisting of representatives of virtually every possible interest group-environmentalists, builders 

and property owners, community groups, farmers and taxpayers 

have been involved from the very beginning of the process. 

The key objective of our plans is to provide certainty. And certainty means different things to different people. To the environmentalist, it means the certainty associated with preserve systems 

that will protect a biologically sound ecosystem. To property owners, developers and farmers, it means certainty associated with 

knowing what plans and activities can proceed without government 

interference, where mitigation can be provided, and what species 

are covered, so they will not be surprised with future listings. 

The plans are built on scientific and biologically sound approaches that provide for the integration of land use and economics. It is important that a preserve system works as an integral 

part of the region's land use economy, but it also must be based 

on solid biology. These programs should be viewed as models for 

how the Endangered Species Act could be more rationally structured and implemented. 

These plans are important to our region's economy. Water availability, work force training, education, hazardous material disposal 

and transportation are traditional examples of elements of the infrastructure important to a region's economic prosperity. We are, in 

effect, attempting to treat habitat as just another important element of the region's infrastructure. We need these infrastructures 

to ensure sustainable development, economic competitiveness of 

our region, and also the preservation of the quality of our life. 

So we think the Act should encourage these kinds of multiple 

habitat jurisdiction-based planning. It should integrate local land 

use and economic considerations as part of the planning process. It 

requires a commitment from the Federal Government from planning to implementation. And the Endangered Species Act should 

encourage steps that return land use controls back to the local communities. 

Thank you for taking time to hear from us. 

[The statement of Mr. McLaughlin may be found at end of hearing.] 

Mr. POMBO. Thank you. 

Cindy Domenigoni, you may begin. 

STATEMENT OF CINDY DOMENIGONI, FARMER, WINCHESTER, 

CALIFORNIA 

Ms. DOMENIGONI. Mr. Chairman, members of the Task Force, my 

name is Cindy Domenigoni and I am a member of a fifth generation farming family. I am also a director of the Riverside County 

Farm Bureau and chairwoman of their Endangered Species Committee. 

My family's farm is located in Winchester, California in the 

Domenigoni Valley, named after my husband's great grandfather, 

Angelo Domenigoni, who settled there in 1879. Our ranch consists 

of about 2500 acres. We grow wheat, barley and oats, as well as 

irrigated alfalfa. We also run a small cattle operation on the harvested fields and hillsides. 
15 

Our lives, livelihood and stewardship of our lands were harmonious until about five years ago when the Fish and Wildlife Service 

listed the Stephens kangaroo rat as a federally protected endangered species. Unfortunately, after this rodent was identified as an 

endangered species, portions of our ranch became part of the kangaroo rat study area, as part of a regional habitat conservation program under Section 10 of the Endangered Species Act. The study 

areas originally encompassed over 80,000 acres in Riverside County. 

Property owners were never notified that their properties were 

being placed within the study area. The impact of the study area 

designation on us has been devastating. Over 1600 acres of our 

ranch was included in the designation without our knowledge. In 

October, 1990, biologists were discovered illegally trespassing and 

conducting surveys on our ranch. Even though this data was illegally obtained, the information was forwarded to the Fish and 

Wildlife Service. The following month, as we began preparing our 

fields for planting, we were notified by the Fish and Wildlife not 

to fann about 800 acres of our land within the study area, which 

had been left fallow the previous year. We were further warned 

that disking the fields would likely constitute an illegal take of the 

rat and we would be arrested and prosecuted. We were told we 

would be subject to $50,000 and/or one year in prison per individual rat harmed or disturbed by the fanning. 

The lunacy of this is still difficult for us to understand. We had 

co-existed with the species for over 100 years. The evidence of this 

is that the rats have moved into the field during the normal crop 

rotation so quickly. 

For three years, we were not able to fann this land. As a result, 

we incurred over $400,000 in lost income and direct expenses due 

to the K-rat regulations. It has been an emotional and personal ordeal for the three generations of our family still living on the fann. 

Though we had no use of our land, we continued to pay property 

taxes and assessments. 

The effect of the K-rat regulations on our fann were not limited 

to just our fanning activity. In the spring of 1992, Fish and Wildlife Service denied our request to disk firebreaks on the property. 

This exposed our neighbors, their homes, livestock and crops to the 

extreme fire danger posed by the overgrowth of brush in the fields 

due to the years that we could not fann it. 

Tragically, our worst nightmares and fears were realized in a 

nightmare that occurred in October, 1993. The California fire, as 

it is called, devastated over 25,000 acres and 29 homes. It began 

in one part of the reserve and burned nearly all the reserve, K-rat 

study area and surrounding lands. What is painfully clear is that 

this devastation might have been avoidable if we would have been 

able to disk firebreaks and farm our properties as we had in the 

past. The fire could have been controlled sooner and with less damage had we been allowed to protect ourselves as we knew was necessary, and as we are required to do under local ordinance and 

state law. 

A few days after the fire, my husband and I contacted our local 

Fish and Wildlife Service biologist requesting he evaluate the area 

we had been restricted from fanning on. We personally had sur-
16 

veyed our properties and it appeared to us there were no signs of 

K-rats after the fire. The biologist concurred that there were no 

rats present, but the reason he cited was the rats did not leave because of the fire, that the rats left before the fire, because the 

brush and weeds grew too thick for their habitat needs and they 

moved out of the area. 

[Laughter.] 

Ms. DOMENIGONI. After receiving the verbal authorization from 

Fish and Wildlife Service, we have resumed farming the 800 acres 

that we had been forced to idle. However, we still live in fear that 

we could again be prohibited from farming because the Fish and 

Wildlife Service had not given us the written permission we have 

requested. 

Recently, the Fish and Wildlife Service announced its intention 

to keep the California gnatcatcher listed as threatened. This is yet 

another threat to our farm that causes us great concern for our future. 

Mr. Chairman, one of the most frustrating aspects of this whole 

situation is that for over 100 years our family cared for, encouraged 

and were proud to have a wide diversity and abundance of species 

and wildlife habitat on our land. Our family's good stewardship 

was rewarded by the loss of the use of our land and a financial impact of over $400,000. 

We are not the only landowners in this situation. Private property owners across the country are disking their land, burning 

their ditch banks, cutting the trees on their property in efforts to 

avoid the regulations of the Act. 

The regulations imposed on us by the Endangered Species Act 

have placed ourselves and the species and habitats in adversarial 

roles. We are no longer pleased to see an eagle or a hawk or a previously unnoticed flower on our land. Sights like these now cause 

us great concern that our livelihood and that our heritage will be 

stripped away from us. 

The current form of protecting species has failed to deliver by not 

recovering listed species, and it has clearly eroded the fundamental 

rights to own and use property. Its only success is in building an 

empire within the government agency that has been charged with 

protecting species, yet which seems to be more interested in Federal land use control. 

I invite you to look at the record of the over 800 species listed 

in the 22-year history of the Act. The Fish and Wildlife Service has 

grown tremendously, yet fewer than two and one half percent of 

those 800 species have been de-listed, with most of those due to the 

original data errors and extinction, not recovery. 

There has been a lot of talk lately about increasing the incentives 

for landowners in a new ESA. Yet, what is needed in a reformed 

Endangered Species Act is to remove the perverse incentives that 

have been created. 

Secretary Babbitt, previous reform bills and even environmentalists like Michael Bean have voiced the need for increased incentives in the Act. However, all of these incentives and initiatives fail 

to remove the biggest disincentive to encouraging species and habitat on private property-that is the removal of the regulation. Efforts at increasing the incentives, yet holding onto the ability to 
17 

regulate are like holding out the carrot, but keeping the stick ready 

to strike. Farmers and landowners are not going to place their land 

at risk by encouraging species and habitat if they know that their 

land use can be taken away from them later through the imposition of the regulation. 

A truly reformed Endangered Species Act should be based on incentives and should not violate the constitutional rights of any individual. It should compensate landowners for any action that diminishes the value or use of their land and should make habitats 

and species valuable attributes of landownership, not detriments, 

as unwelcome as toxic waste. 

Reforming the Endangered Species Act in these reasonable ways 

will do more to protect species, uphold landowners' constitutional 

rights, keep rural communities viable and restore the traditional 

heritage of stewardship of the wildlife and habitats on private 

property. Finally, possibly the most important benefit of an Endangered Species Act reformed in these ways should be restored faith 

in the fairness of the Federal Government and a confidence that 

our constitutional freedoms will be protected. 

Mr. Chairman, I know I have gone over time and my good friend 

and neighbor next to me had conceded a minute or two of her time, 

which I have used. 

I would also like to, with your permission, have some additional 

material and reports entered into the record. 

Mr. POMBO. Without objection. 

Ms. DOMENIGONI. Thank you. The Riverside County Farm Bureau has their petition to de-list the Stephens kangaroo rat. 

[Applause.] 

Ms. DOMENIGONI. Golden State Resource Management Group has 

their analysis of a California fire, as well as does the Competitive 

Enterprise Institute and the testimony on behalf of Eastern Municipal Water District. 

Thank you very much. 

Mr. POMBO. Thank you. 

[The material referred to was placed in the hearing record files 

of the committee.] 

Mr. POMBO. Ms. Judy Fowler, President of the San Diego County 

Farm Bureau, you may proceed. 

STATEMENT OF JUDY FOWLER, PRESIDENT, SAN DIEGO 

COUNTY FARM BUREAU, FALLBROOK, CALIFORNIA 

Ms. FOWLER. Thank you. 

Mr. POMBO. Remember, you gave her some of your time. 

Ms. FOWLER. Right. My name is Judy Fowler. I am a commercial 

field flower grower in north San Diego County, and as you said, I 

am President of the San Diego County Farm Bureau and member 

of Governor Wilson's rural task force. And for Congressman Lewis' 

benefit, I am a native of Inyo County, Owens Valley, so it is very 

nice to meet him today. 

First of all, I would like to thank Congressman Pombo and the 

Task Force for providing this hearing so close to the area being so 

severely impacted by the Endangered Species Act. It is difficult for 

farmers such as myself to travel to Washington, D.C., so we appre-
18 

ciate that you have taken the time to listen to the grassroots of this 

country. 

Secondly, I do not feel that there are any better environmentalists, keepers of the land, if you will, than farmers. We understand 

the value of sustaining and renewing our natural resources. I 

would like to be clear that we are not advocating the repeal of the 

Act. What we are asking of you is to provide meaningful reform 

that brings common sense back into the process, and lift the financial burden off the individual landowner and the local economy. 

I have served as an advisor on the Multiple Habitat Conservation Program in San Diego since its inception, a program created 

to preserve habitats and ecosystem rather than the species ap- proach of the current ESA. I initially felt that it would be the best 

course of action for a community in that it would provide certainty in the listing process and ultimately place most land use decisions 

appropriately back at the local level. I am now of the opinion that 

( 1) not only does the Act itself doom this process to failure, but (2) 

over-zealous bureaucrats and the mainstream environmental com- munity will, if allowed to succeed, destroy the economic base of this 

state. 

(1) The basis for failure lies in the inability of the Federal and 

state governments to provide any assurances that once a habitat 

preserve is completed, they will not list any further species within 

a reasonable period of time. That defeats the entire motivation of 

any community to participate. There is simply no incentive to par- ticipate when there is no security. 

(2) When the gnatcatcher was listed, the state took the habitat 

approach under the state's NCCP program, and constrained some 

465,000 acres in a five county area, most of which was unoccupied by gnatcatchers. The carrot was an allowable five percent take by 

communities needing to get projects moved forward. The constrained acreage in San Diego County became part of the habitat 

preserve study. Once lines are drawn, private property owners are 

impacted immediately in the disposition of their own land. Espe- cially hard hit are farmers needing production loans. Many lending institutions loan money on the real estate value of the property 

versus the farmgate value. The conventional wisdom of some of the 

environmental community is that the question of whether the 

gnatcatcher is truly endangered is not important. A listing was 

needed to drive this process, leading me to believe that the object of the NCCP process, for certain very powerful and litigious interests, is simply to constrain productive use of land. Clearly, unless 

the Endangered Species Act is amended to allow complete immunity against any further land use restrictions for later-listed species, such people will always be able to derail the process. 

We ask that this Task Force strongly consider the following points: 

1. Require sound science with peer review, including verification 

of species numbers, habitat conservation criteria and recovery plans. 

2. Require volunteer, incentive-based plans to protect species when private property is affected. When private property is impacted, compensation for lost value or use must be included. 
19 

3. Require an analysis to be accomplished on the economic impact to a community of any listing. 

4. Farmers and ranchers who develop conservation habitat programs should be granted safe harbor protections against accidental 

take. Habitat modification should not be considered a take. 

And finally, a lot of my Farm Bureau friends and neighbors are 

in this audience supporting this hearing. And I think I speak for 

all of them when I tell you that current enforcement of the Endangered Species Act has produced frustration, fear and anger. Landowners are fearful of harboring an endangered or threatened species. All too often, farmers and ranchers are the victims of the Endangered Species Act. As long as this feeling exists, efforts to save 

species will prove counter-productive. Congress must change the 

law to remove the sense of fear. Landowners need safe harbor protections and meaningful incentives to help them be part of the solution. It is time to put some common sense back in the Act. 

Mr. POMBO. Thank you. 

Ms. Leeona Klippstein, you may proceed. 

STATEMENT OF LEEONA KLIPPSTEIN, SAN BERNARDINO SAGE 

FRIENDS, SPIRIT OF THE SAGE COUNCIL AND THE NATIONAL ESA/HCP NETWORK, SAN BERNARDINO, CALIFORNIA 

Ms. KLIPPSTEIN. Thank you. Good morning, Mr. Chairman and 

distinguished members of the panel. Thank you for your invitation 

and the opportunity to speak to the very important matter at 

hand-the United States Endangered Species Act. I am Leeona 

Klippstein, born and raised in southern California. I current live in 

San Bernardino County. I am a veteran of the United States 

Armed Forces and formally educated in medical sciences and 

health therapies. By profession, I am a patient care specialist and 

child care consultant, although I have become a full time conservationist and a community organizer. 

I am affiliated with three conservation organizations, which I 

have co-founded-san Bernardino Sage Friends, Spirit of the Sage Council and the National ESA/HCP Network. All three organizations focus on preserving America's natural heritage through protecting native plants, native animals and the ecosystems upon 

which they depend to flourish. 

The Chairman has notified me that the Committee would be 

most interested in my views regarding the effect of the Endangered 

Species Act on the people of southern California and how the Committee might address my concerns in future legislation. 

I am in a unique position to address these concerns since Spirit 

of the Sage Council was named and co-founded by my friend, Vera 

Rocha, hereditary chief of the Gabrielino band of the Shoshone N ation. Vera Rocha and I met through mutual concerns of the threats 

to the southern California coastal sage scrub communities, both biological and cultural. 

It is a fact that as native seed banks, native plants and native 

animals become threatened and endangered, so do native languages, native cultures and native people. Ecocide and genocide are 

reflections of the land and the consciousness of governments. The 

first nations people of southern California still referred to as Mission Indians by the United States government, the Uto-Azteca-Sho-
20 

shone are very much alive but very threatened and endangered by 

the loss of their communities. The Gabrielino-Shoshone have been 

taken (killed), removed, displaced, harmed, harassed, bothered and 

invaded by non-natives. Their populations have significantly declined in their range and distribution. They have become restricted 

to a small isolated population. 

As more and more of southern California wildlife become endangered, so do the people. Approximately 90 percent of the plants endemic to coastal sage scrub associated communities have medicinal 

and life-sustaining properties. Sage is a sacred ceremonial and medicinal plant integral to the health and culture of the native people 

of southern California. However, the native people of the land are 

little recognized or included in the important task at hand-preserving America's natural heritage, and protecting America's endangered wildlife and wildlands. The U.S. Fish and Wildlife Service does have a policy on Native Americans, but I have not yet experienced its implementation nor witnessed any of the policy benefits to Vera Rocha or the Gabrielino-Shoshone people. 

The Endangered Species Act is very important to the health and 

well-being of all species including the human species. [Applause.] 

Ms. KLIPPSTEIN. It is my personal experience as a 91-Charlie patient care specialist in the U.S. Armed Forces and working later 

with a pediatrician, that convinced me of the importance of protecting endangered species, especially plants. Thanks to the rosy periwinkle, childhood leukemia and Hodgkin's disease are largely curable. Taxol, a medicinal product derived from the Pacific yew tree, 

has offered hope to thousands of women suffering from ovarian 

cancer. In my research, I was also made aware of the economic 

benefits that plants provide to pharmaceutical corporations, a $40 

billion industry that depends on natural compounds from various 

plant species. 

Before we had medical centers, European barbers and an army 

of primarily male M.D.s in the United States, there were Shoshone 

medicine people, women healers and midwives that knew the sacred lands and the sites of the plants that could cure. One of these 

plant medicines have become so common in all of our households 

today that I could safely assume that every Committee member 

today has consumed it. Aspirin is derived from the willow. Just as 

we humans need the willow, so does the endangered southwestern 

willow flycatcher and the endangered least bells vireo. When the 

Gabrielino-Shoshone Nation, the first people of southern California, 

come forward to protect the sage and their culture, they are also 

a voice for the endangered plants and animals. The Shoshone Nation, the California gnatcatcher, San Bernardino kangaroo rat, Stephens kangaroo rat, bells sage sparrow and over 100 plants and 

animals that have been identified, depend upon the southern California coastal sage scrub communities for their survival and recovery. 

According to the research of Dr. Linda McMahan, Executive Director of the Berry Botanic Garden, Portland, Oregon, "half-probably more than half-of the rare and endangered plants in this 

country are related to plants that have been used medicinally by 
21 

Native Americans or, in other uses, are used medicinally around 

the world." 

I ask today that the Chairman and the Committee consider 

amending the Endangered Species Act to include provisions for 

ethnobotany that would protect plants of medicinal and religious 

significance to the American Indian descendants. This is a very important aspect of America's natural heritage and has been dismissed by the Endangered Species Act. 

The important relationship between plants and people dates back 

thousands of years in human history. I strongly recommend and 

encourage that the Committee and Task Force on Endangered Species make revisions and amendments to the Endangered Species 

Act that would provide for greater protection of all plant species 

and their recovery-especially their recovery. 

I should add that by protecting and preserving the sage scrub 

communities there is also an economic benefit to local businesses. 

Miller's American Honey Company of Colton, California in San 

Bernardino County has been in business for 101 years. They have 

30 full time employees, distribute approximately 10 million pounds 

of sage and buckwheat honey and makes approximately $7.5 million annually. The two greatest economic threats to Miller's business is development, loss of the sage scrub ecosystem and pesticides. As the saying goes, the first rule of tinkering is not to 

throw away any of the parts. How are we to know which of the 

parts are critical to making the whole system work? 

If the United States does not provide greater protection to endangered insects, it will be nearly impossible to protect and recover endangered plants. It is important to protect California's treasure 

chest of biological diversity. It truly does not have a price tag-biological diversity is invaluable. 

A very important feature of the Endangered Species Act is the 

designation of critical habitat. It is my opinion that U.S. Fish and 

Wildlife does not implement this section of the Endangered Species 

Act enough, primarily because of political influences, and secondarily, due to a lack of funding through appropriations. Of the 880 listed endangered species, only 111 have been provided with a critical 

habitat designation. Designating critical habitat is relevant for endangered plants throughout their range when addressed in chemical terms. At different portions of their range, organisms tend to 

be different genetically and chemically. Compounds produced by a 

plant in New England may be absent from its relatives in Georgia. 

Critical habitat designations are also important steps toward recovery of endangered species in the wild and eventual de-listing of stabilized populations. 

I believe that this was the main intent and goal of the Endangered Species Act enacted in 1973 by President Richard Nixon. 

It is vital that America's endangered wildlife is recovered in the 

wild. Wildlife cannot be maintained in the long-term in artificial 

settings. Recovery of endangered species through the Endangered 

Species Act continues to be minimal due to lack of enforcement, 

politics, and again, insufficient funding. 

Mr. POMBO. I am going to have to ask you to wrap it up. The 

entire thing will be included in the record. 
22 

Ms. KLIPPSTEIN. OK. Well, in conclusion, I would like to add that 

in the 22 years since the enactment of the Endangered Species Act, 

there has never been a taking of private property in the U.S. Court 

of Claims. 

[Verbal expressions from the audience.] 

Ms. KLIPPSTEIN. America is only as great as her natural resources and the richness of her natural landscape. America's natural heritage is a treasure that the American public has entrusted 

to our government. America's wilderness and wildlife are the backbone of the United States. If a foreign country dumped acid rain 

on us from the skies, polluted our drinking water and air with toxic 

chemicals, took the land away from our wildlife and killed them, 

we would view this as a threat to our national security and an act 

of war. However, we are doing this to ourselves and we must stop. 

The Endangered Species Act protects the health and well-being of 

all species and is the greatest piece of legislation written in our 

century. I believe that we can continue to make the Endangered 

Species Act work and improve its effectiveness through additional 

strengthening measures. 

Thank you very much. 

Mr. POMBO. Thank you. 

[The statement of Ms. Klippstein may be found at end of hearing.] 

Mr. POMBO. Thank you very much. I thank the panel for your 

testimony and I would just like to tell you that all of your complete 

statements will be included in the record and also remind you that 

we are under the five minute rule in questions, so as we ask questions if possible, remember that we have to try to do this all within 

five minutes as well. 

Ms. Ceniceros, you talked a little bit in your statement about the 

HCP process here. Do you feel that the HCPs are part of the solution to recovery? 

Ms. CENICEROS. One small part. And I think that if they were 

handled much, much better than they have been, with a quicker 

response to submittal of proposals, for example, it would be much 

fairer. One of the downsides of the HCP, and this was said by both 

Ms. Fowler and Ms. Domenigoni, who are landowners, is that they 

are held up-it creates a cloud for a period of time while that study 

is completed and then while lands are acquired that are deemed to 

be adequate to take the species out of the listing or to avoid the 

listing, when we are operating under lO(a). For the fringe toed lizard, that was a matter of a couple of years. It has been seven, as 

I said, for the Stephens kangaroo rat. The process needs to be 

much reformed. 

Mr. POMBO. You also made a statement about including all property owners in the process. 

Ms. CENICEROS. In the planning process. They all were before 

anything formal was done, but it seems to me that being early at 

the table with a variety of representation is important. Our process 

did get driven a lot by both biologists representing environmental 

faction in and out of the Service and by the development industry, 

which was the immediate victim, because they had plans ready to 

go. And so it tended to focus on the impact on them. But there are 
23 

people who have not subtle impacts on them, as you heard from the 

representatives of farming. 

Mr. POMBO. Mr. McLaughlin, you have also worked quite extensively with the HCP process. Have you brought in all of the affected property owners into the room, so to speak, or given them 

a seat at the table when you go through the HCP process? 

Mr. McLAUGHLIN. We could not fit 150,000 people or so in the 

same room. What we have tried to do is get representation from 

both small and large property owners as representatives. We have 

also dedicated a lot of effort to outreach, trying to get information 

out as the planning process unfolds rather than waiting until the 

plans are done and completed and say, surprise, here they are. The 

plans are going through extensive public hearings throughout the 

San Diego region, as we speak, for comments from all property 

owners, mailing in the tens of thousands in terms of notices to 

property owners are going on right now. 

Mr. POMBO. How do you plan to pay for the HCP? What is the 

mechanism that you are going through? 

Mr. MCLAUGHLIN. We are trying to broker a partnership between 

the Federal/state/local government and the local residents in terms 

of a fair share contribution to the implementation of the program. 

That is still being worked out as we speak, so there is not a specific 

proposal at this point. 

Mr. POMBO. So that is still in the planning stages in terms of 

how actually you are going to come up with the money to pay for 

it? 

Mr. McLAUGHLIN. The specific proposal is still being developed, 

right-the hard part. 

Mr. POMBO. Ms. Domenigoni, you stated that-and correct me if 

I am wrong-you stated that your property was within a critical 

habitat area? 

Ms. DOMENIGONI. A study area. 

Mr. POMBO. A study area. 

Ms. DOMENIGONI. It was not identified as critical habitat. 

Mr. POMBO. Whose study area? 

Ms. DOMENIGONI. The county formed an HCP that was going 

to-it was an interim plan to allow some building to move forward. 

It was supposed to be a two-year interim plan where they selected 

ten areas as study area. And within that two-year plan, they were 

to identify where the preserves would be located and then a formal 

plan was to be done at that time. We are five years into the process and we do not have an approved final plan to date. 

Mr. POMBO. And how did you find out about the study area? 

Ms. DOMENIGONI. We were not officially notified. Lines were 

drawn around our property without our participation or knowledge. 

At the time that we finally did find out that our properties were 

included within a study area, we were told by a friend that had attended a meeting, but not-we were never notified directly. So we 

never had early input into that process. 

Mr. POMBO. Were any restrictions put on you because of the 

study area, or did that happen at a later time? 

Ms. DOMENIGONI. Well, that occurred after the study areas had 

been formally put into place and then the restrictions, we had the 

restrictions on part of our ranch for farming, yes. 
24 

Mr. POMBO. Mr. Woodward, you feel that HCPs play a role in the 

Endangered Species Act. You feel that that is a needed mitigation 

measure? 

Mr. WOODWARD. That is correct, I do. 

Mr. POMBO. How do you respond to the criticism that HCPs are 

used to provide-so that someone else becomes-your mitigation 

with the city, and that those people outside of that sphere of influence or that ring of development around a city do not have any 

input into who ends up being in the HCP, or what happens with 

the HCP. How do we close that loop, so that the people that become 

open space are somehow part of the process? 

Mr. WOODWARD. Well, what we have proposed in our Multi-Species Strategy Plan is to have a system of trade-offs where we can 

set aside certain critical areas that are needed for species protection and at the same time we are able to transfer the land use ability to other areas of the property that are not impacted or not 

needed to preserve species protection. 

We also have to look at this whole process on a macro level. We 

need to stop drawing lines over the land of our area. So when we 

look at things in a macro sense, in a broad level and look at the 

habitat and the species that occupy these areas, then we can look 

and deal with the big picture and that is what we need to focus 

on, not singularly. 

Mr. POMBO. Unfortunately my time has expired, but I guess you 

can answer this with just a yes or a no. You would not be opposed 

to the people who become the permanent habitat being compensated by this whole process that is going on. I mean all of you 

talked about hundreds of millions of dollars that have been involved in this process. Should not the people who end up being the 

permanent habitat be compensated for that? 

Mr. WOODWARD. Absolutely, they have to be compensated for it. 

Mr. POMBO. OK, thank you. 

Mr. Faleomavaega. Mr. FALEOMAVAEGA. Thank you, Mr. Chairman. 

Because of my limited time, I would like to ask our first five witnesses-I gather that there seems to be a consensus or agreement 

that the problem here is that you are not against protecting the 

species, but you have some very serious problems with the bureaucracy in having to deal with the administration process. 

I would like to ask Mr. McLaughlin-in my last reading of geography, I understand that San Diego County is the largest county 

in the United States. Am I correct on that? 

Mr. McLAUGHLIN. Riverside. 

[Verbal expressions from the audience.] 

Mr. McLAuGHLIN. Coming to Riverside, you should not say that. But San Diego is a sizable county, we are talking about 4200 

square miles. 

Mr. FALEOMAVAEGA. But at one time, you were the largest county in the United States, no? 

[Laughter.] 

Mr. MCLAUGHLIN. No. 

Mr. FALEOMAVAEGA. Gee whiz. I will take that back, I had better 

read history again. 
25 

You have elaborated quite well on your statement concerning habitat conservation planning and you give an indication that your 

county is currently working very closely with the Federal agencies involved in the planning process. And I just wanted to ask you do 

you find the process cumbersome, to say the least, or do you find 

that it is workable if given the proper resources? 

Mr. McLAUGHLIN. I think it is workable, but like Riverside, we 

have experienced times where plans and proposals kind of go into 

this black hole and they do not come out for awhile, and we are 

working with a limited budget and a timeframe and it is important for us to kind of march along but we have had good cooperation with the local Department of the Interior and the Fish and Wildlife 

Service staff. In fact, the Bureau of Land Management has pro- vided their resources as part of a contribution to the development of a preserve area. So we have had some good inputs and opportu- nities from the Federal agencies. 

Mr. FALEOMAVAEGA. Well, added to the subject matter and I 

guess to the complications of the problems that we are faced with, 

supposedly there is a movement let us say to cut the ESA budget. Now by cutting the budget, this obviously means less services. Am 

I correct in this basic assessment? I am not an expert on budget things, but I am just saying if there is a current movement to cut 

the Endangered Species Act budget for the operations, whatever 

you do with the species, this also means less responsiveness from 

those in Washington dealing with the communities like the prob- lems that you have cited here earlier this morning. And I am just asking for a general response from members of the panel. 

Mr. McLAuGHLIN. My initial response would be that if there is 

additional funding, that it ought to flow to the local communities 

where those kinds of decisions can best be made, not back in D.C. 

[Applause.] 

Ms. CENICEROS. I would like to add to that because in response 

to the Chairman's question, in our county we have only bought 

property if never condemned property. And primarily it has been 

through a willing seller, but the delays in acquiring it--

[V erbal expressions from the audience.] 

Ms. CENICEROS. In our county that is the case. The delays before 

you acquire that property are quite damaging to property owners. 

Mr. FALEOMAVAEGA. Can you say specifically-when you talk 

about delays-nine months, two months? 

Ms. CENICEROS. Well, we have one property owner who is very anxious to sell us what is the last missing piece on the K-rat program and we have not consummated that and it has been two and 

a half years. 

Mr. F ALEOMA V AEGA. Two and a half years. 

Ms. Klippstein, I just wanted to ask you, you mentioned something concerning the Gabrielino-Shoshone Tribe, originally what 

was the number of the population of the tribe here in this region? 

Ms. KLIPPSTEIN. I do not know the exact number, but the 

Gabrielino-Shoshone nation territory is from just south of Malibu 

down to Aliso Creek in Orange County, out to the Santa Catalina 

Islands and inland to the San Gabriels and portions of the San 

Bernardino mountains. Many of the cities are still named after 

their village sites, such as Cucamonga, Tahunga, Topanga, 
26 

Cuhennga, all of these were village sites. And the city of Pasadena 

recently honored the Gabrielo-Shoshone by naming an area of the 

Arroyo Seco back to its original name of Hahamongna. 

Mr. F ALEOMA v AEGA. Are they a federally recognized tribe? 

Ms. KLIPPSTEIN. Unfortunately they are not. The government 

does know of them, the state of California does recognize them. 

Vera Rocha is the most likely descendent. They do have the records 

on file, but unfortunately the U.S. Government still considers them 

Mission Indians. 

I am also involved with habitat conservation planning and I do 

have some statements that I would like to include about HCPs, if 

I may. 

Mr. FALEOMAVAEGA. Well, if the Chairman will not object to include the statements. 

Mrs. CHENOWETH. If the gentleman would like to yield the rest 

of his time. 

Mr. FALEOMAVAEGA. Sure-well, no, I think she is requesting 

submission of additional statements for the record. 

Ms. KLIPPSTEIN. Well, in this discussion about habitat conservation plans, whether in Riverside or in San Diego, overall when Section lO(a) was amended to the Endangered Species ActMr. FALEOMAVAEGA. No, no, wait--! reclaim my time. You would 

like to submit additional statements to be part of the record, is that 

correct? 

Ms. KLIPPSTEIN. They are in here. 

Mrs. CHENOWETH. I would like to ask for unanimous consent for 

her to be able to submit to the written record. 

Mr. FALEOMAVAEGA. All right. 

Ms. KLIPPSTEIN. Thank you. 

Mr. FALEOMAVAEGA. Just one more quick question since I see the 

yellow light. 

To our two commercial farmers. I do not think there is anybody 

that can appreciate more the concerns of the seasons, always the 

problem of wanting to know whether you are going to have a 

bumper crop or you are going to have problems dealing with the 

environment, and I can appreciate also the fact that our farmers 

here in our community can well appreciate what farmers go 

through in the process, and I, for one, do not know if the provisions 

of this Act was ever taken into consideration the needs of our farmers, and I think this is the reason why we are here today, to seek 

out what really are the concerns and the problems that you have 

encountered in the process. 

I am not an expert on the kangaroo rat, but I just wanted to ask, 

this seems to be a common rodent here in this region. And since 

you are the expert here dealing with the rat as a fifth generation 

farmer, Ms. Domenigoni, how do you deal with the rat? 

Ms. DOMENIGONI. Domenigoni (pronouncing). 

Mr. FALEOMAVAEGA. I am sorry. 

Ms. DOMENIGONI. It is just like saying Faleomavaega, you know. 

[Laughter.] 

Ms. DoMENIGONI. I am sorry, what was the question again? 

Mr. FALEOMAVAEGA. As a fifth generation farmer, and I am sure 

this is true with all our farmers here in the audience, I just want 
27 

to know how did you deal with it, was it ever a problem in your 

farming? 

Ms. DoMENIGONI. No, and I guess that is the point. Evidently the 

way that we conduct our business and take care of our land has 

made us a target, because we have taken care of the land and the 

natural resources that we have. And unfortunately that is what is 

hard to understand in this process, is that when lou do try to be 

good stewards of the land, and you are rewarde by being regulated. It seems extremely unfair. And it is not only unfair to us, 

but it is unfair to those species that we have protected on our 

ranch over the years. Because as you note, with the fire, who lost? 

Everyone lost in the fire-the species as well as the humans. 

Mr. FALEOMAVAEGA. I am sorry, my time is up. Thank you, Mr. 

Chairman. Mr. POMBO. Thank you. 

Ms. Chenoweth. 

Mrs. CHENOWETH. Thank you, Mr. Chairman. 

I would like to address my questions first to Ms. Ceniceros. You 

have a lot of responsibility here, and in looking at your local ordinances or the responsibilities that the legislature has given you, 

statute-by-statute, have they ever given you or covered this local 

unit of government with statutory authority for you to enter into 

an HCP? 

Ms. CENICEROS. It has been proposed from the ground up, by 

those property owners affected that came to us first, first with the 

fringe toed lizard, as I said. There is statutory authority in several 

sections of the ESA Section 10 and Section 4 and others, that allow 

mitigation to avoid a listing. But one of the problems that occur 

under ESA is that the language is not very precise and so it allows 

for a great deal of interpretation, according to the views of the person reviewing the proposal. That I think is one of our fundamental 

problems. It does not give us guidance. 

I characterized this to one of the senior members of the Department of Interior as putting us in a dark room, locking the doors 

and saying that there is a key in there somewhere and it may fit 

one of the locks. And we have tried to find that key to get us out 

of, through compliance, but get us out of the situation where people 

do not know if they are going to be able to use their land or not, 

we do not know if we are going to be able to do regular public 

works projects. 

Mrs. CHENOWETH. So actually, as I look at Section lO(a), I do not 

see the authority there to enter into a contractual obligation whereby your local unit of government may see their financial revenues 

constricted by the operation of a Federal program. The listing of 

the kangaroo rat and the winged toed lizard was made on the Federal level, right? 

Ms. CENICEROS. Correct. 

Mrs. CHENOWETH. My concern is that when the Federal Government, through whatever means t.hey use, put a situation forth that 

entices a local unit of government to get into an agreement to assist them in taking land and taking revenue, they are assuming 

the liability. And I am just real concerned about local units of government and people getting into these kinds of agreements. And 

unless the Federal Government has covered you with an exemption 
28 

from the liability and they have made you totally exempt, I would 

just caution local units of government to watch very carefully. 

Now--

Ms. CENICEROS. Can I respond to that just a minute? 

Mrs. CHENOWETH. Sure, I would like to hear from you. Ms. CENICEROS. I think that is more relevant to the proposal for 

the NCCP, the Natural Coastal Communities Plan. I did not see 

any support in the law for going to a strictly habitat based approach. It may be a more intelligent approach. But I was asked to 

participate in a three-county, southern California county effort 

guided by the state with a resolution authorizing it from the Secretary of the Interior. I would not support our county going into it 

because of the absence of clear law on the issue, just as you suggested. Mrs. CHENOWETH. That is good leadership, Kay. I appreciate that 

because it-they are buying the liability and without a fully study 

under the National Environmental Policy Act, which by the way 

has been made a part of the Act by reference, and without you and 

people like Mr. McLaughlin realizing the full economic impact on 

your responsibility, fiduciary responsibility, to provide for the necessary services that you have to provide for, they are putting you 

personally and your government in a terrible situation. And I 

would just ask you to be very, very cautious. 

Mr. McLaughlin, have you read the stated Congressional purpose 

of the National Environmental Polic~ Act? 

Mr. MCLAUGHLIN. NEPA, yes, maam. 

Mrs. CHENOWETH. Can you tell me what it says? 

Mr. MCLAUGHLIN. Did you want me to use up your five minutes, 

or--

Mrs. CHENOWETH. No, it will not take that long. Let me tell you 

what it says. It says that for every major Federal action-which 

certainly a whole county, an impact on a whole county is a major 

Federal action-you have to get into an environmental impact 

statement, an economic impact statement and the key phrase there 

is "to understand the impact of the Federal action on man and his 

environment." It is not on the kangaroo rat and his environment 

or the wing toed lizard and his environment. It is on man and his 

environment. Our desire in the Congress now is to turn more and more authority over to you, but to make sure that you are protected. I hope I 

live to see the day that your jobs are far more important than the 

jobs of Congressmen because we have returned local control back 

to the people and put it in the hands of people like you. 

I see my yellow light is on, but is there-has there been a clear 

local consensus from the people in the area in favor of the HCP 

program? 

Ms. CENICEROS. Probably it is the most divisive issue in Riverside County in the decade-absolutely no consensus, but very 

strong feelings in favor, very strong feelings for alternatives, but in 

favor of the sense of the Act, and very strong feelings opposed to 

the whole idea. 

Mrs. CHENOWETH. I really appreciate the ten points that you 

have offered us and they will be very useful to us. Thank you very 

much to all of you. Thank you, Mr. Chairman. 
Mr. POMBO. Thank you. 

Mr. Ken Calvert. 

29 

Mr. CALVERT. Thank you, Mr. Chairman. 

My first question is for Supervisor Ceniceros. Supervisor, approximately-and I know that there is no certain numbers for 

this-but approximately how much of Riverside County is out of 

bounds for any type of development? How much of it is open space? 

Ms. CENICEROS. In terms of our general plans as well as species? 

Mr. CALVERT. Just how much would you approximate would be 

permanent open space based-what is owned by the Federal Government, the state of California, the county of Riverside. 

Ms. CENICEROS. Given the vast amount of desert which is 

checkerboarded and more with BLM land, we probably have about 

60 percent in some kind of public ownership or under some kind 

of easement-not necessarily the county. In fact, usually not the 

county, it is usually Federal. 

Mr. CALVERT. OK, so you would say a minimum of 60 percent 

possibly of Riverside County is designated open space? 

Ms. CENICEROS. Yes. 

Mr. CALVERT. San Diego County, how much do you believe, Mr. 

McLaughlin, is in San Diego County right now? 

Mr. McLAUGHLIN. A comparable figure is under state and Federal ownership at the present time. Most of our non-Federal and 

non-state lands are in the western coastal plans. 

Mr. CALVERT. And San Bernardino County, I would suspect-we 

have an expert on San Bernardino County that will appear, but I 

suspect at least that number, possibly more, in San Bernardino 

County is permanent open space. 

Mr. LEWIS. A little over 70 percent. 

Mr. CALVERT. A little over 70 percent. Ms. Klippstein, what-the 

position of your organization obviously, from your testimony, is 

that that is not a sufficient amount of property in order to maintain species and necessary habitat must be accommodated. Is it 

your position then that the government should take public property 

or private property? 

Ms. KLIPPSTEIN. Mr. Calvert, my position is that biological diversity does not have any political boundaries and that it is very difficult to make a determination in acreage of exactly how much land 

should be set aside and for how many species. I believe that we 

need to protect all of them. A13 far as--

Mr. CALVERT. How much land is sufficient. If not 60 or 70 percent, is it 80 percent or 90 percent? 

Ms. KLIPPSTEIN. Well, you know, to separate them, whether it is 

non-Federal lands, state lands or privately held lands, I do believe 

that because it is all within the United States or within a state, 

that both the United States and the state does have that right to 

regulate our natural resources, and that is part of the public trust. 

Mr. CALVERT. Are we saying then that the people who own property in fact do not have complete ownership of that property, and 

you are saying that we need to expand that habitat to take private 

property holdings? Is that your position? 

Ms. KLIPPSTEIN. My position is that private landowners are not 

sovereign nations and that they are landowners within a nation 

that does have a right to regulate those natural resources. 

91-616 95-2 
30 

[Verbal expressions from the audience.] 

Mr. CALVERT. So you believe then that these property owners 

have no rights to their property? 

Ms. KLIPPSTEIN. I do not think it is a matter of one or the other. Mr. CALVERT. Should they be compensated for their property? 

Ms. KLIPPSTEIN. I believe definitely in the Constitution and that 

non-federal lands should be compensated, but it is also a matter of 

whether the requested compensation is extortion or not. When a 

non-federalland holder is willing to sell a piece of land-say for example, the Bolsachica wetlands in Orange County. The Koll company is asking for $160 million for an area that is of biological and 

cultural significance. How can the American public possibly be expected to pay one company that much money? 

Mr. CALVERT. You believe the property owner should be paid fair 

market value for their property? 

Ms. KLIPPSTEIN. Yes, fair market value, not extortion. 

Mr. CALVERT. Thank you very much. 

Thank you, Mr. Chairman. 

Mr. POMBO. Mr. Lewis. 

Mr. LEWIS. Thank you very much, Mr. Chairman. I very much 

appreciate the commentary by each of the panelists, it is very helpful to us. 

There is little question that this Congress is going to take a number of unprecedented steps, unprecedented at least in terms of the 

last half century, by seriously reviewing a whole series of regulations and areas of statute that are long overdue in terms of re-evaluation. The Endangered Species Act is among those. 

Presently, 'Jne of the major projects in our region involves the 

Santa Ana River Basin, a flood control project that starts with the 

Seven Oaks Dam in the San Bernardino Mountains and extends all 

the way to the oceanside. There is a minor little item interfering 

with a piece of that at this moment, known as the woolly star. The 

woolly star is a cactus like small plant that blooms a couple weekends a year with a little purple flower. Presently it is interfering 

with the reconstruction of two crossways that go across the Santa 

Ana river basin that were recently flooded out. It is potentially impacting the development of that flood control project and the potential protection of land that involves millions of lives and billions of 

dollars of developed property, particularly in Orange County. There 

is little doubt that there is a major problem if you want to compensate that potential loss. 

Ms. Klippstein, I am very interested in the question of compensation, for it seems to me that we have a responsibility to protect endangered species and indeed, we do not want to go to extremes in 

either direction. I mean idiocy is not what government is about, but 

rather sensible-

[Laughter.] 

Mr. LEWIS [continuing]. sensible public policy. That was not in 

jest. 

I am interested in knowing if your organizations-you mentioned 

several organizations that are involved in conservation and so on. Ms. KLIPPSTEIN. Yes. 
31 

Mr. LEWIS. Are you formally on record, and was your comment 

or response to Mr. Calvert's question, serious about compensation? 

I am not worried about big corporations. 

Ms. KLIPPSTEIN. Uh-huh. 

Mr. LEWIS. I am worried about individual homeowners. Do you 

actually believe that we should have a change of public policy that 

says there will be speedy compensation for fair market value for 

property that is either lost or devalued as a result of protecting 

species? 

Ms. KLIPPSTEIN. I have considered this in quite great depth and 

also looked for solutions on how we could possibly compensate, 

where could the money even come from. Like the canary in the coal 

mine, endangered species are also indicators for determining 

whether it is healthy or not for people to live there. When you ask 

about compensation, I think it is very similar whenever there is an 

earthquake or fires or floods, that the local governments ask the 

FEMA for help and to provide for funding from that agency. I think 

that we could consider looking at combining assistance, perhaps 

through a joint memorandum of understanding, USDA, U.S. Fish 

and Wildlife Service, USGS and FEMA on possibly funding lands 

acquisition in these areas that are also hazardous for people, especially in San Bernardino County. Most of these flood prone areas 

that we are looking at for endangered species, like you mentioned 

for the Santa Ana woolly star in the wash areas, are areas of flooding that we would not want people to live near. The same with the 

high fire hazard areas. 

Mr. LEWIS. In Orange County, they are already there, that is the 

problem. There are billions of dollars of property development. 

Ms. KLIPPSTEIN. We now have the opportunity to correct that, 

that we do not have to go down this road of destruction. We have 

learned from those mistakes. 

So I do not believe we need to build in these hazardous areas. 

The woolly star is perhaps saving people's lives right now by the 

Act protecting the woolly star. So I think that we should look perhaps at how FEMA-1 know that they have done this in Georgia 

and Mississippi with the floods there-has actually come in and acquired lands now so that people would not have to go through 

these same disasters and loss of life again. I think this is something that could definitely be applied, especially in San Bernardino 

County. 

Mr. LEWIS. She believes in compensation. 

Ms. KLIPPSTEIN. Sure. Fair and not extorted. I think there is 

going to be some debate around that, Mr. Lewis. 

Mr. LEWIS. I am not sure exactly-! think we are in agreement 

in connection with that, but just average homeowners' compensation, or that fanner who was going to be put in jail in the Central 

Valley. Questions of that kind carry us to the extreme. 

Ms. Domenigoni-is that correct? 

Ms. DOMENIGONI. It is pretty close, yeah. 

Mr. LEWIS. Not bad, huh? 

[Laughter.] 

Mr. LEWis. I want to mention to Mr. Faleomavaega-hi, babel call him Eni, because it is easier for me--

Mr. FALEOMAVAEGA. John Wayne is just fine. 
32 

[Laughter.] 

Mr. LEWIS. Just for the record, I want you to know that you can 

put four eastern states in my desert in San Bernardino County. It 

is the largest county in the country. 

It is very important for those in the audience to know that these 

task force hearings are very serious hearings because the Congress 

is about to either reauthorize or not reauthorize the Endangered 

Species Act. There will be some very, very serious adjustments in 

recent past history in that connection. So if you really are concerned about endangered species, if you are really concerned about 

making sure that land use is reasonably dealt with insofar as the 

Federal Government is concerned, you should know that we need 

help in trying to weigh and measure and balance the differences 

here. It really does not solve many problems by cheering or booing 

when you agree or disagree with an extreme position. But without 

any doubt, there is going to be a change in the law, and it is because the pendulum has moved so far relative to the government's 

view of land use and how much control they should have over people's land. 

So the time to address yourself to the Congress is now over the 

next several months-not years, but several months. So this panel 

being here today is very helpful to us, but also all of you participating and focusing at this point in our history is helpful as well. 

Thank you, Mr. Chainnan. Mr. POMBO. Thank you. 

Mr. Bilbray. 

Mr. BILBRAY. Thank you, Mr. Chainnan. 

As a Representative from San Diego County, I have got to remind my colleagues that at one time, San Bernardino and Riverside were part of San Diego County. 

[Laughter.] 

Mr. LEWIS. But all in my Congressional District. Mr. FALEOMAVAEGA. I thought I was right somewhere. Mr. BILBRAY. I want to defend the position that there is an historical link there. 

Cindy, I apologize, I am not going to ask you any question because your name scares me to death. 

[Laughter.] 

Mr. BILBRAY. Mr. Woodward, you were talking about the horror 

stories of the Endangered Species Act and making some references. 

In your experience with these terrible situations, is it your opinion 

that it was the letter of the law that was creating the problem, or 

was it the application or the interpretation by the bureaucracy that 

was administering both? 

Mr. WOODWARD. Well, in our review of the ESA law in particular, it provides provisions and flexibility. We believe it clearly is, 

as you describe it, a very, very narrow interpretation by the agencies that are the enforcers. In particular, the ESA seems to be the 

leader of the movement, so to speak, and there is very, very narrow 

interpretations and that is what has been, when applied, a 

misapplication, and a very burdensome one. 

Mr. BILBRAY. So, in other words, your big concern here is the fact 

that you may have a good law, but if the agent who is enforcing 

the law is abusive, or is not using common sense, the problem is 
33 

the law is based on the concept that there will be good discretion 

used in the implementation, and your concern is that that is what 

is lacking at this time? 

Mr. WooDWARD. That is correct, and it certainly takes the leadership of our elected officials in Washington to get the message to 

the bureaucrats and let them know what the people say. Mr. BILBRAY. OK. I just think it is important-sometimes we go after the inanimate object because it is easier to scream at the Endangered Species Act rather than try to focus on this ever-moving bureaucracy that may be manipulating the Act and not applying it 

appropriately. And I think we need to be fair about that; 

Ms. Klippstein, you seem to have a pretty good grasp of the Endangered Species Act and, you know, we have a situation down in 

my neighborhood where for ten years we had 14 million gallons of 

raw sewage pouring into our regional park and the estuarian wildlife preserve, Tijuana, which is supposed to be the most rrotected 

land in America, in fact, to the demise of the clapper rai and the 

least tern and five other endangered species. And during ten years, the Endangered Species Act was never invoked by anyone to force 

the state department and EPA and the rest of them to stop the poi- soning of this valley. 

When we finally got the bureaucracy to agree that we were going 

to catch the sewage and stop it from polluting the valley, we ended 

up being confronted by Fish and Wildlife with a term they said 

that after ten years of ~ollution, it had wiped out the natural ecol- o~ and we now had a' sewage-based ecology". [Laughter.] 

Mr. BILBRAY. You know, it is not a laughing matter when you are 

trying to protect public health and save a wildlife preserve. They then invoked the Endangered Species Act to stop us from cleaning 

up the sewage. 

Now can you explain to me the sewage-based ecology and can 

you explain to me, did the Endangered Species Act when it was 

passed in the 1970's, did it mean to stop us from doing those good things for the environment that many of us have been trying to do? 

Ms. KLIPPSTEIN. My believe is that when the Endangered Species Act was enacted, that it was to be proactive, so that these type of 

situations would not occur. Unfortunately now it has become more 

reactive. If the Endangered Species Act, if implemented, even the 

way it is written now, I believe that we would have many more 

species recovered and de-listed. The problem is that it is not being implemented the way that it is written, and largely because it is 

not funded the way that it needs to be. And some of that I think 

is done deliberately too, because of campaign interest groups and 

lobbying that it is not. It becomes a very political issue if you want 

to step in and try to save an endangered species. So that it is, 

funding and politics. 

As far as the sewage ecology, I am not a sewage ecologist, but 

because----

Mr. BILBRAY. Thank God. 

Ms. KLIPPSTEIN. [continuing] because it was going on for a long period of time, and because of those micro-organisms that occurred 

and that built up and built a resistance to the sewage, I would say that logically yes, there was another type of ecosystem that formed. 
34 

There are many ecosystems that are always evolving, but I do personally feel that it was a shame that that happened, that the local 

agencies did not step in. Why did they not when this was going on? 

Why does it always have to be a citizen group or an environmental 

group that has to take the initiative and spend their money to 

make sure that this Act is implemented. Again, Fish and Wildlife 

Service has excellent biologists, but when you go further up into 

Portland or into Washington, often they are squashed, unable to do 

what needs to be done because of those local politics and the influence in Washington. 

Mr. BILBRAY. I need to point out to you that the local people have 

worked on this for over a decade. The larger environmental 

groups-and I challenge all of you to go back and look at thiswere not involved, because they had concerns that it might cause 

a bad impact with a foreign country. There was a public relations 

problem and I was told flat out by many of my friends who were 

involved in the environmental community that they were concerned 

about the public relations aspect of confronting Mexico with an environmental disaster, and pressuring the State Department to address it. 

What we had here was a situation where public health was not 

given the same priority as a local interpretation of the Endangered 

Species Act. Do you feel that the Endangered Species Act, when 

written, was intended to create a situation where encephalitis, malaria, hepatitis were becoming extensively a public health threat? 

Do you think that if you interpret the Endangered Species Act to 

allow a health threat to exist, is it being interpreted properly? 

Ms. KLIPPSTEIN. If the Endangered Species Act had been enacted 

prior to this polluter, why was this polluter in the first place allowed to put this sludge in there? Why was that not stopped? 

But again, like the canary in the coal mine, the Endangered Species Act, if implemented correctly, could have prevented all of this 

from happening. But again, you know, politics are largely involved, 

not only at the local, state and Federal level or within certain agen- cies, but probably also within those groups. More and more people 

need to get off the fence and say we are going to protect endangered species, whether it is Section lO(a) incidental take permits 

that allow the continued killing of endangered species in this country, under the misnomer of habitat conservation--

[Applause.] 

Mr. BILBRAY. Leeona, what I am saying though is the polluter 

here was the city of Tijuana, which no local people could address, 

and the EPA and the Fish and Wildlife refused to pressure the 

State Department, and it became a reactive-and I think you hit 

on the proactive issue. And what we have got to do is get away 

from the reactive and stop finding excuses for stopping people from 

doing the right thing and start finding reasons to do the right 

thing. Ms. KLIPPSTEIN. We definitely need to do the right thing and be 

proactive in protecting America's natural heritage. I would agree 

with you. Mr. BILBRAY. And I only bring this up because I do not think environmental laws are meant to hurt the environment. But there 

are interpretations with that effect that are occurring, and I will 
35 

talk to you about it any time you want, where the environment is 

being hurt by the bureaucracy, and that is the big gap here. 

Ms. KLIPPSTEIN. By the bureaucracy. 

Mr. BILBRAY. The bureaucracy. 

Ms. KLIPPSTEIN. It, the environment, was definitely hurt by the 

bureaucracy and campaign influence. We need to do something about the campaign influences at the higher level. 

Mr. POMBO. Thank you. 

I would like to thank the panel very much for your testimony and for the answers to the questions. I would like to excuse this 

panel and call up panel number two. We are not taking a break, we are just calling up the next panel, so if you will please all remain in your seats. 

Panel number two-Chief Mike Harris, Richard Minnich, Ken 

Edwards, John Bell, Carolyn Powers. Would you please come up? [Pause.] 

Mr. POMBO. If you would take your seats, we are going to get going with panel number two. 

OK, I would like to welcome the second panel to testify. Chief 

Mike Harris from the Riverside County Fire Department, welcome, 

and you may proceed. 

STATEMENT OF MIKE HARRIS, CHIEF, RIVERSIDE COUNTY 

FIRE DEPARTMENT, PERRIS, CALIFORNIA 

Mr. HAruus. Thank you. I am Chief Mike Harris of the Riverside 

County Fire Department. I also manage the operations of the California Department of Forestry and Fire Protection and 13 municipal fire organizations in Riverside County. I offer this introduction 

of myself to indicate to you that my comments today come from the 

perspective of both an urban and wildland fire service manager with over 30 years of experience in providing public protection. Both California state law and Riverside County ordinances require the removal of flammable vegetation to bare mineral soil 

around all homes and improvements. The intent of these laws is to 

break the unobstructed travel of fire from a wildland area into the 

structures or from the structures into the wildland habitat. These 

laws and ordinances have proven effective over the years at provid- ing a reasonable and prudent level of public safety. In 1989, the Fish and Wildlife Service established regulations for 

the protection of the Stephens kangaroo rat that, in effect, eliminated our ability to enforce the public protection hazard reduction 

laws of the state and the county. 

The kangaroo rat regulations were developed by the Fish and 

Wildlife Service without conferring with the appropriate fire officials or affected citizens. There were three major impacts from 

these actions: 

1. The fire service lost a very valuable public protection tool. 

2. The regulations caused confusion on the part of government officials and the public, leading in some cases to inaction. 3. The lack of proper hazard reduction contributed to the loss of 

homes and other improvements during the California fire. 

The General Accounting Office's report on the California fire concluded that the lack of hazard reduction activities had no impact 
36 

on the losses caused by the California fire. I do not agree with their 

conclusions. 

The experience of firefighters has proven that dwellings need to 

be separated from flammable vegetation by fire breaks. This eliminates flames coming into direct contact with the dwelling and provides a defensible space in which firefighters can work to save the 

home. 

One year after the California fire, we signed an agreement with 

the Fish and Wildlife Service which allows the removal of flammable vegetation around homes and improvements. This agreement allows the fire protection agencies and the citizens of this 

county to again take reasonable and prudent fire safety measures 

required by state and county ordinances. 

It is my position that the regulation development process of the 

Endangered Species Act is flawed. 

I would urge your consideration of a modification in the process 

to require: 

1. The direct involvement of public safety providers when developing regulations that involve habitat also occupied by humans. 

This involvement must be before the development of regulations 

and must be entered into with a desire to protect human life and 

property as well as providing species protection. 

2. We need to look more toward watershed or habitat management and less at species-by-species regulation. If we do not make 

this change, the future holds a never-ending series of regulations 

for the protection of individual species. This will become unmanageable for public safety agencies and will cause unnecessary confusion and hostility with the public. 

The 1993 California fire serves us best at this point as a window 

to the future. If we do not make some positive changes in the regulation development process of the Endangered Species Act, we will 

see more California fires occurring in more and more locations. 

Thank you for the opportunity to address your group. 

Mr. POMBO. Thank you. 

Mr. Richard Minnich, you may proceed. 

STATEMENT OF RICHARD MINNICH, ASSOCIATE PROFESSOR 

OF EARTH SCIENCES, UNIVERSITY OF CALIFORNIA, RIVERSIDE, CALIFORNIA 

Mr. MINNICH. Thank you. I am an Associate Professor of Earth 

Sciences at the University of California, Riverside. My research 

concentrates on the fire ecology of California ecosystems. I also coteach a course in natural hazards and disasters. 

The Endangered Species Act as applied to California will very 

likely involve land use that interfaces with wildlands, so my remarks address wildland management systems that relate to the 

ESA. 

Several of my studies compare the patterns of wildland fire in 

brushlands under fire suppression in California and without fire 

intervention in neighboring northern Baja California, Mexico. 

These studies have permitted an analysis of the impacts of fire control in California wildlands. 

With respect to housing and other infrastructure destroyed by 

the California fire, it is important for you to understand that this 
37 

disaster occurred almost simultaneously with conflagrations1 at Laguna Beach, Malibu, Altadena and Cherry Valley, during which 

time about 1000 homes were burned at a cost of roughly orfe billion 

dollars. This disaster has not so much to do with the Stephens kangaroo rat as it has to do with fire suppression of the Forest Service, 

California Division of Forestry and other land management agencies. 

The disaster is also related to uncontrolled land use encroachment into dangerous habitat, forming extensive urban/wildland 

interface zones in southern California. Such urbanization is encouraged by the belief that fire control actually reduces fire probability 

and protects infrastructure by extinguishing all fires when they are 

small-the so-called ten o'clock policy implemented in the 1920's. 

In fact, suppression leads to unintended, counter-productive effects. 

Fire control encourages abnormal fuel build-up by lengthening fire 

intervals. But more importantly, the efficient suppression of tiny 

fires selectively provokes uncontrolled large fires to escape during 

the worst possible weather conditions, notably Santa Ana winds. 

Fire intensities are so high that it is impossible for firefighting 

agencies to protect property and resources. The recent Santa Ana 

wind blown California conflagration and the other fires in southern 

California are a symptom of suppression, as similar disasters have 

occurred repeatedly during this century. In the California fire, with 

high spread rates in 30 to 50 mile an hour Santa Ana winds, it 

made little difference whether houses had 100 foot fuel clearance. 

Fire brands and embers can establish flames a mile ahead of the 

fire front. Safety considerations often make it prohibitive for fire 

engines to protect individual houses. 

In Baja California, fires are smaller, even without suppression, 

burn at low intensities in ordinary weather, and seldom destroy 

property and resources. To simulate such a regime, U.S. land management agencies must become involved in prescribed burning programs at an extensive scale to prevent catastrophic fire. But this 

will inevitably require reform on questions of liability on land management agencies. Effective fuel management cannot proceed unless threats of lawsuits from those living in dangerous environments are alleviated. 

Part of the fire problem is the disaster relief institutions at the 

Federal and state levels. Declaration of natural disasters is an important mechanism for the transfer of capital for relief from region 

to region. However, relief can become part of the problem in areas 

subject to frequent disasters. California brushlands are subject to 

current burning and federally subsidized loans encourage people to 

rebuild in dangerous places. Disaster actions should perhaps be 

privatized so that people living in dangerous habitats pay premiums that reflect the true hazard of their land. Such would doubtless result in more rational land use. 

During this century, there have been two general trends concerning natural disasters. (1) There has been reduced fatalities due to 

such efforts as improved weather forecasting and construction of 

earthquake-safe buildings. But the other trend is skyrocketing 

costs of infrastructure damage. Given current land use trends, this 

country will inevitably become unable to afford natural disasters 

under the present system of FEMA type programs. 
38 

In summary, I believe the focus of this hearing on the Endangered Species Act should also consider the long-term impacts of 

other Federal and state policies and programs. 

Thank you. Mr. POMBO. Thank you. Mr. Ken Edwards, Riverside County 

Flood Control and Water Conservation District. You may proceed. 

STATEMENT OF KEN EDWARDS, RIVERSIDE COUNTY FLOOD 

CONTROL AND WATER CONSERVATION DISTRICT, RIVERSIDE, CALIFORNIA 

Ms. EDWARDS. Mr. Chairman, members of the Task Force, my 

name is Kenneth Edwards. I am the General Manager-Chief Engineer of the Riverside County Flood Control and Water Conservation District. We do appreciate the opportunity to present the Task 

Force with information regarding the impacts of the Endangered 

Species Act on our district, and to provide recommendations for reform. 

Our district has developed an extensive flood control system in 

western Riverside County over the past 50 years, which includes 

35 dams and detention basins, 48 miles of levees and 188 miles of 

channels. 

We have routinely maintained the flood control system for many 

decades. But more recently, Federal agencies, including the Corps 

of Engineers, EPA and the Fish and Wildlife Service have effectively prevented proper maintenance activities through regulations 

promulgated under the authority of both the Clean Water Act and 

the Endangered Species Act. While these laws have existed for 

many years, the adverse impacts have only been felt in recent 

years as Federal agencies have issued ever more stringent regulations, often without the authority of new law and sometimes to settle environmental lawsuits of questionable merit. 

Onerous Federal permit and mitigation requirements delay or 

prevent maintenance of critical flood control facilities, impose a serious threat to public health and safety. Some examples. 

In January of 1993, over $10 million of property damage occurred 

in Old Town Temecula when Murrieta Creek overflowed its banks. Federal officials refused to allow maintenance which would have 

prevented the flooding, partially due to the alleged concerns about 

the least Bell's vireo. Ironically, after the flooding, Federal authorities allowed the maintenance to take place. 

In another case, we were prevented from controlling burrowing 

rodents in large earth fill flood control dams that protect the cities 

of Riverside and Moreno Valley over concerns for the endangered 

Stephens kangaroo rat. It was considered that they might be living 

in our earth fill dams. 

Finally, the district has been prevented for more than two years 

from making critical repairs to the Santa Ana River levees which 

protect the city of Riverside, because two endangered woolly-star 

plants were discovered in the river bottom near the proposed work. 

Survival of a species was not at stake in any of these cases, but 

we were prevented from taking immediate, appropriate action to 

protect the health and safety. I might add that our County Transportation Department has experienced similar problems maintaining bridge and other drainage structures. 
39 

We have also experienced major difficulties in getting critically 

needed flood control projects approved because of the ESA. This 

can be illustrated by the district's San Jacinto River flood control 

project near Perris, California. In 1988, the district entered into six 

years of negotiations with the Fish and Wildlife Service to address 

concerns they had for the San Jacinto salt bush plant. Those 

lengthy negotiations resulted in an agreement to add significant 

environmental enhancements to the project, including a 100-foot 

wide riparian corridor for the entire 10-mile length of the project 

and an additional 250-foot wide corridor of land contiguous to the 

channel to provide mitigation protection for the San Jacinto salt 

bush and potentially other plant species. 

In order to provide guarantees to the regulatory agencies, the 

flood control district, the county and the city of Perris executed a 

memorandum of understanding with the Service. A special study 

developing a conceptual corridor plan was submitted to the Service 

in the fall of 1993. Their response to this proposal was to essential 

abrogate the MOU and proceed to listing the salt bush and three 

other plant species. 

There seems to be little or no interest by the Service to work 

with local officials to arrive at an acceptable plan. It appeared the 

service was more interested in stopping some new development 

that would be allowed with the flood protection the project would 

provide. The listing itself we believe was flawed as we do not believe their scientific basis for listing was valid. 

We are also critical of the Service for failure to meet mandatory 

timeframes in the Section 7 consultation process. In November in 

1988, the Corps of Engineers, in connection with our permit application, requested that the Service initiate a Section 7 consultation 

for the San Jacinto River flood control project in connection with 

the Stephens kangaroo rat, a process, which current rules allow 

135 days to complete. The Service did not complete the biological opinion until-actually they have not finished it yet, it is supposed 

to be close to being finished, now we are in April of 1995, seven 

years later. 

Statutory reform of the ESA is needed to address the problems 

I have discussed today. Specific reforms recommended by the district are as follows: 

A categorical exemption should be provided to provide for the 

routine maintenance and emergency repair of all existing flood control facilities, including dams, debris basins, open channels, highway drainage structures. 

Review and approval of supporting science in the administrative 

record by an independent panel should be required prior to a proposed listing being published in the FEDERAL REGISTER. 

The time allotted for public comment on a proposed listing 

should be doubled to 120 days and the time to request a public 

hearing to 90 days. 

In addition, all proposed listings should be prominently published in newspapers of broad general circulation. 

And finally, specific time periods should be established for completion of processing and review of permit applications, habitat conservation plans and Section 7 consultations, with provision made 
40 

that all such submittals be deemed approved if not acted upon by 

the Service within the allotted time. 

Mr. Chairman, we have submitted a more detailed written statement for the record. Thank you for the opportunity to make this 

presentation. 

[The statement of Mr. Edwards may be found at end of hearing.] 

Mr. POMBO. Mr. John Bell. 

STATEMENT OF JOHN BELL, BUSINESSMAN, TEMECULA, 

CALIFORNIA 

Mr. BELL. Thank you for this opportunity. My name is John Bell, 

I live in Murrieta and work in Temecula. My family has owned and 

operated a medical device manufacturing company in Temecula for 

over 20 years and we employ approximately 500 hard-working men 

and women in the Temecula Valley. 

On January 16, 1993, our company, along with several hundred 

other Temecula businesses were flooded due to a flood control channel that had overflowed its banks. Damages to the communities of 

Murrieta and Temecula amounted to over $10 million. Our company sustained several hundred thousand dollars alone in losses 

due to down time to manufacturing production cycles and facility 

damage. And of course the families that were employed there were 

without income for a period of two days and our company was in 

no position to reimburse that to them. 

The flooding event resulted in a Presidential declaration as a 

Federal disaster area. 

Historically, the Murrieta Creek flood control channel had always been maintained on an annual basis. Debris, vegetation and 

sedimentation was traditionally removed in an effort to allow the 

channel to perform its intended function as a flood control facility. 

But for several years preceding the 1993 disaster, vegetation that 

had once been removed on an annual basis was allowed to establish itself. AB time went on, the vegetation had gotten so dense that 

when Temecula had finally experienced heavy rainfall after several 

years of drought, the vegetation had acted as a diversion dam and 

sediment trap causing a wall of mud and water to be dumped into 

the commercial and industrial areas of Temecula. 

Subsequent to that 1993 disaster, further research has revealed 

a sequence of events that took place that further explain the reasons as to why the flood control channel had been allowed to become filled with vegetation and sedimentation. 

AB it turns out, a small bird call the least Bell's vireo, an official 

endangered species, has habitat just downstream from the 

Murrieta Creek flood control facility. In an attempt to expand the 

habitat range of this protected species as well as protection of other 

wildlife species, several special interest groups had successfully lobbied the various state and Federal regulatory agencies in preventing the issuance of the necessary permits and/or maintenance requirements necessary in allowing the adequate drainage velocities 

and volumes to occur. 

Several documents and letters of correspondence can be referenced to show the concerns raised by the various flood control engineers and specialists prior to the January event. Their concerns 

centered around the fact that the intended function of the flood 
41 

control channel had been severely diminished due to the onset of 

the established vegetation and sedimentation. Warnings were 

foretold that an eminent disaster was about to happen. But the political pressures associated with the protection of the downstream 

habitat of an endangered species obviously outweighed the secondary regard for human life and property. 

While I still have a green light, I really appreciate Ms. 

Chenoweth's comments bringing attention to our county local officials, the liability associated with assuming a role in protection of 

a Federal Act. And I hope the victims that have suffered the losses 

due to the protection of some of the species sue the socks off of Riverside County. 

And I would like also to tell the Members of Congress here that 

your Commander in Chief along with his Vice President Al Gore 

has signed what they call a biodiversity treaty and through a management system called Ecosystem Management, the White Housethere is a White House Task Force that has been instigated and 

from what research we have been able to gather on that, the Endangered Species Act will be dwarfed in comparison to the regulations that we will see on the American way of life in relation to 

that. And for the record, I would like to submit documentation on 

that. But be looking out for the words "Biodiversity," "ecosystem 

management" and "comprehensive watershed management approach," which a pilot program has been implemented here in Riverside County. 

Thank you very much. 

Mr. POMBO. Thank you. Without objection the additional information will be submitted for the record. 

Mr. BELL. Thank you. 

Mr. POMBO. Ms. Carolyn Powers. 

STATEMENT OF CAROLYN POWERS, TIJUANA RIVER VALLEY 

TASK FORCE, IMPERIAL BEACH, CALIFORNIA 

Ms. POWERS. Hello. My name is Carolyn Powers and I am on the 

Tijuana River Valley Task Force, the Tia Juana Valley County 

Water District and represent the city of Imperial Beach at the San 

Diego Tijuana Border Task Force on wastewater treatment along 

the border down here. 

I feel like I could sit quietly here and if you had enough witnesses in front of me, you would have encountered our problems 

time after time, other than the fact that we have rather a unique 

twist, as Congressman Bilbray pointed out, with the sewage down 

here. 

Thank you, Congressman Pombo and the Task Force for allowing 

me to address you on some of the effects the Endangered Species 

Act has had on my community. 

The Endangered Species Act does need a tune up. It was enacted 

at a time when this country's environmental needs were being 

shamefully neglected. We have protected many endangered species 

from the reality of extinction with this well-intended Act. However, 

subsequent enforcement and multi-levels of legal interpretation 

have mutated the original intent to a bureaucratic boondoggle that 

defies all common sense. 
42 

Federal regulatory agencies need to be put on notice to give 

human health and safety needs priority. If the enforcement of the 

Act results in health hazards to mankind, then that enforcement 

should be stayed. We also require the rightful use of land, comfort 

and safety to the human being. We have a symptomatic representation of a little of what ails the 

current interpretation of the Endangered Species Act in our little 

southwest comer of the United States. The "endangered species", 

and I put quotation marks around that, most impacting our pursuit 

of health and safety are the least Bell's vireo, the California least 

tern, the coastal California gnatcatcher and lastly, the Pacific pocket mouse, the presence of which, despite the best nightly trapping 

efforts of Fish and Wildlife, remain unsubstantiated. They have not 

found it in our valley yet. And I think if anyone else does find it 

in the valley, they probably still will not find it in our valley. 

The least Bell's vireo and the California least tern are migratory 

birds returning to Baja and southern California to nest each year. 

Both species are plentiful in Baja. This is the outer part of the 

summer range of the California tern. As with all migratory species, 

the stronger, genetically superior of the breed claim the center of 

their range. Somehow, magically, when these slightly less vigorous 

specimens of their species cross the invisible line that marks the 

Mexican-U.S. border, they become the California least tern, not the 

California tern that they are known as in Mexico. That title "least" 

has cost U.S. taxpayers a lot of money. They have been known to 

nest on passenger jet runways at Lindberg Field and Fish and 

Wildlife has forced their costly removal and subsequent mitigation. 

I do not think they are particularly intelligent either. I would have 

a hard time relaxing out there. 

[Laughter.] 

Ms. POWERS. The Tijuana River watershed encompasses 1724 

square miles, two-thirds of these lands are located in Mexico. The 

watershed and all it carries eventually drains into the Tijuana 

River, flowing across the border into the United States through the 

Tijuana River Valley, and after entering the Tijuana estuary out to 

the Pacific Ocean, through the city of San Diego, San Diego County 

park lands, as Congressman Bilbray mentioned, San Ysidro and 

Imperial Beach. Tijuana is the fastest growing city in the world. 

However, the growth of its infrastructure is sadly lacking. Renegade sewage flows from Mexico into the Tijuana River and north 

to the United States have characterized this sensitive border region 

with the notoriety of having a sewage-based ecosystem or ecology, 

as Congressman Bilbray pointed out. 

Resultant sewage contamination has closed our beaches for 

months at a time, causing enormous economic deprivation to coastal cities. Untreated sewage flowing in the usually seasonal Tijuana 

River 12 months a year has also resulted in the growth of a willow 

congested riparian habitat, in what had been arid sand dunes and 

well watered agricultural lands. Under normal conditions, the Ti- juana River flows only during winter months, acting as a watershed runoff channel or it carries groundwater seepage after a few 

years of excess precipitation. With the sewage coming down, it was 

really 12 months a year and that is what created our riparian habitat. 
43 

Fish and Wildlife is now categorizing this agricultural land as 

disturbed habitat, claiming that if the land had not been farmed, 

it too would be a riparian habitat due to the daily urban-induced 

sewage-furnished water and fertilizer flowing through the lands. 

This new riparian habitat has attracted the endangered least 

Bell's vireo, and is now regarded as protected habitat. 

We can no longer clear and maintain river channels choked with 

willow, reeds, cattails. Resultant sediment build up causes river 

waters, fed by rainwater and sewage and heavy metals contamination, to flow and pond laterally from the central line of the river 

throughout the every growing thicketed outreaches of the valley. 

This superior mosquito breeding habitat has the potential to 

transmit encephalitis, malaria, hepatitis and life threatening diseases to man and livestock alike. And yet cattail, reed and willow 

clearance in this environment is denied during the very months 

that mosquitoes flourish. Why? Because the least Bell's vireo 

claims the same romantic season as the mosquitoes and disrupting 

interference is legally restricted between March 15 through September 25. The vireo's six months of x-rated bliss has become a 

nightmare for San Diego County Health Department vector control, 

whose only hope for mosquito abatement programs is to send people into this bog with hand carried mosquito fish and U.S. Fish and 

Wildlife approved insecticides, while said mosquitoes perform quite 

unfriendly services to their persons. 

The progress and cost of the international wastewater treatment 

plant, with its land and ocean outfalls, has been plagued with extended endangered species studies and reports. Frivolous lawsuits 

from the Sierra Club as well as some time constraints on the actual 

scheduling of the construction have again plagued this whole 

project. 

The city of San Diego Metropolitan Wastewater Department just 

sent me a summary of costs associated with mitigation for the 

South Bay aproject-and mind you, our big pipe that goes nowhere 

is the only thing on the ground right now, that and some site preparation where the site is actually going to be-and yet the city of 

San Diego alone, and that is not counting International Boundary 

Water Commission, the city has spent over $4,320,000 and identified another $1,235,000 short-term future investiture into solving 

a problem that should have been solved a long time ago. 

Mitigating the loss of an artificially man-induced habitat has 

added to the taxpayers' burden by requiring mitigation. All lands 

being disturbed have to be replaced by other acreage, sometimes at 

the ratio of eight-to-one. The area to be mitigated requires land 

purchase, engineering, plan approval, grading, plumbing for irrigation, planting with appropriate habitat species, monitoring and watering with imported northern California water, even if it occurs 

during the middle of a drought like we just had, when neighbors 

caught using excess water are fined as punishment for wasting this 

precious commodity, and the sewage just keeps on coming. This 

blatant example of bureaucratic terrorism needs to be stopped. We 

should not be penalized by our own agencies for stopping this 60-

year old affront to our southern border. 

Mr. POMBO. I am going to have to ask you to wrap it up. 
44 

Ms. PoWERS. OK. Then I will make them real happy and zip 

right to the end here. I did have a lot more to cover on Border Patrol, and I hope someone else does because they have a lot of financial as well as time constraints. Mr. POMBO. Your entire statement will be included in the record. 

Ms. POWERS. OK, thank you. 

This type of systematic abuse, implemented time after time on 

basic, ageless problems-flooding, pestilence, sewage control and 

guarding the borders-has got to end. To have federally mandated 

laws pit agency against agency with the taxpayer picking up the 

ever increasing tab is insane. If we the people cannot balance this 

Act, then it should be rewritten with common sense as the preferred criteria. 

I would also like to make sure that you know that you have 

present a representative from Congressman Duncan Hunter, 

Muriel Watson's testimony is up at your desk. 

Mr. POMBO. Thank you. 

[The statement of Ms. Powers may be found at end of hearing.] 

Mr. POMBO. Ms. Powers, I am sure that no one here supports 

dumping raw sewage into the river. Do you have any idea why it 

was not stopped before? 

Ms. POWERS. I will send it to you and you can put it on the 

record, "60 years of sewage"-it has been plagued by broken treaties on the U.S. side, on the Mexican side, by budgets appropriated 

and spent in other directions. There has been a variety of problems 

and probably the easiest to explain is that we have been a forgotten corner of the southwestern part of the United States, and it 

was easy to ignore us until fairly recently. We have had a lot of 

good Congressional support, by the way, I thank all of you. 

Mr. POMBO. I know Congressman Bilbray has talked to me and 

I am sure everybody else over the past couple of months about his 

problems and what has gone on down there. But I would like to 

have that included in the record. So if you could--

Ms. PoWERS. I would be glad to send it. Mr. POMBO. I would like to have that included in the official 

record. 

Ms. PoWERS. It is sort of an unofficial Bible when people really 

ask that same question, we go "glad you asked." 

Mr. POMBO. Thank you. Mr. Harris, why do you believe that you came to a different con- clusion than the GAO report that we received, I guess it was about 

a year ago? 

Mr. HARRIS. It is beyond my capability to understand how the 

GAO's office drew the conclusion that they drew, based on the 

questions and our response to those questions. I guess-! am not 

trying to avoid a direct answer here, I just do not understand. 

Their question specifically put to us was "Could you prove in a 

court of law that the reason a given home burned down was because the vegetation had been mowed and not disked under." And 

obviously we cannot prove that, nor can anybody. It is a contributing factor. We made that point repeatedly with the GAO's staff. 

Their ultimate conclusion was there was no impact because of the 

velocity of the fire. 
45 

If I could give you a comparison, the Replar fire, which occurred 

during the same series of fires was in the San Gorgonio Pass area 

near Banning and Beaumont, a comparable wind condition and fire 

condition, other than the fuel loading on the Replar fire was much 

higher than it was, so the potential for loss is higher. The other 

major difference is there is no prohibition from a landowner or the 

county doing hazardous reduction clearance. We lost four homes 

there. 

The point that Mr. Minnich made about, you know, there are serious conditions during those crisis kinds of fires; that is true, there 

are a number of contributing factors. But if I can make a very 

quick example here, if we assume this piece of paper is a structure 

and we provide a fire break so the direct flame impingement is out 

here somewhere, you do not have to be a rocket scientist or the fire 

chief to figure out that that is less potential for loss of this home 

than if you put that flame right here. And all we are saying is that 

the law needs to be adjusted to allow that to happen. 

Mr. POMBO. It was also brought up in other testimony both on 

this panel and a previous panel about people living in dangerous 

areas. How would you respond to---1 mean, unfortunately Congressman Lewis had to leave and he is really the one that is the expert 

on FEMA, but how would that-the actions of the Federal Government and our need to take a real serious look at FEMA and its actions in the future, but how do we deal with that with areas that 

are already developed and where people already live? 

Mr. HARRIS. There may be some clear logic to the concept that 

the Federal Government might want to invest some of their funds 

in preparing areas to deal with natural disasters or mitigating 

them before they occur, as opposed to always putting money in 

after the disaster occurs. Mr. POMBO. Mr. Minnich, did you want to respond to that? 

Mr. MINNICH. One thing we have to have in mind is that the fire 

will be inevitable. The question is what kind of fire you are going 

to get. By trying to preempt the catastrophic burn by prescribed burning, you are going to get a fire that certainly will not be as 

potentially disastrous and will be much better potential for fire 

management agencies to protect property and resources. If we 

looked at the Malibu burn and Laguna Beach, there is a tremendous loss of houses in these areas and many times we would see 

a fire engine unit going to a house where they knew the flame line 

was about to reach it, but just for their own protection, the fire was 

just so intense, they had to walk away from it. 

Mr. POMBO. So you would suggest that in these smaller fires 

where the conditions are ideal to allow a burn-that we allow those 

to burn? 

Mr. MINNICH. You just simply have to plan for it. There is no 

way we can go back to Mexico, which is an area I am studying right now. But there are probably many pathways, you obviously 

have to get the fuels away from the structures. If you do not have 

scattered structures within chaparral, the worst case scenario is 

the Santa Monica Mountains. It is better to have cohesive urban 

units that are solid units with no fuel at all. 

Mr. POMBO. But the reality is we do have houses out there now. 
46 

Mr. MINNICH. Well, and then FEMA comes along and more or 

less promotes the process in a sense, because every time we get a 

disaster like this, there is money to go back to these sites and they 

rebuild a home that is twice as expensive. Mr. POMBO. Yeah, and that is something that we are all dealing 

with right now, especially with those of us from California, with 

the amount of money that has come to California through FEMA 

lately, we hear on a daily basis about the need to restructure that. 

I realize my time has run out, but for my own mind, I do not 

really think you are saying anything that is that much different 

than Chief Harris. Mr. MINNICH. Not at all. 

Mr. POMBO. And I just wanted to understand. You do think that 

it is appropriate to clear vegetation from around occupied structures. 

Mr. MINNICH. No .problem. Any way that you can do to improve 

your chances, but it 1s literally that, it is a chance. In this particular bum the spread rates were really intense and the fire literally 

went several miles in several hours. And as I recall, the Malibu 

bum began just before, is that correct? 

Mr. HARRIS. After. 

Mr. MINNICH. It began after. But there was enough burning 

around that the resources were stretched out among several bums 

because they were more or less simultaneously. So it was very difficult. 

Mr. POMBO. Thank you very much. 

Mr. Faleomavaega. 

Mr. FALEOMAVAEGA. Thank you, Mr. Chairman. 

Mr. Minnich, you indicated earlier in your statement that this 

fire that caused the loss of 1000 homes and dollar value of over a 

billion dollars, and you were critical of the U.S. Forest Service. Can 

you elaborate on why that observation? They did not do their job 

or--

Mr. MINNICH. Sure, they did their job. The question is, it is a 

new action or management system that has been implemented on 

brushland ecosystems that never had them before. The policy is so 

old that people just do not remember what it was like without fire 

management. I mean, it has been in force for 100 years. 

So my research has gone on to very similar ecosystems on the 

Mexican side, and I asked the question what happens if you do not 

have management, and the answer is several, there are much 

smaller bums-there are a lot of bums, it tends to fragment the 

fuel in the landscape. The fires are smaller because they keep running into other fires that occurred maybe 10 years before. And the 

fires tend to sample the climate, in the sense that they occur randomly and they occur in ordinary weather. Whereas on this side of 

the border-and I really think this is the biggest problem of the 

management-is their efficiency of putting out the tiny fires, 99 

percent of them, and then promoting that one percent of events to 

take off in the worst case weather. It is easy to put a small fire 

out in good weather. But in rough weather, it is selective. The big 

ones are going to come out in rough weather. 

Mr. FALEOMAVAEGA. I do not want to use the term "the big one", 

but I just wanted to ask-I do not mean earthquakes. 
47 

Mr. MINNICH. Oh, sorry. Mr. FALEOMAVAEGA. I just wanted to ask for your opinion and 

your understanding, I am sure you have done an extensive study of this major fire, if there were other Federal agencies that were 

involved and if, in your opinion, the Federal assistance that was 

provided in this was adequate or they just did not do their job, period. 

Mr. MINNICH. I think the problem is that the resources were 

stretched because there were multiple burns at the same time. So 

probably if it were a singular fire at that moment of time, they could have gotten the resources to Sage, more resources than they 

would otherwise. But this has become a problem with the management in a sense, in that we are getting synchroniety of conflagra- tions, many at once. It would be much nicer if they always occurred 

randomly and not overlapping in time and then the resources could 

be more effectively moved from one place to another. Mr. FALEOMAVAEGA. I suspect that you probably are one of the 

few specialists in this area about fires and I just wanted to ask you further if you have given specific recommendations, at least on the 

Federal level, how to improve the response and the resources that 

could handle the major fires, as you have indicated in your statement. Has this been done before? I mean, has this been brought 

to the attention of the Forest Service or at least those of usMr. MINNICH. Certainly. These are questions that have been important in the minds of forestry agencies, all the land management agencies, I would say especially since 1970, which was a year of 

enormous conflagrations. They were in Malibu, San Diego County, other places. The problem is we are in a bad situation with heavy fuels over huge areas and it is getting ourselves out of it. They are 

aware of it, there are legal problems-there was a planned burn in 

the Corona area several years ago that took off and consumed a 

house or two, and of course this led to I am sure lawsuits, and it 

also makes a certain timidity in trying to be involved in land management agencies for which they are not going to take risks. And 

this is a real problem, especially when you have the urban/wildland 

infrastructure or interface already developed. And of course, the 

length of interface is increasing with time, as we keep on urbanizing these landscapes. 

There is a study by Tom Scott in our department just on a geo- graphic information system, but the urban/wildland interface 

length in this county right now is like 1500 miles. Mr. FALEOMAVAEGA. My concern is that certainly this is not the 

last time that we are going to have major fires and the problem 

is are we adequately prepared to meet those kinds of situations. 

And I appreciate your comments on that. 

Mr. MINNICH. Once a fire is large-and really all that means is 

like 50 acres-it is gone. The firefighting efforts are largely to protect structures at that point. They are not trying to really-they 

cannot really control the destiny of the actual flame fronts at that 

point in time, especially in severe weather. 

Mr. FALEOMAVAEGA. Thank you. 

I would like to ask Fire Chief Harris, I still am not clear, as a 

follow up to the Chairman's question, how the Endangered Species 
48 

Act has lessened your ability to put out fires. If you could kind of 

elaborate on that, I would appreciate it. 

Mr. HARRIS. Yes, sir. In 1989, the Fish and Wildlife Service established a regulation for the protection of Stephens kangaroo rat, 

which in effect said you cannot remove-you cannot build that fire 

break around homes and improvements. 

Mr. FALEOMAVAEGA. While the fire is on? 

Mr. HARRis. No, you cannot go out as a homeowner and provide 

that protection, you cannot take responsibility to provide some protection to yourself. In effect what we had here, sir, from my view 

is one level of government being empowered to develop a regulation 

without consultation with other levels of government, that says, 

you know, we are overpowering your local regulation, no matter 

how much logic or reason is there. To me, that is not good government. 

And the point I would like to make today is I would like to see 

that change in the regulation development process. 

Mr. FALEOMAVAEGA. My time is up. Thank you, Mr. Chairman. 

Mr. POMBO. Thankyou. Congresswoman Chenoweth. 

Mrs. CHENOWETH. Thank you, Mr. Chairman. 

Chief Harris, I was fascinated with your testimony. I am sure it 

hurt you very deeply, as a professional fireman and a chief, to see 

what happened in terms of the many homes that were lost because 

of the failure to be able to properly follow state law and disk a 30 

foot wide area around homes. 

I do want to say, sir, that I have not found in the Endangered 

Species Act, the Act itself, any place where that law supersedes 

human safety, and I know that as we look at the Endangered Species Act, that will be again something that will be made so clear 

that even a Federal judge can understand it. 

[Laughter and applause.J 

Mrs. CHENOWETH. And I submit also that, you know, you do not 

need more Federal funds, you just need to be able to be free to do 

your job and protect your people as you have been trained to do. 

Mr. HARRis. Thank you. 

Mrs. CHENOWETH. And I really appreciate firemen, even though 

I am a grandmother. I still like firemen and appreciate all the risks 

that your people take. And I thank you very much. 

Mr. HARRIS. Thank you. 

Mrs. CHENOWETH. Mr. Edwards, is Mystic Lake in your area of 

jurisdiction? 

Ms. EDWARDS. Yes, it is. 

Mrs. CHENOWETH. And you have been unable to trench out the 

natural channel and that is what caused the flooding out there in 

Mystic Lake? 

Ms. EDWARDS. No, Mystic Lake is a natural sink. It is in a geologic area, a major fault goes through and it is a natural sink and 

flood water transverse down the San Jacinto River and then they 

pond out in Mystic Lake and the water reaches a certain elevation 

and then it flows on out through the river down into Lake Elsnore. 

But Mystic Lake is a natural phenomenon, it is sort of a natural 

sink. 

Mrs. CHENOWETH. Sir, I did see some areas yesterday where they 

were not allowed to trench out and it was real apparent to me that 
49 

that was one of the major problems, and the flooding that has 

taken the production of about 1000 acres of production here. 

Ms. EDWARDS. That is correct. That is upstream of Mystic Lake 

where that occurred. Mrs. CHENOWETH. Yeah. But as I understand it, and from what 

I could see, it would impact the flooding at Mystic Lake. 

Ms. EDWARDS. Well, yes, because of the flooding that occurred, 

it went through major agricultural land and major dairies and we 

got pollution into Mystic Lake that would not have otherwise been 

there. There is a levee system that has been around since the 

1920's. Our district has maintained it for about 50 years. And from 

time to time we have to clean the sediment out of the channel to 

maintain capacity. And we ran into this problem, suddenly we have 

to get permits to remove this sediment and then they want to place mitigation requirements and we do not have the funds to do that. 

And we have been sort of debating with the Corps to get permits 

to clean the channel out. The flood came. We could not even close 

the breach in the levees until we could get in and clean the sediment out. And in fact, my first request for an emergency permit 

was denied and after I appealed to the District Engineer and said 

we have got a pollution problem besides, they finally realized. The 

permit was just issued two weeks ago. 

Mrs. CHENOWETH. You know, you have been operating here in 

Riverside County under an HCP and it has been widely quoted to 

me that Section lO(a) of the Endangered Species Act is what you 

are operating under, but you know, that Act says that the Secretary may permit, under such terms and conditions as he shall 

prescribe, any taking, if such taking is incidental to and not the 

purpose of the carrying out of an otherwise lawful activity. Now 

taking into consideration the Federal flood control act or state flood 

control act, I would submit for the record, sir, that you are engaged in lawful activity, and the Secretary is violating the public trust by 

not working with you more cooperatively. Ms. EDWARDS. I have to say that our position, our district's posi- tion-remember, we are first with the Clean Water Act, because 

most of our permits come from the Corps of Engineers, but they always consult with the Fish and Wildlife and that is where the ESA 

really starts to come into play-we have contended that the Clean 

Water Act exempts our facilities, but the Corps of Engineers all the 

way up to Washington takes exception to that. And therefore we 

have to get the permits and I have not been excited about wearing horizontal pinstripes and so we try to work within the system to 

get the permits properly. We just desire not to be fighting the 

Corps in Federal court. 

Mrs. CHENOWETH. I think, sir, that we all need to fight for our 

people, whether it be in Federal court, in the Congress or in the 

positions that you are in. We have a responsibility to fight for our 

people and their property. [Applause.] 

Mrs. CHENOWETH. Let me ask you in your wastewater treatment 

plant what has happened to your NPDES permit? Is there not a 

clear violation of your NPDES permit at your wastewater treatment plant? And how can the Secretary reconcile that? 

Ms. POWERS. Which Secretary are you speaking of? 
50 

Mrs. CHENOWETH. Of Interior, Bruce Babbitt. 

Ms. POWERS. Well, we do not know-! do not know that. So much 

of this goes back to the State Department and the negotiations 

with the sovereign government of Mexico. People were asking before how can we let Mexico do this to us-well, it falls out of the 

realm of our local politicians to do much more than stomp tables 

and put up signs and what-not, because it is the United States government allowing the Mexican government to not only send a barrage of people here to take personal services, et cetera, but also to 

dump their toilets right into our backyards. 

Right now, by the way, as of five o'clock yesterday morning, for 

48 hours, the entire sewage flow that Congressman Bilbray had 

mentioned, was coming down before. They have shut down the 

Mexican sewage treatment plant for repairs, so what do they do 

with the sewage? It is going right down the Tijuana River onto the 

beaches, and it is going to close the beaches right on up through 

Coronado, which is why President Clinton was unable to take his 

family swimming last Easter when he was out here-truly. The 

beaches in Coronado were closed then too. They will be closed right 

now. 

Mrs. CHENOWETH. Thank you so much, Ms. Powers. 

I do want to say I used that incident in my campaign and people 

would not believe me in Idaho until I produced the paperwork. It 

is unbelievable. Thank you. 

Mr. POMBO. Thank you. 

Mr. Calvert. 

Mr. CALVERT. Thank you, Mr. Chairman. 

Chief Harris, as you know, we have had quite a bit of rain this 

year and it is pretty green outside, but it is not going to be green 

for long. I am curious, has the U.S. Fish and Wildlife put in writing 

their change of regulation in support of disking? Have you got anything from them? 

Mr. HARRIS. Yes, sir, we have. They have signed an agreement 

with the county of Riverside that allows us now to do what we historically have done within 100 feet of any improvement or structure, we can disk. 

Mr. CALVERT. Are they now cooperating with you better than 

they have in the past? 

Mr. HARRIS. I think it would be fair to say there has been an improvement in the cooperation level. 

Mr. CALVERT. Beyond disking, and I think that Mr. Minnich has 

a point, there is activity on the land, farming, which in effect has 

acted as a large fire break, is that not correct? 

Mr. HARRIS. True. 

Mr. CALVERT. If in fact, the Domenigoni's were allowed to continue to farm their property, would that not have acted as a natural fire break and solved a lot of the problems in that area? 

Mr. HARRIS. Anything that we can do that reduces the fuel loading, either through prescribed fires, as Mr. Minnich discussed, or 

through farming activities or whatever, obviously reduces the intensity of fire. 

Mr. CALVERT. And I agree on prescribed burning. In the Laguna 

Beach fire, the problem in Emerald Canyon, I flew over that area 

right after the fire and as you know, Mr. Minnich, that fire was 
51 

set by an arsonist and the city of Laguna Beach and the county, 

I understand of Orange County, were unable to do a prescribed 

burn in that area. It was told to me the primary reason for that 

is that Emerald Canyon was prime habitat for the gnatcatcher, and 

that was one of the reasons why they were unable to do prescribed 

burns within Emerald Canyon, and the fuel load built up over the 

years and unfortunately, as you mentioned, the fire is inevitable in 

southern California-! agree to that-that fire was set and because 

of that fuel load, it was able to leap the Pacific coast highway and 

destroy several hundred homes along the Pacific coast. 

Mr. MINNICH. Well, this represents one of many legal barriers to 

fire management agencies to get a free hand. 

Mr. CALVERT. So would you agree then that ESA in this case, 

possibly contributed to the fact that we could not do a prescribed 

burn? 

Mr. MINNICH. Not really, because there are many things that 

contributed to that. I mean, there was 20-30 years of fuel buildup 

and many other processes ongoing that led up to that, including 

fire control. And again, the worst part of fire control is the escape 

of the unmanageable fire in the worst possible weather. If a fire 

had gotten away in ordinary weather, I do not think we would have 

had nearly the same disaster. There are many institutions and programs involved that led into this problem. 

Mr. CALVERT. Of course, arsonist set fires probably at the worst 

possible moment in time because they precisely want to create as 

much damage as possible. 

Mr. MINNICH. I certainly do not want to leave you with the impression that people were igniting set fires, it is a trigger to a reaction that fuel had been building up for 30 years and it is the plants 

that cause fires, it is the vegetation. You can send an arsonist to 

Death Valley and he is not going to get arrested. 

Mr. CALVERT. Back to Chief Harris, if in fact prescribed burnings 

work, if for instance in the area of Rancho Corello up above Lake 

Elsnore, where we have had a tremendous amount of fuel load 

build up over the years, if in fact that is gnatcatcher habitat in the 

area around that community, could you get a permit to have a prescribed burn? 

Mr. HARRIS. We assume we could go through the process to get 

a permit. To the best of my knowledge, to reference back to your 

question about the Laguna fire-and I hesitate to speak on behalf 

of the Orange County fire organization-but part of my understanding of what that problem was when I discussed it with Chief 

Holmes, was they were not able to get a negative declaration, you 

know, to move forward with the environmental assessment part of 

the thing, and they had invested somewhere in the neighborhood 

of two or three years in the biological study required to get permission to burn. And that was the delay. The intent in the Laguna 

Canyon area was to have burned that previous to the fire. 

Mr. CALVERT. I understand they were trying to have a prescribed 

fire during the non-mating season of the gnatcatcher, I understand. 

But the period in which it took to get that permit was too long, the 

fire in fact started and it was too late. 

One other question on flood control, Mr. Edwards. We have a 

problem in my Congressional district, I understand that we finally 
52 

received some funds to improve highway 7 4 through Lake Elsnore 

and we can start that work immediately. As you know, much of 

Lake Elsnore has been cut off to emergency vehicles and access. I 

understand we cannot start that work until September. What is 

the reason for that? 

Ms. EDWARDS. That is because there is least Bell's vireo habitat 

on both sides of the highway, not in the highway right-of-way itself, 

and I was told yesterday that Caltrans is ready to start this work 

within 30 days, but they were told they have to wait until September when the gnatcatcher migrates south before they can actually 

go in and do the work to do that highway repair and reconstruction. 

Mr. CALVERT. Thank you, Mr. Chairman. 

Mr. POMBO. Mr. Bilbray. 

Mr. BILBRAY. Thank you, Mr. Chairman. Chief, I do not know if you are aware of the gaping hole in the 

Endangered Species Act with hand clearing, at least from the Fish 

and Wildlife Service. I guess that this has been a gaping hole we 

saw in it, basically that the permit/rocess was not triggered unless equipment was being used. An I only kind of raise this because it shows you that there are deficiencies from the implementation side again and again. And one of the concerns I have is that 

we look at the product and not just the process of the Endangered 

Species Act proceedings. 

Now Mr. Chairman, I need to clarify to the members of the panel 

and to the public that Ms. Powers does not come here with a small 

amount of background from the environmental point of view. I 

think in all fairness, those of you who were hissing should understand that she has spent over a decade working at the preservation 

of the estuarian sanctuary, and been a volunteer involved in the 

monitoring, and in the mounted patrol to stop the violations within 

the preserve. And I think that her volunteerism, her involvement, 

is what has led to her frustration with the way the Act works outnot the way the Act was meant to be. And Ms. Powers, I apologize 

for the hissing. It does not help anybody, but I imagine after spending ten years of trying to protect this area's ecology, how frustrating it is to basically be impugned by people who mean to protect 

the environment like you do, but may not agree with the words you 

are saying. 

There was a major issue that we ran into in that area with trying to protect the least Bell's vireo, the least tern and the clapper 

rail from the illegal entry into the United States and the burning 

by smugglers of the gnatcatcher habitat in the smuggling operations along the border. And there was a proposal for lights b go 

up in there. Do you want to explain to us the frustration of trying 

to protect the wildlife preserve and the endangered species therein, 

and then the agencies that stood in your way of trying to get that 

protection put up? 

Ms. POWERS. Sure. It is multi-pronged and it covers a lot of 

ground. The fence that was going up, what did we call it, the Tortilla Curtain? The fence along the border. That was studied in Section 7 Consultation from Fish and Wildlife to put up and they 

fought it because they wanted to see wildlife corridors that went 

along Goats Canyon, Smugglers Gulc.1 and other places that you 
53 

may or may not have read about, the rather colorful names, so that 

the wildlife could go back and forth through these corridors which, 

of course, opens the door to the-our vacationing immigrants at the 

same time and stops the very process of the purpose of the fence, 

as well as along the beaches. The beaches, we are trying-they have attempted to close them down to Border Patrol agents because that is where the California least tern is nesting at, and yet, the illegals come running all through there, hiding behind the sand 

dunes. It has been very frustrating. 

Also, in the creation of these fences and the lights, they have had 

to build numerous maintenance and construction roads and they 

were required to mitigate the loss of the habitat to the construction 

roads on these sandy mesas mostly by mitigating property nearby. 

And it just seems an awful shame to have federally mandated 

agencies such as the Border Patrol have to pay out of their budget 

money back to mitigate the loss of the land while they obey their 

mandates. 

Mr. BILBRAY. Mr. Chairman, I want to point out too that there 

was least Bell's vireo habitat issues that were raised and the local 

management team was trying to take care of it. Because of the system, you ended up having flooding that occurred and caused major 

erosion that not only wiped out 20 times-20 times-more habitat 

because there wasn't a management plan implemented. But we 

also had the drowning of over 41 people in a matter of a couple of 

weeks. I happened to be an ex-lifeguard and was called in and was 

actually involved in rescuing many of the people that were trapped 

in this game that we are playing along the border. 

Ms. POWERS. Well, it is 17 this year alone, Brian. 

Mr. BILBRAY. And I think that the aggressive program that you 

have used with cowbird trapping, the $11 million that we put together to purchase the habitat area, is showing that there is a commitment to the environment here. And I would just like to say to 

those of you who really want the endangered species program to 

work, this lady is an example of what you need to listen to, because 

this is a lady who has spent a decade working on endangered species issues. And that is why we need to find this common ground. Because when you have got Carolyn Powers saying there is a problem, that is the type of person you need to be worried about. You 

do not need to worry about somebody with a bulldozer. You darned 

well ought to listen to your friends who will tell you what you need 

to hear. And I appreciate you having the guts to be here today. 

Ms. POWERS. Thank you, Brian. 

Mr. POMBO. Thank you. 

I would like to thank this panel for your testimony and for answering the questions. I appreciate it a great deal, you taking the 

time to spend with us. 

I would like to excuse this panel and call up the third panel. We 

are not taking a break, we are just switching panels here. Panel 

number 3-Peter McCrohan, Jerry Eaves, Robert Thornton, Mark 

Messersmith and Mike Ahrens. Would you please come up and 

take your place. 

[Pause.] 
54 

Mr. POMBO. We are ready to start with the third panel. Thank 

you for joining us here today. We are going to start with Mr. 

McCrohan. 

Mr. McCROHAN. McCrohan, right. 

Mr. POMBO. McCrohan. Excuse me. You are recognized and you 

may proceed. 

STATEMENT OF PETER R. MCCROHAN, GENTRY 

EXPERIMENTAL FARM, MURRIETA, CALIFORNIA 

Mr. McCROHAN. My name is Peter McCrohan. I live at 37100 Los 

Alamos Road, Murrieta, California. 

Mr. POMBO. Peter, pull that right up. 

Mr. McCROHAN. OK Is this better? I will start all over. 

Mr. POMBO. OK 

Mr. McCROHAN. That is one line I have down. My name is Peter 

McCrohan. I live at 37100 Los Alamos Road, Murrieta, California. 

I am here today to explain how the biodiversity of the southwestern United States is the foundation of my agricultural enterprise, 

or more simply, how I make a living farming with native plants. 

I have managed and operated Gentry Experimental Farm in 

Murrieta for the last 10 years. The land itself has been in my wife's 

family since the 1880's. Her great-grandfather homesteaded the 

land and the family continued to farm as a dryland grain operation. In the 1950's, Dr. Howard Gentry for whom the farm in 

named, began research on the farm into new crops. His research 

on jojoba from the Riverside County stands near Aguanga was the 

impetus for further study and plantings by others in the Southwest. It is now an established oil crop. AB a plant explorer for the 

U.S. Department of Agriculture, Dr. Gentry spent 25 years seeking 

new sources of germplasm worldwide to benefit farms and industry 

in the United States. His collections were used to improve existing 

U.S. crops for disease resistance; to assist research in new industrial oil crops, medicinals and food. New industries have been started by some of his early discoveries. 

The farm is now 48 acres, half of which is under cultivation. We 

have eight acres of white squill, a plant in the lily family from 

North Mrica, three acres of several California native plants which 

we grow for the cut flower trade. Several acres of other native and 

Mediterranean plants we cultivate for their new crop potential. 

AB our name implies, we are constantly experimenting with new 

crops. We believe that any successful farming operation depends on 

continual research. In our area, it must also be water efficient. Our 

crops are winter growing and summer dormant to utilize-excuse 

me-summer dormant to take advantage of the winter rains. The 

foundation of our work are native plants that have been previously 

ignored or under-utilized. During the past 40 years, we have 

worked with plants which have usefulness as sources of industrial 

oils, fragrances, culinary herbs, rodenticides, cut flowers and 

medicinals. Most of these projects are still ongoing either in the experimental stage or as cash crops for the farm. 

We market our products through wholesale distributors throughout the United States. There is interest for our products in both 

Europe and Japan. 
55 

The plants we work with come from the wild, uncultivated areas 

of southern California, Arizona, northwestern Mexico, the Medi- terranean regions of north Africa and southern Europe. We collect 

seeds or germplasm from these natural areas, learn about a plant's cultural requirements, and select individual plants that have the 

most marketable characteristics. Without the diverse habitat in 

southern California, Arizona and other parts of the world, we 

would not have the basic material we need to develop new crops. Within sight of our farm is Cleveland National Forest and the 

San Bernardino National Forest. I have collected plants in these 

areas which we now use on the farm for commercial purposes. Currently, I am harvesting and selling Penstemon spectabalis as a cut 

flower from seeds I collected locally. I am also growing several of 

the native sages from the area as a potential fragrance crop. I am 

cooperating with researchers at U.C. Riverside on a project to introduce chia, Salvia columbarae and Salvia hispanica into cultivation in the U.S. Again, the germplasm came from the local area. 

Neighboring growers in my area are using the local flora as a 

basis for new products in the nursery trade. 

There is a major community of researchers and growers in the 

United States, of which we are a part, that are investigating new 

crops taken from the bioregions of the U.S. The vigorous work in 

this area is evident in publications such as Advances in New Crops, 

papers presented in the Journal of the Society for Economic Botany and the meetings of the American Association of Industrial Crops 

The basis for progress in new crop agriculture is the presence of 

diverse habitat. This is why I am in favor of the Endangered Spe- cies Act. Biodiversity is a valuable commodity. 

From our farm, I can see hundreds of acres where the native 

vegetation and farming areas have either been turned into housing 

tracts or stripped bare of vegetation in anticipation of more building. All of the changes have occurred during the past 10 years with 

the Endangered Species Act in place. Without the balance between 

development and habitat protection created by the Act, the change would have been even greater. Without the ongoing presence of the local biodiversity at a viable 

and healthy level, we face the loss of an opportunity to collect and 

learn about new plants and products. The cost of this loss for future farming and future development of the new industries far outweighs the short-term cost for housing development. I believe we need a government to protect our long-term national 

interest. The leadership of Congress is necessary to support the integrated system where agriculture and biodiversity complement 

one another in order to provide crops for medicinal, fibers, foods, 

forage and ornamentals and industrial oils. 

I would like to end by saying our continued farming and research 

is dependent on the health of the bioregion. Please continue the 

Endangered Species Act. 

Mr. POMBO. Thank you. Mr. Eaves. 

STATEMENT OF JERRY EAVES, FIFTH DISTRICT SUPERVISOR, 

SAN BERNARDINO COUNTY, SAN BERNARDINO, CALIFORNIA 

Mr. EAVES. Thank you, Mr. Chairman. 
56 

My name is Jerry Eaves. I am a member of the County Board 

of Supervisors for San Bernardino County. Through the expanded 

duties of a county supervisor, I am also a member of the Board of 

Directors of the San Bernardino Association of Governments and 

the Inland Valley Development Agency. The public agency positions 

have provided me with direct experience related to endangered species issues and private/public land conflicts. I would like to take 

this time to share with you some of those experiences. 

First, the Delhi Sands Flower-Loving Fly. On September 22, 

1993, the U.S. Fish and Wildlife Service emergency listed the Delhi 

Sand Flower-Loving Fly. In doing so, the Service significantly impacted the San Bernardino County with a number of projects, with 

the greatest impact affecting the County Medical Center Replacement Facility. 

Though very little is known about the fly, it is currently believed 

to be restricted to seven sites in southwestern San Bernardino 

County and northwestern Riverside County. All known colonies 

occur on private land within a 10-mile radius. Nothing is known 

about the habits of the fly in the larvae stage. The adult emerges 

only from late July through mid-September and is thought to have 

a life span of up to one week. 

The listing of the fly created an endangered species land development conflict that resulted in the preparation of a Habitat Preservation Enhancement and Impact Avoidance Plan for the San 

Bernardino County Medical Center Replacement Facility. The plan 

was completed in cooperation with U.S. Fish and Wildlife Service 

in order to obtain the determination from USFWS that the project 

would not constitute a taking under Section 9 of ESA. This determination meant that the Section 10(a) permit and formal habitat 

conservation plan would not be required. 

San Bernardino County is in the process of replacing the existing 

medical center with a new facility that would provide better medical care for the citizens of the county in a seismically-safe facility. 

Work on the project has been in progress for many years with a 

final site selection occurring in 1990. The County Medical Center 

Replacement Facility is located in the city of Colton within San 

Bernardino County on a 78-acre parcel. A study was conducted on 

the site during the summer of 1993 to determine the presence or 

absence of the fly. A total of eight sightings, representing seven or 

eight individuals of both sexes of the fly were made. All sightings 

were made near the southern boundary of the site. The amount of 

the existing suitable habitat on the site was estimated to be no 

more than two acres. The balance of the site proposed for the Medical Center development was not suitable habitat. One note, it was 

not verified that each sighting of these seven or eight flies were not 

the same fly. 

The County concluded that its original Medical Center layout 

and design proposal prepared prior to the September 22, 1993, listing would have an adverse impact on the Delhi Sands Fly and 

would have required incidental take authorization under Section 

10(a) of the ESA if the Medical Center design were not modified. 

Because the Medical Center's financing and construction schedules 

were well underway at the time the Delhi Sand Fly was listed endangered, the County concluded that the delay associated with ob-
57 

taining a Section lO(a) pennit would effectively tenninate the 

project, or a delay or tennination of the Medical Center construction would cause a public health crisis in the County. 

As a result of the field studies and recommendations of the 

County staff consultants, a resolution for habitat preservation acceptable to the Wildlife Service was developed for the site. It included avoidance of the entire Delhi Sands area identified as the 

occupied or suitable habitat by moving the Medical Center complex 

footprint 250 feet north. The resulting Medical Center footprint leaves a rectangular area 8.35 acres in size, which encompasses the 

1.92 acre occupied by the Delhi Fly habitat as a preserve. 

Long-tenn protection of occupied habitat and the preserve area 

will be assisted by the installation of fencing, vegetative barriers, 

erosion and run-off control. These measures are designed to prevent human activity and encroachment with the habitat preserve 

area. Regular policing of the preserved habitat area for litter and 

other human disturbances will be provided. 

The Medical Center itself will have no effect on the dune-fonning activity on the site. Erosion and sand migration, if any, of the occupied habitat area will be studied annually to detennine whether 

steps are needed, wind barriers and sand stabilization structures 

to maintain the integrity of the habitat. This will be part of the ongoing site monitoring. 

Now the bad new, the cost of the mitigation-a total of eight individual flies have been sighted on the project during the field surveys. As of June 8, 1994, the total cost for mitigation had reached 

$3,310,199. A total of 41.8 percent can be attributed to the land 

cost. The Habitat Preservation Enhancement and Impact Avoidance Plan accounted for $910,000 of the budgeted amount. The cost 

for redesigned engineering construction and direct cost per fly projected at that time was $413,000 per fly. We also included a threemonth delay in the project to get this accomplished. There are a number of other species. I know that time is not 

available. I have submitted the full text of my testimony-not just what I have submitted, but today, we are also submitting from one 

of our other supervisors some testimony about the desert tortoise, 

which is a story almost as bad as this one. 

We have-we are in the process of setting up a habitat conserva- tion plan which will serve the entire valley of San Bernardino 

County, with the cooperation of the County and 15 cities. We have 

the memorandum of understanding now. We are going back to each 

one of the individual cities to get an agreement on that memorandum. After we get the agreement, we are going to take it to Washington and get the Secretary of the Interior, or someone on that 

level to agree to this memorandum so we do not have the problem 

that we have had in the past with people talking about black holes. 

There are a number of recommended changes in the Endangered Species Act that are also part of my testimony and I would like to 

have that submitted. 

Thank you. 

Mr. POMBO. Without objection. Thank you very much. 

[The statement of Mr. Eaves may be found at end of hearing.] Mr. POMBO. Mr. Robert Thornton. 
58 

STATEMENT OF ROBERT THORNTON, NOSSAMAN, GUTHNER, 

KNOX & ELLIOT, IRVINE, CALIFORNIA 

Mr. THORNTON. Thank you, Mr. Chairman, and members of the 

Task Force. My name is Robert Thornton and I have acted as the 

counsel in the litigation brought by several parties challenging the 

listing of the California gnatcatcher as a threatened species. As you 

may know, in June of 1994 the District Court for the District of Columbia vacated the listing of the gnatcatcher on the grounds that 

the Fish and Wildlife Service had violated the Endangered Species 

Act and the Administrative Procedure Act because the Service had 

failed to obtain and make available for public review the data relied on by the Service to support the listing. 

We believe that the position taken by the Service in the listing 

and subsequent to the release of the data raises very significant issues for Congress relative to the listing process. This is, in short, 

a case of enormous taxonomic gerrymandering, if you will, and I 

think it is best told by reference to the exhibits or figures that are 

attached to my paper. 

If you look at Figure 1, you will see a dramatic difference in the 

projected range of the northern subspecies of gnatcatcher. In 1988, 

Dr. Jonathan Atwood, who is the petitioner for the listing, published a paper identifying a separate species of gnatcatcher in 

southern California and the Baja distinct from the species of 

gnatcatchers found commonly in the Southwest and in mainland 

Mexico. He, at the same time, concluded that there were two subspecies of what became known as Polioptila californica, or the California gnatcatcher, and that the northern subspecies extended, if 

you look at the figure, from southern California throughout much 

of Baja, California. And quoting Dr. Atwood, he stated at that time 

"gnatcatchers were common and widespread throughout the Baja, 

California peninsula". In 1990, we had a very different view of the same data set by 

Dr. Atwood. In 1990, he joined forces with the Natural Resources 

Defense Council which had opened a law office in Los Angeles and 

their first item of business was to challenge three long planned 

transportation facilities in Orange County and a number of other 

development projects. They petitioned to list the coastal California 

gnatcatcher as a threatened species, and based that petition on a 

new paper by Dr. Atwood which dramatically changed his position 

relative to the number of subspecies and the range of the northern 

subspecies. And if you look at Figure 1 showing the range that he 

projected in 1990, he concluded that the range extended from 

southern California to 30 degrees north latitude in Baja or the 

northern jortion of Baja. This was a very dramatic change in his 

view, an frankly, the listing fundamentally depended on that 

change. 

If you look at Figure 2, we indicate what the best evidence is regarding the population of gnatcatchers as you proceed south from 

southern California through the Baja Peninsula. Best estimates are 

that there are probably three million gnatcatchers from southern 

California through the tip of Baja. The Fish and Wildlife Service 

estimates that there are 5000 pairs, in what they regard as the 

northern subspecies, from southern California to 30 degrees north 

latitude. So you can see just on the basis of the numbers how dra-
59 

matically the taxonomic flip/flop that Dr. Atwood engaged in in 1990~r 1988 to 1990 dramatically changed the potential for listing. 

A number of us representing parties who were affected by the 

listing, or the proposed listing, began to ask questions about this 

change and requested access to Dr. Atwood's data and he refused 

all of those requests claiming that the data was proprietary. We then made a number of requests to the Fish and Wildlife 

Service over a lengthy period of time requesting that they ask Dr. 

Atwood for his data and those requests were also rejected. The 

Service took the position that they could rely on Dr. Atwood's pub- lished paper and did not need to obtain his underlying data. 

We then engaged folks with impeccable credentials, the Chairman of the Department of Ornithology of the American Museum of 

Natural History, a Dr. George Barrowclough, Dr. Lyman McDonald, a nationally known bio-statistician, to look at the two papers. They came to the conclusion that you could not make a determination whether Dr. Atwood was correct in 1988 or 1990 without access to the data. And it was on that basis that we brought the lawsuit and ultimately prevailed and obtain access to the data. There 

are a number of other aspects of this story I will not go into given the limited time. 

We have the data. It has been analyzed by a very eminent group of scientists, Dr. Barrowclough; Dr. Skalski at the University of 

Washington; Dr. Boyce at the University of Wisconsin; Dr. McDonald, again and Dr. Matt Cronin. All of them have come to the same 

conclusion, that you cannot justify the taxonomic conclusion that 

was reached by the Fish and Wildlife Service and Dr. Atwood in 

1990. 

I will quickly refer you to Figure 3, which gives you one example of that. The taxonomic conclusion in the final analysis largely hinged on the data concerning brightness of breast feathers of the 

gnatcatchers. And if you look at the top of Figure 3, that is as that 

data was shown in Dr. Atwood's 1990 paper. The Y-axis at the bottom of the figure is the latitude. What that indicates is a fairly sharp step at 30 degrees for brightness of breast feathers. And it 

was on the basis of that one characteristic that Dr. Atwood said, ah ha, there is a break at 30 degrees; therefore, the birds north of 

30 degrees are different from those birds south of 30 degrees. When 

we got the actual data and plotted it, which is the lower graph, you will see that a very, very different picture emerges. And that is, there is a significant overlap for the characteristic of brightness of 

breast feathers throughout the entire length of the population from 

southern California through the Baja peninsula. There is much other information in our written testimony which 

I will not go into. 

In conclusion, Mr. Chairman, we think that there are some sig- nificant reforms that need to be made to address this particular problem. I have listed three suggestions: One fairly common sense suggestion is that petitions to list 

should be rejected at the outset when the petitioner refuses to pro- vide the data that he has available to him. 

Secondly, I think that the notice and comment listing process is 

fundamentally flawed and really has to go or be modified in the 
60 

context of listing issues where there is substantial scientific disagreement. There has to be the opportunity to directly confront experts on both sides of the issue in a fair and open hearing. Thank you very much. 

[The statement of Mr. Thornton may be found at end of hearing.] Mr. POMBO. Thank you. 

Mr. Messersmith, you may proceed. 

STATEMENT OF MARK MESSERSMITH, VICE PRESIDENT, 

KRIEGER & STEWART, INC., RIVERSIDE, CALIFORNIA 

Mr. MESSERSMITH. Thank you, Mr. Chairman and members of 

the Task Force. My name is Mark Messersmith with the firm of 

Krieger & Stewart Engineering Consultants here in Riverside. I 

would like to share with you a history of a project that we were 

involved with for one of our clients. 

Mr. POMBO. You have to talk right into that thing. Mr. MESSERSMITH. Do you want me to start over again? Mr. POMBO. Yeah, go ahead. 

Mr. MESSERSMITH. OK. My name is Mark Messersmith with the 

firm of Krieger & Stewart, Engineering Consultants, here in Riverside. I would like to share with you a history of a project that we 

have been involved with for one of our clients, the Joshua Basin 

Water District. 

Joshua Basin Water District is a water district located approxi- mately 60 miles easterly of Riverside in San Bernardino County. In 

1988 the Joshua Basin Water District prepared contract documents 

for Assessment District Number 87-1 for construction of water facilities to serve a portion of the District's service area that is pres- ently without water. The proposed facilities included approximately 106 miles of water lines, two water storage reservoirs and two 

booster pumping stations. 

Of the 106 miles ofdipelines, approximately 36 miles of pipelines 

were to be constructe across property under the jurisdiction of the 

Bureau of Land Management. In July of 1988, the District submitted an application to BLM for right-of-way across the BLM parcels. In November of 1989, approximately 16 months after the District 

submitted the right-of-way application, it received a letter from 

BLM stating that the U.S. Fish and Wildlife Service had designated the desert tortoise as endangered species; therefore, BLM 

in accordance with Section 7 of the Endangered Species Act had to 

consult with the Service and obtain its biological opinion on the effect of the proposed project on the desert tortoise. BLM further informed the District that it expected to initiate the consultation 

with the Service immediately. Approximately one year later in October of 1990, the Service received ELM's request for formal consultation. Two months later in 

November of 1990, the Service declined to initiate formal consultation until additional information could be made available. At that 

time, the District retained both an attorney specializing in the Endangered Species Act and a consulting biologist specializing in the 

desert tortoise in an effort to expedite the right-of-way and environmental permit process. 

In February of 1991, the District met with representatives from 

BLM, the Service and the California Department of Fish and Game 
61 

to review the project and initiate the California Department of Fish 

and Game 2081 permit; however, the California Department of 

Fish and Game advised that it would wait for the biological opinion 

from the Service before issuing a 2081 permit. 

In June of 1991, the Service issued a biological opinion for the 

proposed project. That opinion stated: "It is the opinion of the Service that the proposed project is not likely to jeopardize the continued existence of the desert tortoise. Critical habitat has not been 

designated for the desert tortoise; therefore, no critical habitat will 

be affected by the proposed action." Said opinion continued to list 

17 mitigation measures, including a requirement that the District 

purchase 388 acres of compensation land and transfer it to BLM. 

After the District obtained a copy of the Service's biological opinion, the District attempted to locate and purchase the compensation land. It also continued to pursue the California Department of 

Fish and Game 2081 permit. 

During an August 1991 meeting between the BLM and the District, the District was advised that BLM would not issue the rightof-way permit until BLM obtained California Department of Fish 

and Game approval. 

Between September 1991 and August 1992, the District provided 

additional data as requested by BLM and California Department of 

Fish and Game to obtain the right-of-way and permits. The biggest 

obstacle was that BLM and California Department of Fish and 

Game could not agree on which agency would own the compensation land. The District's legal counsel wrote to the BLM state director in August of 1992 stating that the project could not proceed because BLM and California Department of Fish and Game could not 

agree on who would take title of the compensation land. The letter 

also stated that the District estimated the delays caused solely by 

the inability of BLM and Fish and Game to agree on title to compensation land had cost the District over $250,000. 

In September of 1992, the District finally obtained the BLM permit for right-of-way. In November of 1992, the District received a 

copy of the 2081 permit; however, the District did not receive the 

2081 permit until they had deposited over $305,000 with the Department as security that the District would purchase the compensation land. 

In 1993, due to increased project costs and changing economic 

conditions, the District could not sell the bonds to finance the 

project and the project was terminated. 

In summary, it required the District over four years to obtain the 

BLM right-of-way grant and California Department of Fish and 

Game 2081 permit for the project. The District and its consultants 

found it extremely frustrating to work with Federal and state agencies to obtain the approvals necessary to construct a project in full 

compliance with the Endangered Species Act. Conflicts between 

Federal and state requirements and lack of cooperation among the 

agencies made the process even more difficult. 

Complying with the Endangered Species Act is a time consuming 

and costly procedure. The District expended over $1 million for design, assessment proceedings, easement acquisition, acquiring BLM 

right-of-way and obtaining the California Department of Fish and 

Game 2081 permit. Due to time delays and increased costs, the 

91·616 95-3 
62 

District could not proceed with the project once it finally obtained 

all the necessary approvals. The project area is still without water, 

even though the District has finally acquired the right-of-way and 

the permits required under the Endangered Species Act. 

Thank you for your time. 

Mr. POMBO. Thank you. 

Mr. Ahrens, you may begin. 

STATEMENT OF MIKE AHRENS, HEMET, CALIFORNIA 

Mr. AHRENS. Thank you, Mr. Chairman and members of the 

Committee for the opportunity to appear before you today. 

My name is Mike Ahrens and I live in the city of Hemet here 

in Riverside County. I am the natural resources consultant for the 

National Natural Resources Coalition. 

The NNRC includes approximately 50,000 citizens from four 

western states concerned about over-restrictive public land management. Today, I would like to shift the debate here just slightly 

over to public land management. I think appropriately the Committee has heard a lot of debate about the effects of the ESA on private lands, and we are very supportive of all the reforms that we 

have heard here today. But left out of this debate thus far, we believe, has been the effect of the ESA on public lands, and we would 

like to share some ideas about that with you today. 

Our members include certainly private property owners, but also 

members who are just families and want to get out on the land to 

enjoy various forms of recreation including rock hounding, hunting, 

fishing, sightseeing, general camping, and ghost town exploration. 

All of these forms of recreation are dependent on the ability to access public lands. We believe our way of life is under assault, often 

for a noble cause but just as often in a manner that is ill-conceived 

and unlikely to achieve the desired results. 

In the last year, in the California Desert Bill, hundreds of miles 

of roads were closed to public access. Mr. Pombo, you are very familiar with that. 

Mr. Calvert was a big help with that also. 

Now the public access to the region may be further restricted 

through recovery plans for the desert tortoise, fringed toed lizard 

and other endangered species. 

In addition to being an important way to escape urban living, 

motorized recreation contributes greatly to the California economy. 

A recent study conducted by the Institute for Social Research found 

that in California, 14.2 percent of the households, or 3.5 million 

people ~re involved in some form of motorized recreation on a regular baSIS. 

One example of how the ESA has inappropriately impacted motorized recreation is the desert tortoise. It is well known that the 

desert tortoise population has been decreasing, due primarily to 

disease, predation and what I am going to call poaching. Others try 

to call that public access. The numbers of tortoise impacted by recreational vehicles is actually so low that the figures are often 

lumped together with highway-related so that they would appear 

relevant. 

But let us look at the recovery strategy for the desert tortoise. 

The plan essentially is to establish preserves, close off the land to 
63 

the public. How this will eliminate disease, predation, poaching, of 

the tortoise, I am not sure. While, in fact, there are those who will 

go out and pick up tortoise, to take them home, and there are even 

those that will indiscriminately injure and harass the tortoise, it is 

highly unlikely that a closed area sign would stop that same person. So again, I call that poaching, not a public access problem. I 

think we have ways of dealing with poaching and we need to do 

that. 

Recreation is an easy target for recovery strategies because it 

tends to be such a large, intangible community and because it is 

often much easier to simply close an area off to the public than to, 

for example, reduce the exploding populations of ravens, the tortoise's principal predator. We would like to see the ESA reformed in such a manner that 

the Fish and Wildlife Service would be required to address the 

major causes of a species' decline rather than the easiest ones. 

One flaw with the ESA is the inadequate analysis before listing. 

I would like to talk a little bit about this whole concept of bestavailable science. I think that sounds appropriate on the surface, 

but what it has become is a blank check for special interest groups 

who want to restrict access to public lands and stymie development. What we have seen is that by limiting the debate to strictly 

the best-available science, we have seen species listed with nearly 

no science. We do not think this can continue. 

We strongly believe that there should be a more clearly defined 

criteria for listing of a species. The criteria must include the impacts of local economies, families, private property holders and 

public land users and also public land users. Furthermore, because 

a listing can have a far-reaching impact on private citizens, the 

ESA should put the burden of scientific analysis on the Service and 

not on the public. 

Another problem with the ESA is that there is no formal 

recource for our voice, the public, to be heard. The private property 

owners have every right to be real mad about the mitigation process for their uses of their land, but to some extent that process is 

better than no process at all. And that is what recreation has had 

to deal with. When recreation is found to be jeopardizing, or allegedly jeopardizing, the species, we are just out of there and there 

is no recourse. 

In conclusion, the ESA, we feel, is in desperate need of reform. 

On behalf of the NNRC, we want to recommend the Committee 

consider the following reforms: 

One, protect public access to public lands. 

Require a complete scientific analysis including not only why the 

population has declined, but to what degree each cause of that decline is responsible. 

And how listing a species may impact local economies, families, 

private property owners and public land users. 

We think that the recovery plan should be developed before listing. We think recovery plans should be required to focus on the 

leading causes of decline rather than the easiest causes to restrict 

or eliminate. 

And again, the establishment of some form of mitigation process 

for public uses on public lands we think needs to be addressed. 
64 

Finally, I cannot overstate the importance of leaving public lands 

open for recreation and how that activity enhances our financial 

and emotional standards of living. 

Thank you very much for your consideration. I would be happy 

to answer any of your questions. 

Oh, Mr. Chairman, also with your permission, I have some testimony I would like to submit for the record from some other individuals. 

Mr. PoMBO. Yes, absolutely, without objection. 

[The statement of Mr. Ahrens may be found at end of hearing.] 

Mr. PoMBO. Mike, in your testimony, you stated that maybe 

sometimes-not maybe, but that it should be-that we should look 

for what the decline in species, what the major cause in the decline 

in species is, as part of the recovery plan, versus just what is the 

easiest or politically acceptable way to do that, where you affect the 

people. 

I guess the interesting thing about that is that in Vancouver on 

Monday, we heard that exact same thing from a number of the 

members of the environmental groups up there, that they felt that 

in that area the exact thing was happening, to the benefit of others. I think that as we strive to reform the ESA and put some common sense into what the actions are, maybe by removing politics 

from the science side of it, maybe we can accomplish that. Mr. AHRENS. Right. I am actually glad to hear that. I think that 

some of that common ground that we talked about that we actually 

probably have, can often become polarized and do not recognize it. 

We think, without a doubt, the biggest flaw in this plan is the lack 

of science, real science, that is involved in listings and the recovery 

strategies for different species. 

Mr. POMBO. Yeah. A lot of times, unfortunately, in this debate 

people have responded negatively to someone they may disagree 

with versus actually listening, and maybe there are common 

grounds that we can reach here to find some solutions. I appreciate 

that. 

Mr. McCrohan. 

[Verbal comment from the audience.] 

Mr. POMBO. I am sorry. 

Your story is very interesting and I think that as a person who 

is fourth generation on my farm, I can relate to how your family 

feels about what you have in your ranch. It is interesting what you 

have gotten into, the different plants and the new markets that 

you have tried to open up. And I think that that is really one of 

our solutions to a lot of the problems that we have with the ESA, 

is that people like you ought to be encouraged to go out and open 

new markets and find uses for native plants that grew here naturally. I think that that is a big part of the solution, but there is 

one thing that I want to ask you about, and it is something that 

has come up at a number of our hearings. 

It was mentioned earlier in testimony about the woolly star cactus type plant. What would happen if in the mitigation-! think 

one of the gentlemen earlier was from an irrigation district and 

they talked about them being stopped from development because a 

couple of these plants were there. What would happen if the mitigation money that they are putting up in their attempt, or the 
65 

mitigation money that any of these people have put up, any of the 

developers have put up-if we used that money and went to you 

and said develop as many of these plants as you possibly can with 

this money and :replant them in natural settings throughout their 

natural habitat. What would be wrong with doing that? 

Mr. McCROHAN. I have two replies to that. First of all-and I do 

not mean to be flippant here-you would not offer that money. 

Secondly-and we could even take it one step farther-you are 

referring to-1 cannot remember all of the specialized species we 

were talking about here today, but let us get back to the flowerloving fly. Could we use the same analogy? 

Mr. POMBO. Yes. 

Mr. McCROHAN. OK Just prior to Dr. Gentry's death, he received a letter from an agronomist at I believe it was Fort Collins 

at the germplasm bank that they have there-and this could go 

back to Idaho--1 understand you are from Idaho. 

Mrs. CHENOWETH. Yes. 

Mr. McCROHAN. Yes. They grow a lot of beans in Idaho, they 

grow seed beans. They are the most valuable beans. There was a 

problem with a virus in the beans. And this researcher went back 

to the germplasm and tested thousands of beans. He came up with 

one bean that was resistant to that virus. And Dr. Gentry had collected that bean in the 1950's and it remained at the germplasm bank all those years and that was the first time it was used. 

That area where he collected that bean is now under a dam, that 

valley is no longer there, nor is that bean there. The amount of 

money that was saved by that virus that was previously attacking beans was astronomical, far greater than any amount of pesticidein fact, it even helped the environment. 

So I submit to you that these individual species have their value, 

we may not have found out what it is yet. 

Mr. POMBO. And I do not think we disagree. I do not think what 

I am saying to you is in disagreement. What I am trying to say is 

how can I use your talents and your abilities so that we can keep 

the woolly star from becoming extinct. How can I use your talents--

Mr. McCROHAN. OK, I understand your question now. 

Mr. POMBO. I do not think you are being flippant when you say that I would not offer you the money, because actually that is one 

of the options that we have in front of us in reforming ESA, is what 

we do with the money. There are billions of dollars that go into 

mitigation throughout this country every year and I, quite frankly, 

do not feel like it is going to the best use. 

Mr. McCROHAN. Right, OK I think one thing we could do that 

could help both farmers and individuals who are trying to preserve 

the ESA would be to develop a program that does research on 

crops, be they new crops or established crops, to where these crops 

have a minimum amount of impact on endangered species. For instance you could have crops-if you were to do some research on 

crops that were more arid adapted, that could be very helpful. 

There was a farmer I believe at your last hearing, who was complaining about not having enough water, some of his water was cut 

off and therefore he could not grow, I believe it was cotton, I read 

a testimony. Well, we should be doing research so that this farmer 
66 

is not displaced, this farmer knows that the Federal Government 

is taking funds to find ways to replace cotton as a crop and have 

a crop that still brings in a profit for this farmer. And that would 

just be some type of research program that could be set up. 

Mr. POMBO. And I think that if we put aside all the rhetoric for 

a few minutes and actually talk about what is going on and what 

you are suggesting, I think we have got some room to go here. I 

think that there is some common ground that we can work on, because the problem is, the way ESA is working right now is reactionary, is totally reactionary. And we need to be much more 

proactive in dealing with endangered plants and animals and 

maintain what you describe as biodiversity. 

I think we can do that, but, you know, if anybody digs in their 

heels and says we are not going to touch it, we are not going to 

touch it, we will never get there. And we need to open up these discussions so that testimony like yours can come out, so that we can 

say OK, how can we develop new crops, new products, how can we 

use your talent so that the wooly star never does become extinct? 

How can we do that without digging in our heels and saying we 

are not going to touch it, we are not going to touch it. That is what 

is happening. 

You know, we have tried to listen to some of these ideas that are 

coming out, and quite frankly what you are saying is not that 

much different than what the cotton farmer said. 

Mr. McCROHAN. Right. 

Mr. POMBO. It is not that much different. The only difference is 

in the middle of a water contract, he got his water taken away. The 

bank took away his ranch and he was broke. And his fourth generation farm that had been in his family for all those years-he 

was the guy that lost it. And I know that you being on the ranch 

and knowing what that feels like, it does not feel very good to be 

the generation that lost the ranch. 

Mr. McCROHAN. No. 

Mr. POMBO. And we need to figure out a way so that that does 

not happen again, so that we can stop that. 

Unfortunately my time is gone and I know I went over and I 

apologize to the Committee. 

Mr. Faleomavaega. 

Mr. F ALEOMA V AEGA. Thank you, Mr. Chairman. 

I think since we started the hearing this morning from the other 

two panels as well as this one before us, the phrase that always 

seems to stick in my mind, and something that I want to challenge 

the members of the panel as well as the members of the Committee, is always where do we find a balance, a sense of balance, or 

striking that balance between developing an ecosystem-and I will 

be frank with you, I am not an expert in saying that we have the 

answer, that is why we are here. 

There is some concern, and I want to compliment your testimony, 

Mr. McCrohan, I am familiar with what you said about this, the 

value of plants. Who would ever say that polio, the cure for polio 

came from a plant. If I was wrong about that, correct me. There 

are currently in my own district approximately 200 herbal plants 

that are being studied right now by the Cancer Research Institute 

for possibility that this could be a cure. I think all of us here, mem-
67 

hers of the Committee, are very much favorable to the very thing 

that you have shared with us, about the value of plants and species. At the same time, there is also concern about what happens 

to that little farmer out there that just does not get any sense of 

justice from the bureaucrats in Washington. We have to express 

that concern as well. 

I want to ask Mr. Thornton about the questions you raised about 

the gnatcatchers. I want to compliment your very comprehensive 

brief on the issue, and certainly you raise some very interesting 

questions about Dr. Atwood's findings on the gnatcatcher. In fairness to Dr. Atwood-! am not defending him but I wish he were 

here to respond to the questions that you raised on this. 

But be that as it may, you eventually were able to obtain data 

from Dr. Atwood's research. And I wanted to ask you, what was the 

Fish and Wildlife Service's response to these findings that you discovered about Dr. Atwood's research? 

Mr. THORNTON. The response was to relist the gnatcatcher. As I 

indicated in my testimony in eight pages of FEDERAL REGISTER 

text, they largely ignored the detailed technical comments that 

were submitted. Dr. Barrowclough's name was not mentioned once 

in the Fish and Wildlife Service response, so to a great extent the 

comments were ignored, which led to my recommendation that 

there has to be a more open process that frankly involves a more 

rigorous procedure for challenging the experts on both sides. And 

you know, frankly, I think it is fair that the experts on both sides 

be subject to the same scrutiny. 

Mr. FALEOMAVAEGA. I think Mr. Eaves and Mr. Messersmith also 

make emphasis of that fact, that perhaps from the bureaucracy 

that we have in Washington, we need a little more scientific and 

thorough examination of the species before their listings. Am I correct in hearing this from both of you, gentlemen? Are you suggesting that there just is not enough available scientific data to justify the listings that these scientists are--

Mr. EAVES. We feel that way, but we also feel that there needs 

to be blind review. That the peer pressure in the scientific community at times puts undue pressure on various scientists. If you do 

a blind review where there is no fear of any kind of peer pressure, then you get a lot better results and you have a true scientific evaluation of both sides. 

Mr. FALEOMAVAEGA. I am having this very serious problem with 

the recognition of American Indian tribes to be federally recognized. You would not believe the criterias and the kinds of things 

that these poor tribes have to go through, after going through the 

procedure that the BIA, the Bureau of Indian Affairs, has devised 

for the past 10 years. So I can appreciate where you are coming 

from on that line. 

Mr. Ahrens, I am very interested about your motorized recreation and how this translates into the economy of the state. I was 

wanting to know if you feel that ESA is not doing justice to your 

organization's needs, am I hearing this correctly? I mean, what 

seems to be the problem? 

Mr. AHRENS. Absolutely, you are right. Primarily again, the problem is a lack of science. Oftentimes, and I cite several species in 

my written testimony that probably have some real problems, there 
68 

is not a lot of science, but there probably are some problems. One 

that comes to mind is the peninsula big-horned sheep where the 

sheep's population is isolated, and that is a problem because we 

built freeways and we built communities. It has also got a problem 

with predation. We decided in the state to protect the mountain 

lion and now 22 percent of the takes on big-horn sheep are because 

of mountain lions. 

And what we are talking about now in a habitat conservation 

plan is again restricting public aec-ess. How that will keep mountain lions from eating sheep or solve this gene pool problem, I do 

not understand that, and it seems very unreasonable. 

Mr. F ALEOMA v AEGA. I wanted to ask the members of the panel 

how would we address the burden of saying OK, we do not have 

enough scientific studies, we do not have this, we cannot do that. 

And if we are going to cut the budget that is going to limit the resources available for these agencies to do their-to fulfill their responsibilities by law. How do we make an equation so that we balance that concern, to say that we cannot do this and we do not 

have the resources, but then what if in fact the Congress cuts the 

resources from these agencies to do their work? 

Mr. AHRENS. Sir, I would say that in my mind anyway, you ask 

a difficult question and I am frankly glad I do not have to make 

that decision. But I would also say that in my mind what that tells 

me is just in my own budget, I do the things that really have to 

be done, not the things that feel good to be done. And from our perspective anyway, if you want to help big-horn sheep or desert tortoise, you go after those key causes of the decline, where your 

money is probably the best spent, rather than trying to lock up private property or restrict public access, which is easy and feels good, 

but it does not help the species. 

Mr. FALEOMAVAEGA. My time is up, Mr. Chairman, thank you. 

Mr. POMBO. Thank you. 

Ms. Chenoweth. 

Mrs. CHENOWETH. Thank you, Mr. Chairman. 

Dr. Thornton, I would like to ask lou-by the way, your testimony was extremely interesting and know that the law requires 

that we make these listings based on gene pool science. Based on 

Figure 3 and Figure 4 of Dr. Atwood's work, it does not appear that 

gene pools were used in the listing of this species. I mean how can 

we equate the color of breast feathers to gene pools? 

Mr. THORNTON. Well, that is an excellent point, and one of the 

suggestions that we made and our experts made was that there 

had to be some genetic testing conducted in this instance, and for 

reasons that we cannot understand, the Service resisted doing that, 

although they have done that in other instances. Because attempting to define whether there is a distinct genetic stock on the basis 

of very indirect inferential references from the coloration of breast 

feathers, frankly is quite a subjective business and one of the underlying problems here. 

Mrs. CHENOWETH. I would personally be interested in working 

with you further on this and getting some of the data on that for 

our further work. 

Mr. THORNTON. Be happy to do so. 

Mrs. CHENOWETH. Thank you very much. 
69 

Mr. Eaves, your testimony is absolutely incredible. How in the 

world can they measure-! mean, I like flowers too, but I am not 

a Delhi Sands flower-loving fly. How in the world can they possibly 

measure the population of these flies? 

Mr. EAVES. They have about six people out on the sand dunes 

looking for them. 

Mrs. CHENOWETH. And that is their way of collecting the science? 

Mr. EAVES. Yes. 

Mrs. CHENOWETH. That is their way of counting the flies? 

Mr. EAVES. Yes. 

[Laughter.] 

Mr. EAVES. We are paying about $90,000 a year for them to go 

out and spend time, a number of observers, spending time on this 

1.92 acres that we have set aside, and this past year, I think they 

did sight-they had 20 sightings, but again, they cannot-! mean 

you cannot grab a fly and put a tag around it or put a homing device on it--

Mrs. CHENOWETH. Or a radio tracking collar. 

Mr. EAVES. Right. So they had 20 sightings, but that was over 

a period of like the six hours that they were there every day for 

like seven days. But they do not know whether that was-they did 

sight four or five at one time, so I mean there was a minimum of 

four or five, but it could have been those four or five that they 

sighted on a number of occasions. 

Mrs. CHENOWETH. Have they done gene pool analysis on these 

flies? 

Mr. EAVES. No, we do not think they have. We do not think there 

is any scientific data on the larvae or the pupae or whatever they 

are. They are burrowed in the sand for 11 months out of the year 

and it is very difficult for them to do-and we are concerned about 

the credibility of the study that was done. 

Mrs. CHENOWETH. Well, you certainly have a heavy responsibility, because when it does come to public health crisis versus a fly, 

I vote for you and making sure that we have the facilities for a 

public health crisis. 

[Applause.] 

Mr. EAVES. Part of the response to this though, and some of what 

I have heard, we have started trying to set up a multi-species habitat conservation plan, and we are talking about taking all of the 

land that is existing, the flood control land, the land that has already been dedicated for natural parks and Edison easements, all 

the easements that we have got, and try to-our proposal is 41 species-that is animal species-and 32 plant species, to protect them, 

to have an ongoing plan. The problem is it is probably going to cost 

us about $1.8 million to do the study, another million to set the 

plan up and about probably $15 million to $20 million to purchase 

enough land to do this. 

Mrs. CHENOWETH. Mr. Eaves, I really appreciate your forward 

thinking concept, but again, I would urge you to go slow on this. 

I would urge you--

Mr. EAVES. We are going real slow. 

Mrs. CHENOWETH [continuing]. to take a look at the Supreme 

Court case which emerged out of the Claims Court, by the way, entitled Dolan v. The City of Tigart, because it is really the local 
70 

units of government with regards to the impact that their decisions 

make on private property that have to pay. And that is the most 

recent Supreme Court decision with regards to the taking of property. 

I do want to ask Mr. Messersmith, you indicated that you had 

received a notice on November 16, 16 months after the district submitted the right-of-way application to the BLM to Fish and Wildlife 

Service, and that they had designated a wild desert tortoise population in accordance with Section 7 of the Endangered Species Act. 

Did they show you any science or any work that they had done to 

make sure that they had done the proper work before not allowing 

you to proceed with what the public trust asks you to do? 

Mr. MEssERSMITH. No, we just received a copy of a letter from 

BLM stating the fact. 

Mrs. CHENOWETH. Let me read to you a section of the Endangered Species Act, it is out of Section 7, it is under (cX1), which 

says "To facilitate compliance with this Act, each agency, with respect to any action of the agency for which no contract for construction has been entered into and for which no construction has 

begun, on November 10, 1978, request of the Secretary information 

whether any species which is listed or proposed to be listed may 

be present in the area of such proposed action." Now listen, "If the 

Secretary advises ... " and this is their words " ... based on the best 

scientific and commercial data available, that such species may be 

present, such agency shall conduct a biological assessment for the 

purpose of identifying any endangered species or threatened species which is likely to be affected by such action." And your project 

was stopped not by a biological assessment, but by a simple letter, 

right? 

Mr. MESSERSMITH. Well, the project really was not stopped by 

the simple letter, but the intent of the letter, in order to obtain the 

biological opinion from the Service and the 2081 permit from the 

California Department of Fish and Game, because of the time involved with obtaining those permits, that is what stopped the 

project. 

Mrs. CHENOWETH. Well, I think that it is important for all local 

units of government to make sure that the necessary assessments 

and scientific data has been accumulated, to make sure you do not 

assume the liability. 

And you know, I just want to thank all of you and the people of 

Riverside County. It was the Secretary of Interior who at one time 

said ''Private property is that antiquated Anglo-Saxon concept that 

has passed its time." And that we must identify our enemies and 

drive them into oblivion. And little did I believe--

[Verbal expression from the audience.] 

Mrs. CHENOWETH. Thank you very much. 

Mr. POMBO. Mr. Calvert. 

Mr. CALVERT. Thank you, Mr. Chairman. 

Mr. Thornton, in your testimony, you go into detail with the frustrating process that you had to obtain the data that Dr. Atwood 

used to come to his conclusion regarding the gnatcatcher. Through 

your experience, do we find that same type of activity getting data 

that is being used to make a case for an endangered species being 

proprietary and that that data is not public information? 
71 

Mr. THORNTON. Well, I think frankly the position that Dr. Atwood took was outrageous and obviously the Court found that it 

was unlawful. My view of that is when someone enters the regulatory arena, the data that they are relying on has to be made 

available to the public. If Dr. Atwood wanted to remain an academic researcher and to keep his data proprietary, he certainly had 

the right to do that in my view. But when he entered the regulatory arena by petitioning the listing, then it seems to me that his 

data is fair game. 

I think the underlying message of this story is that you cannot 

have these decisions made simply on the basis of published articles. 

He published two articles; they were peer reviewed articles; they 

came to diametrically opposite conclusions. None of the so-called 

peer reviewers of his articles identified the fundamental underlying 

problems that we have subsequently discovered. And that says to 

me that you have to have access to the data. And frankly, this is 

not a novel concept. I mean, the principle of law that we relied on 

in our litigation frankly goes back 15-20 years under the Administrative Procedures Act. It requires Federal agencies to make the 

underlying information available to the public. 

Mr. CALVERT. Then would you say this was an isolated incident 

or are there other cases, information, data that has been obtained 

to make a case for an endangered species that has been hidden 

from public view? 

Mr. THORNTON. Well, this is certainly the most egregious example that I am aware of. I think it says that in all instances you 

really have to have that underlying data that is made available for 

scrutiny one way or the other. 

Mr. CALVERT. I think that is excellent advice and I would think 

as we move toward changing the Endangered Species Act that data 

used by either side, either pro or con, that information in its entirety should be able to be reviewed by the public and by other 

members of the science community. So I appreciate your testimony. 

Mr. McCrohan, I found your testimony interesting and I agree 

that there are plant species and animal species that need to be preserved. Do you realize that under the Act as it is written today, 

that if you collect species from the national forests and subsequently one of those species becomes listed, you are not able to obtain that species any longer? 

Mr. MCCROHAN. Right. 

Mr. CALVERT. Do you not believe that if in fact a species becomes 

listed as endangered, you should be able to take that species and 

collect it in a reasonable manner to propagate that species or to encourage its continued existence? 

Mr. McCROHAN. I think anything like that should be done under 

some scientific control through a university or through U.S. Department of Agriculture. I do not think a private citizen should 

have the right to go out there and do that. 

Mr. CALVERT. But under those situations, you believe that it 

should be able to be done? 

Mr. McCROHAN. Yes. 

Mr. CALVERT. Through a controlled situation, either the University of California, for instance, if that is chosen, or others, that 

should be an allowed practice. 
72 

Mr. McCROHAN. Well, there certainly is going to be a difference 

between populations if you are going to have eight flies to collect; 

no, you probably should not. If you have 8000 of another species-

! think the question is a little too broad for a competent answer. 

Mr. CALVERT. Now as you know, there are many endangered species. 

Mr. McCROHAN. Yes, I do. 

Mr. CALVERT. And as you go out collecting those species, does it 

concern you that sometimes you might make a mistake and by accident-not anything on purpose--collect a species that has been listed? 

Mr. McCROHAN. I know the species I am looking for and I know 

which ones in the area are endangered when I go into the area. 

Mr. CALVERT. So you are confident when you do that, that you 

will absolutely make no mistakes at all? 

Mr. McCROHAN. I am never that confident about anything, I will 

admit that. 

Mr. CALVERT. Thank you very much. 

Thank you, Mr. Chairman. And I want to also thank all the witnesses and everyone who attended this hearing today and I want 

to thank the Chairman for coming to Riverside and I want to thank 

Don Young, our Resources Chairman, for allowing us to have these 

Task Force hearings. And again, welcome all to Riverside, and 

thank you very much. 

Mr. POMBO. Thank you. 

Mr. Faleomavaega. 

Mr. FALEOMAVAEGA. Mr. Chairman, I neglected to express earlier 

also my appreciation for the good people of Riverside allowing me 

the opportunity to visit your good city and the good citizens of this 

county, and also meeting with Congressman Calvert. 

I would like to ask Mr. Chairman's indulgence-and I realize 

that because of the factor of time situation that perhaps there were 

others that may have wanted to testify before the Task Force, that 

if the record could be kept open and allow other members of the 

Community to submit statements to be made part of the record. 

And certainly allow others so that we will have a thoroughly comprehensive record of the Task Force as we set about our task in 

trying to sift through the tremendous amount of testimony and the 

kind of constructive, I believe, suggestions that have been offered 

by several panelists. And I certainly appreciate their time and their 

effort. If the Chairman would not object, I would like to offer that 

as a motion to the Task Force on behalf of our side of the aisle, 

since I am the only one here, so that we could make that allowance 

for the other members of the community here to submit those 

statements. 

Mr. POMBO. Without objection, and I will point out that in every 

other hearing we have had, as in this hearing, the official record 

of this hearing will remain open for 14 days. We have received literally hundreds of requests for people to testify and time does not 

allow us to take oral testimony from everyone. But the Task Force 

official record will be held open for 14 days. If you have testimony 

that you would like to present, ideas, solutions, anything that we 

can put of value into this debate, I would not only welcome but encourage you to submit that testimony for the record. It will be 
73 

treated exactly the same way as the testimony that was given orally, it will be included in the official record of the Task Force and 

will be included in the official record. 

I would also like to point out that you can mail in testimony to 

1320 Longworth, in Washington, D.C. and the zip code is 20515. So 

if you did not have the opportunity to bring testimony with you 

today or if there are things that you heard that you want to make 

comment on or anything that pertains to the Endangered Species 

Act, you can mail in the testimony to 1320 Longworth, Washington, 

D. C. 20515. 

Mr. FALEOMAVAEGA. If the Chairman would yield further. 

Mr. POMBO. Yes. 

Mr. FALEOMAVAEGA. I believe perhaps the members of the Committee are not aware that the ranking Democrat on the Task Force 

is Congressman Jerry Studds from Massachusetts and that the 

ranking Majority member of the Democratic side of the Committee 

is Congressman George Miller. So if there are any problems in submitting the statements directly to the Task Force, you can certainly 

submit your statements directly to these gentlemen, and I would 

like to offer that as an additional suggestion. Thank you, Mr. 

Chairman. Mr. POMBO. Absolutely. 

In closing, I would like to thank all of you for being here today. 

A special thanks to all of the people who were here to testify, for 

the work that you put into your testimony. I appreciate it a great 

deal. 

I would like to say that one of the reporters before this all started asked me if we were concerned about the number of people that 

showed up today. And I think that Congressman Metcalf from 

Washington probably said it the best on Monday when we were 

asked the same question in Vancouver. He said, "I have spent my 

entire political career trying to get people interested in what was 

going on and now that they tum out, I am not about to complain 

about it." I think that this is a great sign that we are on our way 

toward a very profitable debate over what changes need to be made 

and what needs to be preserved and what we can do in trying to 

make an Endangered Species Act that is going to be supported by 

the people, that we can really work with, that will work in the real 

world. 

I appreciate a great deal the hospitality of the people of Riverside, of our host, Congressman Ken Calvert, and to the other members of the Task Force for being here with me today. 

Thank you very much. The meeting is adjourned. [Whereupon, at 2:17p.m., the Task Force was adjourned; and the 

following was submitted for the record:] 
74 

4 

r 3rd Dtstrict 

TESTIMONY BEFORE THE 

KP\Y S CENCEROS 3d Wd &vorviSCJ 

COU'lty of Riverside 

Jesste Myers, Administrative Assistanl 

Margo Ham ton , Administrative Assistant 

Fran Grey, Executive Secretary 

Valerie Chase, Executive Secretary 

Rebecca Matteson, Executive Secretary 

HOUSE SUBCOMMIITEE ON THE ENDANGERED SPECIES ACT 

April26, 1995 

By Supervisor Kay Ceniceros 

Riverside County Board of Supervisors 

Mr. Chairman, we in Riverside County appreciate the courtesy of your visit and especially 

extend our thanks to you and our own Congressman Ken Calvert. 

When the Stephens' Kangaroo Rat was listed in 1988 it followed many months of expectation 

and a previous proposed listing of the CoacheUa Fringed Toed liZJUd in our desert area. In 

the desert situation private property owners, both ranchers and developers, gave leadership to 

a partnership that led to adoption of a planned habitat that would avoid the liZIU'Ii's listing as 

endangered. 

As the potential listing of the K-rat was pending, the County was approached to try a similar 

mechanism to avoid prohibitions on development of private land and public infrastructure. 

We were infonned by the Fish and Wildlife Service that a building pennit issued by the County 

or its cities would make us party to any incidental take attendant to the development process 

itself. This would effectively create a moratorium over much of Western Riverside County. 

A task force that had bun preparing for the listing became a Steering Committee to deal with 

the listing. It was made up of the Building Industry Association, the Sierra Club, individual 

developers and county representatives. The concept was to identify areas that were inhabited 

or that had historically high levels of habitation as study areas and ultimately identify a 

maximum of 80% of the land necessary to sustain the species. If such a plan was accepted as 

adequate mitigation by the Department of Interior, most lands would be freed from constraint. 

It was en visioned that those lands that were potential, but unoccupied, habitat would contribute 

financially to a mitigation fund so that more appropriate land could be acquired for the longtenn preserves. A number of meetings were held on this approach with biologists drawing 

maps, li:ugely based on the field research of Dr. Michael O'FarreU as weU as on additional 

field work as study areas were refined. Biologists working for developers, as weU as Fish and 

Wildlife Service, participated in this mapping. 

P.O . Box 1359 • Riverside. California 92502-1359 • 9W 275-1030 
75 

A Habitat Conservation Agency was established and cities and counties affected by the listing 

participate in decisions of the agency. The County proposed, and the HCA concurred, that all 

land would be purchased through negotiation with NO condemnation and, further, that to the 

greatest extent possible lands would be designated as preserves that were already in public 

ownership. 

The County's goals in participating were: 

- relieve the property owner from the burden on individual negotiations and the 

risk of sanctions if there was a "take". 

- create an orderly process that would protect property values and relieve 

individual properties as quickly as possible. 

- comply with the Federal law in a way that would provide other benefits to the 

people. 

- allow school districts, flood control and other public works agencies to provide 

needed infrastructure so that economic growth could continue. 

The HCA has operated independently of the cities and the County, holding its own hearings 

and supported with a tiny staff. Its goal was to adopt the plan and see most lands released as 

the Endangered Species Act's objectives were met. As soon as adequate lands were purchased 

or, in the case of public lands, dedicated to species preservation, all private lands would be 

freed from constraint. 

The recession that hit California hard since 1990 has slowed the development process and the 

collection of fees adequate to purchase the needed acreage even while reducing the pressure 

on the species. We have now submitted a plan that is being analyzed in accordance with 

NEPA and the public comment process. It is our hope that all property owners will have been 

relieved of the burdens of being in a study area by the end of /995. 

We have been frustrated with the lack of flexibility shown by the Fish and Wildlife and State 

Fish and Game Departments and the massive delays in reviews of individual development 

proposals. We are convinced that this has cost the public both in dollars and in public safety. 

We believe that we are experiencing substantial improvements in our working relationship 

currently. We strongly believe that Statutes that have been deemed of "national interest" 

should be financially supported by the Federal Government and not disproportionately imposed 

on one region and one generation. 

Thank you for the opportunity to share this infonnation with you. Although I have not served 

on the task force or on the HCA, this program has had its greatest effect on my district and 

its farmers and other property owners. I appreciate you interest. 
76 

Submitted by Scott E. Woodward 

APPENDIX A 

NEEDED FSA REFORMS: 

• Compensation to landowners for regulatory taking of private property. 

If private property is devalued as a result of federal regulations regarding endangered 

species, the landowner should receive compensation. 

"We currently understand that the U.S. House of Representatives passed H.R. 925 on 

March 3rd which provides for compensation as a result of federal regulations. But 

we need your help in making H.R. 925 become the law. " 

• Consideration of Economic Impacts. 

The ESA must be amended to require the federal government to thoroughly take into 

account the socioeconomic impacts of listings decisions and critical habitat 

designations. For too long, regulatory decisions have been made without any thought 

to lost jobs, reduced property value, lost tax revenue and other impacts. Any ESA 

reauthorization legislation must include provisions which would require economic 

analysis, which would ensure that species protection and human needs are balanced. 

• The Listing Process. 

US Fish & Wildlife Service routinely relies on insufficient and questionable criteria 

when listing species. Congress should ensure that the Act's protections are extended 

only to those species which are truly in danger of extinction, and the only means of 

accurately doing that is to improve the scientific data upon which listing decisions are 

made. Field testing should be required to verify the data used in the listing process. 

Congress should also direct US Fish & Wildlife Service to peer review the data used 

in the listing process. Poor and inadequate ~ce allows non-endangered species to 

be listed as endangered. 

In California, US Fish & Wildlife Service was permitted tQ list the California 

gnatcatcher -without even receiving the raw biological data to review and determine if 

it was accurate and credible. 

5 
77 

U.S. HOUSE OF REPRESENTATIVES 

COMMITTEE ON RESOURCES 

TASK FORCE ON ENDANGERED SPECIES ACT 

HABITAT CONSERVATION PLANNING 

TESTIMONY BY MICHAEL MCLAUGHLIN 

San Diego Association of Govemrrumts 

401 B Street, Suite 800 

San Diego, CA 92101 

April 26, 1995 
78 

Good morning, I am Mike McLaughlin, Director of Land Use and Public 

Facilities Planning for the San Diego Association of Governments 

(SANDA G). 

I will do three things during my remarks: 

• Briefly describe the San Diego region, emphasizing its habitat 

characteristics; 

• Summarize the habitat conservation planning activities in the region; and 

• Identify changes in the Endangered Species Act that would improve the 

future of regional conservation planning. 

1. First, I want to take a minute to set the context. Although you all have 

some familiarity with the region, some basics need to be stressed. 

2 
79 

San Diego is the place south of southern California, supporting a natural 

and diverse biological environment. We are defined by our open space 

with Marine Base Camp Pendleton to the north, the mountains and 

desert to the east and the ocean to the west. The southern edge .is 

marked by the international boundary. 

Of our 4,200 square miles, more than 90% is open space, agricultural, 

parks, water, or undeveloped. In other words, we have a lot of open 

space. A vast majority of our 2.8 million people and 1.0 million 

housing units are concentrated in the western one-third region in the 

coastal plains. The eastern two-thirds and far north county areas are 

largely undeveloped and primarily owned by state and local government. 

Open space and habitat are integrally linked to our economic well being. 

Businesses and industries come to San Diego to enjoy our quality of life. 

The dry, mediterranean climate and open space character make it an 

outdoor "user friendly" environment. I would be remiss if I did not 

emphasize that our wonderful shoreline and beaches are also a part of 

the open space system that's important to the economy, especially tourism. 

3 
80 

Under this first part, I want to focus on two needs that are pressuring 

the San Diego region: 

A. The first is a need to protect a rapidly dwindling supply of 

natural resources. The San Diego region has a vast array of 

habitats that you literally can experience in less than an hour's 

driving time: from lagoons and estuaries along the shoreline, to 

coastal plains and mesas along the coastal plains, to the foothills 

and mountains, to the deserts in the far eastern county areas. It's 

no wonder, but it always seems to come as a surprise to a lot of 

people, that with all these micro-climates and habitats, San Diego 

County has more rare. threatened. and endangered species than any 

other county in the continental United States. 

B. The second is a need to ensure our economic well-being. 

SANDAG has projected that the San Diego region will grow by 

over a million people and a half million houses and jobs in the next 

20 years. This growth will consume over 200,000 acres of open 

A 
81 

space, much of it on our urban fringes where our valuable habitat 

is most abundant. 

2. The second part of my testimony will center on the question of whether 

these two needs are irreconcilable. We in the San Diego region don't 

think so! The way we have chosen to resolve these issues is through 

participation and cooperation in large scale, multiple habitat/species 

conservation planning. I will outline those efforts in the San Diego 

region. 

The San Diego region is covered by three such habitat conservation 

plans: (1) the southern county Multiple Species Conservation Program 

- MSCP; (2) the northern county Multiple Habitat Conservation 

Program - MHCP; and (3) the east county Multiple Habitat 

Conservation and Open Space Program- MHCOS. 

Although a substantial portion of funding for preparation of these plans 

has been generated at the local level, especially the City of San Diego, 

we have, through the support of Congressman Packard, received 

5 
82 

assistance from the federal government during the planning stage . While 

each program reflects its own unique and special conditions, they have 

a number of common attributes that I want to emphasize. 

A. As you may have inferred from the alphabet soup- MSCP, MHCP, 

etc ., they plan for multiple habitat and species: dunes and 

beaches, chaparrals, grasslands, woodlands and forests, riparian 

and wetlands, etc. are all covered by these plans. Thus, the 

agreements could cover between 60 to 90 species depending on the 

design of the final preserve systems. 

B. The plans cover both listed and unlisted species: It is important 

to deal with threatened resources before they are at the edge of 

extinction when the options are limited and when the solutions are 

much more expensive. We need to avoid the "endangered speciesof-the month club" approach. Our plans take a more proactive 

stance and would require agreements for both listed and pre-listed 

species; something that hasn't occurred much but has been agreed 

upon by both state and federal agencies as part of our plans. 

6 
83 

C. The plans involved multiple jurisdiction and/or agency 

participation from beginning to end. Both the south and north 

county programs involve all cities, the county, San Diego County 

Water Authority, Fish and Game, Fish and Wildlife, and Caltrans. 

We also felt that such participation should occur early and often. 

It is not acceptable to have a last minute "hit" from federal and 

state agencies. 

We have completely integrated our efforts with the state's Natural 

Communities Conservation Program and our plans will be the 

functional equivalent of an NCCP -- it's just that we will cover 

more than just the coastal sage communities of the NCCP. 

D. Both plans are being developed with extensive stake holder 

participation. Advisory committees consisting of 30-40 

representatives of virtually every possible interest group: 

environmentalists, builders and property owners, community 

groups, farmers, taxpayers association, and local/state/federal 

agencies have been involved from the beginning. 

7 
84 

E. The key objective of the plans is to provide certainty. Certainty 

means different things to different people. To the 

environmentalists, it means the certainty associated with preserve 

systems that will protect a biologically sound ecosystem. To the 

developers, it means the certainty associated with knowing: what 

areas can proceed with development, where the mitigation can be 

provided, and what species are covered so they won't be 

"surprised" with future listings. 

F. The plans build on solid scientific and biologically sound 

approaches that provide for the integration of land use and 

economics. It is imponant that the preserve system works as an 

integral part of the region's land use and economy. It also must be 

based on sound biology. These programs should be viewed as 

models for how the Endangered Species Act could be more 

rationally structured and implemented. 

G. The plans are important to the region's economy. Water 

availability , work force training and education, hazardous material 

8 
85 

disposal, and transportation are traditional examples of elements of 

the infrastructure important to the region's economic prosperity. 

We are, in effect, attempting to treat habitat as just another 

important element of the region's infrastructure. We need this 

infrastructure to ensure sustainable development, economic 

competitiveness of the region, and preservation of our quality of 

life. 

3. The third, and la!!t part, of my testimony focuses on changes in the 

Endangered Species Act that would improve the future of regional 

conservation planning. 

A. The Act should encourage multiple habitat/multiple jurisdiction 

based conservation. planning. These changes should promote the 

ability to deal with both pre-listed and listed species and provide 

greater flexibility to add additional covered species as warranted. 

This step would provide greater certainty to local governments and 

the private sector as part of the implementing agreements and avoid 

the uncertainty and costs associated with a species-by-species approach. 

9 
86 

B. The ESA should encourage plans that are built on solid and strong 

biology and reasonably available science, which also integrate local 

economic and land use considerations. Both plans in the San Diego 

region contain such an integration. These objectives are not 

irreconcilable conflicts. 

C. The federal government should provide commitment to conservation 

planning and implementation. Our effort, after all, is a significant 

contribution to the preservation of the national heritage. The 

local/state/federal partnership that our plans have developed should 

be used as a guide for cooperative efforts from the earliest planning 

stages to implementation, management, and operation. 

D. The ESA should encourage steps that return local land use controls 

back to communities. Local commitments to protection of natural 

resources and implementation of the HCPs' objectives should be 

encouraged. It is time for a new partnership where we implement 

these processes jointly and eliminate costly and adversarial 

approaches of the current regulations and processes. 

10 
87 

Attachments: 

1. HCP Status Report 

2. MSCP Executive Summary 

3. Information Bulletin 

11 
88 

TESTIMONY OF 

Leeona C. Klippstein 

Co-founder and Environmental Coordinator 

San Bernardino Sage Friends. Spirit of the Sage Council and 

the National ESA/HCP Network. 

PERSONAL VIEW ON THE EFFECT OF THE 

ENDANGERED SPECIES ACT ON RESOURCES 

AND PEOPLE 

before the 

U.S. House of Representatives 

Committee on Resources 

Task Force on Endangered Species 

Reid Hearing in Riverside. California 

on April 26.1995 

(- 1-) 
89 

Testimony of Leeona Klippstein to the Committee on Resources. 

Task Force on Endangered Species. Field Hearing. Riverside. CA 4/26/95. 

continued page 2 of 6 

To the Committee: 

Good morning Mr. Chairman and distinguished members of the Committee. Thank you for your 

invitation and the opportunity to speak to the very Important matter at hand. the 

United States Endangered Species Act. I am Leeona Kllppsteln. born and raised In Southern 

California. I currently live within San Bernardino County. I am a veteran of the United States 

Armed Forces and formally educated In medical sciences and health therapies. By profession 

I am a patient care specialist and child care consultant. although I have become a tuHime 

conservationist and environmental community organizer. 

I am affiliated with three conservation organizations of which 1 co-founded. San Bernardino 

Sage Friends. Spirit of the Sage Council and the National ESA/HCP Network. All three 

organizations focus on preserving Amencas Natural Heritage through protecting native plants. 

native animals and the ecosystems on which they depend upon to flourish. 

The Chairman has notified me that the Committee would be most Interested In my " views 

regarding the effect of the Endangered Species Act on the people of Southern California" 

and how the committee might address my concerns In Mure legislation. 

I am In a unique position to address these concerns since Spirit of the Sage Council was 

named and co-founded by my tnend Vera Rocha. hereditary chief of the Gabrleilno band of 

the Shoshone Nation. Vera Rocha and I met through our mutual concerns of the threats to 

the Southern California Coastal Sage Scrub Ecosystem. both biological and cultural. 

It Is a fact that as native seed banks. native plants and native animals become threatened 

and endangered. so do native languages. native cultures and native people. Ecoclde and 

genocide are reflections of the land and the consciousness of governments. The first nations 

people of Southern California. still referred to as 'Mission Indians' by the U.S. Government. the 

uta-Aztec-Shoshone. are very much alive but very threatened and endangered by the loss of 

their ecosystem. their habitat. Southern California Coastal Sage Scrub associated natural 

communities. The Gabneilno-Shoshone have been ·taken· (killed). removed. displaced. 

harassed. harmed. bothered and Invaded by non-natives. Their populations have significantly 

declined In their range and dlstnbutlon. they have become restricted to a small isolated 

populations. As more and more of southern Californian wildlife become endangered. so do 

the people. Approximately. 90% of the plants endemic to Coastal Sage Scrub associated 

communities have medicinal and life sustaining properties. Sage Is a sacred ceremonial and 

medicinal plant Integral to the health and culture of the native people of Southern California. 

However. the native people of the land are little recognized or Included In the Important task 

at hand, preserving Americas Natural Heritage and protecting Americas Endangered Wildlife 

and Wildlands. The U.S. Fish and Wildlife Service does have a "policy" on Native Americans but I 

have not yet experienced Its Implementation nor witnessed any of the "policy" benefits to 

Vera Rocha or the Gabriellno-Shoshone people. 

It appears that the U.S. Government and public are more Interested In "Foreign Affairs" and 

exotic ecosystems. Many people are concerned about the loss of tropical rainforests and the 

impacts to native people and native cultures of the rainforest. such as the Yanomami and 

Pygmy. I am also very concerned about the rainforests and people of the rainforests. However. 

if Americans are unable to help the native people of California. the first Americans and 

Americas Natural Heritage. we have little chance of saving tropical rainforests. I believe that 

every American has the responsibility to do whatever we can to protect biological diversity. 

(-2-) 
90 

TesHmony of Leeona K/ippstein to the Committee on Resources. 

Task Force on Endangered Species, Fteld Hearing. Riverside. CA. 4/26/ 95. 

continued page 3 of 6 

The Endangered Species Act Is very Important to the health and well being of a ll species 

Including the human species. 

It was my personal expe~ence as a 91C, Patient Care Specialist In the U.S. Armed Forces and 

later working with a PedlatOCian. that convinced me of the importance of protecting 

Endangered Species, especially plants. Working In emergency rooms and with children. I was 

required to explain how my patients were to take or apply the medications that were 

prescribed to them by the physicians. In performing this routine activity I began researching 

what these medications were made from. Thanks to the rosy periwinkle. childhood leukemia 

a nd Hodgkin's disease are largely curable. Taxol. a medicinal product de~ed from the 

Pacific yew tree. has offered hope to thousands of women ffe~ng from ovaoon cancer. ;, In 

my research 1 was also mode aware of the economic benefits that plants provide to 

Pharmaceutical Corporations, a $40 billion industry that depends on natural compounds from 

various plant species. 

Before we had Medical Centers, European Barbers and an army of p~marily male M.D.s In the 

United States, there were Shoshone Medicine People. women healers and midwives that knew 

the sac red lands and sites of the plants that could cure. One of these plant medicines have 

become so common In all of our households today that I could safety assume that every 

Committee member has consumed lt. Aspl~n Is de~ed from the willow. Just as we humans 

need the willow, so to does the endangered Southwestern willow flycatcher and endangered 

Least Bells Vireo. When the Gabriellno-Shoshone Nation. the first people of Southam Cal~omla , 

come forward to protect the Sage and their c ulture. they are also a voice for the endangered 

plants and animals. The Shoshone Nation. the Calltomla gnatcatcher. San Bernardino 

Kangaroo-Rat, Stephens Kangaroo-Rat. Bells Sage Sparrow and over 100 plants and animals. 

that have been identified, need and depend upon the Southam Calltomla Coastal Sage 

Scrub communities for their survival and recovery. I ask today that the Chairman and 

Committee consider amending the Endangered Species Act to Include provisions for 

ethnobotany. that would protect plants of medicinal and religious significance to America n 

Indian descendants. This Is a very important aspect of Americas Natural Heritage that has 

been dismissed by the Endangered Species Act. 

According to the research of Dr. Linda R. McMahan. Exec utive Director of the Berry Botanic 

Garden. Portland. Oregon. '(h)alf - probably more than ha~- of the rare and endangered 

plants In this country are related to plants that have been used medicinally by Native 

Americans or. In other uses, are used medicinally around the world? · 

1 Hearing be fore the Subcomit1ee on Environment a nd Natural Resources of the Convninee on Merchant Morine ana 

Fishenes. House of Repre5entotives. One Hundred Third Congress. First Session on Medicinal uses of Plants; Cures mode 

poSSible by Certa in Plants and DiscuSSion of wnether the Endangered Species Act a dequately protects Plants 

November 9, 1993. Serial No. 103-74. Statement of Hon. Gerry E. Studds. A U.S. Representative from MotSOchusens. a na 

Chairman. Subcommittee on Environment ond Natural Resources. 

2 Heonng before the Subcomlttee on Environment and Natural Resources of the Committee on Merchant Mar1ne ana 

Fisher•es. House of Rep~esentattves . One Hundred Third Congress. First SeSSion on Medicinal Uses of Plants: Cures mode 

possible by Certain Plants and Discussion of wnefher tne Endangered Species Act a deqootety protects Plants. 

November 9. 1993 . Serlol No. 103-74. Sta tement of Dr. UndO R. McMahan. Executive Drector. The Berry Botan1c 

Gorden. Portla nd. Oregon. 

(-3-) 
91 

Testimony of Leeona Klippstein to ff1e Committee on Resources. 

Task Force on Endangered Species. Field Hearing. Riverside. CA. 4/26/ 95. 

continued page 4 of 6 

The Important relationship between plants and people dates bock thousands of years In 

human history. It Is most unfortunate that the United States govemment and Ame~c ns have 

not placed a greater emphasis on the protection and recovery of endangered plants through 

the Endangered Species Act. I strongly recommend and encourage the Committee and Task 

Force on Endangered Species to make revisions and amendments to the Endangered Species 

Act that would provide for greater protection of plant species. 

I should odd that protecting and preserving the Sage Scrub Communities Is also on economic 

benefit to lOCal business. Miller's Ameocon Honey. Inc. of Colton. Colltomla (San Bernardino 

County) has been In business for 101 years. has 30 full-time employees. dlst~butes 

approximately 10 million pounds of Sage and Buckwheat Honey and makes approximately 

$7.5 million dOllars annually. The two greatest economic threats to Miller's business Is 

development (loss of sage scrub ecosystem) and pestlcides.

3 

The native Riverside Bee Is a condldlate species for listing as endangered. I believe that the 

Amertcon public Is very fortunate to have provided protection to the endangered Deihl Sands 

flower-loving fly. another Important pollinator of plants. There are so many very Important 

pollinators and Insects that have not yet been classified. studied or protected. As the saying 

goes. the first rule of tlnke~ng Is not to throw away any of the ports. How are we to know 

which of the ports ore crltlcal to making the whole system work? It the United States does not 

provide greater protection to endangered Insects It will be nea~ Impossible to protect and 

recover endangered plants. It Is Important to protect Callfomlas' treasure chest of biological 

diversity. It truly dOesn't have a poce tag. biological diversity Is Invaluable. 

A very Important feature of the Endangered Species Act Is the designation of ·c~icol Habitat". 

It Is of my opinion that U.S. Fish and Wildlife does not Implement this section ( 16 U.S. C. § 

1532(5)(A); 50 C.F.R. § 424.02(d)) of the Endangered Species Act enough. primarily because of 

political Influences and secondartly due to lack of funding through appropriations. Of the 886 

listed endangered species (June 15.1994) only 111 have been provided with a ~l ol habitat 

designation.•· Designating ·c~lcal Hobltat" Is relevant tor endangered plants throughout their 

range when addressed In chemical terms. At different portions of their range. organisms tend 

to differ genetically and chemically. ·compounds produced by a plant In New England may 

be absent from Its relatives In Georgla."5· Critical habitat designations ore also an Important 

step towards the recovery of endangered species In the wild. and the eventual delistlng of 

stabilized populations. 1 believe this was the main intent and goal of the Endangered Spec ies 

Act . enacted In 1973. by President Richard Nixon. 

3. Telephone COM'YTll.Jnlco t!on with Steve SIT'Iith of Miller's American Honey. Inc .. Cotton. CA. April 18. 1995. 

4. U.S. Deportment of the Interior. Que!f1ons and Answers for the Senate Oversight Hearings on the Endangered 

Species Act. June 15. 1994 . 

5 Hearing before the Subcomittee on Environment and Natural Resources of the Committee on M erchant Manne ana 

Rsheries. House of Representatives. One Hundred Third Congress. First Session on Meclcinal UseJ of Plants: Cwes mode 

posslb!e by Certain Plants ond Discussion of whether the Endangered Species Act a dequately protects Plants. 

November 9. 1993. Serial No. 103·74. Statement of De. Thomas Eisner. Director. Comelllnstitvte tor Research and 

Chemical Ecology. Cornell University. Ithaca . New York. 

(-4-) 
92 

Testimony of Leeona Klippstein to the Committee on Resources, 

Task Force on Endangered Species, Field Hearing. Riverside. CA. 4!26! 95. 

continued page S of 6 

It Is vital that America's endangered wildlife Is recovered In the wild. Wildlife c annot be 

maintained In the tong term In artificial settings. The undisturbed, untreated soils and hydrology 

that plants in the wild depend upon produce needed chemicals !hot plants In an artificial 

setting cannot. The Insects, pollinators. birds and mammals may also depend upon these plant 

chemicals for their digestion, nourishment and reproduc tion. Recovery of endangered species 

through the Endangered Species Act continues to be minimal due to lack of enforcement, 

politics and Insufficient funding. Appropriations to the Fish and Wildlife Service In FY 1991 -

$32.0 million to protect and recover endangered species nationwide was less than 

Washington. D.C. area residents spent on Domino's pizza !hot year and less than tt costs to 

build one mile of urban highway.•· Instead of subsidizing the construction of "Toll Roads' and 

Dams in southern California endangered species habitat, the state and federal government 

should be protecting Americas Natural Heritage through lands acquisition. 

While Fish and Wildlife Service have approved 'Recovery Plans' for 526 listed endangered 

species (as of October 1. 1994), Ills questionable whether these recovery plans have or will be 

suc cessfully Implemented. Again this is due to politics, lack of enforcement and minimal 

funding. 

Politics c ontinue to dominate and make Ineffective otherwise sound biological sciences. This Is 

most apporent ln section 7 consultations and section 10 'Incidental Take Permits' and 'Habitat 

Conservation Plans'. Politically driving a "Toll Road" through endangered species habitat and 

·exempting· these massive roads from the Endangered Species Act Is biologically unsound 

and an abuse of section 7 c onsultations. "From 1988-1994. more than 118,0XJ Informal section 7 

c onsutteitlons and 2.071 formal consultatiOns were completed on federal actions:'· Of the 

120,071 section 7 consultations only 341 were Identified as 'jeopardy opinions· and less than 1% 

(18) of the total had no reasonable and prudent alternatives and did not go forward as 

planned. Although these projects did not go forward as planned, they did go forward. 

Americas endangered species were 'taken· (killed) through negotiations. compromises and 

the "flexibility" of the Endangered Species Act. 

!n the twenty-two years since the enactment of the Endangered Species Act there has never 

been a ··taKing· of "Private Property· In the U.S. Court of Claims. 

Section 10 "Habitat Conservation Plans· has been repeatedly abused by the Fish and Wildlife 

Service in order to provide "flexibility" In accommodating non-federal land holders and 

c orporations during negotiations of "Incidental TaKe Permits' of endangered spec ies and their 

habitat. Although the desert tortoise has a "Recovery Plan" It Is doubtful whether the plan will 

be successfully Implemented. c onsidering the proposed human refuse dumps and Ward Valley 

nuc lear waste dump In this endangered spec ies habitat. 

6 a no 7. Not1ono! Wildlife Federat1on publication of Endangered Species At A G lance . 1995. 

8. U.S. Deportment of the Interior. Questions a nd Answers for the Senate Oversight Hearings on the Enda ngered 

Spec1es Act. June 15. 1994 

(-5-) 
93 

Testimony of Leeona Klippstein to ffle Committee on Resources, 

Task Force on Endangered Species. Field Hearing. Riverside. CA. 4/26/95. 

continued page 6 of 6 

Section 10(aX1)(B). was an experimental amendment to the Endangered Species Act in 1982. 

and a compromise made to non-federal land holders and corporations. In thirteen years since 

the enactment of 'Habttat Conservation Plans' (HCPs) there has not been a 'recovery • or 

'dellstlng· of an endangered species' due to this section. Of the 41 approved 'Habttat 

Conservation Plans' . only one species. the desert tortoise. has an adopted 'Recovery Plan'. 

tt Is my understanding that the Fish and Wildlife Service estimates that there are an additional 

100 section 10(a) 'Incidental Take Permits' and 'Habttat Conservation Plans· under variOus 

stages of development. Perhaps, Secretary Babbitt believes In the saying 'If at first you don't 

succeed. try try again'. however when you haven't succeeded after 41 trtes. I believe there 

must be a mistake being made and going unrecognized. I believe that the Clinton 

Administration. U.S. Deportment of the lntertor and the Fish and Wildlife Service should leam 

from post mistakes Instead ot repeating them another 100 times. I believe that the United 

States of Amertca can find a reasonable and prudent means to protect Amertcas Natural 

History. I believe we can all work together to create a stronger Endangered Species Act. I 

believe that we can do better than this. 

We are moving from an Industrial Society Into an Information Society. We are a society at a 

hlstortc transttlon point and we are experiencing growing pains. Southem California grew much 

too quickly durtng the 1970s and '80s. Those Individuals and corporations who made an 

enormous amount of money In real estate, development and looting Savings and Loons want 

to keep rtdlng the gravy train. but there Isn't enough room iett. ln our natural landscape. for 

compromises. There Is too much anger and too much fear. due to the Ignorance of the Issue 

of endangered species and their Importance. 

Amertca Is only as great as her Natural Resources and the rtchness ot her natural landscape. 

Amertcas' Natural Heritage Is a treasure that the Amertcan public has entrusted to our 

govemment. Amertcas· Wlldemess and Wildlife are the backbone of the United States. If a 

foreign country dumped acid rain on us from the skies. polluted our drinking water and air wtth 

toxic chemicals. took the land away from our wildlife and killed them. we would view this as a 

threat to our national security and an act of war. However. we are doing this to ourselves and 

we must stop. The Endangered Species Act protects the health and well being ot all species 

and Is the greatest piece of legislation wrtltten In our century. I believe that we can continue to 

make the Endangered Species work and linprove Its effectiveness through addttlonal 

strengthening measures. 

1 am honored that the Commtttee on Resources and Mr. Richard Pombo. Chairman of the Task 

Force on Endangered Species Invited me to testify on this very Important topic. the 

Endangered Species Act and Its effect on the people of Southern Callfomla. If I may be of 

additiOnal service to you durtng the re-authortzatlon of the U.S. Endangered Species Act, 

please due not hesitate In contacting me. Thank you. 

For the Earth. 

~Ko/,Dier~ Leeona C. Kllppsteln 

(-6-) 

91-616 95-4 
94 

STATEMENT OF 

RIVERSIDE COUNTY FLOOD CONTROL 

AND WATER CONSERVATION DISTRICT 

REGARDING 

ENDANGERED SPECIES ACT REAUTHORIZATION 

TO: u.s. House of Representatives 

Committee on Resources 

Task Force on Endangered Species 

Riverside, California 

April 26, 1995 

Honorable Richard Pombo. Chairman 
95 

ENDANGERED SPECIES ACT REAUTHORIZATION 

The Riverside Count y Flood Control and Water Conservation District 

appreciates this opportunity to present the Committee with 

information regarding the impacts of the existing Endangered 

Species Act on the District, and the public it serves, and to 

provide recommendations for reform. 

CATEGORICAL EXEMPTION FOR MAINTENANCE OF CRITICAL INFBASTBUCIUBE 

The District has developed an extensive flood control system in 

western Riverside County over the past 50 years including: 35 dams, 

debris and detention basins, 48 miles of levees, 188 miles of open 

channel and 182 miles of underground storm drain . Proper operation 

and maintenance of these critical flood control facilities is 

essential to protect the public health and safety, and the economy 

of western Riversi de County. 

Several of the ma j or flood control projects have been constructed 

with Federal partners, including the U.S. Army of Corps of 

Engineers and the Soil Conservation Service. The District is 

mandated to operate and maintain these projects to standards 

dictated by the Federal agencies, and to indemnify and hold them 

harmless from all liability and damages. In addition, 

participation in the National Flood Insurance program, admi nistered 

by the Federal Emergency Management Agency (FEMA) requires the 

"Community", in this case Riverside County and its incorporated 

Cities, to maintain the carrying capacity of all flood control 

facilities. As owner of most of the regional facilities this 

responsibility ultimately falls on the District. ·communities which 

fail to meet their maintenance responsi b i lity are subject to 

expulsion from the National Flood Insurance Program, loss of other 

Federal aid, and even exposure to suits by FEMA for recovery of 

flood insurance clai ms and disaster payments. 

For decades the District routinely maintained the flood control 

system, but has been hamstrung in this effort in recent years 

through the regulatory activities of several Federal agencies. 

These agencies, primarily the u.s. Army Corps of Engineers, the 

Environmental Protection Agency and the U.S. Fish and Wildlife 

Service, have effectively given themselves veto power over local 

flood control maintenance activities by virtue of regulations 

promulgated under authority of the Federal Clean Water and 

Endangered Species Acts. While these laws have been on the books 

for many years, their impacts have steadily grown more burdensome as Federal agencies issued new and more stringent regulations, 

without the authority of new law, often the result of negotiations 

1 
96 

to settle environmental lawsuits of questionable merit. In 

addition, the Fish and Wildlife Service has stepped up its pace of new listings of endangered plant species under a quota system 

agreed to by the Service to settle an environmental suit, again 

listings proposed under the auspices of questionable science. The 

result is that formerly routine maintenance activities of existing 

flood control facilities, many constructed in Federal partnership, are now subject to onerous Federal permit and mitigation 

requirements, along with the attendant delays, increased costs and 

threat to the public health and safety. 

Examples abound of the adverse impacts of the present Federal 

regulations on the public's health and safety: 

• 

• 

• 

In January of 1993, the flooding of Old Town Temecula by 

Murrieta Creek resulted in over ten million dollars of 

property damage. Federal officials refused to allow 

mechanical clearing and removal of accumulated sediment on the 

creek, partially due to alleged concerns about the endangered 

least Bell's vireo, and only after the flood damage occurred were they willing to allow critically needed flood control 

maintenance to take place. Ironically, FEMA, another Federal 

agency, later reimbursed the District and the City of Temecula 

for the costs of this maintenance under a Federal Disaster 

Declaration, and also paid flood insurance and damage claims 

to those flooded. 

The District has been advised that we could not control 

burrowing rodents in the earth fill Alessandro and Pigeon Pass 

flood control dams for fear of accidentally "taking" the 

endangered Stephens' kangaroo rat. Obviously, failure to 

control burrowing rodents in these large earth fill dams could 

lead to a catastrophic failure impacting large areas of the 

cities of Riverside and Moreno Valley. 

The District has been prevented for more than two years from 

making critical repairs to the Santa Ana River levees, a Federally constructed flood control project owned and operated 

by the District, which protects the City of Riverside, because 

two endangered woolly-star plants were discovered in the 

general area of the repair work. 

Survival of a species was not at stake in any of these cases, but 

inflexibility built into the Endangered Species Act, coupled with 

indifference to public health and safety issues on the part of the 

regulatory staff, has created an environment where reason and the 

public interest are of little consequence. To correct this 

problem, the Endangered ·species Act should be amended to: 

2 
97 

* provide a categorical exemption tor -rgency repair and 

routine maintenance ot existing flood control tacili ties, 

including, but not limited to dams, debris basins, detention 

baains, leveed channels and open channel a, as -11 as all FEMA 

mapped watercouraes. 

SAH JACINTO RIVER FLOOD CQNTROL PROJECT 

In 1988, the District entered into voluntary negotiations with the 

U.S. Fish and Wildlife Service (Service) for the purpose of gaining its support in obtaining a Section 404 permit for the construction 

of flood control improvements on the San Jacinto River, near the 

City of Perris. These negotiations resulted in agreement to add 

several significant environmental enhancements to the project including a 100-foot wide riparian corridor for the entire 10 mile 

length of the project, plus an additional 250-foot wide average strip of land contiguous to the channel to provide mitigation for 

the San Jacinto Saltbush and potentially, other plant species. In 

order to provide guarantees to the resource agencies, the Flood 

Control District, the County of Riverside and the City of Perris 

executed a Memorandum of Understanding with the Fish and Wildlife 

Service and the California Department of Fish and Game. The MOU 

provided for development of a habitat corridor plan for the San 

Jacinto River subject to review and approval by the Service, and a final draft plan was submitted to the Service for consideration and 

approval in November 1993. The MOU and corridor plan were developed voluntarily by local government, working directly with 

representatives of the Fish and Wildlife Service specifically to 

address their concerns about the San Jacinto Saltbush. In response 

to this extensive local initiative, the Service immediately thereafter unilaterally abrogated the MOU, and subsequently proposed listing of the Saltbush and three other species. Even 

under provisions of the existing Endangered Species Act, the 

District believes that the Service was obligated to have first 

considered the local efforts that had gone into the local plan to 

protect the species; and second, recognize that implementation of 

the plan by local government would have obviated the need to list 

the Saltbush and other species. Unfortunately, the bad faith 

exhibited by the Service in this matter was not an isolated 

incident. 

The quality of the Administrative record supporting listing of the 

Saltbush and the other species, is also at issue. Under the 

provisions of the Endangered Species Act, the determination to list a species as endangered or threatened must be "solely on the basis 

3 
98 

of the best scientific and commercial data available". Of the 

total information contained in the Administrative Record for the 

proposed listing of the San Jacinto Saltbush and the other species 

involved, only about one-half is even closely related to the 

listing proposal. And of the rema~n~ng material only an 

insignificant fraction could be considered to be serious scientific 

data1 certainly not enough information to substantiate the need to 

list the identified species. And most disturbing, the District's 

biological assessment prepared at the direct request of the Service 

by Tierra Madre Consultants for the San Jacinto River Improvement 

Project, was not even included in the record. This work is 

probably the most comprehensive biological assessment ever done 

along the San Jacinto River between the Ramona Expressway and 

Railroad Canyon, where much of the historic range of Saltbush is 

purported to have existed. Another problem relates to the 

designation of "critical habitat". Under provisions of the 

Endangered Species Act, such action is required to be "on the basis 

of the best scientific data available". But the Services' proposed 

boundary line for critical Saltbush habitat follows section lines 

and property lines, neither of which have any re l a tionship with 

biological functions . 

Finally, during negotiations over the proposed San Jacinto River 

flood control project, on three separate occasions beginning in 

November 1988, the U.S. Army Corps of Engineers requested that the 

Service initiate a Section 7 Consultation under provisions of the 

Endangered Species Act. Under current rules, the Service has 90 

days to conclude such a consultation, and thereafter has an additional 45 days to provide a biological op~n1 n to the 

requesting agency. In this case, the Service unilaterally 

terminated the first two consultations, and failed to meet the 

required deadline for the third consultation. The Service finally 

issued a biological opinion for the proposed project in March of 

1995, more than six years after the initial request. 

Major reform of the Endangered Species Act is mandatory to ensure Service personnel act in good faith with the public they serve in 

the future, and to ensure all future listings are based on quality 

science, are fully justified and in the public interest. Specific 

reforms which should be undertaken include the following: 

* Standards should be established for the quality of the ;cience 

required to justify a proposed listing, and the science and 

administrative record should be subject to review and approval 

by an independent panel of qualified scientists before a 

proposed Hating may be published in the Federal Register. 

4 
99 

* Criteria should be establish ror distinguishing true apeciea 

rrcm subspecies, and only true species should qualiry ror 

liating. 

* The time period for public comment, and/or for requesting a 

public hearing, concerning the proposed listing of a apeciea 

ahould be increaaed, and the time periods should be included 

in the Act itself rather than ilrplementing regulations. It is 

recommended that the time allotted for public comment be 

increased to 120 days, and the time to request a public 

h-ring be 90 days. In addition, proposals to list a species 

should be published prcminently in newspapers of broad general 

circulation. 

* Early consultation with potentially affected local government, 

including counties and incorporated cities, should be 

mandatory before a proposed listing is published in the 

Federal Register. 

* Processing and review of permit applications, habitat 

conservation plana, and Section 7 consul ta tiona should be 

subject to specific time periods for corrpletion, and should be 

deemed approved if not completed within the allotted time. 

FJP:seb 

rcfc\2135 

5 
100 

COMMITTEE ON RESOURCES 

TASK FORCE HEARING ON ENDANGERED SPECIES --·---··-- - --·-------- ------ APRIL 26, 1995 

RIVERSIDE, CALIFORNIA 

RIVERSIDE CONVENTION CENTER 

CAROLYN POWERS 

MY NAME IS CAROLYN POWERS. I AM ON THE TIJUANA RIVER VALLEY TASK 

FORCE, THE TIA JUANA VALLEY COUNTY WATER DISTRICT AND REPRESENT 

THE CITY OF IMPERIAL BEACH AT THE SAN DIEGO TIJUANA BORDER TASK 

FORCE ON WASTEWATER TREATMENT. 

THANK YOU CONGRESSMAN POMBO AND THE TASK FORCE FOR ALLOWING 

ME TO ADDRESS YOU ON SOME OF THE EFFECTS THE ENDANGERED SPECIES 

ACT HAS HAD ON MY COMMUNITY. 

THE ENDANGERED SPECIES ACT NEEDS A TUNE UP. IT WAS ENACTED 22 

YEARS AGO, AT A TIME WHEN THIS COUNTRY'S ENVIRONMENTAL NEEDS 

WERE BEING SHAMEFULLY NEGLECTED. WE HAVE PROTECTED MANY 

ENDANGERED SPECIES FROM THE REALITY OF EXTINCTION WITH THIS WELL 

INTENDED ACT. HOWEVER, SUBSEQUENT ENFORCEMENT AND 

MULTI-LEVELS OF LEGAL INTERPRETATION HAVE MUTATED THE ORIGINAL 

INTENT TO A BUREAUCRATIC BOONDOGGLE THAT DEFIES ALL COMMON 

SENSE. 

FEDERAL REGULA TORY AGENCIES NEED TO BE PUT ON NOTICE TO GIVE 

HUMAN HEALTH AND SAFETY NEEDS PRIORITY. IF THE ENFORCEMENT OF 

THE ACT RESULTS IN HEALTH HAZARDS TO MANKIND, THEN THAT 

ENFORCEMENT SHOULD BE STAYED. WE, ALSO, REQUIRE THE RIGHTFUL USE 

OF LAND, COMFORT AND SAFETY. 

WE HAVE A SYMPTOMATIC REPRESENTATION OF A LITTLE OF WHAT AILS 

THE CURRENT INTERPRETATION O F THE ENDANGERED SPECIES ACT IN OUR 

LITTLE SOUTHWEST CORNER OF THE UNITED STATES. THE "ENDANGERED 

SPECIES" MOST IMPACTING OUR PURSUIT OF HEALTH AND SAFETY ARE THE 

LEAST BELLS VIREO, THE CALIFORNIA LEAST TERN, THE COASTAL 

CALIFORNIA GNATCA TCHER AND LASTLY, THE PACIFIC POCKET MOUSE, THE 

PRESENCE OF WHICH, DESPITE THE BEST NIGHTLY TRAPPING EFFORTS OF 

THE DEPARTMENT OF FISH AND WILDLIFE SERVICE, REMAIN 

UNSUBSTANTIATED. 

THE LEAST BELLS VIREO AND THE CALIFORNIA LEAST TERN ARE MICRA TORY 

BIRDS RETURNING TO BAJA AND SOUTHERN CALIFORNIA TO NEST EACH 
101 

YEAR. BOTH SPECIES ARE PLENTIFUL IN BAJA. THIS IS THE OUTER PART OF 

THE SUMMER RANGE OF THE CALIFORNIA TERN. AS WTTH ALL MIGRATORY 

SPECIES, THE STRONGER, GENETICALLY SUPERIOR OF THE BREED CLAIM THE 

CENTER OF THEIR RANGE. SOMEHOW, MAGICALLY, WHEN THESE SLIGHTLY 

LESS VIGOROUS SPECIMENS OF THEIR SPECIES CROSS THE INVISIBLE LINE 

THAT MARKS THE MEXICAN-U.S. BORDER THEY BECOME THE CALIFORNIA 

"LEAST" TERN, NOT THE CALIFORNIA TERN THAT THEY ARE KNOWN AS IN 

MEXICO. THAT TITLE, "LEAST", HAS COST U.S. TAXPAYERS A LOT OF MONEY. 

THEY HAVE BEEN KNOWN TO NEST ON PASSENGER JET RUNWAYS AT 

LINDBERG FJELD AND FISH AND WILDLIFE HAS FORCED THEJR COSTLY 

REMOVAL AN D SUBSEQUENT MITIGATION. 

THE TIJUANA RIVER WATERSHED ENCOMPASSES 1,724 SQUARE MILES. TWO 

THIRDS OF THESE LANDS ARE LOCATED IN MEXICO. THE WATERSHED AND 

ALL IT CARRIES EVENTUALLY DRAINS INTO THE TIJUANA RIVER, FLOWING 

ACROSS THE BORDER INTO THE UNITED STATES, THROUGH THE TIJUANA 

RIVER VALLEY AND AFTER ENTERING THE TijUANA ESTUARY OUT TO THE 

PACIFIC OCEAN- THROUGH THE CITY OF SAN DIEGO, SAN DIEGO COUNTY 

PARK LANDS, SAN YSIDRO AND. IMPERIAL BEACH. TIJUANA IS THE FASTEST 

GROWING CITY IN THE WORLD, HOWEVER THE GROWTH OF ITS 

INFRASTRUCTURE IS SADLY LACKING. RENEGADE SEWAGE FLOWS FROM 

MEXICO INTO THE TIJUANA RIVER AND NORTH TO THE U.S. HAVE 

CHARACTERIZED THIS SENSITIVE BORDER REGION WITH THE NOTORIETY OF 

HAVING A "SEWAGE BASED ECOSYSTEM" . 

RESULT ANT SEWAGE CONTAMINATION HAS CLOSED OUR BEACHES FOR 

MONTHS AT A TIME CAUSING ENORMOUS ECONOMIC DEPRIVATION TO 

COASTAL CITIES. UNTREATED SEWAGE FLOWING IN THE USUALLY 

SEASONAL TIJUANA RIVER TWELVE MONTHS A YEAR HAS ALSO RESULTED IN 

THE GROWTH OF A WILLOW CONGESTED RIPARIAN HABITAT, IN WHAT HAD 

BEEN ARID SAND DUNES AND WELL WATERED AGRICULTURAL LANDS. 

UNDER NORMAL CONDITlONS, THE Tl)UANA RIVER FLOWS ONLY DURING 

WINTER MONTHS, ACTING AS A WATERSHED RUNOFF CHANNEL OR 

CARRYING GROUNDWATER SEEPAGE AFTER A FEW YEARS OF EXCESS 

PRECIPITATION. 

FISH AND WILDLIFE IS NOW CA TEGORlZING THIS AGRlCUL TURA L LAND AS 

"DISTURBED HABITAT", CLAIMING THAT IF THE LAND HAD NOT BEEN 

FARMED, IT TOO WOULD BE RIPARIAN HABITAT, DUE TO THE DAILY URBANINDUCED, SEWAGE-FURNISHED WATER AND FERTILIZER FLOWING THROUGH 

THE LANDS. 

THIS NEW RIPARIAN HABITAT HAS ATTRACTED THE "ENDANGERED" LEAST 

BELLS VIREO AND IS NOW REGARDED AS PROTECTED HABITAT. THIS STATUS 

CONFERS VERY NEBULOUS HONORS TO THE NEEDS OF THE COMMUNITIES IN 

AND AROUND THE TIJUANA RIVER VALLEY. 
102 

WE CAN NO LONGER CLEAR AND MAINTAIN RIVER CHANNELS CHOKED 

WITH WILLOWS, REEDS AND CATTAILS. RESULTANT SEDIMENTATION BUILD 

UP CAUSES RIVER WATERS, FED BY RAINWATER AND SEW AGE AND HEAVY 

METALS CONTAMINATION TO FLOW AND POND LATERALLY FROM THE 

CENTRAL LINE OF THE RIVER, THROUGHOUT THE EVER GROWING 

THICKETED OUTREACHES OF THE VALLEY. 

THIS SUPERIOR MOSQUITO BREEDING HABITAT HAS THE POTENTIAL TO 

TRANSMIT ENCEPHALITIS, MALARIA, HEPATITIS AND OTHER LIFE 

THREATENING DISEASES TO MAN AND LIVESTOCK ALIKE. AND YET .... . 

CATTAIL, REED AND WILLOW CLEARANCE IN THIS ENVIRONMENT IS DENIED 

DURING THE VERY MONTHS THAT MOSQUITOES FLOURISH. WHY? ... 

BECAUSE THE LEAST BELLS VIREO CLAIMS THE SAME ROMANTIC SEASON AS 

THE MOSQUITOES AND DISRUPTING INTERFERENCE IS LEGALLY RESTRICTED 

BETWEEN MARCH 15TH THROUGH SEPTEMBER 25TH. THE VIREOS SIX 

MONTHS OF X-RATED BLISS HAS BECOME A NIGHTMARE FOR SAN DIEGO 

COUNTY HEALTH DEPARTMENT'S VECTOR CONTROL, WHOSE ONLY HOPE 

FOR MOSQUITO ABATEMENT PROGRAMS IS TO SEND PEOPLE INTO THIS BOG 

WITH HAND CARRIED MOSQUITO FISH AND U.S. FISH AND WILDLIFE 

APPROVED INSECTIODES, WHILE SAID MOSQUITOES PERFORM UNFRIENDLY 

SERVICES TO THEIR PERSONS. 

TO BE PERFECTLY FAIR TO THE OVERWORKED STAFF IN F & W, THEY ARE 

PERSONALLY, AS WELL AS AGENCY-WIDE, LIBEL TO LAWSUITS AND 

DAMAGES FOR FAILING TO ENFORCE THE CURRENT LETTER OF THE LAW. 

OUR OWN FISH AND WilDLIFE BIOLOGIST, MARTIN KENNY, HAS BEEN AS 

JUST AS HE IS ABLE, TO THE INTERPRETATION OF ENVIRONMENTAL LAW. 

THERE ARE OTHER. EVEN MORE DEVASf A TING EFFECTS TO OUR HEALTH, 

SAFETY AND ECONOMIC EXPECTATIONS INHERENT IN THIS ACT AS IT 

STANDS RIGHT NOW. 

THE PROGRESS AND COST OF THE INTERNATIONAL WASTEWATER 

TREATMENT PLANT, WITH ITS LAND AND OCEAN OUTFALLS, HAS BEEN 

PLAGUED WITH EXTENDED ENDANGERED SPECIES STUDIES AND REPORTS, 

FRIVOLOUS LAWSUITS FROM THE SIERRA CLUB, AS WELL AS SOME TIME 

CONSTRAINTS ON THE ACTUAL SCHEDULING OF CONSTRUCTION. 

THE CITY OF SAN DIEGO METROPOLITAN WASfEWA TER DEPARTMENT JUSf 

SENT ME A "SUMMARY OF COSTS ASSOCIATED WITH MITIGATION FOR THE 

SOUTH SAY PROJECTS". THEY HAVE ALREADY SPENT $4,320,607.00 AND HAVE 

IDENTIFIED YET ANOTHER $1 ,235,000.00 IN FUTURE SPENDING. 

MITIGATING THE LOSS OF AN ARTIFIOALLY, MAN INDUCED HABITAT HAS 

ADDED TO THE TAXPAYERS' BURDEN BY REQUIRING MITIGATION - ALL 

LANDS BEING "DISTURBED" TO BE REPLACED BY OTHER ACREAGE, 
103 

SOMETIMES AT THERA TIO OF 8 TO 1. THE AREA TO BE MITIGATED REQUIRES 

LAND PURCHASE, ENGINEERING, PLAN APPROVAL, GRADING, PLUMBING 

FOR IRRIGATION, PLANTING WITH APPROPRIATE HABITAT SPECIES, 

MONITORING AND WATERING WITH IMPORTED NORTHERN CALIFORNIA 

WATER, EVEN IF IT OCCURS DURING THE MIDDLE OF A DROUGHT, WHEN 

NEIGHBORS CAUGHT USING EXCESS WATER ARE FINED AS PUNISHMENT FOR 

WASTING THIS PRECIOUS COMMODITY ... AND THE SEWAGE KEEPS COMING. 

THIS BLAT ANT EXAMPLE OF BUREAUCRATIC TERRORISM NEEDS TO BE 

STOPPED. WE SHOULDN'T BE PENALIZED BY OUR OWN AGENCIES FOR 

STOPPING THIS 60-0DD YEAR AFFRONT TO OUR SOUTHERN BORDER. 

THIS SEWAGE BASED ECOSYSTEM IS A CANCER FEEDING ON THE ENTIRE 

SURROUNDING COMMUNITY. 

THE DELAYS IN SEWAGE TREATMENT HAVE CAUGHT UP WITH IMPERIAL 

BEACH. THIS BELEAGUERED CITY HAS THE DUBIOUS DISTINCTION OF 

HAVING THE MOST POLLUTED BEACH IN THE UNITED STATES. HER 

RESIDENTIAL SHORES WERE CLOSED TO HUMAN CONTACT FOR A RECORD 

187 DAYS IN 1993 ALONE. HER SOUTHERN SHORES, EXTENDING TO THE 

MEXICAN BORDER HAVE BEEN PERMANENTLY CLOSED UNTIL WE HAVE A 

SEW AGE TREATMENT FACILITY ON LINE. 

A ONE BEDROOM, ONE BATH CONDOMINIUM ON THE BEACH IN IMPERIAL 

BEACH IS WORTH $135,000 LESS THAN ITS CORONADO COUNTERPART, A 

SCANT EIGHT MILES NORTH. THIS IS A CLOSE KNIT, HARD WORKING CITY 

WITH A LOT OF HOPES AND DREAMS FOR A BETTER FUTURE. 

CONGRESSMAN BRIAN BILBRA Y KNOWS !.B. -HE GREW UP AND IS EVEN NOW 

RAISING HIS FAMILY IN IMPERIAL BEACH. HE AND HIS SON PATRICK SURF 

HER SHORES- WHEN THEY ARE OPEN. THE CONGRESSMAN HAS BEEN 

FIGHTING MEXICAN SEWAGE HIS ENTIRE ADULT LIFE. I KNOW THAT HE 

SHARES OUR DESPAIR AT SEEING OUR SEWAGE TREATMENT PLANT, 

SCHEDULED TO BE BUILT BY THE INTERNATIONAL BOUNDARY AND WATER 

COMMISSION, THREATENED WITH ANY FURTHER DELAY OR COSTS. 

THE IBWC IS NOT THE ONLY FEDERAL AGENCY TO BE HAMPERED BY THE 

CURRENT INTERPRETATION OF THE ENDANGERED SPECIES ACT. THE U.S. 

BORDER PATROL HAS BEEN MANDA TED TO ENFORCE OUR BAN ON ILLEGAL 

IMMJGRA TION AT THE MEXICAN BORDER. "OPERA TJON GATEKEEPER" 

RELIES ON MORE MANPOWER, A FENCE EXTENDING ALONG THE BORDER 

FROM THE BEACH TO THE SAN YSIDRO CROSSING, MORE SOPHISTICATED 

SURVEILLANCE DEVICES AND TALL LAMP POSTS TO "LIGHT UP THE 

BORDER"- THANK YOU MURIEL WATSON AND CONGRESSMAN HUNTER FOR 

THE ENDLESS FIGHT FOR YOUR BOYS AND GIRLS ON THE BORDER PATROL. 

THE BORDER FENCES WOULD BE MUCH MORE EFFECTIVE IF WILDLIFE 
104 

CORRIDOR GAPS HADN'T BEEN REQUIRED TO ALLOW THE ALLEGEDLY 

ENDANGERED GNA TCA TCHER TRANS BORDER INTERNATIONAL ACCESS. 

THE BORDER PATROL HAD TO BUILD ACCESS AND MAINTENANCE ROADS 

ACROSS THE VERY SAME MESAS AND CANYONS THAT HAVE PREVIOUSLY 

SPORTED STAMPEDING MASSES OF DESPERATE HUMANITY- AN ESTIMATED 

1,800,000 NON-DOCUMENTED ALIENS A YEAR- FRANTIC TO GET TO THE 

PROMISED LAND. 

THE BORDER PATROL IS A VERY HANDS ON, CAN DO AGENCY. "DO IT NOW 

A NO ASK QUESTIONS LATER" HAS SEEMED TO BE THEIR CREED. THE 

QUESTION THEY WERE ASKED WAS, NOT HOW, BUT WHEN AND WHERE ARE 

YOU GOING TO MITIGATE THIS LOSS OF HABITAT YOU CAUSED WITH YOUR 

ROADS AND YOUR SURVEILLANCE SITES AND YOUR LIGHTS? KA-CHING! 

THE SOUND YOU JUST HEARD WAS THE SUFFERING TAXPAYER RIPPING OUT 

HIS WALLET TO PAY FOR THE MITIGATION OF COASTAL SAGE SCRUB, 

SUSPECT HABITAT FOR THE GN A TCA TCHER- A MATING PAIR WAS SPOTTED 

NEAR GOATS CANYON LAST YEAR. 

FARMLANDS DESTROYED IN THE 1993 FLOODS ARE BEING DENIED THE RIGHT 

TO CLEAR WILLOW HABITAT, NO MATTER HOW SMALL, THAT HAVE SPRUNG 

UP DURING THE FINANCIAL REGROUPING AND LAND RESTRUCTURING 

PERIOD FOLLOWING THE FLOOD, BY THE ARMY CORPS OF ENGINEERS, DUE 

TO BEING REGARDED AS NEW RIPARIAN HABITAT. THE USE OF THESE PRIME 

AGRICULTURAL LANDS MAY BE LOST FROM OUR FOOD CHAIN FOREVER. A 

TEMPORARY FLOOD CONTROL MEASURE, A 2-1 I 2 FOOT TALL BY 16 FOOT 

WIDE EARTHEN CHANNEL REQUIRED A NINE MONTH DELAY, A FISH AND 

WILDLIFE REPORT A NO A 404 PERMIT FROM THE ARMY CORPS OF ENGINEERS 

TO CONSTRUCT. 

MITIGATION AT THE AVERAGE RATIO OF 4 TO 1, FOR A TOTAL OF 9.8 ACRES 

AND AN ESTIMATED COST OF $500,000 WAS THE COST OF THIS CHANNEL, TO 

BE PAID FOR BY THE CITY OF SAN DIEGO. THE MITIGATION SITE WILL 

OBSTRUCT A 60 YEAR OLD EQUESTRIAN TRAIL LINKING THE BEACH TO 

EQUESTRIAN BOARDING RANCHES. THERE ARE OVER 2,000 HORSES IN THE 

VALLEY WITH RENTAL RIDERS, ALONE, ACCOUNTING FOR OVER 20,000 RIDES 

TO BORDERFIELD STATE PARK BEACH EACH YEAR. THIS IS THE LAST SUCH 

BEACH RIDE REMAINING IN THE STATE OF CALIFORNIA. INCIDENTALLY, I 

DON'T SUPPOSE ANY OF YOU WOULD BELIEVE THAT IT'S A COINCIDENCE 

THAT THE OBSTRUCTED TRAIL IS CALLED "BRIAN'S BRIDLE PATH". 

THIS TYPE OF SYSTEM A TIC ABUSE, IMPLEMENTED TIME AFTER TIME ON 

BASIC, AGELESS PROBLEMS- FLOODING, PESTILENCE, SEWAGE CONTROL 

AND GUARDING THE BORDERS- HAS GOT TO END. TO HAVE FEDERALLY 

MANDA TED LAWS PIT AGENCY AGAINST AGENCY WITH THE TAXPAYER 

PICKING UP THE EVER INCREASING TAB, IS INSANE. IF WE, THE PEOPLE, 

CANNOT BALANCE THIS ACT, THAN IT SHOULD BE REWRITTEN WITH 
105 

COMMON SENSE AS THE PREFERRED CRITERIA. 

MR. CHAIRMAN, I WOULD LIKE TO THANK YOU FOR ALLOWING ME TO 

ADDRESS YOU A NO YOUR TASK FORCE, HERE IN RIVERSIDE. 

THE INFORMATION GATHERED FOR THIS PRESENTATION HAS BEEN 

GATHERED FROM THE FOLLOWING SOURCES: 

U.S. INTERNATIONAL BOUNDARY AND WATER COMMISSION 

U.S. BORDER PATROL 

COUNTY OF SAN DIEGO HEALTH DEPARTMENT 

COUNTY OF SAN DIEGO VECTOR CONTROL 

CITY OF SAN DIEGO ENGINEERING DEPARTMENT 

CITY OF SAN DIEGO METROPOLITAN WASTEWATER DEPARTMENT 

CITY OF IMPERIAL BEACH 

TIA JUANA VALLEY COUNTY WATER DISTRICT 

WEST CONSULT ANTS 

DUDEK & ASSOCIATES 

DALL & ASSOCIATES 

SUSAN TRAEGER, A TTY. 

MURIEL WATSON 

& MANY OTHERS GENEROUS WITH THEIR KNOWLEDGE 
106 

Testimony Given by Jerry Eaves, Fifth District Supervisor, San Bernardino County 

Before the U.S. House of Representatives Committee on Resources 

at a Hearing in Riverside, California 

April26, 1995 

INTRODUCTION 

My name is Jerry Eaves; I am a member of the County Board of Supervisors for San 

Bernardino County, California. Through my extended duties as a County Supervisor, I 

am a member of the Board of Directors of the San Bernardino Association of 

Governments and the Inland Valley Development Agency. These public agency 

positions have provided me with direct experience related to endangered species 

issues and private/public land conflicts. I would like to take this time to share some of 

my experiences with you relative to the ESA so you will be aware of the local concerns. 

THE DELHI SANDS FLOWER-LOVING FLY 

The Delhi Sands Flower-Loving Fly (Rhaphiomidas terminatus abdomina/is) is a large 

fly (Diptera) in the family Apioceridae. It is approximately 2.5 centimeters long, orangebrown in color with dark brown oval spots on the upper surface of the abdomen. 

The Delhi Sands Fly is currently known from and believed to be restricted to seven sites 

in southwestern San Bernardino County and northwestern Riverside County. All known 

colonies occur on private land within a 10-mile radius. Knowledge of the biology of the 

Delhi Sands Fly is extremely limited. It is ~ that larvae and pupae live beneath 

the sand, and adults emerge only from late July through mid-September. The species is 

associated with fine, sandy soils with wholly or partly consolidated dunes and sparse 

(30-50% cover) native vegetation. Egg-laying and larval development are assumed to 

take place in Delhi sand and in association with the Riversidian sage scrub plant 

community (Olsen, February 3, 1994). 

Although it is presumed that the Delhi Fly once occurred throughout the distribution of 

Delhi sands in Riverside and San Bernardino Counties, nearly all extant populations are 

located within an approximately 5,000-acre area of Delhi sands which includes portions 

of the cities of Colton and Rialto and portions of unincorporated Riverside and San 

Bernardino Counties. 

Knowledge of the biology of the Delhi Sands Fly is limited to the adult. Nothing js known 

about the habits of Delhi Sands Fly larvae other than that they live below the soil 

surface. Information about the larval stage is limited to a very few laboratory 

experiments. The larval growth period is thQu.gbtto last about one year with maturation 

in mid to late summer. Adult life span in nature is unknown but may be up to one week 

(Olsen, February 3, 1994). 

The Final Rule listing the Delhi Sands Fly as endangered was announced and became 

effective on September 22, 1993. 
107 

Testimony Given by Jerry Eaves, Fifth District Supervisor, San Bemardino County 

Before the U.S. House of Representatives Committee on Resources 

April26, 1995 

Page 2 of8 

The listing of the fly created an endangered species-land development conflict that 

resulted in the preparation of a habitat preservation, enhancement and impact 

avoidance plan for the San Bernardino County Medical Center Replacement Facility. 

The plan was completed in cooperation with the U S. Fish and Wildlife Service 

(USFWS) in order to obtain a determination from the USFWS that the project would not 

constitute a taking under Section 9 of the ESA. This determination meant that a 

Section 10(a) permit and a formal Habitat Conservation Plan would not be required. 

THE SAN BERNARDINO COUNTY MEDICAL CENTER REPLACEMENT FACILITY 

San Bernardino County is in the process of replacing its existing Medical Center with a 

new facility that would provide better medical care for the citizens of the county in a 

seismically safer facility. Work on the project has been in progress for many years with 

final site selection occurring in 1990. The County Medical Center Replacement Facility 

is located in the City of Colton within San Bernardino County on a 76-acre parcel. 

Although the Medical Center project involved no federal approval or funding which 

would invoke federal agency consultation responsibilities under Section 7 of the ESA. 

A study was conducted on the site during the summer of 1993 to determine the 

presence or absence of the fly. A total of 43 person-hours were spent surveying the 

site. A total of eight sightings, representing seven or eight individuals of both sexes, of 

Rhaphiomidas terminatus abdomina/is were made on August 15th (1 sighting), August 

21st (6 sightings) and 29 August (1 sighting). All sightings were made near the southern 

boundary of the site. The amount of existing suitable habitat on the site was estimated 

to be no more than two acres. The balance of the site proposed for Medical Center 

development was not suitable habitat. Please note, it was not verified that each 

sighting represented a separate individual fly. 

The County concluded that its original Medical Center layout and design proposal, 

prepared prior to the September 22, 1993 listing, would have had an adverse impact on 

the Delhi Sands Fly and would have required incidental take authorization under 

Section 10(a) of the ESA if the Medical Center design were not modified. Because the 

Medical Center's financing and construction schedules were well underway at the time 

the Delhi Sands Fly was listed endangered on September 22, 1993, the County 

concluded that the delay associated with obtaining a Section 10(a) permit would 

effectively terminate the project. A delay in, or termination of, Medical Center 

construction could cause a public health crisis in the County. 

IMPACTS TO THE PROJECT 

As a result of the field studies and recommendations of County staff consultants, a 

resolution for habitat preservation acceptable to USFWS was developed for the site. It 

included: 
108 

Testimony Given by Jerry Eaves, Fifth District Supervisor, San Bernardino County 

Before the U.S. House of Representatives Committee on Resources 

April26, 1995 

Page 3 of8 

• Avoidance of the entire Delhi sands area identified as occupied or suitable habitat 

by moving the Medical Center complex footprint 250 feet north from the original 

design location and moving part<ing out of the occupied area. The resuHing Medical 

Center footprint leaves a rectangular area 8.35 acres in size which encompasses 

the 1.92 acre occupied Delhi Fly habitat as a preserve. 

• Long-tenn protection of occupied habitat and the preserve area will be assisted by 

the installation of fencing, vegetative barriers and erosion and- run-off control 

structures. These measures are designed to prevent human activities and 

encroachment within the habitat preserve area. Regular policing of the preserved 

habitat area for litter and other human disturbances will be provided. 

• The Medical Center will have no effect on dune-fonning activity on site. Erosion and 

sand migration, if any, of the occupied habitat area will be studied annually to 

detennine whether steps are needed (e.g., wind barriers, and sand stabilizing 

structures) to maintain geologic integrity of the occupied habitat. Sand transport is 

critical to the long-tenn existence of dunes. Upwind development has critically 

reduced the availability of wind blown sands in the area. This will be part of an 

ongoing site monitoring program developed as part of the mitigation plan and paid 

for by the County. 

COST OF MITIGATION 

A total of eight individual flies may have been sighted on the project site during the field 

surveys. As of June 8, 1994, the total cost for mitigation had reached $3,310,199. This 

amounts to $362,000 in design and engineering costs, $2,482,174 in direct costs, and 

$466,020 in construction costs. Of the total, 41 .8% can be attributed to land cost. The 

Habitat Preservation, Enhancement, and Impact Avoidance Plan accounts for $910,000 

of the budgeted amount. The cost for redesign, engineering, construction, and direct 

cost per fly protected at that time was $413,774 25 ($3,310,199 + 8). Delays to the 

construction project totaled 3 months. 

CONCLUSION 

The fly has been listed as endangered based on a very limited amount of untested 

data. The author of the listing package indicates that life cycle characteristics of the 

species is uncertain. The site specific data is inconclusive and cannot ascertain the 

total number of specimens on the site, or if in fact, the flies identified are separate 

individuals The proposed mitigation affords limited protection to a small number of 

insects, protects a limited amount of habitat, and provides for ongoing research into the 

species itself. 
109 

Testimony Given by Jerry Eaves, Fifth District Supervisor, San Bemardino County 

Before the U.S. House of Representatives Committee on Resources 

April 26, 1995 

Page 4 of8 

The existing County Medical Center admitted 15,500 inpatients per year (1993 Fiscal 

year) at an average cost of $6,695 per patient. Outpatients number 190,000 at an 

average cost of $140 per patient. A total of 494 inpatients or 23,644 outpatients could 

have been treated for the amount of money expended on the mitigation for the Delhi 

Sands Flower-loving Fly. 

The County's experience with the Delhi Sands Fly is just one example of the impact of 

the ESA on our financial resources. This was further emphasized by our efforts to 

provide mitigation for the fly within our Aqua Mansa Industrial Park. Cost to date for that 

project have exceeded $100,000. 

A pending emergency listing of the San Bemardino kangaroo rat for which 39,000 acres 

of habitat has been requested could severely affect plans to redevelop Norton AFB and 

halt construction of the Seven Oaks Dam, the largest federally funded public works 

project in the westem U.S. 

San Bernardino Valley Multi-Species Habitat Conservation Plan 

As a result of the impacts that various listings and proposed listings have made on 

projects within the San Bemardino Valley, I have proposed the preparation of MultiSpecies Habitat Conservation Plan (MSHCP) for the San Bemardino Valley. This plan 

is intended to accomplish the following: 

• To conserve and protect covered species and the ecosystems on which they 

depend in perpetuity within southwestern San Bemardino County pursuant to the 

ESA and the Califomia Endangered Species Act (CESA), and not preclude recovery 

of listed species. 

• To provide a comprehensive means to coordinate and standardize mitigation and 

compensation requirements so that public and private actions will be regulated 

equally and consistently, reducing delays, expenses, and regulatory duplication. It 

is intended that the plan will eliminate uncertainty in developing private projects and 

will prescribe a system to ensure that the costs of compensation and mitigation are 

applied equitably to all. 

• To prescribe mitigation measures for private development and agency actions to 

lessen or avoid cumulative impacts to the covered species and eliminate, whenever 

possible, case-by-case review of impacts of projects when consistent with the 

mitigation and compensation requirements prescribed by the plan. 

• To obtain the necessary permits or take authorizations from the USFWS and the 

Califomia Department of Fish and Game to authorize the incidental take of listed 

species covered in the plan in connection with otherwise lawful activities within the 
110 

Testimony Given by Jerry Eaves, Fifth District Supervisor, San Bernardino County 

Before the U.S. House of Representatives Committee on Resources 

April26, 1995 

Page 5 of 8 

area subject to the plan as provided by Section 10(a) of the ESA and Section 2081 

of the CESA. 

• The MSHCP is intended to provide for the long term preservation of covered species 

not currently listed as threatened or endangered pursuant to the ESA or CESA such 

that should they become listed, the Department and the Service shall, barring 

"unforeseen or extraordinary" conditions, authorize incidental take for the species. 

To accomplish this, all non-listed species being considered under this plan will be 

treated as if they are already listed. 

• To establish a means in which the MSHCP will provide appropriate and successful 

methods of: (1) reporting; (2) accounting audits; (3) funding (short and long term); 

(4) periodic and independent biological evaluation; and (5) opportunities for 

adequate public participation. 

Initially, this plan proposes to address some 41 animal species and 32 plant speciesa very ambitious effort that will also be very expensive. We currently expect our cost of 

preparation of the plan to be $1,815,000. This is very conservative in light of the dollars 

expended in Orange and Riverside Counties on similar efforts. Funding this program is 

extremely difficult. The current economic climate of the area and the inability of cashstrapped local cities and the County to pay for plan preparation is a major hurdle in 

aggressively pursuing the plan. 

Recommended Changes to the Endangered Species Act 

The National Association of Counties (NACO) will formally present a comprehensive 

package of recommendations of changes to the ESA to this committee within the next 

three weeks. San Bernardino County strongly endorses these recommendations. Our 

own experiences in the county have also produced some specific recommendations to 

change the ESA, some of which are covered in the NACO recommendations. The 

following suggestions would provide solutions to the difficulties created by a bill that 

inadequately provides sound environmental policy. 

• Require a study of the economic impact, determine the cost of recovery of 

listed species and develop a recovery plan. 

During the one year period of review for proposed listings, the federal government 

should prepare a detailed economic study that outlines the total impact on local 

government, jobs, housing availability and cost, essential public services, and the 

overall impact on the quality of life in the communities affected by the proposed 

listing. This study should be incorporated with an accurate, species-wide recovery 

plan that is completed and ready for implementation at the time of the listing. Along 

with accurately estimating biological factors and a definite time-line of milestones to 
111 

Testimony Given by Jerry Eaves, Fifth District Supervisor, San Bernardino County 

Before the U.S. House of Representatives Committee on Resources 

April26, 1995 

Page 6 of8 

recovery, the recovery plan should address the number of species required to 

sustain the population, allowable take, habitat required to support the population, 

total cost of acquisition of habitat and all other costs, direct and indirect, of 

preservation of the species. If it is subsequently determined that it is either 

biologically or financially impossible to recover the species to sustaining levels, then 

this should be recognized in the protection the species receives under the Act. 

• The Endangered Species Act must uphold all private property provisions of 

the 5th and 14th Amendments. 

The Endangered Species Act must recognize and fairly compensate landowners for 

all takings, even in the interim, of private property for endangered species 

protection. In current form, the Act places the burden of protection disproportionately 

upon the private landowners who have endangered species, or their habitat, on their 

land. Not only are the costs of protection placed unduly upon landowners, but often 

the value and use of their land is also denied without proper compensation or due 

process. 

• The benefits of protecting species are shared by all citizens, therefore all 

citizens should share the costs. 

The federal government should provide the funding for the protection it mandates 

under the federal Endangered Species Act. The Endangered Species Act is a 

federal law, with the goal of protecting the country's diversity of species. However, 

the financial burden of protecting these species is now borne primarily by private 

landowners where the species are found. In its current form, the Act serves as a 

disincentive for landowners to conserve threatened and endangered species or their 

habitat. 

• Improve the public notice process for proposed listings. 

The current practice of notifying the public about proposed listings in the Federal 

Register is inadequate. Few members of the public ever read the Federal Register. 

A better system would include public notices with maps of affected lands in general 

circulation newspapers in affected communities, automatic public hearings in areas 

affected by the listing, and mailing of specific notices to landowners identified as 

having the species or its habitat on their property. An improved public notice process 

will foster greater understanding and cooperation in endangered species 

conservation. 
112 

Testimony Given by Jerry Eaves, Fifth District Supervisor, San Bernardino County 

Before the U.S. House of Representatives Committee on Resources 

April26, 1995 

Page 7 ofB 

• Improve the requirement for "best scientific evidence available" In listings. 

There needs to be a "check-lisr of necessary studies completed before listing. The 

check-list should include accurate estimates of the number of individuals and the 

amount of habitat thought to exist. There should also be accurate infonnation 

required showing the population trend of the species. Greater emphasis should be 

placed on surveys of all possible habitat in public ownership before determining the 

degree of threat to species. 

• Require Independent "blind scientific review" of listing and dellsting requests. 

A panel of private citizens and scientists should review aH proposals. In current form, 

the Act does not require anonymous, critical review of scientific evidence presented 

for listings. Without anonymity, objectivity suffers within the close knit scientific 

community. 

• The Endangered Species Act should recognize that many species that occur 

In the U. S. occur on the fringe of their range and have always been rare within 

our boardere. 

Consideration needs to be given to the status of species in the entirety of their 

range, even if that includes Canada or Mexico. Political boundaries also should not 

be a factor in determining regional listings within the United States, nor should 

political boundaries factor in the taxonomic classification of species. 

• Responsibilities of enforcing the Endllngered Species Act should be deferr.cl 

tDstatH. 

In states where their ESA laws are compatible with the federal requirements, the 

federal govemment should defer enforcement responsibilities to the states. This 

would eliminate dual processing and enforcement as well as redundancies in permit 

compliance. This is particularly useful where federal listings extend to private lands. 

• When differences arise Involving the listings under the Endangered Species 

Act, provide a dlaputle resolution provision with specific tirnellnealmllestDnes 

for a speedy ramecly. 

Often environmental disputes end up in lengthy and costly legal battles where 

neither party is well served. Provide provisions under the act where both parties can 

have their disputes arbitrated/mediated in a timely manner. This will discourage 

individuals who are today using the court system not to protect species, but seeking 

any available legal means to discourage or delay development through lengthy and 

costly litigation. Bonding for plaintiff suits would also be encouraged. 
113 

Testimony Given by Jerry Eaves, Fifth District Supervisor, San Bernardino County 

Before the U.S. House of Representatives Committee on Resources 

April26, 1995 

Page 8 of8 

I wish to thank you for the opportunity to share our concerns about the Endangered 

Species Act and its reauthorization. Hopefully, these thoughts will enable you to adopt 

a bill that will protect and preserve endangered species without creating the many 

problems that the current act has created. 
951140004 

114 

TESTIMONY OF 

ROBERT D. THORNTON 

Nossaman, Guthner, Knox & Elliott 

Before 

UNITED STATES HOUSE OF REPRESENTATIVES 

COMMITTEE ON RESOURCES 

ENDANGERED SPECIES TASK FORCE 

Riverside, California 

April26, 1995 
115 

I. INTRODUCTION. 

Mr. Chairman and members of the Committee. My name is Robert 

Thornton. I am a partner in the law firm ofNossaman, Guthner, Knox & Elliott. We 

have acted as counsel to the plaintiffs If in the litigation challenging the listing of the 

California gnatcatcher as a threatened species. (Endan~ered Species Committee of the 

BuildinK lndustzy Association of Southern California y. Babbitt, 852 F.Supp. 32 (D.D.C. 

1994.) As a result of our litigation efforts, in June 1994 the District Court for the District 

of Columbia vacated the listing of the gnatcatcher on the grounds that the Fish and 

Wildlife Service had violated the Endangered Species Act and the Administrative 

Procedure Act because the Service failed to obtain, and make available for public review, 

the data relied on by the Service to support the listing. 

The position taken by the U.S. Fish and Wildlife Service regarding the 

need to provide the underlying data concerning the listing, and the position taken by the 

Service since the release of the data, raises important issues concerning the listing process 

under the Endangered Species Act ("ESA"). 

1/ Endangered Species Committee of the Building Industry Association of Southern 

California, Foothill/Eastern Transportation Corridor Agency, and San Joaquin 

Hills Transportation Corridor Agency. 

951140004 
116 

II. 1988: DR. ATWOOD IDENTIFIES NEW SPECIES OF GNATCATCHER 

AND TWO SUBSPECIES. 

In 1988, Dr. Jonathan Atwood, a biologist who did his Ph.D dissertation 

on the gnatcatchers of the southwest and Mexico, published a paper that claimed that the 

gnatcatchers in southern California and Baja, Mexico were a separate species from the 

black-tailed gnatcatcher ("Poljoptila melanura") found widely in the southwest and 

Mexico. Dr. Atwood designated his new species Polioptila californjca. In this paper, 

Dr. Atwood concluded that there were~ subspecies ofP californjca and the range of 

the northernmost species (P caljfornjca caljfornica) ranged from southern California 

through much of Baja to 25 degrees N. latitude (See attached map). 

Dr. Atwood commented in the paper that Poljoptila caljfornica californica· 

"is nearly endemic to Baja, California, with its 

range barely extending northward into the United 

States along the coast of Southern California . . . . It 

is common and widespread throughout the Baja 

California peninsula .. .. " 

Dr. Atwood explicitly rejected the idea that there were three subspecies of 

Polioptila californjca, stating that he could see "no compelling reason to maintain [a third 

subspecies] for populations in central Baja, California, which in most characters merely 

seem to exhibit smooth clinal variation with[~]." 

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9jll40004 
117 

III. THE TAXONOMIC FLIP/FLOP. ATWOOD CHANGES POSITION AND 

CONCLUDES THAT THERE ARE THREE SUBSPECIES. HE 

PETITIONS TO LIST NORTHERN SUBSPECIES. 

In 1990, the Natural Resources Defense Council opened a law office in 

Los Angeles. The NRDC's first item of business was seeking to block three longproposed toll roads in southern California and other development projects. In late 1990, 

the NRDC and Dr. Atwood filed petitions under the Endangered Species Act and the 

California Endangered Species Act to list Poljoptila californjca caljfornjca as an 

endangered species. (As you know, the ESA defines species to include subspecies.) The 

petitions are supported virtually entirely by a new paper by Atwood that concludes, in 

contrast to his 1988 paper, that there are three subspecies ofP caljfornjca and also claims 

that the range of P ca!jfornjca ca!jfornjca extends only to 30 degrees N. latitude. (See 

Figure 1 ). The 1990 paper reaches these dramatic new conclusions based on the exact 

same data set utilized jn the 1988 paper 

Atwood's flip/flop on the taxonomy and range of P caljfornjca ca!ifornjca 

is absolutely central to the NRDC's argument the gnatcatcber deserves listing because as 

Atwood himself testified: 

951140004 

"No credible scientist would claim or has claimed 

that California gnatcatchers as a species are 

endangered throughout their entire range." 

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118 

There are an estimated three milli.lm gnatcatchers in Baja, Mexico north of 

25 degrees N. latitude. (See Figure 2) The Fish and Wildlife Service estimates that there 

are approximately five~ pairs north of30 degrees N. latitude. Thus, Atwood's 

taxonomic flip/flop magically turned a common Mexican bird into an uncommon 

southern California bird. 

In 1991, the U.S. Fish and Wildlife Service proposes to list P califomjca 

califomica based entirely on Atwood's dramatic new taxonomic conclusions. No mention 

is made of the fact that Atwood reached the opposite taxonomic conclusion only two 

years earlier. 

IV. ATWOOD REFUSE TO PROVIDE DATA FOR PUBLIC REVIEW. 

SERVICE FAILS TO ASK FOR DATA. 

A nwnber of affected parties start investigating the basis for Atwood's 

position. They ask him for permission to see the data supporting his 1988 and 1990 

papers, but he refuses c!ajmjng that the data js "proprietazy. u2 (The data set is a set of 

measurements of 31 morphological characteristics from 212 gnatcatcher specimens that 

Atwood obtained over a six year period as part of his Ph.D work). Neither Atwood's 

2 When several parties seek to subpoena Dr. Atwood's data, the NRDC successfully 

blocks the subpoena claiming that the data is outside of the administrative record. 

In another case, the NRDC withdraws Dr. Atwood's name as an expert witness 

after parties attempt to take his deposition. 

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951140004 
119 

1988 or his 1990 paper included the measurements, but only included averages of pooled 

data or statistical manipulations of the data. 

A number of affected parties ask the Fish and Wildlife Service to obtain 

the data from Atwood. Despite repeated requests, the Fish and Wildlife Service never 

asks Atwood for his data. Instead, they ask the American Ornithological Union to 

conduct a secret "independent" review of the issue. By secret, I mean that the Service did 

not advise the public (except Dr. Atwood) that they had asked the AOU for the review 

until the so-called "review" had been completed. As a result, no one (except again 

Dr. Atwood) had an opportunity to submit comments to the AOU. The Service also 

didn't advise the public that the AOU had already taken an official position supporting 

listing, nor did the Service advise the public that the AOU had stated that further review 

of the taxonomic issue would be "gratuitous." As a result of correspondence with the 

AOU, we subsequently discovered that the AOU review was a complete and utter sham. 

The President of the AOU admitted to me in writing that the "review" never happened. 

He stated that there had "been no foonal deliberations or conclusions on subspecies of the 

California gnatcatcher .... " 

V. SERVICE REQUESTS SECRET REVIEW OF TAXONOMIC ISSUE BY 

AN ADVOCATE FOR THE LISTING. 

After the Fish and Wildlife Service is confronted with these facts, they ask 

(once again in secret) their chief ornithologist, Dr. Richard Banks, to review Atwood's 

papers. Without reviewing Atwood's data, in February 1992, Dr. Banks issues a report 

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951140004 
120 

supporting Atwood's 1990 taxonomic conclusions. He .imperiously rejects the demands 

that the Service obtain Atwood's data stating "he saw no reason to review [Dr. Atwood's] 

primary data" and stating "it seems obvious that those asking for the data intend to 

subject them to scrutiny for the purposes of refuting Atwood's conclusions." As if to 

suggest that there is something wrong with that! 

As a result of a Freedom of Information Act request, we subsequently 

discovered that Dr. Banks helped Atwood draft the 1990 paper and had suggested that 

Atwood's change in position between 1988 and 1990 might not be supported by his raw 

data but in fact might have been designed to provide a contrived basis for listing ·~ 

reKar41ess of the facts." Dr. Banks' letter to Atwood suggested that this wouldn't have 

been the first time that this happened: 

9~1140004 

"I might not be so sensitive to this if I had not 

gotten burned by such a situation. My study of 

geographic variation in the Yellow-billed Cuckoo 

was requested by the FWS Regional Office. When 

the study showed that the western subspecies should 

not be recognized, the biologists where were upset 

(furious?) because they wanted it ICCQKJlizcd so it 

could be listed. and they reanalyzed my data so they 

could prove me WTPDK call jt a race and list it " 

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121 

As a result of the FOIA request, we also discovered that Dr. Banks had 

also previously advocated the listing of the gnatcatcher on behalf of an environmental 

organization despite his admission to Atwood that taking a position on the listing would 

put Banks "into what at the very least could be construed as a conflict of interest 

situation." 

VI. DRS. BARROW CLOUGH AND McDONALD REVIEW ATWOOD 

PAPERS AND CONCLUDE THAT IT IS IMPOSSIBLE TO ANALYZE 

ISSUE WITHOUT ACCESS TO THE DATA. 

In response to Banks' unusual report, we engaged Dr. George 

Barrowclough, the Chairman of the Department of Ornithology of the American Museum 

of Natural History and Dr. Lyman McDonald, a nationally recognized bio-statistician, to 

review Atwood's papers and the Banks report. Drs. Barrowclough and McDonald 

advised us that it was impossible to determine whether Atwood was correct in 1988 or in 

1990 without access to the underlying data. They also identified a number of curious 

anomalies, inconsistencies and outright errors in Atwood's 1990 paper. Atwood himself 

later acknowledged one of the major errors, but claimed that his 1990 conclusions did not 

depend on it. 

VII. SERVICE IGNORES BARROWCLOUGH AND McDONALD 

COMMENTS AND LISTS COASTAL CALIFORNIA GNATCATCHER. 

In March 1993, the Fish and Wildlife Service lists Po!joptjla califomica 

califomjca as a threatened species. Despite the detailed critique of Atwood's 1990 paper 

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951140004 
122 

by Drs. Barrowclough and McDonald (and Atwood's own admission of at least one major 

error), the final rule concludes that "there has been no indication that [Dr. Atwood] used 

inappropriate statistical methods." The final rule does not even mention 

Dr. Barrowclough or Dr. McDonald. We later discover why: the rule was drafted in 

December 1992 -- three months before the public comment period closed and before the 

Service received the Barrowclough/McDonald comments. Although the rule was 

circulated up through the chain of command after the comment period, (except for one 

person) everyone signed off on the content of the rule the same day that it appeared in 

their in box 

VIII. COURT ORDERS RELEASE OF DATA. THE DATA DOES NOT 

SUPPORT ATWOOD'S 1990 TAXONOMIC FLIP/FLOP. 

After four years of effort by the regulated community, and a federal court 

order, Dr. Atwood finally relents and releases his "data." Analysis of the Atwood data set 

by nationally-recognized ornithologists and biostatisticians demonstrates why 

Dr. Atwood was so reluctant to allow public review of the data. The data set released by 

Dr. Atwood does Wl1 support his 1991 conclusion that the range off.k.k extends only to 

30 degrees N. Indeed, the analyses of the data set by Dr. George Barrowclough of the 

American Museum of Natural History, Dr. McDonald, several professors at Utah State 

University as well as Dr. Atwood's own sworn testimony documents that~ should 

not be listed as an endangered or threatened species because gnatcatchers found in 

southern California and northern Baja, Mexico are not distinct from the very large 

populations of gnatcatchers found throughout the Baja peninsula. 

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9Sll40004 
123 

The analyses of the data set by Dr. Lyman McDonald, Dr. George 

Barrowclough, and recent dramatic admissions by Dr. Atwood in his deposition indicates 

the following: 

951140004 

• The measurements of the morphological characteristics for each of 

the 213 ~ specimens in the data set overlap substantially 

regardless of the latitude at which the specimen was collected. 

Dr. McDonald states: "There is little corroborating evidence from 

graphical plots of original data on specimens to support 

hypothesized steps in trend of any variables." 

• Sophisticated multivariate analyses of the data set also do not 

indicate that gnatcatchers in southern California and northern Baja 

are distinct from gnatcatchers found in central and southern Baja. 

Dr. Barrowclough states: "[M)y interpretation of the revised 

findings [the McDonald Report] indicates a lack of justification for 

recognizing subspecies that have biological meaning beyond single 

character aspects of the bird." Figures 5-10 graphically 

demonstrate the basis for Dr. Barrowclough's opinion. 

Dr. Atwood testified that his 1991 conclusions are based on the 

results of a cluster analysis. Neither Dr. McDonald or the Utah 

State University group (in separate independent efforts) have been 

able to replicate Atwood's 1991 cluster analysis usin& Atwood's 

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9Sll40004 

124 

own data set. Moreover, Dr. Barrowclough states emphatically 

that cluster analysis cannot be used to define subspecies: "[T]he 

results of such an analysis would be seriously misleading .. . 

[C]lustering should~ be used to look for subspecies .. . . " 

Even Dr. Atwood admitted that the cluster analysis will cluster 

sampling areas in the absence of a significant step between 

sampling areas. 

Dr. Atwood testified that the only morphological variables shown 

in his 1991 paper that exhibited~ at approximately 30 

degrees N. were brightness of breast feathers (BRSTB) and purity 

of back feathers (BACKP). When these same data are plotted for 

all specimens (as opposed to means), it is clear that there is no 

"sharp step'' at 30 degrees as claimed by Atwood in his 1991 paper. 

Moreover, Dr. Atwood has now admitted "serious doubts" about 

the accuracy of his color measurements because of technical 

problems with the device that he utilized to measure plumage 

color. 

Dr. McDonald has documented that the age of the gnatcatcher 

specimen (some of which are over 100 years old) significantly 

influences the color of the plumage. Dr. Atwood never considered 

-10-
9SJ 140004 

125 

the effect of age on feather color despite the fact that it is a welldocumented phenomenon. 

The evaluation of means of the morphological characteristics from 

the nine sample areas in the data set using a statistical test utilized 

by Atwood in 1988 and 1991 (Gabriel's Test) does I1Q1 suggest a 

significant step or break at 30 degrees. Indeed, Dr. Atwood 

testified that the results ofhis own use of Gabriel's Test in the 1991 

paper did not even suggest a clear step for back purity at 30 

degrees N. despite the fact that he significantly relied on this color 

characteristic to support a division at 30 degrees N. 

Using Gabriel's Test as recommended Dr. Gabriel and by 

Dr. Barrowclough also does I1Q1 indicate a step or break in 

morphological characteristics of£.&. specimens at 30 degrees. For 

example, ~of variables describing the size of specimens 

measured show~ step along the entire range off&. 

A statistical test (Intervention Analysis) used to measure changes 

in the rate of change of morphological characters did not support 

the Banks and Gardner hypothesis of a significant rate of change at 

30 degrees N. The Intervention Analysis did not indicate a 

significant rate of change for the either the size, pattern or color 

variables along the entire range off.&. 

-II91-616 95-5 
126 

The data released by Dr. Atwood, and the deposition testimony of 

Dr. Atwood, raise many other disturbing questions about Dr. Atwood's treatment and 

handling of the data and Dr. Atwood's 1991 analysis: 

951140004 

• Dr. Atwood inexplicably destroyed the raw data sheets (the sheets 

of paper on which he recorded the measurements of specimens) 

two years before the publication of the 1988 Monograph and five 

years before the publication of the 1991 paper. According to this 

testimony, he even destroyed the data sheets before his dissertation 

was approved. 

• The Dean of the College of Science at Utah State University has 

commented "[e)specially disturbing is the fact that Atwood 

appii"Ciltly no longer has available the raw data used in his original 

analyses ... it is unusual that a worker would not maintain an 

independent dala set, especially if it involwd taxonomic 

dccilions." 

• Atwood also disc:arded the physical results of the 

spcctrophotomet (the device utili.zecl to measure the key color 

cllanlctcrislic). As • result. it is impossible to verify the IICCUI'll(:y 

of the measurement of brightness of breast feadlers and purity of 

back plumage-~ key variables relied on by Dr. Atwood in 1991 

to support a f.J;J:. subspecies limit at 30 degrees N. 

-12-
951140004 

127 

Atwood also discarded all record of computer programming 

instructions that he utilized in the development of his I 988 and 

1991 papers. His deposition testimony suggests that this 

information may have been destroyed after the May 2, I 994 

decision of the District Court for the District of Columbia vacating 

the listing of the~ 

Despite running over 140 different options, Dr. McDonald was 

unable to replicate the results of the cluster analysis reported by 

Atwood in the 1991 paper. The Utah State group was also unable 

to replicate the Atwood cluster analysis. 

Dr. McDonald states: "We find it extremely disconcerting that we 

can easily verify the results of Atwood (1991) for analyses 

conducted on one variable at-a-time, but were not able to duplicate 

some of his analyses which involve several variables 

simultaneously ... Because we could not replicate some of the 

multivariate results and because original data forms were not 

available, we must express reservations concemjni the jnteirity of 

the data released . . . Somethini serious js wroDi." 

Despite testifying that he used exactly the same data set in his 1986 

dissertation, the 1988 Monograph, the 1990 Status Review and the 

1991 paper, Dr. Atwood was unable to explain why the sample 

-13-
951140004 

128 

sizes reported in the four papers are all inconsistent with each other 

liDii with the data set released in May 1994. For example, the 1986 

dissertation reports that he examined 85 l Poljoptila specimens 

while the May 1994 data set includes 907 Po!ioptila specimens. 

The 1988 Monograph reported that he analyzed 196 male ~ 

specimens while the 1991 paper reported that he analyzed male 

212 ~ sp«:imens. In contrast, the May 1994 data set includes 

213 male~ specimens. 

• Atwood testified that the data set exists exactly as it was originally 

recorded by him on the DOW destroyed data sheets. He also 

testified, ~. that after the data was eotacd into the computer 

be alteml the data set to c:hlnae one specimen from a female to a 

male and also deleted one specimen from the ~data set 

entirely. He testified that he "CBIIDOt say with a hundred pen:ent 

certainty" that he didn't make othel' cblngcs in the data set. 

• Atwood testified that be deleted worn and 10iled specimens from 

the data set, but he did not have any written protocol to insure 

consistency of these determinations. 

• Atwood admitted that he may have replaced missing values in the 

data set with other values, but he has DO rccont of what missing 

values be replaced or what he repiKcd them with. 

-14-
129 

IX. CONCLUSIONS AND RECOMMENDATIONS. 

During the four years of administrative proceedings and litigation 

concerning the listing off.kJ;.. various explanations have been proffered by Dr. Atwood 

and others to explain his taxonomic flip-flop and to support his 1991 conclusions. One 

by one the explanations have been demonstrated to be false. 

First, the American Ornithologists Union and Dr. Fitzpatrick relied on 

Table 2 of the 1991 paper and claimed that Table 2 supported a f.kJ;.. subspecies limit at 

30 degrees N. When Dr. McDonald and others pointed out that Table 2 was invalid 

because it relied on pooled data, Dr. Atwood agreed with the criticism and claimed that 

he never relied on Table 2. 

Next, Dr. Atwood claimed that the subspecies limit at 30 degree N. was 

supported by the variation in plumage coloration (in particular brightness of breast 

feathers and back feather purity). When technical problems with the machine used to 

analyze plumage color were identified, Dr. Atwood expressed "serious doubts" about the 

accuracy of the color data. 

Finally, Dr. Atwood in his deposition has stated that his 1991 taxonomic 

conclusions are based on the UPGMA cluster analysis. But he has also admitted that the 

UPGMA test will cluster sampling areas even in the absence of a step in morphological 

characteristics in the sampling areas. But Dr. Barrowclough emphasizes that "clustering 

should~ be used to look for subspecies." 

-15-

951140004 
130 

In summary, there is no longer a credible factual basis to support 

Dr. Atwood's 1991 conclusion that the southern limit of the range of~ is 30 degrees 

N. Dr. Barrowclough has indicated that there is a "lack of justification" to support the 

identification of any subspecies of Polioptila californica. 

Despite all of these dramatic new revelations, on March 27, 1995 the 

Service re-listed the coastal California gnatcatcher as a threatened species. Perhaps most 

disturbing is the fact that the Federal Re~jster notice explaining the listing largely ignores 

the detailed scientific critique of the Atwood data by Drs. McDonald, Barrowclough, 

Skalski, Boyce, Cronin, McMahon and others. Remarkably, in eight pages of~ 

~ text, the comments by Drs. Barrowclough, Skalski, Cronin and McMahon are 

not even mentioned once. 

The foregoing experience strongly suggests the need for certain changes in 

the ESA listing process. I would recommend the following: 

1. The Fish and Wildlife Service should be required to reject petitions 

to list that do not include the underlying data when that data is available to the petitioner. 

2. The Fish and Wildlife Service should be required to obtain 

additional data when there is a substantial scientific disagreement regarding the accuracy 

of the existing data. 

3. The notice and comment listing process is not adequate when there 

is substantial scientific disagreement regarding the basis for a listing. Under the current 

-16-

951140004 
131 

procedures, the Fish and Wildlife Service is free to ignore significant scientific comments 

and listing opponents have no opportunity to directly confront the technical basis for the 

listing. There should be an opportunity for an adjudicatory proceeding which allows the 

examination of the experts on all sides when there is a significant scientific controversy. 

-17-

951140004 
132 

FIGURE 1 

•

.... ::-

~ r-··suJ -- (.1.1'-ll!liri!DA-J 

•• _,na - ..... tllS 

..... 
3.5 

3 

., 

-= 2.5 .. 

-.= 

.... 

0 

2 

a 1.6 

0 

-

= - 1 :Fl 

0.5 

0 

32 

133 

FIGURE 2 

CaiHomla Gnatcatchers 

Camalati'ft populatioa 

ID 21 21 

Latitude (0N) 

24 22 
134 

FIGURE 3 

Brightness of breast feather data as plotted by Dr. Atwood in 1990. 

30 

~ 214 I a 

Q 

z 26• 

IIJ -

~ 2C· i 

~ 224 I - . 0 20• -

== Jl• BRSTB = ! I• 

1' . • . . I • 

PIGUIE 4 

Ac~ual data poia~• ( .. juatH for ap affects). 

-

• 

• 

., 

.. ,. 

. •• ., 

• •• 

• 

• 

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. 

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TLEN 

54 

53 

52 

51 0 

50 0 0 

0 

49 0 0 0 

0 0 &• 

48 

47 0 ~ogg 

0 &\• 0 

46 

45 0 

44 

22 24 26 

135 

FIGURE ~ 

SIZE VARIABLE 

Tail Length (mm) 

Males Collected October - April 

0 

0 

0 

0 

0 0<9 • 0 <b 0 0 

0 0 0 .0> 88: 0 

~ o0 o 8 0 0 0 0 0 

0 0 0 0 

0 0 0 

0 • 0 0 e 0 f 0 0 0 

0 0 0 0 

0 

28 30 32 

LATITUDE 

0 

0 

<9 

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of 

00 ~ f 0 0 

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34 38 
1'1.111 

N 

., 

52 

111 

110 

0 

.. 0 0 

48 I• 

47 • ••• 0 

48 0 0 

.. ' 

0 

.. Zl 14 • 

136 

FIGURE 6 

SIZE VARIABLE 

Tail Length (mm) 

Females Coleded October - April 

0 0 

0 0 

0 0 0 

0 0 0 8 0 0 0 0 

0 

0 0 0 • 0 0 

• 

• • • 

I.A'IIIUII 

0 

~ 

0 

8 o) 

' 

• 

r:J •o 

# 

I 

0 ·' 0 

0 

0 

• 

14 • 
R5SL 

8 

0 

5 0 

0 

0 

0 

4 0 

0 0 0~ 00 0 0 

3 ss 

8 

00 0 

0 0 

2 0 0 

0 

00 

0 

22 24 

137 

FIGURE 7 

PATTERN VARIABLES 

Retrix 5 Tail Spot Length 

Males Collected October - April 

0 

0 0 

0 0 

0 0 0 0 0 0 0 

0 0 00 8 0 0 0 

0 oo 0 0 0 

0 0 0~ 0 0 

0 00 o: 0 000 8 0 o odb oJ 0 0 0 0 0 

0 

28 . 30 32 

LATITUDE 

Mexico 

ODO 

0 0 0 

ol 0 

i~ -0 

08 

• -

34 38 

u.s. 
R5SL 

a 0 

5 0 

0 

0 

<l 0 0 

8 0 0 

3 §, 

0 

0 

2 

0 

0 0 

oo0 

0 0 

0 

22 24 28 

138 

FIGURE 8 

PATTERN VARIABLE 

Rebix 5 Tail Spot Length 

Femalel Collec:ted October - April 

0 

0 

0 

0 

0 

0 

0 8 0 0 0 0 0 

0 <\)0 

0 GO 0 

28 30 32 

LA11TUDE 

Mexico 

0 

00 

~ § 

8 <\)<9> 

sa. 

~ 0~ 

34 38 
139 

FIGURE 9 

COLOR VARIABLE 

Back Purity- Adjusted for Year 

Males Collected October - April 

Mexico U.S. 
BRSTBR2 

12 

10 

8 \0 6 ioo 

• 0 0 

• 

2 0 0 ~0 

0 

0 0 

0 0 

-2 0 

-· 

-8 

-8 

-10 

22 

140 

FIGURE 10 

COLOR VARIABLE 

Breast Brightness - Adjusted for Year 

Males Collected October - April 

0 0 0 0 

*> 0 

0 0 0 

0 0 00 8 0 00 00 • J 0 0 

0 0~ 8 0 i 0 <P <i~ ~ o0 o 

<P 0 

0 

0 0 0 

0 

za 30 32 

LATITUDE 

0 

0 

0 

0 

0 

0~ 

oiJ 

:I! 

0' 

0 0 

Mexico U.S. 
141 

FIGURE 11 

100.0% Discriminant Analysis 

J 80.0% 

I 70.0% 

eo.O% 

50.0%4-----~----~----~------~----~--~ 

22 24 28 28 30 32 34 

Latitude 
142 

Testimony to the Task Force on the Endangered Species Act 

Presented by Mike Ahrens, Natural Resources Consultant 

April24, 1995 

Thank you for this opportunity to share our concerns with the implementation of the present 

Endangered Species Act. My name is Mike Ahrens I live in the City of Hemet here in Riverside 

County. I am a member of the Interest Group Committee to the North and Eastern Colorado 

Desert Coordinated Management Plan, focusing on the recovery and protection of the Desert 

tortoise and other sensitive species. I operate a private consulting firm representing the needs of 

several recreation oriented groups which rely on motorized vehicles either as their form of 

recreation or to access public lands to pursue their particular form of recreation. These 

recreational pursuits include Rock Hounding, Hunting, Fishing, Sightseeing, Disbursed Camping, 

and Historic Site Exploration. Today I am testifying on behalf of the National Natural Resources 

Coalition. We are a coalition of 50,000 concerned citizens from four western states bound 

together by one common thread - we are dependent on access to public land for our livelihood, 

recreation, and our way oflife. 

Natioal Natural a-,_ c.--_ 1301 C-*"t A-NW, W .......... DC 10036 (101) ln-9181 
143 

Typically our members are families which enjoy these activities together. Many times several 

families will join together and form clubs, sometimes with several generations of different families 

that enjoy the same type of recreation and each others company. The forms of recreation vary 

somewhat but what is similar is their dependency on public lands. Recreationists will drive several 

hours from metropolitan areas to remote areas on public land. Some will camp in camp grounds 

or just off the side of a dirt road with their RV and then access other smaller dirt roads in four 

wheel drives or on ttail bikes returning back each night to camp. Others will take their camping 

gear with them and tour the back country on remote Jeep roads pulling off to camp at the end of 

the day. 

Motorized recreation contributes greatly to California's economy. Manufacturing, retail outlets, 

restaurants, camp grounds, motels, service and repair stations all benefit from motorized 

recreation. In a study completed last year by the city of Brawly, one of our desert communities in 

Imperial County, motorized recreation was found to contribute over 2 million dollars to the local 

economy. In a study completed by the Institute for Social Research, California State University, 

Sacramento, motorized recreation was found to generate 3 billion dollars in economic activity 

statewide, and supported 43,000 jobs. The study reports that approximately 14.2 percent of the 

households, or 3.5 million people in California participate in some kind of motorized recreation. 

We believe our way of life is under assault, often for a noble goal but just as often in a manner that 

is ill conceived and unlikely to achieve the desired result. Just last year motorized recreation 

opportunities were restricted from eight million acres of land in the California Desert. Currently 

the public's ability and right to access public land is threatened by the implementation of recovery 

plans for the Desert Tortoise, Fringed Toed Lizard, Nat Catcher, Arroyo Toad, Least Bell's Vireo, 

Willow Fly Catcher, Mojave Ground Squirrel, Snowy Plover, Fairy Shrimp, Spotted Owl, 

Furbearers and countless other listed species. 

I would like to focus for a moment on some of the ways that the recovery of endangered species 

has inappropriately impacted motorized recreation. It is well understood that the demise of the 

Desert Tortoise is primarily caused by disease and predation. Actual recorded impacts to the 

Desert Tortoise caused by motorized recreation is so low, that to make the figures appear relevant 
144 

motorized recreation impacts are lumped together with those of highway related take. Clearly 

there is less potential impact from a family driving down a two track road at 5-l 0 mph than a semitruck travailing at 60 on the interstate. The mere difference in the amount of traffic would lead 

most to believe that these may be sepan~te issues. Further lumped into the argument is vandalism. 

It is true that some will pick up tortoises and take them home, and others regrettably have even 

intentionally killed them. I will not begin to explain this behavior but I. will point out that when this 

happens in other species it is called poaching and the issue is dealt with through education and 

enforcement of game laws. 

The recovery of the Desert Tortoise is centered on the establishment of Desert Wildlife 

Management Areas (DWMA's). These are preserve areas where the primary management action 

is to restrict public access. How this will eliminate disease within the Desert Tortoise population I 

don't understand. What affect it will have on the Raven population, the Tortoises key predator, 

whose population is increasing at a rate of 1500",4 annually, is unclear. What it will do is restrict 

public access to over 4.5 million acres of California Desert. Keeping law abiding citizens out of 

the back country will not stop poaching and could make it easier for those intent on breaking the 

law to go unnoticed. 

The plan to save the Snowy Plover is another example of limiting access with no evidence it will 

benefit the spec:ies. Even though Californians enjoy motorized access on only four miles of our 

coastline, one of the recommended recovery actions by the Fish and Wildlife Service to protect the 

endangered Snowy Plover is to eliminate that use during night time hours. The reasoning is based 

on the idea that as vehicles drive on the beach at the posted 15 mph speed limit, one of the 

endangered birds might fixate on the headlights and fly into the vehicle. There is absolutely no 

evidence that this has ever happened to a Snowy Plover or any other kind of bird on the beach. 

For the last several years Pismo State Vehicle Recreation Area (SVRA) has voluntarily been 

fencing off nesting areas for the Plover and has reported very successful nesting seasons. This 

restriction will ultimately eliminate overnight camping at Pismo SVRA which now enjoys over 

1,000,000 visitor use days annually. The SVRA generates $91 million dollars of economic impact 

to the local area annually and supports 1,546 jobs. 
145 

There is cunently an effort to develop a Cooperative Management Agreement for the protection of 

the Peninsular Bighorn Sheep. The sheep are not currently federally listed but will be if this 

~t can not be negotiated. The sheep have been in decline due primarily to poor 

recruitment of young animals, which has been cause by, a limited gene pool, and predation by an 

inc~Qsing population of Mountain Lion. The Peninsular Bighorn range has been isolated by the 

creation of Interstate highway 10 and 8, and state highway 86. The sheep's movement is further 

restricted by wbanization at the bae of the San Jacinto, Santa Rosa Mountains and the Anza 

Borreao Stale Pult. 

Accordina to a letter from Boyd Gibbons, Dim:tor of the California Dcplr1ment offish and 

Game to SCIIIie Senator Tom Hayden Cblirman of the Senate Natural Resoun:cs Commiuce, "A 

submnlial iDclease in the number of lions verified in areas which were 1ona qo ..t.U2iCd SUOft&ly 

IUIIICSliD iacreasilll population, ... Mountain lions •w been dctcnnincd to be the cause of 

approximately 22 pen:ent of bighorn mortalities in the Peninsular bighorn sheeP populations in 

Riverside and San Dieao Counties.· Establitllins preserve IIIIDigeiiiCIIt will do nodli111 to IR\ICftl 

the predllion of the sheep or to expud the FDC pool. It serves only to fUrther ratrict the ability 

of the public to access the public lands. As with die Desert Tortoise and the Snowy Plover, public 

access is the easy ta1pt when in fact ~ is DO scientific: evidcacc to IIIV\IC such action will '-ve 

-.y effect on subilizins the sheep population. 

I know dial the COIIIllliaee his hcanl QOIIIidcnblc tatimony ClOIICCI'Dina the taki"' of privase 

propelty IDd I8RIIIOIIIIIIIe mitiptioa. As citizas of Ibis COUDIIy we are alto allrmed by Ibis but 

hope !hat the commiuce will consider that when public IIICS are deemed to be to the detriment of a 

species ~ is DO mitiplion pruc:css available. As Nd as the mitiption pruc:css is for privase 

propelty owners it does aormally allow for business or life styles to coatinue. Oac proposal we 

'-vee-dis to exempt privatc property from the ESA IDd to focus~ on public lands only. 

We suppan die proeedioa ofprivatc property, but limiting the ESA to public lands is as ill 

c:onceiwd as the cumnt law. We SlnJnlly suppan the immediate refumt of this process, but we 

IIIF lhe c:onuniaee to proeec:t the public's acC:ess to public lands. The committee needs to realize 

!hat when public access to public land is revoked, the quality of life for millions of people 

ddaioratcs. The ri&fds of both privmc property owners and public land usas must be protected. 
146 

Because recreation is so intangible it becomes an easy target for recovery strategies. This often 

leads to agencies doing feel good land closures in the name of species protection and not 

addressing the harder issues of eliminating predation, controlling disease or enhancing the species' 

biological condition. Let's flU:e it, bureaucracies tend to take the path of least resistance and it is 

much easier to dump on recreation with it's fragmented representation than to consider reducing 

the population of ravens or transplanting bighorn from other populations to expand the gene pool. 

To some extent this will never change but there are some things that the committee can do to limit 

this effect. 

In the process of developing the listing of a species, the service should be required to identifY the 

causes of decline and the extent of each cause. It further seems to us that the ESA should mandate 

that recovery actions focus on perhaps the top 80"/o of the cause rather than the easiest 20"/o. This 

would be much more effective and would add a level of reasonableness not found today in the 

ESA. 

This raises the issue of science and the ESA. Currently, the statue requires "the best available 

science" for listing an endangered species. This sounds appropriate but it has become a blank 

check for special interest groups that want to restrict access to public lands and stymie 

development. What we have seen is that by limiting the review to the best available science, 

species have been listed with almost no science. This is simply not acceptable. 

Let me sight an example. A few months ago there was concern for lhl! Sand Mountain Blue 

Butterfly. Protection measures were being planned during a field trip at Sand Mountain Nevada. 

A recreationist who happened to be out that day involved himself in the conversation and after 

having the species described to him and the urgency of protection, he left to look personally for the 

species. The scientists were on foot and of course could oot travel much in the way of distance in 

the soft sand. The recreationist was on an OHV and in a short time located thousands of these 

allegedly endangered species. 

The point is that because the science team was mandated to only review the ~ science they did 

not conduct a ~ review for the species. In fact it could be said that finding that the species 
147 

is not in need of protection, is not in the best interest of someone charged with protecting species. 

The lack of available science actually benefits those charged with protecting species in that it can 

simplifY the listing process. The burden of proof should not be put upon public and private 

property holders. 

We strongly believe that there should be a more clearly defined criteria.for listing a species. This 

criteria must include the impacts on local economies, families, private property holders and public 

land users. Furthermore, because a listing can have such a far reaching impact on private citizens, 

a listing must be based on a thorough scientific analysis and not simply "the best available 

In conclusion the ESA is in dcspeqtc need of reform. Those reforms should require complete 

scientific analysis and the liSiins should identity the causes of decline and show to what dqp-cc 

eacb cause is responsible for the decline. The ICCO\'eiY plan should be developed before listinc, 

and the ESA should llllftdltc thll the ICCO\'eiY be focusccl on the leading causes of decline nlther 

dian the euiest caiiSCS to restrict or eliminate. Rccovcly plans need to be setiSitive to the wluc of 

public rec:radion and the need for acc:css to public llnds for rec:ralioaal purposes. lt sboulcl 

protect private property, and be sensitive to the IISCS of the public on public lands. Rccrealion adds 

to our standml of living bod! emotionally and fiiiiiiCially. A«ess to public land is CSSCIIIial for 

recreational pursuits. 
BRIAN P. BILBRAY 49TH DISTRICT, CALIFORNIA 

COM MERCE COMMITIEE 

SUBCOMMITTEE ON 

HEALTH AND ENVIRONMENT 

SUBCOMMITTEE ON 

COMMERCE. TRADE AND 

HAZARDOUS MATERIALS 

148 

ctr:ongress of tbe ijjnltel:J ~tate~ 

1!,Joulie of l\rprrlientatibr!i 

•asf)ington, ID(( 20515 

Statement of the Honorable Brian Bilbray 

Before the Endangered Species Task Force 

of the House Resources Comminee 

Riverside, California 

April 26, 1995 

WASHINGTON OFFICE . 

00 ~ LONGWORTH HOUSE OHICE BLDG 

WASHINGTON, OC 05 1~ 

1202 122!>-20•0 

DISTRICT OFFICE 

10 11 CAMINO DEL RIO SOUTH 

SUITEJ30 

SAN ~EGO. CA 92108 

1619) 291 - 1430 

Mr. Chairman, thank you for this opportunity to appear here today, and for holding these 

hearings on an issue of such significance to southern California, and the country as a whole. 

will be brief in my remarks, because we in Congress will have ample opportunity to discuss this 

matter at length. The purpose of these field hearings is after all to provide a forum for those 

outside the abstract and sometimes bizarre realm of policy-making, whose lives have been aud 

are being directly affected by the Endangered Species Act. 

Before hearing from our panel of witnesses, however, I want to make a couple of quick 

observations. As we enter into this reauthorization process, it is important for the American 

public to realize just how we arrived at this point, and what it is we are trying to accomplish with 

these hearings. 

The bottom line is that the Endangered Species Act has been manipulated and mutilated ovec the 

last two decades. It is not beyond redemption. but its sins have to he addressed. Its original 

mission has become nebulous and unfocused. It is not presently effective in accomplishing its 

conservation mandate, although it has been e ffective in fulfilling othe r, less noble agendas. rhis 

equation is out of balance. What needs to be understood is that the lion's share of the problems 

which have been caused by the ESA can be laid directly at the feet of those who have claimed to 

be the Act's most ardent supporters. The bureaucrats, regulators, and activists who have been 

most shrill and inflexible in upholding the "sanctity" of the ESA have, in my opinion, been guilty 

of vary ing degrees of myopia. arrogance. and outright ignorance in recogni zing and reacting to 

the effects and excesses of this well-intended and much-manipulated law. 

Americans love their nation, and its riches of natural beauty. We as a people have li ved in 

harmony with, benefited from, and enjoyed our natural surroundings for generation after 

generation. For many Americans, every day really is an Earth Day. Not an arbitrary and 

politically motivated event to be dusted off once a year. whet> ·r we need it or not, but genuine 

interaction with and respect for one's surroundings. However, it has been these same people who 

have been left behind by bureaucratic manifestations of what it means to be an environmentalist. 

People whose first instincts and inclinations would tend to be pro-environment have been 

sacrificed on political altars of agendas other than that for which the ESA was intended. The 

resulting level of unhappiness with the ESA should then come as no surprise, at least to anyone 
149 

ho has been paying attention. 

eal peoples' lives, families, and businesses have been disrupted, public health standards 

>mpromised, and yet to date, all efforts to right some of the most obvious wrongs in the ESA 

IVe been dismissed out of hand as radical attempts to"gut" this statute. What we have 

itnessed is the triumph of process over product, and this is wrong. We ought not to be afraid of 

tallenging the conventional orthodoxy that our environmental laws (many of which were 

ritten over 20 years ago) are immutable, and incapable of being improved by the careful 

>plication of modem science and technology. This is what we are morally bound to do with 

e ESA, if we are serious about striking a legitimate balance between conservation policies, and 

e needs of the people who are affected by them. These goals can no longer be considered to be 

utually exclusive. -

1

e are here today to listen to the people who should have had a voice in this process long before 

is. These are the people next door, who are simply trying to live their lives and do the right 

ing. Their stories are real, and their frustration and outrage justified. But let us remember from 

hence this emotion carne. 

1is is not a blind anti-environmental frenzy, as defenders of the status quo are so fond of 

aiming. Rather, it is a reaction to ideological interpretation and political implementation of a 

atute which was and is still supposed to be based on sound science and biology. This is an 

tportant distinction to draw, and one which needs to be kept in mind throughout this process. 

ans of the ESA as it is now implemented like to make the claim that it is flexible enough to 

!dress any problems through administrative actions, and in a perfect world that would probably 

: true. I doubt that the authors of the Act in 1973 envisioned the regulatory nightmare that 

ould come to pass incrementally. However, we did not hear from the government agencies or 

e environmental community about the wonderful "flexibility" inherent in the Act, until after 

vera! of the highly publicized "train wrecks" (the Pacific Northwest, the Winchester fires, etc.) 

hich have shown the ESA's lack of efficacy as now implemented, and fueled the public 

!happiness which has come to characterize public perception of the ESA. 

by didn't we know of this flexibility , and potential for cooperation, sooner than this? Bottom 

te was, the agencies who implemented and enforced the Act didn't need to be flexible or 

•Operative; they had the blessing of a Congress beholden to special interest environmental 

oups. This amounts to a complete default on the responsibility to create sound public policy, 

.d has left little alternatives beyond that of legislative solutions. So let us take the cries of the 

1icken Littles for what they are, and with a grain of salt; ours is a situation which need not have 

curred this way. This point is best illustrated, I think, in the telling words of the founder of the 

iginal Earth Day, former Senator Gaylord Nelson: 

there are good environmentalists who see too much red tape and too many mandates, and they 

ink it can be improved and they're right. The environmentalists have failed on this. They 

rven'tfought to ensure environmental laws were effective without being excessive. They haven't 

•ne a damn thing about that. " 
150 

A profound observation indeed; however, keep in mind that there are good environmentalists out 

there, who have tried to do the right thing, yet have been marginalized by the dogma of the 

influential and well-heeled national organizations. While the actions and rhetoric of the 

"environmental community" have contributed heavily to the emotional "jobs vs. the 

environment" argwnent which has characterized much of the debate over the ESA, it would be 

inaccurate and unfair to tar all environmental groups with the same broad brush. 

There have been, at least in my experience, notable exceptions to this. In fact, during my time in 

local government, it used to be commonplace for local environmental and conservation groups to 

work together with elected officials, businesses, individuals and others in the community to craft 

workable solutions to regional or local problems, such as the Health Risk Assessment of San 

Diego Bay. In these situations, people tended to understand the full dynamic of all the different 

issues which comprise such negotiations, and their actions and decisions reflected mutual 

understanding and respect. While such interaction is not yet completely extinct, it has certainly 

become the exception rather than the rule. What has emerged in its stead is an inflexible and 

imperious attitude which has defined the "correct" stances on natural resources issues. 

Unfortunately, this arrogance has long been shared and supported by the old guard in Congress; 

it is to the credit of Chairmen Young and Pombo that we now actually have an open forum in 

which to discuss these issues. 

My point is simply this: for too long this debate has been poisoned by rhetoric and 

demonization, to the detriment of the need for sound policy. That time has passed; we now have 

leaders in Congress who are willing to move forward and face these tough questions, while 

soliciting input from the people who are most affected by them in the process. This is probably 

the most radical concept I could have envisioned for the shaping of environmental policy; 

seeking the direction and counsel of regular people who have to live and work under what 

Congress decrees to be best for the environment. I look forward to working to capitalize on this 

unparalleled opportunity. 
151 

SUBMISSIONS FOR THE RECORD 

Due to the high cost of printing, the material submitted by the 

following was placed in the hearing record files of the committee: 

Armstrong, Alice 

Backstrand, Lee 

Bahner, Robert H., and Felice 

Ballmer, Greg 

Bell, John 

Brown, Larry, Save Our Forest Association, Inc. 

Campbell, Bruce 

Ceniceros, Kay 

Curti, Barbara, Nevada Farm Bureau Federation 

Declaration of Coexistence 

Domenigoni, Cindy 

Easley, Paula P., Coalition for Environmental Mandate Reform 

Eaves, Jerry 

Edwards, Kenneth L., Riverside County Flood Control and 

Water Conservation District 

Elkan, Harold S., Old Vail Partners 

Fife, Donald, Holcomb Valley Mining District 

Forbes, James H., Property Owners Association of Riverside County 

Gordon, Robert, Jim Streeter, Jim Lacy, Laura Young, and 

Brian Seasholes, National Wilderness Institute 

Hartzell, Andrew K., Hewitt & McGuire 

Horn, Bill, County of San Diego 

Hughes, Elden E. 

Jacobson, Cheri 

Jeska, Renee, and concerned citizens of Pasadena, CA 

Keith, Wayne C., Western Municipal Water District of Riverside County 

Kibbee, Bonnie, and Trudy Thomas, California Taxpayer's 

Network, Inc. Klimko, Anna M. 

Lires, Raymond G. 

MacDonald, Joseph H. 

Marvin, Millard C., and Margie A. 

Mendoza, Ramon 

Perkins, Robert Eli, Riverside County Farm Bureau 

Petition containing 34 names in support of the current 

ESA 

Rennie, Bill E. 

Roger F. Honberger, County of San Diego 

Saiz, Jill A. 

Sandoval, Esther 

Shkorupa, Ernie, and Jan 

Silver, Dan, Endangered Habitats League 

Spenger, Constance, Friends of the Tecate Cypress 

Sutton, John P., and Susan A. 

Tessier, Kenneth M. 

Tucker, Joseph J. 
152 

Turoci, Marsha, San Bernardino County Board of Supervisors 

Watson, Muriel, Light Up The Border 

Western Riverside Council of Governments 

Woodrow, Taylor 

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