U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

70–590PDF 2011

THE ENDANGERED SPECIES ACT: 

REVIEWING THE NEXUS 

OF SCIENCE AND POLICY 

HEARING 

BEFORE THE

SUBCOMMITTEE ON INVESTIGATIONS AND 

OVERSIGHT 

COMMITTEE ON SCIENCE, SPACE, AND 

TECHNOLOGY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

THURSDAY, OCTOBER 13, 2011 

Serial No. 112–44 

Printed for the use of the Committee on Science, Space, and Technology 

( 

Available via the World Wide Web: http://science.house.gov 
(II) 

COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY 

HON. RALPH M. HALL, Texas, Chair 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

LAMAR S. SMITH, Texas 

DANA ROHRABACHER, California 

ROSCOE G. BARTLETT, Maryland 

FRANK D. LUCAS, Oklahoma 

JUDY BIGGERT, Illinois 

W. TODD AKIN, Missouri 

RANDY NEUGEBAUER, Texas 

MICHAEL T. MCCAUL, Texas 

PAUL C. BROUN, Georgia 

SANDY ADAMS, Florida 

BENJAMIN QUAYLE, Arizona 

CHARLES J. ‘‘CHUCK’’ FLEISCHMANN, 

Tennessee 

E. SCOTT RIGELL, Virginia 

STEVEN M. PALAZZO, Mississippi 

MO BROOKS, Alabama 

ANDY HARRIS, Maryland 

RANDY HULTGREN, Illinois 

CHIP CRAVAACK, Minnesota 

LARRY BUCSHON, Indiana 

DAN BENISHEK, Michigan 

VACANCY 

EDDIE BERNICE JOHNSON, Texas 

JERRY F. COSTELLO, Illinois 

LYNN C. WOOLSEY, California 

ZOE LOFGREN, California 

BRAD MILLER, North Carolina 

DANIEL LIPINSKI, Illinois 

GABRIELLE GIFFORDS, Arizona 

DONNA F. EDWARDS, Maryland 

MARCIA L. FUDGE, Ohio 

BEN R. LUJA ́ N, New Mexico 

PAUL D. TONKO, New York 

JERRY MCNERNEY, California 

JOHN P. SARBANES, Maryland 

TERRI A. SEWELL, Alabama 

FREDERICA S. WILSON, Florida 

HANSEN CLARKE, Michigan 

VACANCY 

SUBCOMMITTEE ON INVESTIGATIONS AND OVERSIGHT

HON. PAUL C. BROUN, Georgia, Chair 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

SANDY ADAMS, Florida 

RANDY HULTGREN, Illinois 

LARRY BUCSHON, Indiana 

DAN BENISHEK, Michigan 

VACANCY 

RALPH M. HALL, Texas 

DONNA F. EDWARDS, Maryland 

ZOE LOFGREN, California 

BRAD MILLER, North Carolina 

JERRY MCNERNEY, California 

EDDIE BERNICE JOHNSON, Texas 
(III) 

C O N T E N T S 

Thursday, October 13, 2011 

Page 

Witness List ............................................................................................................. 2 

Hearing Charter ...................................................................................................... 3 

Opening Statements 

Statement by Representative Paul C. Broun, Chairman, Subcommittee on 

Investigations and Oversight, Committee on Science, Space, and Technology, U.S. House of Representatives ............................................................... 9 

Written Statement ............................................................................................ 10 

Statement by Representative Donna F. Edwards, Ranking Minority Member, 

Subcommittee on Investigations and Oversight, Committee on Science, 

Space, and Technology, U.S. House of Representatives .................................... 11 

Written Statement ............................................................................................ 12 

Witnesses: 

Mr. Gary Frazer, Assistant Director, Endangered Species, U.S. Fish and 

Wildlife Service 

Oral Statement ................................................................................................. 14 

Written Statement ............................................................................................ 16 

The Honorable Craig Manson, General Counsel, Westlands Water District 

Oral Statement ................................................................................................. 24 

Written Statement ............................................................................................ 25 

Mr. Douglas Vincent-Lang, Senior Biologist, Alaska Department of Fish and 

Game 

Oral Statement ................................................................................................. 29 

Written Statement ............................................................................................ 31 

Dr. Neal Wilkins, Director, Texas A&M Institute of Renewable Natural Resources 

Oral Statement ................................................................................................. 37 

Written Statement ............................................................................................ 38 

Mr. Jonathan Adler, Professor, Case Western Reserve University School of 

Law 

Oral Statement ................................................................................................. 43 

Written Statement ............................................................................................ 45 

Dr. Francesca T. Grifo, Senior Scientist and Director, Scientific Integrity 

Program, Union of Concerned Scientists 

Oral Statement ................................................................................................. 50 

Written Statement ............................................................................................ 52 

Appendix I: Answers to Post-Hearing Questions 

Mr. Gary Frazer, Assistant Director, Endangered Species, U.S. Fish and 

Wildlife Service .................................................................................................... 82 

The Honorable Craig Manson, General Counsel, Westlands Water District ...... 90 

Mr. Douglas Vincent-Lang, Senior Biologist, Alaska Department of Fish and 

Game ..................................................................................................................... 94 

Dr. Neal Wilkins, Director, Texas A&M Institute of Renewable Natural Resources ................................................................................................................... 98 
Page

IV 

Mr. Jonathan Adler, Professor, Case Western Reserve University School of 

Law ........................................................................................................................ 101

Appendix II: Additional Material for the Record 

Representative Randy Neugebauer, Subcommittee on Investigations and 

Oversight, Committee on Science, Space, and Technology, U.S. House of 

Representatives .................................................................................................... 104 

Photograph submitted for the record by Representative Dan Benishek ............. 105 

United States Department of the Interior, Office of Inspector General’s ‘‘Report of Investigation: The Endangered Species Act and the Conflict between 

Science and Policy,’’ submitted for the record by Representative Brad Miller .......................................................................................................................... 106 

Article entitled, ‘‘Email Reveals State Dispute Over Polar Bear Listing,’’ 

submitted for the record by Representative Paul Tonko .................................. 112 

Article entitled, ‘‘State Policy Leads Beluga Team to Remove Alaska Scientists,’’ submitted for the record by Representative Paul Tonko ................... 115 

The Delta Smelt Cases, San Luis & Delta-Mendota Water Authority, et 

al. v. Kenneth Lee Salazar, et al., 09–CV–407, Reporter’s Transcript of 

Proceedings, September 16, 2011 ....................................................................... 120 
(1) 

THE ENDANGERED SPECIES ACT: 

REVIEWING THE NEXUS OF SCIENCE AND 

POLICY 

THURSDAY, OCTOBER 13, 2011 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON INVESTIGATIONS AND OVERSIGHT, COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY, Washington, DC. 

The Subcommittee met, pursuant to call, at 10:07 a.m., in Room 

2318 of the Rayburn House Office Building, Hon. Paul Broun 

[Chairman of the Subcommittee] presiding. 
2 
3 

1 16 U.S.C. §1531–1544. 

2Title VII, Section 1713, of P.L. 112–10. 

2 16 U.S.C. § 1533(b) (3). 

4The current number of endangered and threatened species can be found at http:// 

ecos.fws.gov/tesslpublic/pub/boxScore.jsp. 5See http://ecos.fws.gov/tesslpublic/pub/delisting Report.jsp for the complete list. 6See http://www.fws.gov/migratorybirds/baldeagle.htm 

HEARING CHARTER

COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY 

SUBCOMMITTEE ON INVESTIGATIONS & OVERSIGHT 

U.S. HOUSE OF REPRESENTATIVES 

The Endangered Species Act: Reviewing the 

Nexus of Science and Policy 

THURSDAY, OCTOBER 13, 2011

10:00 A.M. – 12:00 P.M. 2318 RAYBURN HOUSE OFFICE BUILDING

Purpose 

On October 13, 2011, the Subcommittee on Investigations and Oversight will hold 

a hearing on the nexus of science and policy related to the Endangered Species Act 

(ESA) 1. The purpose of the hearing is to highlight the combination of science and 

policy decisions that are made under the ESA. Numerous judicial disputes over 

ESA-related actions highlight the challenges in weighing best available science 

against other policy considerations, often under short deadlines. Congress has frequently considered changes to the ESA as a whole, and has also enacted speciesspecific ESA legislation, most recently with 2011 legislation concerning the grey 

wolf. 2

Although the ESA is designed to protect species, its application is most visible 

when federally imposed plans to protect and recover a species restrict the actions 

of private citizens and other entities. For example, landowners may not be able to 

use their property in a manner they had planned and farmers may not be able to 

use as much of a river’s water as they need. Since takings claims are rarely successful, the science used to make ESA decisions is critical. 

Background 

Enacted in 1973 and amended on several occasions, the Endangered Species Act 

is designed to ensure the continued existence of species of plants and animals that 

are at risk of extinction. The Act sets out a specific timeline for action by federal 

agencies and requires agency officials to make decisions based upon the best science 

available under specific deadlines. The timelines cannot be waived or extended in 

an effort to allow for the development of additional science related to a species in 

question. 3 This results in the focus of public and federal review primarily upon the 

science used by proponents for a particular action, typically a petition for a new listing. 

Almost 1400 U.S. species of plants and animals have been listed under the ESA 

as threatened or endangered, resulting in the implementation of 1100 active recovery plans. 4 A small number of species have been delisted, either due to successful 

recoveries, extinction, or due to data errors in the original listing decision. 5 The majority of listed species have remained at their original listing level of endangered 

or threatened. The American bald eagle is viewed by many as the highest profile 

species to go through the Endangered Species Act process. After federal protections 

were enacted in 1940 prior to the enactment of the ESA, the bald eagle population 

of the lower 48 states was listed as endangered in 1967 under a precursor to the 

ESA, the Endangered Species Preservation Act of 1966, downlisted to threatened in 

1995, and delisted all together in 2007. 6

In a recent high profile action in April 2011, the President signed into law a provision that required the FWS to reissue an earlier final rule published on April 2, 

2009 concerning the Northern Rocky Mountain population of the grey wolf as a dis-
4 

7Section 1713 of P.L. 112–10. 

8Defenders of Wildlife et al. v. Salazar et al., 729 F. Supp. 2d 1207 (D. Mont.). 9 ‘‘Final Rule to Identify the Northern Rocky Mountain Population of Gray Wolf as a Distinct 

Population Segment and To Revise the List of Endangered and Threatened Wildlife,’’ Federal 

Register 74, (2 April 2009): 15123. 10This authority is found at 16 U.S.C. § 1533(b) (3) (B). 11The spotted owl is one example of a species that the Forest Service gave additional habitat 

protection. A review of Forest Service actions regarding the spotted owl can be found at http:// 

www.fs.fed.us/pnw/pubs/marcot.pdf. 

tinct population segment. 7 The original rule delisted certain species of the grey 

wolf, but the rule was set aside as a result of federal litigation brought by several 

environmental groups. 8 The legislation required the FWS to republish its final rule 

and prohibited judicial review of the action. It is important to note that the FWS 

initially determined that the delisting decision was appropriate and the 2011 legislation did not override FWS decisions for this species. 9

Although the focus of the ESA is preventing the further decline of species populations, significant societal impacts occur when a species is listed as threatened or 

endangered. Various uses of lands and waters identified as critical habitats for endangered species are restricted. These restrictions make the accuracy of science concerning the status of a particular species crucial to making appropriate policy decisions. If critical habitat designations are not appropriately sized or scoped, then either too much or too little protection for a particular species will be applied. If usage 

restrictions are too small in size and scope, this could result in additional losses to 

the species. If restrictions are too large in size and scale, users of a particular area 

such as home owners or farmers could have their usage of a resource overly restricted. 

The process used to list and delist species 

The Fish and Wildlife Service and the National Marine Fisheries Service are responsible for the ultimate listing of a species as threatened or endangered through 

the publication of a final notice in the Federal Register. Initial steps to determine 

whether a new listing is warranted or an existing listing should be modified can 

occur within these agencies for two reasons: 

1. If federal scientists determine that the status of a species warrants review, or 

2. In response to a petition filed with the agency by an outside group. 

Upon receipt of a petition filed by an outside group or an internal decision that 

a listing review should be considered, the agency has 90 days to make an initial 

determination after publication in the Federal Register. Interested parties can submit additional information regarding a listing review and/or comment upon data included in the initial Federal Register notice. Within one year of publication in the 

Federal Register, the agency is statutorily required to make a final determination. 

Under existing statute, listed species are also subject to ongoing review of their status every five years without the need for petitions. 

The FWS and NMFS have increasingly used their statutory authority to determine that the listing of a species is ‘‘warranted, but precluded.’’ 10 This status means 

that the listing of a species is warranted based upon available science, but that 

other species have a greater priority for protection. No protections apply specifically 

under the Endangered Species Act for species determined to be ‘‘warranted, but precluded’’ although the Bureau of Land Management and the Forest Service provide 

additional protections for these species under separate statutory provisions applicable only to those agencies. 11 All ‘‘warranted, but precluded’’ determinations are subject to judicial review as are ongoing agency efforts to make a final determination 

for such species. Recent court litigation brought by environmental groups has focused on FWS actions, or lack thereof, to reduce the number of species identified 

as ‘‘warranted, but precluded’’. 

Each species identified as ‘‘warranted, but precluded’’ is given a ranking number 

known as a ‘‘Listing Priority Number (LPN)’’ from 1 to 12 that the FWS and NMFS 

is supposed to use as a roadmap for identifying which species are listed first. The 

LPN is based upon three factors: magnitude of the threats to the species, immediacy 

as to when the threats will begin, and the importance of the species biologically. An 

annual Candidate Notice of Review identifies all status changes to listed species 

during the prior year and a ranking of ‘‘warranted, but precluded’’ species. The annual cumulative total of candidate listings identified as ‘‘warranted, but precluded’’ 

during the past six years have numbered: 

• 2010: 251 species 
5 

12 16 U.S.C. § 1536. 13 50 C.F.R. § 402.14(d). 14 Cases Numbers 1:09–2290, 1:09–2997, 1:10–57, 1:10–169, 1:10–256, and 1:10–263. (D. 

Colo.); Numbers 1:10–0048 and 1:10–421 (D. D.C.); and Numbers 1:10s 15Zapus hudsonius luteus. 16 Centrocercus urophasianus. 17 opherus agassizii. 18 Case Number: 10–0230. 

• 2009: 305 species 

• 2008: 251 species 

• 2007: 280 species 

• 2006: 279 species 

• 2005: 286 species 

Biological opinions 

Section 7 of the ESA requires any federal agency that seeks to undertake an action such as issuing a permit or undertaking a project that may impact an endangered species to conduct a biological assessment to identify the likely impact of its 

action on an endangered species. 12 The Federal agency requesting formal consultation shall provide the Service with the best scientific and commercial data available 

or which can be obtained during the consultation for an adequate review of the effects that an action may have upon listed species or critical habitat. 13 FWS or 

NOAA will review the assessment and then issue its response in the form of a biological opinion, BiOP for short. Although the document is called an opinion, it is 

binding upon federal agencies and is subject to judicial review. Judicial disputes 

over an endangered species that do not concern the act of listing itself often focus 

on the contents of particular biological opinions. For example, recent judicial activity 

noted later in this memo regarding the Delta Smelt has been focused on the biological opinions concerning minimum water flows necessary to protect the species. 

Issues 

Recent DOI Settlement Agreements Concerning ‘‘Warranted, but Precluded’’ Species 

In 2009 and 2010, WildEarth Guardians filed ten complaints in federal court 

seeking declaratory and injunctive relief alleging that the Secretary of Interior 

failed to comply with a statutory duty to make 12-month findings on petitions made 

by WildEarth Guardians to list 12 species as threatened or endangered under the 

ESA. 14 In a May 2011 settlement between the parties to resolve the case, FWS 

committed to a number of activities related to listing petitions under a set time 

frame as follows: 

• 130 of 251 outstanding listing petitions will be resolved by September 30, 2013 

• 30 more listings petitions will be resolved by September 30, 2014 

• 40 more listings petitions will be resolved by September 30, 2015 

• All 251 listing petitions will be resolved by September 30, 2016 

• By September 30, 2013, the Distinct Population Segment for the Canada Lynx 

will be extended to include New Mexico 

• Decisions regarding the New Mexico Jumping Mouse 15, the Greater Sage 

Grouse 16, and the Sonoran Desert Tortoise 17 will be made by specific dates 

• Payment of an undetermined amount of legal fees to WildEarth Guardians 

In 2010, the Center for Biological Diversity filed a similar complaint in federal 

court seeking declaratory and injunctive relief alleging that the Secretary of Interior 

failed to comply with a statutory duty to make 12-month findings on petitions made 

by the Center for Biological Diversity to list over 500 species as threatened or endangered under the ESA. 18 In a July 2011 settlement between the parties to resolve 

the case, FWS committed to a number of activities related to listing petitions under 

a set time frame as follows: 

• The 90 day petitions for 477 aquatics species must be made by September 30, 

2011 

• The 12 month findings for 11 non-aquatic species must be made by September 

30, 2011 

• Seven specific listing petitions must be resolved by September 30, 2012 
6 

19Fallon, Sylvia, ‘‘Genetic Data and the Listing of Species Under the U.S. Endangered Species 

Act’’ Conservation Biology Volume 21 (2007), Pages 1186–1195. 20 ‘‘Policy Regarding the Recognition of District Vertebrate Population Notice of Policy.’’ Federal Register 61, (7 February 1996): 4722–4725. 21Whoriskey, Peter. ‘‘Plan to Protect Florida Panther Reopens Issue of Its Identity,’’ Washington Post, 21 February 2006. 

• 14 specific listing petitions must be resolved by September 30, 2013 

• Seven specific listing petitions must be resolved by September 30, 2014 

• Seven specific listing petitions must be resolved by September 30, 2015 

• Two specific listing petitions must be resolved by September 30, 2016 

• One specific listing petitions must be resolved by September 30, 2017 

• Payment of an undetermined amount of legal fees to the Center for Biological 

Diversity 

In contrast to 1400 total species listings under the ESA since its enactment in 

1973, the two court settlements will require a review of 750 candidate species in 

only six years. The settlements assume that there will be no increase in federal 

funding to manage the sharply increased workload of reviewing approximately one 

petition per week for the next five years. Even if the agencies can meet the logistical 

challenge, there will be a limited amount of time available to review the research 

that accompanies each petition. 

Shift to Outside Science 

In the initial years of the ESA, outside petitions were rare. In recent years, most 

listing decisions have been initiated through public petitions submitted by outside 

entities such as WildEarth Guardians and the Center for Biological Diversity. Their 

submissions contain science conducted by non-government scientists. In cases where 

the scientific record is thin, decisions that could have a major financial or societal 

impact upon land owners and users are essentially being made upon the research 

of a few. 

Distinct Population Segments 

Under the 1976 amendments to the Endangered Species Act, the FWS is required 

to protect distinct population segments of vertebrate species. In practice, this means 

that a large subpopulation of a species facing minimal threats to its existence may 

not be listed under the Endangered Species Act while a smaller subpopulation elsewhere facing greater threats to its existence may be listed. Although determining 

distinct subpopulations is becoming easier due to the increased use of genetic testing, making such decisions are still a subject of vigorous scientific and policy debates. 19 Under guidance issued in 1996, the FWS and NOAA consider three criteria 

regarding the listing of a distinct population segment: 

1. Discreteness of the population segment in relation to the remainder of the species to which it belongs; 

2. The significance of the population segment to the species to which it belongs; 

and 

3 The population segment’s conservation status in relation to the Act’s standards 

for listing (i.e., is the population segment, when treated as if it were a species, 

endangered or threatened?). 20

Although increased usage of genetic testing can help answer the first criteria 

question, the second and third criteria are a combination of science and policy decision-making. For example, the Florida panther is listed as endangered with less 

than 200 animals found in the wild in southern Florida although genetic testing has 

shown that the genetic differences between the Florida panther and the other thirty 

species of cougars are minimal. 21 In this case, the science concerning genetic differences and population numbers are fairly certain, but the policy decisions are not. 

Concerns over Agency Science 

The scientific work and opinions made by federal scientists is given significant 

deference by federal courts. Federal scientists are considered independent experts 

in their specific field working on behalf of the United States and its citizens in contrast to scientists that either directly represent or have a connection to one or more 

specific entities. Disputing the decisions and testimony of federal scientists is therefore challenging. 

In one recent example, on September 16, 2011 U.S. District Court Judge Oliver 

Wanger of California sharply criticized the work and testimony concerning the Delta 

Smelt Biological Opinion by two federal scientists, one from the Fish and Wildlife 
7 

22The Solicitor’s memo can be found at http://www.eenews.net/assets/2011/03/23/documentlgwl05.pdf. 23 Ibid. page 35. 

Service and one from the Bureau of Reclamation. Commenting upon the FWS scientist, Judge Wanger stated ‘‘I find her testimony to be that of a zealot.’’ In further 

comments about the Bureau of Reclamation scientist, he stated 

‘‘And I am going to make a very clear and explicit record to support that finding of agency bad faith because, candidly, the only inference that the Court can 

draw is that it is an attempt to mislead and to deceive the Court into accepting 

what is not only not the best science, it’s not science.’’ 

Although Judge Wanger’s comments were in reference to one specific case, they 

do highlight the concerns over the quality of science and the related federal actions 

that follow from relying upon that science. If the science used by Congress, federal 

agencies, and federal courts to make specific determinations is flawed or biased in 

some way, then the policies that result will similarly be flawed and biased. 

In another example, a memo dated March 22, 2011 from the Solicitor General’s 

office to the Acting Assistant Secretary for Fish and Wildlife and Parks found that 

National Park Service employees had failed to satisfy the Interim Code of Scientific 

and Scholarly Conduct regarding their actions concerning research on the impact of 

shellfish mariculture activities upon protected harbor seal populations. 22 Although 

no intent to deceive or scientific misconduct was found by the Solicitor’s office, ‘‘this 

misconduct arose from incomplete and biased evaluation and from blurring the line 

between exploration and advocacy through research.’’ 23

Witnesses 

• Mr. Gary Frazer, Assistant Director, Endangered Species, U.S. Fish and Wildlife Service 

• The Honorable Craig Manson, General Counsel, Westlands Water District 

• Mr. Douglas Vincent-Lang, Senior Biologist, Alaska Department of Fish and 

Game 

• Dr. Neal Wilkins, Director, Texas A&M Institute of Renewable Natural Resources 

• Mr. Jonathan Adler, Professor, Case Western Reserve University School of Law 

• Dr. Francesca T. Grifo, Senior Scientist and Director, Scientific Integrity Program, Union of Concerned Scientists 

Appendix A 

Excerpt of Recent Comments by Federal District Court Judge Wanger from 

Court Transcript in the Delta Smelt Cases Concerning the Testimony of 

Two Federal Employees and a Finding of Agency Bad Faith by the Bureau 

of Reclamation 

The Court believes that the testimony of Mr. Feyrer, Bureau of Reclamation’s expert, and Dr. Norris, the Fish & Wildlife Service’s expert, are—and I’m going to be 

making findings that are going to be justified by specific factual instances. Their 

testimony is riddled with inconsistency. The Court finds that Dr. Norris’ testimony, 

as it has been presented in this courtroom and now in her subsequent declaration, 

she may be a very reasonable person and she may be a good scientist, she may be 

honest, but she has not been honest with this Court. I find her to be incredible as 

a witness. I find her testimony to be that of a zealot. And I’m not overstating the 

case, I’m not being histrionic, I’m not being dramatic. I’ve never seen anything like 

it. And I’ve seen a few witnesses testify. Mr. Feyrer is equally inconsistent. Self and 

internally contradictory. I—and most of you, some of you have been in these cases 

for 20 years. I have never seen anything like what has been placed before this Court 

by these two witnesses. And the suggestion by Dr. Norris that the failure to implement X2 at 74 kilometers, that that’s going to end the delta smelt existence on the 

face of our planet is false, it is outrageous, it is contradicted by her own testimony, 

it is contradicted by Mr. Feyrer’s testimony, it’s contradicted by the most recent 

adaptive management plan review, it’s contradicted by the prior studies, it is—candidly, I’ve never seen anything like it. 

I’m going to start with Mr. Feyrer, and I’m going to go issue by issue, point by 

point. Because, candidly, I’m going to be making a finding in this case of agency 

bad faith. There is simply no justification. There can be no acceptance by a court 

of the United States of the conduct that has been engaged in this case by these wit-
8 

nesses. And I am going to make a very clear and explicit record to support that finding of agency bad faith because, candidly, the only inference that the Court can 

draw is that it is an attempt to mislead and to deceive the Court into accepting 

what is not only not the best science, it’s not science. There is speculation. There 

is primarily, mostly contradicted opinions that are presented that the Court not only 

finds no basis for, but they can’t be anything but false because a witness can’t testify under oath on a witness stand and then, within approximately a month, make 

statements that are so contradictory that they’re absolutely irreconcilable with what 

has been stated earlier. 

And the Court draws the inferences of knowledge and draws the inference of intent. Because those are intentional misstatements, they can’t be anything else. And 

they’re made for only one purpose, they’re made for the purpose of attempting to 

influence the Court to decide in a way that is misleading, confusing and the detail 

and the factual complexity of this case obviously requires close scrutiny and great 

effort. And if anybody had been just, quite frankly, a little bit inattentive or a little 

bit less diligent than digging into and trying to get to the bottom of every one of 

these assertions, it would be very easy to simply accept these opinions with these 

record citations. And when the record says the opposite of what you cite the record 

for, or when the record doesn’t say what you cite the record for, there’s simply an 

absence of the data, then that is a further misleading of the Court. That is a further, if you will, distortion of the truth. 
9 

Chairman BROUN. The Subcommittee on Investigations and 

Oversight will come to order. 

Good morning. Welcome to today’s hearing entitled ‘‘Endangered 

Species Act: Reviewing the Nexus of Science and Policy.’’ 

The Endangered Species Act (ESA) is one of the most influential 

and far-reaching environmental laws this Nation has ever passed. 

Since its passage in 1974, it has been the subject of considerable 

debate—not only about its impact on our Nation’s economy, but 

also about its ultimate effectiveness. Everyone wants to save species from extinction, but honest people can have an honest debate 

about the most efficient and effective way to do so. In terms of effectiveness, I believe it would be hard to argue that the law has 

been anything but an abject failure. Of the roughly 2,000 species 

listed as endangered or threatened, only about one percent have actually recovered. As a tool for advancing other special interest policy goals, it has certainly been very influential, and I am sure that 

that was not the Act’s original intent. 

Today’s hearing will explore how the science is used to inform 

policy decisions under ESA. The written testimonies provided by 

our witnesses highlight major flaws in the basic construct and implementation of the Act. Landowners are penalized rather than rewarded for protecting habitat and reporting populations. Dr. Wilkins writes that only with a guarantee of anonymity will most 

landowners consent to having their property surveyed for the existence of particular species. As one example, his scientists found 28 

more locations where the dunes sagebrush lizard was found, compared to only three previously known locations. This data was only 

captured after landowners viewed Texas A&M researchers as something other than a threat to their property rights. Professor Adler’s 

testimony highlights many other weaknesses in how the Act 

threatens science and policy, and Mr. Vincent-Lang will provide a 

state’s perspective on ESA. 

Recent events at the Department of Interior have also attracted 

this Subcommittee’s attention. On September 16, 2011, U.S. District Court Judge Oliver Wanger of California sharply criticized the 

work and testimony concerning the Delta Smelt Biological Opinion 

by two federal scientists, one from the Fish and Wildlife Service 

and one from the Bureau of Reclamation. Commenting on the Fish 

and Wildlife Service scientist, Judge Wanger stated ‘‘I found her 

testimony to be that of a zealot.’’ In further comments about the 

Bureau of Reclamation scientist, he stated, ‘‘And I am going to 

make a very clear and explicit record to support that finding of 

agency bad faith because, candidly, the only inference that the 

Court can draw is that this is an attempt to mislead and to deceive 

the Court into accepting what is not only not the best science, it 

is not science.’’ 

I am also concerned about the flood of ESA petitions and the related litigation that could potentially challenge the quality of the 

Service’s work. I find it revealing that some of the same entities 

that have brought lawsuits over hundreds of species brag in their 

annual reports about the money that they make from filing environmental lawsuits against federal agencies. In its 2010 annual report, WildEarth Guardians states that ten percent of their income 

came from their litigation settlements and that they depend upon 
10 

this income to ‘‘survive and thrive.’’ I note that this so-called income is at taxpayers’ expense. Maybe supporting environmental 

trial lawyers is part of the President’s job plan, but I doubt that 

the American people would agree that these are ‘‘green jobs.’’ 

Two recent court settlements require over 600 species to be 

jammed through the Fish and Wildlife Service listing process regardless of other agency priorities. I have serious concerns about 

whether these listings will be made based upon science, as they 

should be, or on legal expedience. 

In a time of record unemployment, the Administration continues 

to choose regulations over jobs. While I agree an appropriate balance can be met, constituents in my district need jobs, not red tape. 

We don’t live in a vacuum and neither should our environmental 

laws. Many of the witnesses before us today have identified serious 

weaknesses with ESA, as well as practical solutions that can bring 

about real conservation. It is a time—it is past time actually for an 

overhaul of the Endangered Species Act. 

You will find in front of you packets containing our witness panel’s written testimony, biographies, and truth-in-testimony disclosures. 

I recognize myself now for an opening statement. Excuse me. I 

recognize Ranking Member from Maryland, my friend, Ms. Edwards, for her opening statement. I just did mine. Ms. Edwards, 

you are recognized for five minutes. 

[The prepared statement of Dr. Broun follows:] 

PREPARED STATEMENT OF CHAIRMAN PAUL BROUN

The Endangered Species Act (ESA) is one of the most influential and far-reaching 

environmental laws this nation has ever passed. Since its passage in 1974, it has 

been the subject of considerable debate—not only about its impact on our nation’s 

economy, but also about its ultimate effectiveness. Everyone wants to save species 

from extinction, but honest people can have an honest debate about the most efficient and effective way to do so. In terms of effectiveness, I believe it would be hard 

to argue that the law has been anything but an abject failure. Of the roughly 2,000 

species listed as endangered or threatened, only about one percent have actually recovered. As a tool for advancing other special interest policy goals, it has certainly 

been very influential, but I’m not sure that was the Act’s original intent. 

Today’s hearing will explore how the science is used to inform policy decisions 

under ESA. The written testimonies provided by our witnesses highlight major 

flaws in the basic construct and implementation of the Act. Landowners are penalized rather than rewarded for protecting habitat and reporting populations. Dr. Wilkins writes that only with a guarantee of anonymity will most landowners consent 

to having their property surveyed for the existence of particular species. As one example, his scientists found 28 more locations where the dunes sagebrush lizard was 

found, compared to only three previously known locations. This data was only captured after landowners viewed Texas A&M researchers as something other than a 

threat to their property rights. Professor Adler’s testimony highlights many other 

weaknesses in how the act treats science and policy, and Mr. Vincent-Lang will provide a state’s perspective on ESA. 

Recent events at the Department of Interior have also attracted this Subcommittee’s attention. On September 16, 2011 U.S. District Court Judge Oliver Wanger of 

California sharply criticized the work and testimony concerning the Delta Smelt Biological Opinion by two federal scientists, one from the Fish and Wildlife Service 

and one from the Bureau of Reclamation. Commenting upon the FWS scientist, 

Judge Wanger stated ‘‘I find her testimony to be that of a zealot.’’ In further comments about the Bureau of Reclamation scientist, he stated 

‘‘And I am going to make a very clear and explicit record to support that finding of agency bad faith because, candidly, the only inference that the Court 

can draw is that it is an attempt to mislead and to deceive the Court into accepting what is not only not the best science, it’s not science.’’ 
11 

I am also concerned about the flood of ESA petitions and the related litigation 

that could potentially challenge the quality of the Service’s work. I find it revealing 

that some of the same entities that have brought lawsuits over hundreds of species 

brag in their annual reports about the money they make from filing environmental 

lawsuits against federal agencies. In its 2010 annual report, WildEarth Guardians 

states that ten percent of their income came from their litigation settlements and 

that they depend upon this income to ‘‘survive and thrive.’’ I note that this so-called 

income is at taxpayer expense. Maybe supporting environmental trial lawyers is 

part of the President’s job plan, but I doubt the American people would agree that 

these are ‘‘green jobs.’’ 

Two recent court settlements require over 600 species to be jammed through the 

Fish and Wildlife Service listing process regardless of other agency priorities. I have 

serious concerns about whether these listings will be made based upon science, as 

they should be, or on legal expedience. 

In a time of record unemployment, the Administration continues to choose regulations over jobs. While I agree an appropriate balance can be met, constituents in 

my district need jobs, not red tape. We don’t live in a vacuum and neither should 

our environmental laws. Many of the witnesses before us today have identified serious weaknesses with ESA, as well as practical solutions that can bring about real 

conservation. It is time for an overhaul of the Endangered Species Act. 

Ms. EDWARDS. Thank you, Mr. Chairman, and thank you for 

holding the hearing and our witnesses for being here today. And 

pardon my laryngitis. It will hurt you more to listen to it than it 

does me to talk. 

At the heart of this hearing is really about scientific integrity 

and whether we plan to face the problems with science in the management of the Endangered Species Act. I want to begin by quoting 

one of our country’s most famous conservationists, President Richard Nixon. And he said, ‘‘Nothing is more priceless and more worthy of preservation than the rich array of animal life with which 

our country has been blessed. It is a many-faceted treasure of value 

to scholars, scientists, and nature-lovers alike and it forms a vital 

part of the heritage we all share as Americans.’’ And I do share 

that sentiment. I just want to remind everyone that President 

Nixon said those words on the occasion of signing into law the Endangered Species Act of 1973. 

Part of the reason I share that quote is because protecting wildlife and protecting nature from destruction used to be a bipartisan 

cause, but unfortunately, my Republican colleagues no longer see 

eye to eye with their party’s former President. And let us make no 

mistake about it—the Endangered Species Act, when it is allowed 

to work, protects wildlife from utter destruction. 

But since 1973, protection of wildlife has increasingly become 

with the ‘‘liberal cause.’’ And what is most disturbing about this is 

that since 1973, we have learned so much about the benefits of biodiversity and the value of healthy ecosystems and the value that 

that provides to people. And as I look in this room, we do see the 

portrait of my friend, former Chairman here, Sherry Boehlert, who 

is a Republican, who was a proud environmentalist. I was a colleague of his on the Board of the League of Conservation Voters, 

and it really saddens me that he may have been one of the last of 

his kind in the Republican Party. 

The focus of today’s hearing seems to be on attacking the integrity of agency scientists with little help from former U.S. District 

Court Judge Oliver Wanger’s inflammatory opinion in the Delta 

Smelt case from last month. In the wake of that widely reported 

decision, the Judge appears to have backtracked on his over-the-top 

comments, and I think that his extreme language was misguided 
12 

and efforts to attack the credibility of agency scientists also misguided. The evidence of the past decade show that the real scientific integrity at issue at our federal agencies generally and the 

Fish and Wildlife Service specifically has been political meddling 

with the agency science. I hope our group of witnesses can speak 

to that problem. 

And I want to thank you, Chairman Broun, for calling such a superb panel for that purpose. Present on today’s panel you also have 

a former Bush Administration Assistant Secretary Craig Manson, 

who was mentioned 155 times in a 2008 investigative report by the 

Department of Interior Inspector General. The then-Interior Inspector General Earl Devaney was looking into allegations of misconduct by Mr. Manson’s Deputy, Julie McDonald. To quote just a 

small portion of the Inspector General’s memorandum, he noted, 

‘‘McDonald’s zeal to advance her agenda has caused considerable 

harm to the integrity of the ESA program and to the morale and 

reputation of Fish and Wildlife, as well as potential harm to individual species. Her heavy-handedness has cast doubt on nearly 

every ESA decision issued during her tenure. Of the 20 decisions 

we reviewed, her influence potentially jeopardized 13 ESA decisions. McDonald’s conduct was backed by the seemingly blind support of former Assistant Secretary for Fish and Wildlife and Parks, 

Judge Craig Manson. Judge Manson so thoroughly supported 

McDonald that even when a known error in a federal register notice—which was caused by McDonald’s calculations—was brought 

to Manson’s attention, he directed that notice to be published regardless of the error.’’ 

If I am not mistaken, Mr. Chairman, I believe that the Fish and 

Wildlife witness we have today here, Craig Frazer, was the very 

person who brought the aforementioned error to the federal register notice to Mr. Manson’s attention. And how was he rewarded 

for trying to correct the error? Mr. Manson transferred him out of 

the Agency. Thankfully, one of Mr. Manson’s successors had the 

good sense to rectify this abuse conduct with respect to Mr. Frazer, 

a dedicated public servant who just wanted to get the correct information published and not simply spit out whatever was politically 

expedient. He is back at the Department and I am happy to see 

him here today before us in an official capacity, and I look forward 

to his very candid testimony today. 

And with that, Mr. Chairman, I would yield. 

[The prepared statement of Ms. Edwards follows:] 

PREPARED STATEMENT OF RANKING MEMBER DONNA EDWARDS

I would like to thank Chairman Broun for holding this hearing, and also thank 

our witnesses for being here today. At its heart, this hearing is about scientific integrity and whether we face problems with science in the management of the Endangered Species Act. 

I’d like to start off by quoting one of our country’s most famous conservationists, 

President Richard Nixon: 

‘‘Nothing is more priceless and more worthy of preservation than the rich array 

of animal life with which our country has been blessed. It is a many-faceted 

treasure, of value to scholars, scientists, and nature lovers alike, and it forms 

a vital part of the heritage we all share as Americans.’’ 

I share that sentiment. 

President Nixon said those words on the occasion of signing into law the Endangered Species Act in 1973. 
13 

I share that quote because protecting wildlife and protecting nature from utter 

destruction used to be a bipartisan cause. Unfortunately, my Republican colleagues 

no longer see eye to eye with their Party’s former president. Let’s make no mistake 

about it, the Endangered Species Act, when it is allowed to work, protects wildlife 

from utter destruction. 

However, since 1973, protection of wildlife has increasingly become associated 

with ‘‘the liberal cause.’’ What’s most disturbing about this is that since 1973 we’ve 

learned so much about the benefits of biodiversity and the value healthy ecosystems 

provide to people. 

As I look up, I see the portrait of Chairman Sherry Boehlert, a Republican, and 

a proud environmentalist. It truly saddens me that he may have been the last of 

his kind . . . 

The focus of today’s hearing seems to be on attacking the integrity of agency scientists, with a little help from former U.S. District Court Judge Oliver Wanger’s 

(pronounced: Wayne-jer) inflammatory opinion in the Delta Smelt case from last 

month. In the wake of that widely reported decision, Judge Wanger appears to have 

backtracked on his over-the-top comments. 

I think Judge Wanger’s extreme language was misguided, and efforts to attack 

the credibility of agency scientists are also misguided. The evidence of the past decade has shown that the real scientific integrity issue at our Federal agencies generally, and the Fish and Wildlife Service specifically, has been political meddling 

with agency science. I hope our group of witnesses can speak to that. 

I have to thank you, Chairman Broun, for calling such a superb panel for just 

that purpose. Present on today’s panel you have a former Bush Administration Assistant Secretary, Craig Manson, who was mentioned 155 times in a 2008 Investigative Report by the Department of Interior Inspector General. The then-Interior IG, 

Earl Devaney, was looking into allegations of misconduct by Mr. Manson’s Deputy, 

Julie MacDonald. To quote just a small portion of the Inspector General’s Memorandum, he noted that: 

‘‘MacDonald’s zeal to advance her agenda has caused considerable harm to the 

integrity of the ESA program and to the morale and reputation of the FW, as 

well as potential harm to individual species. Her heavy-handedness has cast 

doubt on nearly every ESA decision issued during her tenure; of the 20 decisions 

we reviewed, her influence potentially jeopardized 13 ESA decisions. MacDonald’s conduct was backed by the seemingly blind support of former Assistant 

Secretary for Fish and Wildlife and Parks, Judge Craig Manson. Judge Manson 

so thoroughly supported MacDonald that even when a known error in a Federal 

Register notice, which was caused by MacDonald’s calculations, was brought to 

Manson’s attention, he directed that the notice be published regardless of the 

error.’’ 

If I’m not mistaken Mr. Chairman, I believe that the Fish and Wildlife witness 

we have here today, Gary Frazer, was the very person who brought the aforementioned error in the Federal Register notice to Mr. Manson’s attention. And how was 

he rewarded for trying to correct this error? Mr. Manson transferred him out of the 

agency. Thankfully, one of Mr. Manson’s successors had the good sense to rectify 

this abusive conduct with regard to Mr. Frazer, a dedicated public servant who just 

wanted to get the correct information published, and not simply spit out whatever 

was politically expedient. He is back at the Department and I am happy to see him 

here before us today in an official capacity. 

The DOI Inspector General found that during Julie MacDonald’s tenure she had 

‘‘bullied, insulted, and harassed the professional staff of FWS to change documents 

and alter biological reporting,’’ disclosed nonpublic information to private sector 

sources including to lobbyists, and participated in the editing process for a species 

for which she had a potential personal financial conflict of interest. All of this was 

done with Mr. Manson’s unwavering support. 

The Chairman has repeatedly asked about the status of the Obama Administration’s science integrity policy. I am sure you join me in finding satisfaction from the 

fact that the Department of Interior has put a final policy in place. But the reason 

such a policy was even needed was because of conduct during the prior Administration by political appointees such as Mr. Manson. 

If Mr. Manson’s tenure at Interior was all that we had to look forward to covering 

in today’s hearing, this would be a great opportunity. However, we also have a witness from the State of Alaska who can explain to the Subcommittee his State’s 

unique new policy which says that once the state takes a position, such as on an 

endangered species issue, state scientists must advocate that position—regardless of 

the facts—or face punishment. That sort of gag rule is precisely the kind of thing 

that I am sure the Chairman wants to make sure the Obama Administration does 
14 

not condone in its own agencies and this is something we can certainly both agree 

on. 

So I look forward to a spirited discussion today, and expect that by the end of 

this hearing we will all have some newfound respect for the difficult environment 

our Federal agency scientists work in—and perhaps some state scientists too—to try 

and do the right thing, day in and day out, while getting attacked from the outside, 

and sometimes from within. 

I yield back Mr. Chairman. 

Chairman BROUN. Thank you, Ms. Edwards. 

If there are Members who wish to submit additional opening 

statements, your statements will be added to the record at this 

point. 

At this time I would like to introduce our panel of witnesses: 

Gary Frazer, Assistant Director, Endangered Species, U.S. Fish 

and Wildlife Service; Professor Jonathan Adler of Case Western Reserve University School of Law, the Honorable Craig Manson, General Counsel, Westlands Water District; Douglas Vincent-Lang, 

Special Assistant, Alaska Department of Game and Fish; Dr. Neal 

Wilkins, Director of Texas A&M Institute of Renewable Natural 

Resources; and Dr. Francesca T.—is it Grifo? Grifo, okay, Union of 

Concerned Scientists. 

As our witnesses should know, spoken testimony is limited to 

five minutes each, after which the Members of the Committee will 

have five minutes each to ask questions. Your written testimony 

will be included in the record of the hearing. It is the practice of 

the Subcommittee on Investigations and Oversight to receive testimony under oath. Do any of you have an objection of taking an 

oath? 

Everybody sits there staring at me. I like to see their heads either move from side to side or something. So everybody—no one 

has an objection to taking an oath, is that correct? Okay. 

Let the reflect—record reflect that all witnesses are willing to 

take an oath as reflected by their shaking their head from side to 

side. 

You also may be represented by counsel. Do any of you have 

counsel with you here today? Again, okay, Judge Manson, you 

have—okay, very good. Thank you. 

Let the record reflect that none of the witnesses have counsel. 

If all of you would please now stand and raise your right hand. 

Judge Manson, you don’t have to do that. Please raise your right 

hand. 

Do you solemnly swear to affirm to tell the whole truth, nothing 

but the truth, so help you God? 

Let the record reflect that all the witnesses participating have 

taken the oath. 

I now recognize our first witness, Mr. Frazer. You have five minutes. 

STATEMENT OF MR. GARY FRAZER, 

ASSISTANT DIRECTOR, ENDANGERED SPECIES, 

U.S. FISH AND WILDLIFE SERVICE, 

DEPARTMENT OF THE INTERIOR 

Dr. FRAZER. Good morning, Chairman Broun, Ranking Member 

Edwards, and Members of the Subcommittee. I am Gary Frazer, 

Assistant Director for the Endangered Species Program within the 
15 

U.S. Fish and Wildlife Service. I appreciate this opportunity to discuss how the Service carries out its duties related to listing, 

delisting, consultation, and recovery of species under the Endangered Species Act. 

This job has never been easy, and it grows more difficult every 

day. We are facing an extinction crisis. The nature of this work 

often results in strongly held views on all sides and frequent challenges to our decisions. In the face of all that, we believe that the 

Service does an excellent job of making decisions that are scientifically sound, legally correct, transparent, and capable of withstanding challenge. 

The ESA provides a critical safety net for America’s native fish, 

wildlife, and plants. And we know it can deliver remarkable successes. Since Congress passed this landmark conservation law in 

1973, the ESA has prevented the extinction of hundreds of imperiled species across the Nation and promoted the recovery of many 

others. 

Our Nation’s rich diversity of fish, wildlife, and plants symbolizes 

America’s wealth and promise. The ESA represents a firm commitment to protect and preserve our natural heritage out of a deeply 

held understanding of the direct link between the health of our ecosystems, the services they provide, and our own well-being. 

The ESA directs that determinations on whether to list any species as endangered or threatened must be made solely on the basis 

of the best scientific and commercial data available. The term ‘‘best 

scientific and commercial data available’’ means those data that 

are available at the time the Service makes a listing determination, 

and the Act also establishes a schedule under which the Service 

must make those determinations. We do not have the luxury of 

waiting for all the information we might want. Rather, we have to 

make timely decisions based on the information that is available. 

A full description of the procedures used for identifying candidate 

species, responding to petitions to lists, and making listing and 

delisting decisions is provided in my written statement. 

The workload associated with carrying out our listing activities 

has for many years exceeded the resources available to the Service. 

Therefore, a substantial backlog of listing actions has accumulated. 

The Service recently developed a six-year work plan for the Listing Program through mediated settlement agreements with two of 

the Service’s most frequent plaintiffs. The Service will systematically review and address the needs of more than 250 species that 

are currently candidates for protection under the ESA to determine 

if they should be listed as threatened or endangered species. The 

Service will make listing determinations for each species, carefully 

reviewing scientific information and public comments before deciding whether listing is still warranted and, if so, whether to designate the species as threatened or endangered. Each and every 

listing proposal will be subject to independent peer review and public comment. 

Service decisions under the Endangered Species Act are sometimes controversial, and there have been cases in the recent past 

where the scientific underpinning of the Service’s decisions has 

been subject to high-level independent scientific review. My written 
16 

statement describes several such reviews, but I will note one in 

particular. 

In 2008, the Service issued a jeopardy biological opinion to the 

Bureau of Reclamation regarding the Continued Long-Term Operation of the Central Valley Project and State Water Project and included a reasonable and prudent alternative to protect delta smelt 

and their habitat. The scientific information that the Service used 

in the 2008 Central Valley Project opinion has now been reviewed 

by five separate independent peer review processes, including a 

2010 review by a National Research Council panel. While these reviews identified elements of the opinion that might have been handled differently or justified more thoroughly, they all largely affirmed that the Service used the best available scientific information and applied that information in a conceptually sound and scientifically justified manner. 

The science underlying the Service’s Central Valley Project opinion is also the subject of ongoing litigation. With regard to recent 

comments made by former U.S. District Judge Oliver Wanger, we 

fully believe that—we firmly believe that wise decisions about the 

future of the Bay Delta must be guided by our best available 

science. The Department stands behind the consistent and thorough work that our scientists from the Service and the Bureau of 

Reclamation have done on the Bay Delta over many years. 

We also believe that when questions arise regarding the integrity 

of scientific work, it is important to resolve them swiftly, independently, and decisively. We disagree with Judge Wanger’s comments 

last month, and we recognize and appreciate his effort to clarify 

those comments before his retirement. Still, we believe it is important that we follow the Department’s standard procedures for reviewing questions of scientific integrity, so that we can resolve 

them definitively and provide the due process that our affected scientists deserve. 

Therefore, the Department has instructed the Scientific Integrity 

Officers of the Service and the Bureau of Reclamation to retain 

independent experts to evaluate the allegations made by Judge 

Wanger. 

In closing, Mr. Chairman, I would like to emphasize the importance the Service places upon having a science-driven, transparent 

decision-making process in which the affected public can participate effectively. Thank you for your interest in endangered species 

conservation and ESA implementation and for the opportunity to 

testify. I would be happy to answer any questions that you and 

other Members of the Subcommittee might have. Thank you. 

[The prepared statement of Mr. Frazer follows:] 

PREPARED STATEMENT OF MR. GARY FRAZER, ASSISTANT DIRECTOR, 

ENDANGERED SPECIES, U.S. FISH AND WILDLIFE SERVICE

Good morning Chairman Broun, Ranking Member Edwards, and Members of the 

Subcommittee. I am Gary Frazer, Assistant Director for the Endangered Species 

program within the U.S. Fish and Wildlife Service (Service). 

Mr. Chairman, I appreciate this opportunity to discuss how the Service carries out 

its duties related to listing, delisting, consultation on, and recovery of species under 

the Endangered Species Act (ESA). Our procedures, some prescribed by statute and 

others by agency regulations or policies, are all focused upon ensuring that our decisions are objective, based on the best available science, and made in the open with 

peer review and public participation throughout. 
17 

The Service is committed to making the ESA work in the eyes of the public, the 

Congress, and the courts so as to accomplish its purpose of conserving threatened 

and endangered species and protecting the ecosystems upon which they depend. 

This job has never been easy, and it grows more difficult every day. We are facing 

an extinction crisis. With the pace and extent of environmental change threatening 

the continued existence of more and more of our Nation’s biological wealth, we must 

manage limited resources to carry out our mission. The nature of this work often 

results in strongly held views on all sides and frequent challenges to our decisions 

through the administrative, judicial, and political process. In the face of all that, we 

believe that, overall, the Service does an excellent job of making decisions that are 

scientifically sound, legally correct, transparent, and capable of withstanding challenge. 

In this context, the following principles provide the foundation for the administration of our listing and delisting activities: decisions based on the best available 

science; independent peer review of decisions; public participation throughout the 

decision-making process; and understandable and transparent decisions. 

Success in the Endangered Species Act 

The ESA provides a critical safety net for America’s native fish, wildlife, and 

plants. And we know it can deliver remarkable successes. Since Congress passed 

this landmark conservation law in 1973, the ESA has prevented the extinction of 

hundreds of imperiled species across the nation and has promoted the recovery of 

many others—like the bald eagle, the very symbol of our Nation’s strength. Wellknown examples include the recovery of the American alligator and brown pelican. 

Likewise, in August of this year, the Service delisted the Tennessee purple 

coneflower, the culmination of another Service-facilitated alliance of multiple diverse 

partners coming together to achieve the unified goal of recovery for an endangered 

plant species. 

Success under the ESA is not only defined by removal of species from the list of 

endangered and threatened species. The fact that relatively few observed extinctions 

have occurred in the United States during the last four decades represents a significant benchmark of success of the ESA. The ESA has been successful in stabilizing 

endangered and threatened species by promoting conservation programs that are designed for their recovery. For instance, the Service and Eglin Air Force Base have 

worked together to address threats to a small native streamfish on the base, the 

Okaloosa darter, and this year the Service was able to downlist the fish from endangered to threatened. Partnerships with the States, Tribes, and the agricultural community are supporting the spectacular ongoing recovery of the black-footed ferret, 

once believed to be extinct but re-discovered 30 years ago and now reestablished in 

10 experimental populations. A less familiar but equally impressive example is that 

of the Kemp’s ridley sea turtle, increasing from fewer than 300 females nesting in 

1985 to more than 6,000 females nesting in recent years. 

Our Nation’s rich diversity of fish, wildlife, and plant resources symbolizes America’s wealth and promise. The ESA represents a firm commitment to protect and 

preserve our natural heritage out of a deeply held understanding of the direct link 

between the health of our ecosystems, the services they provide and our own wellbeing. 

Science, Peer Review, Public Participation and the 2011 Scientific Integrity 

Policy 

Section 4(b)(1)(A) of the ESA directs that determinations as to whether any species is an endangered or threatened species must be made ‘‘solely on the basis of 

the best scientific and commercial data available.’’ The term ‘‘best scientific and 

commercial data available’’ means those data that are available at the time the 

Service makes a listing determination, and the provisions of section 4 of the ESA 

establish the schedule under which the Service must make determinations. The 

careful evaluation of scientific evidence is fundamental to the assessment of species 

for listing or delisting under the ESA. We do not have the luxury of waiting for all 

the information we might want; rather, we have to make timely decisions based on 

the information that is available, and our scientists and managers have done an exceptional job under those circumstances. Maintaining and increasing the capacities 

of our employees to access and analyze scientific information is, and will be, a key 

to our success. 

Our joint Fish and Wildlife Service/National Marine Fisheries Service (NMFS) 

‘‘Policy on Information Standards Under the Endangered Species Act,’’ published in 

the Federal Register on July 1, 1994 (59 FR 34271), provides criteria, establishes 
18 

procedures, and provides guidance to our field biologists and managers regarding 

the use of scientific information in our decision-making process. 

This ‘‘Policy on Information Standards’’ requires our biologists and managers to 

ensure that the information we use is reliable and credible, and represents the best 

data available; to impartially evaluate information that conflicts with existing positions or decisions of the Service; to document their evaluation of the available scientific and commercial data; to use primary and original sources of information as 

the basis for recommendations, where consistent with the ESA and our obligation 

to use the best information available; and to conduct management-level reviews of 

the documents developed by staff biologists to verify and assure the quality of the 

science used in the decision-making process. 

To further ensure that sound science underlies our decisions, the Service and 

NMFS established a joint ‘‘Policy for Peer Review in Endangered Species Act Activities,’’ published in the Federal Register on July 1, 1994 (59 FR 34270). This policy 

works to ensure that independent peer review is incorporated throughout our listing 

and recovery programs in a manner that complements, but does not circumvent or 

supersede, other established public participation processes. 

In recognition of the unique capability of State fish and wildlife agencies to assist 

in implementing all aspects of the ESA, the Service and NMFS developed a joint 

‘‘Policy Regarding the Role of State Agencies in Endangered Species Act Activities,’’ 

also published in the Federal Register on July 1, 1994 (59 FR 34275). This policy 

recognizes that States possess broad trustee authorities over fish, wildlife, and 

plants and their habitats within their borders, as well as scientific data and valuable expertise on the status and distribution of such species and habitats. The policy 

requires the Services to solicit State agency expertise and participation in a broad 

range of activities, including determining which species should be included on the 

list of candidate species; conducting population status inventories and geographical 

distribution surveys; responding to listing petitions, preparing proposed and final 

listing and delisting rules; and designing and implementing recovery efforts. 

The Executive Order 13175 of November 6, 2000, on government-to-government 

relations with Native American tribal governments also requires us to consult with 

Tribes on matters that affect them. Consistent with this and our Federal trust responsibilities, we consult to the extent possible with Indian Tribes having tribal 

trust resources, tribally owned fee lands, or tribal rights that might be affected by 

ESA activities. State and Tribal capacity supported through programs like the State 

and Tribal wildlife grants, is a key ingredient in longterm effectiveness. 

In addition to our own policies, the Service follows the Administrative Procedure 

Act (APA) (5 U.S.C. 551 et seq.) rulemaking process for listing actions. All the information we rely upon in making our listing decisions is available for public review 

and comment. Under section 553 of the APA, Federal agencies must publish proposed rules in the Federal Register; give interested parties an opportunity to participate in the rulemaking by allowing them to submit written data, views, or arguments, with or without opportunity for oral presentation; after considering all comments received, publish final rules in the Federal Register and include a concise 

general statement of their purpose; and allow at least 30 days following publication 

of a final rule before it becomes effective, except in certain cases. 

In December 2000, Congress required Federal agencies to publish their own 

guidelines for ensuring and maximizing the quality, objectivity, utility, and integrity 

of information that they disseminate to the public (44 U.S.C. 3502). The statutory 

language containing this requirement is included in the Information Quality Act 

(IQA) (section 515 of the Treasury and General Government Appropriations Act for 

Fiscal Year 2001 (Pub. L. 106–554; HR 5658)). The Office of Management and Budget (OMB) published guidelines pursuant to the IQA in the Federal Register on February 22, 2002 (67 FR 8452), directing agencies to address the requirements of the 

law. In a May 24, 2002, Federal Register notice (67 FR 36642), the Department of 

the Interior issued Department-wide guidelines and instructed bureaus to prepare 

specific guidelines for implementing the IQA within the context of their individual 

missions. The Service issued its initial Information Quality Guidelines in October, 

2002 and updated guidelines were put into effect in August 2007. The Service’s Information Quality Guidelines provide criteria, establish procedures, and provide 

guidance to ensure that our decisions are based on the best scientific data available. 

The Information Quality Guidelines establish Service policy and procedures for reviewing, substantiating, and correcting the quality of information it disseminates to 

the public. 

In February 2011, Interior Secretary Ken Salazar announced the establishment 

of a new policy to ensure and maintain the integrity of scientific and scholarly activities used in Departmental decision-making. This policy is based on the principles 

found in Secretarial Order 3305, which called for the development of the policy and 
19 

was guided by the Office of Science and Technology Policy memo issued in December 

2010, and was in response to the politicization of science during the last Administration. As part of the implementation of the new policy, Secretary Salazar appointed 

Dr. Ralph Morgenweck, the U.S. Fish and Wildlife Service’s Senior Science Advisor, 

to serve as the Department’s first Scientific Integrity Officer. 

The ESA, the APA, and the policies and regulations governing our listing and 

delisting activities ensure that States, Tribes, other agencies, and the public have 

ample opportunity to participate in our listing and delisting actions. These established processes ensure that the public can participate fully in listing and delisting 

decisions. In addition, the requirement that the Service maintain and make available the administrative record in support of its decisions brings to bear an open and 

transparent decision-making process. 

The Listing Process 

Listing under the ESA becomes necessary when a species declines, or threats to 

it increase, to the point where it is in danger of extinction throughout all or a significant portion of its range (an ‘‘endangered species ’’) or it is likely to become endangered in the foreseeable future (a ‘‘threatened species ’’). The Secretary is required to list or reclassify a species if, after reviewing the species’ status using the 

best scientific and commercial data available, it is found that the species is endangered or threatened because of any one or a combination of the following factors: 

• the present or threatened destruction, modification, or curtailment of its habitat 

or range; 

• overutilization for commercial, recreational, scientific, or educational purposes; 

• disease or predation; 

• the inadequacy of existing regulatory mechanisms; and 

• other natural or manmade factors affecting its continued existence. 

There are two processes the Service follows to identify species in need of listing. 

The first is the candidate assessment process, which is initiated by the Service. The 

second is a petition process, which is available to the public. 

Part of the Service’s Candidate Conservation program is the candidate assessment 

process, through which the Service identifies species of fish, wildlife, and plants that 

may be at risk and in need of protection under the ESA. To identify candidate species, we use our own biological surveys, including status surveys conducted for the 

purpose of candidate assessment. We also use information from State Natural Heritage Programs, other Federal and State agencies, knowledgeable scientists, and public and private natural resources organizations. 

Each year, the Service publishes in the Federal Register the Candidate Notice of 

Review (CNOR). The CNOR identifies the species that we believe are candidates for 

listing under the ESA. The CNOR lists those species previously identified as candidates, species for which petitions have resulted in ‘‘warranted but precluded’’ findings, as discussed below, during the prior year, and other species that appear to 

warrant listing under the ESA. When we identify a species as a candidate for listing, we have sufficient scientific information available to support a proposed rule 

to list the species as a threatened or endangered species. However, preparation of 

the proposed rule is precluded by higher-priority listing actions. 

We publish the CNOR, make individual candidate assessment forms available to 

the public, and solicit additional information about the status of candidate species, 

the threats they face, and conservation actions that are being implemented that 

may benefit the species. We accept information from the public about candidate species at any time. We use the public’s comments in the preparation of listing rules 

for the highest priority candidates, in determining the listing priority of candidate 

species, and in determining whether species continue to warrant candidate status. 

In addition, publication of the list of candidate species provides important information about potential listings that can be used by planners and developers. 

The CNOR also serves to explain to the public our long-standing science-based 

priority system for adding species to the list, which was published in the Federal 

Register on September 1, 1983 (48 FR 43098–43105). Each candidate species is assigned a listing priority number (LPN), based on the immediacy and magnitude of 

the threats faced by the species and on its taxonomic distinctiveness. The candidate 

assessment forms, which are available to the public upon request, document our 

reasons for assigning a particular LPN to each candidate species. We use the LPN 

to prioritize listing actions. Species with lower LPNs are given a higher priority for 

action. 
20 

The second process for identifying species that may warrant listing is the petition 

process. Section 4 of the ESA allows any interested person to petition the Secretary 

of the Interior either to add a species to, or remove a species from, the lists of 

threatened and endangered species. 

Upon receipt of a petition, the Service must respond, within 90 days when practicable, with a finding as to whether the petition provides substantial scientific or 

commercial information indicating that the petitioned action may be warranted. If 

the Service determines that the petition did not provide such substantial information, the 90-day finding concludes the petition review process. However, if the Service determines that the petition does provide substantial information, the Service 

initiates a status review and issues an additional finding within 12 months of the 

receipt of the petition. 

There are three possible outcomes of the ‘‘12-month finding’’: 1) listing is not warranted, and no further action is taken; 2) listing is warranted, and a listing proposal 

is promptly prepared; or 3) listing is warranted, but immediate action is precluded 

by higher priority actions. A ‘‘warranted but precluded’’ finding is made on the basis 

of the species’ listing priority number and the listing workload. In such cases, preparation of a listing proposal is delayed until higher priority actions are completed, 

and the species is added to the list of candidate species and included in the next 

CNOR. 

Our listing and delisting actions are rule-makings, published in proposed and 

final rule form in the Federal Register, and leading to revisions to Title 50, Part 

17 of the Code of Federal Regulations. Once a proposal is published, the Service 

must allow for a public comment period on the proposal; provide actual notice of the 

proposed regulation to appropriate State, tribal, and local government agencies; 

publish a summary of the proposal in a newspaper of general circulation in areas 

where the species occurs; and hold a public hearing, if requested (see 16 U.S.C. § 

1533(b)(5)). The Service’s implementing regulations require that the public comment 

period on a listing proposal be at least 60 days long (see 50 C.F.R. § 424.16(c)(2)). 

Since public participation is so important to effective conservation efforts, the Service will often hold multiple public hearings and extend the comment period beyond 

the minimum required by the law and regulation. 

We always solicit independent peer review of our listing proposals, and incorporate comments and recommendations that we receive. We have found such peer 

review to be a valuable element of the decision-making process. 

The Service reviews petitions, adds species to the list, reclassifies species from 

threatened to endangered, and designates critical habitat using funds appropriated 

specifically to our Listing Program for these purposes. (Delisting and reclassification 

from endangered to threatened are part of the recovery process and are funded 

through the Recovery program.) The workload associated with these listing activities has for many years exceeded the resources available to the Service for listing 

actions. Therefore, a substantial backlog of listing actions has accumulated. 

Multi-District Litigation Settlements for the Listing Program 

The Service recently developed a six year work plan for the Listing Program 

through mediated settlement agreements with two of the Service’s most frequent 

plaintiffs, and we now expect to be able to address the backlog of species awaiting 

final determinations for protection under the Act. For the first time in years, the 

wildlife professionals at the Service will have the opportunity to use our objective 

listing priority system to extend the safety net to those species most in need of protection, rather than having our work priorities driven by the courts. 

The Service will systematically, over a period of six years, review and address the 

needs of more than 250 species now on the list of candidates for protection under 

the ESA, to determine if they should be added to the Federal Lists of Endangered 

and Threatened Wildlife and Plants. All of these species were previously determined 

by the Service to warrant being proposed for listing, but action was deferred because 

of the need to allocate resources for other work. The Service will make listing determinations for each species, carefully reviewing scientific information and public 

comments before deciding whether listing is still warranted and, if so, whether to 

designate the species as threatened or endangered. Each and every listing proposal 

will be subject to public review and comment. 

The listing work plan will also provide predictability and certainty to landowners 

and State and local governments, providing time for States and landowners to engage in conservation programs and for agencies to develop management plans. The 

Service has developed a variety of tools and programs to encourage conservation efforts for listed and candidate species that are compatible with the objectives and 

needs of landowners with listed and candidate species on their lands. These tools 
21 

include Habitat Conservation Plans, Safe Harbor Agreements, and Candidate Conservation Agreements that provide regulatory assurance; technical assistance; and 

a grants program that funds conservation projects by private landowners, states, 

and territories. 

Science Information Standards for Consultation and Recovery 

The best available scientific information is also the foundation of our consultation 

and recovery activities under the Act. 

One of the most important and effective tools available to recover endangered and 

threatened species is the consultation process prescribed by section 7 of the ESA. 

We engage in consultation with other federal agencies to assist them in meeting 

their obligation to avoid taking any action that would be likely to jeopardize the continued existence of a listed species or that would destroy or adversely modify designated critical habitat for a listed species. Similar to section 4, section 7 requires 

that the best scientific data available be employed in conducting consultations. This 

requirement was reinforced, made more specific, and extended to cover preparation 

and implementation of recovery plans in the joint policy issued on July 1, 1994 (59 

FR 34271). The requirement is extremely important in these contexts because consultations and recovery plans often determine how action agencies will contribute 

to recovery and avoid unacceptable risk to listed species. 

The conduct of consultation under section 7 of the ESA is prescribed in regulations (50 CFR part 402) and further guided by a Consultation Handbook developed 

in partnership with the National Marine Fisheries Service. The Service is a fieldbased organization, and most local consultations are conducted by field offices with 

geographic responsibility for the area in which an action is to occur. However, the 

field offices operate under the oversight of our regional offices, and the authority 

to issue draft or final biological opinions that find that an action is likely to jeopardize the continued existence of a listed species or destroy or adversely modify its 

designated critical habitat is delegated no lower than the Regional Directors, our 

senior career managers in the field. In addition, our established procedures require 

that the Director be notified in advance of issuance of a jeopardy or adverse modification opinion. 

Recovery of threatened and endangered species is the process by which their decline is reversed, and the threats to their survival are removed, so that their longterm survival in the wild can be ensured. The goal of the recovery process is to restore listed species to a point where they are secure, self-sustaining components of 

their ecosystems, no longer require the protections of the ESA, and can be delisted. 

For almost all species, a recovery plan is essential as a road map for the recovery 

process. A first step in the process is to identify the participants of a recovery team 

that will work to craft the recovery plan for a listed species. To guide our actions 

during the recovery process, the Service uses our May 1990 ‘‘Policy and Guidelines 

for Planning and Coordinating Recovery of Endangered and Threatened Species’’ 

and the following 1994 joint FWS/NMFS policies: 

• Policy for Peer Review of ESA Activities – incorporates independent peer review 

into recovery actions, including the writing of recovery plans; 

• Policy on Information Standards – directs that the best available scientific and 

commercial information be used when determining what actions are needed to 

recover species; and 

• Policy on Recovery Plan Participation and Implementation (published in the 

Federal Register on July 1, 1994 (59 FR 34272) – directs the Service to solicit 

the participation of State, Tribal, and Federal agencies, academic institutions, 

private individuals, and economic interests when determining the recovery actions needed to recover species. 

The last policy directs the Service to diversify the areas of expertise represented 

on a recovery team, develop multiple species plans when possible, minimize the social and economic impacts of implementing recovery actions, and involve representatives of affected groups and provide stakeholders the opportunity to participate in 

recovery plan development. 

Because the Service bases our recovery decisions on the best available scientific 

information, we seek to involve experts in these decisions and include them on recovery teams. Therefore, when we initiate the recovery planning process for a listed 

species, we endeavor to identify experts on the species and its habitat, as well as 

the most knowledgeable individuals on land use and land management within the 

range of the species. 

Once a draft recovery plan is prepared, a notice of availability is published and 

comments are solicited from the public. Today, it is not unusual for the Service to 
22 

receive hundreds, sometimes thousands, of comments on a single plan. These comments come from a wide range of interests: from advocates for the environment to 

private citizens who are worried about what effects the recovery of the species may 

have on their livelihoods. 

The Service uses the recovery team to consider each comment on a recovery plan, 

and, where needed, incorporate the comments into the final recovery plan. A record 

of how comments on a recovery plan are considered is kept and made available for 

public review. When a final recovery plan has been completed and approved by the 

Service’s appropriate Regional Director, it is made available to all interested parties. 

A Notice of Availability is published in the Federal Register and the Service ensures 

that all of the identified concerned public is aware of the completion of the plan. 

In addition, notices are often placed in newspapers throughout the range of the species. 

The Delisting Process 

The process of delisting species uses the same scientific rigor and full public participation process as the process for listing species. The Service regularly assesses 

the criteria listed in the recovery plan that are used as a target to estimate when 

a species may have sufficiently recovered to be reclassified as either a threatened 

species (recovered from being endangered) or as a fully recovered species and removed from the list of species protected by the ESA. Likewise, the most recent scientific and commercial data, after undergoing peer review, are used to assess the 

current status of the species. Often, the factors used to determine whether a species 

has recovered include the species’ population size, recruitment, stability of habitat 

in terms of habitat quality and quantity, the degree to which habitat areas are connected to one another, and the control or elimination of the threats that led to the 

need to list the species. 

As already mentioned during the previous review of the listing process, the public 

has the opportunity to petition the Service to delist a species at any time. Likewise, 

as already discussed, the petition will trigger a process where the petition is first 

reviewed for presenting substantial information, and, if it passes that test, within 

12 months the action requested in the petition will be assessed, using the best available scientific and commercial data. If it is judged that the petitioned action is warranted, the Service will move to propose delisting the species, unless that rulemaking is precluded by other higher priority actions. 

Outside of the petition process, as recovery of a species progresses, the recovery 

team is often requested to assess the evidence that the species may no longer meet 

the definition of an endangered species or threatened species, including consideration of evidence that it has reached the goals identified for its recovery. Again, the 

best available scientific and commercial data are used, along with the opinions of 

experts on the species, its habitat, and land management practices. If the species 

no longer meets the definition of a threatened species or an endangered species, 

then a proposal to downlist or delist the species will be prepared. 

As is the case for the process of listing a species, a proposal to delist or reclassify 

a species is published in the Federal Register and announced in selected newspapers 

throughout the range of the species. The Service schedules public meetings during 

the comment period so that all of the concerned public will have the opportunity 

to provide comments on the proposed action. All comments are carefully considered 

and a record, available to the public, is kept on the decisions made with respect to 

the comments. 

If, after this process, it is determined that a species has recovered sufficiently to 

merit delisting or reclassification, then a final decision is made and published. A determination that a species has fully recovered will result in the species being removed from the list of species protected by the ESA. 

Independent Scientific Review of Service Decisions 

Service decisions under the Endangered Species Act are sometimes controversial, 

and there have been several cases in the recent past where the scientific underpinning of the Service’s decisions has been subject to independent scientific review. 

The U.S. Fish and Wildlife Service and the National Marine Fisheries Services 

listed wild Atlantic salmon in eight Maine rivers under the ESA as endangered in 

November 2000. Critics of the decision argued that a distinct ‘‘wild’’ genetic identity 

for salmon no longer existed because of artificial stocking and the resultant interbreeding. The controversy in Maine that accompanied the ESA listing led Congress 

to request the National Research Council’s (Council) advice on the science relevant 

to understanding and reversing the declines in Maine salmon populations. The 
23 

charge to Council’s Committee on Atlantic salmon in Maine included an interim report that focused on the genetic makeup of Maine Atlantic salmon populations, 

which was published in January 2002. The report validated the science behind the 

Services’ listing action in Maine and the need for recovery, stating strong evidence 

of genetic distinctiveness. The charge for the final report, published in December 

2003, included a broader look at factors that have caused Maine’s salmon populations to decline and the options for helping them to recover. The U.S. Fish and 

Wildlife Service and the National Marine Fisheries Service are actively working 

with partners to alleviate threats to salmon recovery in Maine. 

In 2001, the Departments of the Interior and Commerce enlisted the National Research Council for evaluation of the scientific analysis leading to the jeopardy biological opinions written by the Service and the National Marine Fisheries Service 

on operations of the Klamath Water Project. The Council found strong scientific support for all components of the Service’s biological opinion, except for one measure 

relating water quality to water levels in Klamath Lake, which was based on professional judgment. The Council recognized that agencies charged with ESA responsibilities must sometimes use expert professional judgment when the scientific information needed to inform a decision is lacking or inconclusive. 

In 2008, the Service issued a jeopardy biological opinion to the Bureau of Reclamation regarding the Continued Long-Term Operation of the Central Valley 

Project and State Water Project (CVP/SWP opinion) and included a reasonable and 

prudent alternative that required what is called a ‘‘fall action’’ to protect delta smelt 

and their habitat. The scientific information that the Service used in the 2008 CVP/ 

SWP opinion has now been reviewed by five separate independent peer review processes, including a 2010 review by a National Research Council panel. While these 

reviews identified elements of the opinion that might have been handled differently 

or justified more thoroughly, they all largely affirmed that the Service used the best 

available scientific information and applied that information in a conceptually sound 

and scientifically justified manner within the biological opinion. 

Litigation Challenging the Service’s Central Valley Project and State 

Water Project Biological Opinion 

The science underlying the Service’s CVP/SWP opinion is also the subject of ongoing litigation. With regard to recent comments made by former U.S. District Judge 

Oliver Wanger, we firmly believe that wise decisions about the future of the Bay 

Delta must be guided by the best available science. The Department stands behind 

the consistent and thorough work that our scientists, in this case from the Service 

and Bureau of Reclamation, have done on the Bay Delta over many years. Their 

expertise and professionalism remain vital to the success of our efforts to meet the 

co-equal goals of improving water reliability and restoring the health of the Bay 

Delta. 

We also believe that, when questions arise regarding the integrity of scientific 

work, it is important to resolve them swiftly, independently, and decisively. We disagree with Judge Wanger’s comments last month, and we recognize and appreciate 

his effort to clarify those comments before his retirement. Still, we believe it is important that we follow the Department’s standard procedures for reviewing questions of scientific integrity, so that we can resolve them definitively. Therefore, the 

Department has instructed the scientific integrity officers of the Service and the Bureau of Reclamation to retain independent experts to evaluate the allegations made 

by Judge Wanger. 

Conclusion 

In closing, Mr. Chairman, I would like to emphasize the importance the Service 

places upon having a science-driven, transparent decision-making process in which 

the affected public can participate effectively. The Service remains committed to 

conserving America’s fish and wildlife by relying upon the best available science and 

working in partnership to achieve recovery. Our scientists and managers continue 

to do an exceptional job, under increasingly difficult circumstances, of using the best 

available scientific information to make decisions that comply with the law, can 

withstand challenge and thus can be trusted by the public we serve. 

Thank you for your interest in endangered species conservation and ESA implementation, and for the opportunity to testify. I would be pleased to respond to any 

questions you and other Members of the Subcommittee might have. 

Mr. BROUN. Thank you, Mr. Frazer, and I appreciate you staying 

within your five minutes. 
24 

Judge Manson, I now recognize you for five minutes. 

STATEMENT OF HON. CRAIG MANSON, GENERAL COUNSEL, 

WESTLANDS WATER DISTRICT 

Mr. MANSON. Thank you, Mr. Chairman. 

Mr. Chairman, Congresswoman Edwards, Members of the Committee, I appreciate the opportunity to appear here before you 

today on this most important subject. I will note that most of my 

biography is in my written statement. I would like to add to that, 

however, that I grew up in a community of scientists and I have 

the greatest respect for scientists. I took pride in the work of the 

people at the Fish and Wildlife Service and the National Park 

Service whom I oversaw during my tenure as Assistant Secretary. 

I am also pleased that Professor Jonathan Adler is here because 

he is one of the most cogent and organized voices on issues of 

science and policy in academia today. So if you don’t want to believe me, believe him, because as I note in my written testimony, 

my writings which are meager compared to his and my testimony 

has been criticized or critiqued in hundreds of law review and 

scholarly articles, and his has been largely praised. So please pay 

attention to his testimony. 

Now, the issue of science and policy in the ESA I compare in my 

written testimony to the push-me, pull-you that was the fictional 

species that Dr. Doolittle discovered in the first book written about 

Dr. Doolittle. It is described as having no tail but two heads that 

pulled in opposite directions, and sometimes that is the way science 

and policy are with respect to the ESA. 

I want to summarize my written testimony in about five points, 

but I will depart from those points to comment since I was named 

specifically in Congresswoman Edwards’ opening statement to address that issue as a matter of fact. I found it curious that the Inspector General of the Department of the Interior took two years 

after I had left the Department to come ask me anything about any 

of those cases. I found it interesting that during the time that any 

of these things were happening, no one approached me and asked 

me any questions about any of those things. And so it made me 

suspect of their motives and calls into question—in my mind at 

least—their integrity. 

Now, I want to talk about the incident with Gary Frazer. Gary 

was the one who brought to my attention a flaw in a rule that we 

were issuing, and I appreciated that very much. The problem was 

one of litigation. I was faced with one of two choices: either not 

publish the rule and be found in contempt of Federal Court, or publish the rule with the inaccurate information and then republish an 

amended rule, which is what we did. We published an amended 

rule with the correct information. So we made the deadline imposed by the Federal Judge, were not held in contempt, and got the 

accurate information out there in any event. 

But let me go back to my five points. First, there are distinct 

rules for science and policy in the ESA and some scientists, lawyers, and policymakers misunderstand the relationship between 

policy and science in ESA decision-making. We make not scientific 

decisions but science-informed decisions in the ESA and our science 

must be of the highest quality in order to do that. 
25 

1 ‘‘They had no tail, but a head at each end, and sharp horns on each head. They were very 

shy and terribly hard to catch. The [Africans] get most of their animals by sneaking up behind 

them while they are not looking. But you could not do this with the pushmi-pullyu-because, no 

matter which way you came towards him, he was always facing you.’’ H. Lofting, The Story of 

Continued 

My second point is that we have to stop pretending that the ESA 

is not a politicized statute. It is. If it were not, this Committee 

would not be holding this hearing. It obviously is because it deals 

with the economics and the property rights of individuals and these 

are constitutional rights protected by our great charter. 

The third point I want to make is that there has to be some accountability for everyone involved in the system from political appointees through scientists, and it is the job of the executive branch 

to oversee the work of its employees, and that is what happens in 

most cases that some have misconstrued as political interference. 

Finally, the ESA decision context presents a poor fit between 

science and policy, according to Professor J.B. Rule, and one reason 

for that is the imposition of the regulatory scheme immediately 

upon the making of a scientific finding. In my written testimony I 

describe how that might be fixed, and I would be glad to answer 

questions about that or any other matter that comes before the 

Committee while I am here today. 

[The prepared statement of Mr. Manson follows:] 

PREPARED STATEMENT OF THE HONORABLE CRAIG MANSON, GENERAL COUNSEL, WESTLANDS WATER DISTRICT

Chairman Broun, Congresswoman Edwards, and Members of the Subcommittee: 

My name is Craig Manson. I am a specialist in law and public policy, currently 

serving as General Counsel to the Westlands Water District in California’s Central 

Valley. Westlands is the largest agricultural water agency in the United States. 

Prior to my present appointment in May 2010, I was a professor at the Capital Center for Public Law and Policy at University of the Pacific, McGeorge School of Law 

in Sacramento, California. I taught administrative law, natural resources law, and 

public policy development, among other things. I held that position from January 

1, 2006 to April 30, 2010. 

From February 19, 2002, until December 31, 2005, I served as Assistant Secretary 

for Fish and Wildlife and Parks in the United States Department of the Interior. 

I oversaw the National Park Service and the United States Fish and Wildlife Service. I had responsibility for policy oversight of a number statutory programs, including the Endangered Species Act (ESA). 

Immediately prior to my service as Assistant Secretary of the Interior, I was a 

Judge of the Superior Court of California in the County of Sacramento. 

From 1993 to 1998, I was the General Counsel of the California Department of 

Fish and Game. The department implements the California Endangered Species Act 

and coordinates with the federal government concerning the state’s responsibilities 

under the federal Endangered Species Act. 

I have published articles in a number of journals, including Environmental Law 

(published by Lewis & Clark Law School, Portland, Oregon), the Texas International Law Journal, the Duke University Environmental Law & Policy Forum, the 

Environmental Law Institute’s Environmental Law Forum and others. 

As Assistant Secretary of the Interior, I testified before congressional committees 

on numerous occasions and spoke to professional groups many times about the Endangered Species Act. My writing and testimony has been cited, quoted, or criticized, for better or for worse, in hundreds of scholarly publications. 

Today the committee reviews the nexus between science and policy in the Endangered Species Act. This is an issue of overriding importance for both the conservation of species and for the property rights of individuals across the nation. Unfortunately, it is a question that is neither new nor unique. Since the beginning of the 

age of federalized environmental activity in the late 1960s and early 1970s, science 

and policy have seemingly behaved like that rarest of all species, the Pushmi-pullyu, 

discovered by the multi-lingual fictional naturalist, Dr. Doolittle. 1
26 

Doctor Dolittle—Being the History of His Peculiar Life at Home and Astonishing Adventures in 

Foreign Parts, Never Before Printed, p. 81 (New York: Frederick A. Stokes & Co., 1920 [Tenth 

Printing Nov. 1922]) 

The Pushmi-pullyu science-policy approach to the ESA and other environmental 

statutes raises fundamental issues for resolution. In the last six months, Members 

of both apolitical parties in both the House and the Senate have strongly criticized 

the Fish and Wildlife Service and the National Marine Fisheries Service for using 

‘‘bad science’’ in important decisions. Most recently, a federal judge excoriated not 

just an agency, but two individual scientists by name for misleading the court. The 

judge said that the scientists were engaged in an attempt to mislead and to deceive 

the court into accepting what is not o only not the best available since, it’s not 

science.’’ He went on to say that ‘‘There can be no acceptance bay court of the 

United States of the conduct that has been engaged in in this case by these witnesses.’’ 

Clearly there is a problem with the manner in which science is being applied in 

significant matters involving the ESA. I now offer my view of the issues and a 

scheme for resolution. 

1. Some scientists, lawyers, and policymakers misunderstand the relationship between science and policy in ESA decision-making. A good amount of this misunderstanding springs from certain statutory language itself. In describing the 

process of determining whether a species is ‘‘threatened’’ or ‘‘endangered,’’ section 4 of the statute says: 

The Secretary shall make determinations required by subsection (a)(1) of this 

section solely on the basis of the best scientific and commercial data available 

. . . 

16 U.S.C. § 1533(b)(1)(A). 

The use of the term ‘‘solely’’ has led to the belief that there is no room for anything but a scientific basis for listing decisions. There is, under this belief, no space 

to be given over to policy decisions. Indeed, perhaps this interpretation of this part 

of the statute is correct. 

But this interpretation has over time been exaggerated into two other ‘‘beliefs’’ 

that are demonstrably incorrect. The first fallacy is that all listing decisions are 

purely the purview of field scientists, the closer to the bottom of the organization, 

the better. The second fallacy is that all decisions having to do with the ESA are 

safeguarded against so-called ‘‘political interference.’’ 

The wrong-headedness of the first fallacy is apparent in the statute itself. The 

statute does not commit listing decisions to the primary investigating biologist in 

the field. The statute commits those decisions to the Secretary. While some degree 

of delegation is expected, as long as the Secretary or the Secretary’s designee has 

made a listing decision based on the best available science, the decision is valid. The 

Secretary has the power to determine in the first instance what constitutes the best 

science available to the Secretary. And in doing so, the Secretary or the Secretary’s 

designee may disagree with scientists in the field. Science managers may direct 

science staff to go back and ‘‘do it over’’ if those managers believe the ‘‘best science’’ 

has not been used. They have not only the power, but the obligation to do so. 

The second fallacy is also belied by that statute itself. Not all ESA decisions are 

off-limits to considerations of policy. For example, section 4(b)(2) of the ESA deals 

with the designation of critical habitat, said by some to be one of the most important features of the act. However, section 4(b)(2) requires that the Secretary in designating critical habitat 

tak[e] into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat. The Secretary may exclude any area from critical habitat if he 

determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based 

on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species 

concerned. 

16 U.S.C § 1533(b)(2). 

Even the listing portion of section 4 requires that the decision-maker 

tak[e] into account those efforts, if any, being made by any State or foreign 

nation, or any political subdivision of a State or foreign nation, to protect 

such species, whether by predator control, protection of habitat and food sup-
27 

2 Rick: How can you close me up? On what grounds?. Captain Renault: I’m shocked, shocked 

to find that gambling is going on in here. [ A croupier hands Renault a pile of money]. Croupier: Your winnings, sir. Captain Renault [sotto voce]: Oh, thank you very much. [aloud] 

Everybody out, at once! Casablanca (1942) 3 I believe he sold automobiles before being elected to public office. 

4 Curiously, this particular Member, endorsed by the Sierra Club, and with a 100% rating 

from the League of Conservation Voters, believed that what he was doing might be improper. 

As we left his office, he said ‘‘You know, if I heard of any other Member having this conversation, I’d be all over them. But, hey, it’s my district, you understand?’’ 

ply, or other conservation practices, within any area under its jurisdiction; 

or on the high seas. 

16 U.S.C. § 1533(b)(1)(A). 

So what is the lesson here? It is that the ESA requires science-informed decisions 

and not merely scientific decisions. 

2. Some scientists, lawyers and policy-makers do not understand the different 

functions of science and policy. As I and Professor Adler and others have said, 

science is observational and thus seeks to tell us ‘‘what is,’’ ‘‘what was,’’ and 

occasionally ‘‘what might be.’’ Policy is the determination of the body politic as 

to how it desires to act, given the observed conditions. The infinite political options in the face of certain conditions are not to be dictated by scientists but 

by those given such authority by law. 

3. Some scientists, lawyers and policymakers fail to comprehend Renault’s Other 

Surprise: 2 The ESA is a Politicized Statute. 

That the ESA is a politicized statute is no surprise to any but the most naı ̈ve. 

In fact, the ESA did not involve politics, this committee would not be holding this 

hearing. 

The ESA is necessarily politicized because it involves the protection of certain natural resources at the expense of private property, economic activity, and other natural resources. Although not intended by the drafters, implementation of the ESA 

has become a win-lose adversarial process. The politicization of the ESA began at 

its inception and has carried on through every Administration and Congress since 

then. 

To say that the ESA is politicized is really to make no more than the point that 

there are competing policy decisions to be made, whether we recognize that or not. 

In fact, all sides need to stop pretending that the ESA can be administered in a 

politically neutral fashion. later in this testimony, I suggest a solution that will 

serve to put the political decisions in proper context. There are several types of political influence that are involved in ESA implementation; some are proper and others are improper. 

‘‘Political Interference’’ Generally 

Shortly after I became Assistant Secretary, a Member of Congress summoned me 

and the then-director of the Fish and Wildlife Service to his office. In his district 

was a large military base that had been closed under the BRAC process. Businesses 

and local governments were interested in seeing the reuse process move quickly. 

The Congressman (who to my knowledge had no biological training) 3 complained 

that the Fish and Wildlife Service was ‘‘holding up the process’’ by demanding ‘‘too 

many studies’’ and ‘‘too much mitigation’’ for potential impacts to threatened and 

endangered species. The Congressman asked us to get the Service to ‘‘cooperate’’ 

with the other parties. 

We left having promised the Member no more than that we would ‘‘look into’’ the 

matter. 

Such contacts by Members of Congress with the Secretary, the Deputy Secretary, 

the Assistant Secretary, and the Service Director are quite common. I regard such 

contacts as ‘‘political contacts’’ since they involve a Member of Congress and appointees of the President. Such contacts generally are not improper. Members of 

Congress have a legitimate role in seeing that the Executive Branch is doing its job 

in a general sense and more specifically in not disadvantaging the Member’s constituents. 4

What would make this type of contact improper? In this case, the Member essentially asked that we review the science and the application of the science in the particular case. If the Member had asked us to change the Service’s science based solely 

on political considerations, that would be improper. If we in fact ordered the Service 
28 

5Within days of becoming Assistant Secretary, I held a staff meeting of both appointees and 

career staff. I told them, among other things, paraphrasing a well-known Washington lawyer, 

‘‘I’m the Assistant Secretary here. I’m not a potted plant.’’ I didn’t expect any member of the 

staff to be a ‘‘potted plant’’ either. 

to change its science solely on political considerations, that would be improper. Neither occurred in this case. 

Political Interference—the Executive Branch 

An issue that receives much attention in the press is the alleged political interference by Executive Branch political appointees. The story usually alleges that an 

appointee ‘‘with no scientific training’’ edited a scientific document or changed a scientific conclusion produced by the career staff. These stories are usually wrong on 

several counts. 

First, the appointees in the Executive Branch have the right and the duty to oversee the work of the career staff. This means more than simply rubber-stamping the 

work product of the career staff. 5 Since the decisions under the ESA have regulatory effect, these decisions must be supported by substantial evidence. It is important that before any document is given effect by the signature of the Secretary, the 

Assistant Secretary or the Director, that it be reviewed at all levels to ensure that 

its conclusions are supported by the evidence. If a conclusion is not supported by 

the evidence presented, that conclusion cannot and should not be stated. It is completely appropriate for appointees to review documents in this manner. One need 

not be a biologist to conduct that sort of review. In fact, judges do this all of the 

time in a variety of fields. This does not constitute political interference. 

Furthermore, ‘‘many ESA decisions involve questions of biological science for 

which the available scientific database is either sparse or inconclusive.’’ J.B. Ruhl, 

The Battle Over ESA Methodology, Envt L. (Mar 2004). In such cases, it is not improper for an appointee to challenge the gap-filling by agency scientists. The struggle in this respect between scientists and agency policymakers is nothing improper 

or nefarious, but rather expected, as Professor Ruhl explains. 

In fact, the Constitution of the United States demands protection of private property from arbitrary, capricious, and otherwise unlawful actions by agents of the government. The Executive Branch’s officials have an oath-taken duty to ensure that 

private property and other liberties are preserved. 

Second, it is alleged that appointees impose the policy views of the administration. 

This by itself is not improper. 

[A]n agency to which Congress has delegated policy-making responsibilities 

may, within the limits of that delegation, properly rely upon the incumbent 

administration’s views of wise policy to inform its judgments. While agencies 

are not directly accountable to the people, the Chief Executive is, and it is 

entirely appropriate for this political branch of the Government to make such 

policy choices—resolving the competing interests which Congress itself either 

inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities. 

Chevron USA Inc. v. Natural Resources Defense Council, 

467 U.S. 837, 865–66 (1984), per Stevens, J. 

Furthermore, it is not improper for an appointee to inquire whether there exists 

science which supports the Administration’s view of a particular problem or issue. 

Where competing scientific views exist, it is not improper for an appointee who oversees an agency to select or direct that science be used which more nearly aligns with 

the administration’s policy views. 

Finally, it is not improper for an appointee to state the Administration’s policy 

view and direct that science which supports that view be found. 

It would be improper, having been told that no science exists to support the Administration’s policy view, for an appointee to nonetheless implement that view 

when that statute requires ‘‘the best available science’’ as the basis for the decision. 

Science, Law and Policy 

What about science? What of the complaints of scientists that their work is edited 

or disregarded? There are several answers to this. First, there has been no scientifically valid study of this issue. The studies that have been done rely on recycled 

anecdotal data. But assuming that there are valid complaints in this area, the following should be noted. 
29 

First, no organization in the world takes as its final position a ‘‘first draft’’ produced at its lowest level. There’s a reason that there are levels of review-recall, no 

potted plants. This may difficult for some to accept. 

Second, what passes for science in the ESA context frequently consists of little 

more than literature search, especially with respect to listing of species. That’s because the Fish and Wildlife Service has virtually no research capacity and few Ph.d. 

scientists in the field. As a result, many ‘‘scientific’’ documents rely on the interpretation and policy leanings of their authors. In that event, policymakers are entitled 

to use their judgment about how the document will be presented. 

Third, as Professor Ruhl has noted, ESA decision contexts present a poor fit between science and policy. Ruhl says that the law often requires scientists to answer 

questions that don’t make sense to them. When scientists and policymakers don’t 

understand each other, then chaos and strife will reign in their relationships. 

The ESA exists at the confluence of science, law, and policy. It is not a purely 

scientific decision scheme. Nonetheless, its decision contexts must be science-informed. They also may be policy-informed and this must not be mistaken for improper or unlawful political influence. 

4. In the present Administration, political apathy rules. As I have previously explained, there is an obligation for the Executive Branch to supervise the work 

of its employees. And as I have explained, this can be done within the law. In 

the present Administration, political apathy, rather than political interference, 

reigns. This attitude is just as bad as and perhaps worse than alleged political 

interference. Leaving the policy decisions to the foot-soldiers with no direction 

can only lead to catastrophe. That’s what has happened in one of the most important and sensitive issues of the day—the San Francisco Bay Estuary. No 

effective policy oversight led the federal judge to castigate the two government 

scientists. And time and time again, the accountable officials in Washington 

have sought to duck their responsibilities, even when taken to task by Members of Congress. 

5. The ESA Contains a Structural Flaw Which Exacerbates Hostility Toward 

Science. The ESA imposes it regulatory scheme immediately upon the listing 

of a species or the designation of critical habitat. That’s why all the major 

fights are about the science and why scientist-advocates are so strident in their 

views even if their science is poor. The statute, in an effort to minimize strife 

over science, has in fact significantly heightened it. The view that neutrally applied science is an effective method to solve political issues is a relic of the 

nineteenth century which was thoroughly discredited in the twentieth century. 

We need to return to the notion that science can tell us what is, while policy determines what ought to be done. To do that, the listing decisions should be de-coupled from the automatic, discretion-less application of regulation. That would require Congressional action. Additionally, the quality of science would be vastly improved and court litigation sharply reduced if the Secretary was required to make 

listing determinations by formal-rulemaking under the Administrative Procedure 

Act. 

Thank you for inviting me on this important topic. I am available for any questions the committee may have. 

Chairman BROUN. Thank you, Judge. 

I now recognize our next witness, Mr. Vincent-Lang, for five minutes. 

STATEMENT OF MR. DOUGLAS VINCENT–LANG, 

SENIOR BIOLOGIST, ALASKA DEPARTMENT 

OF FISH AND GAME 

Mr. VINCENT-LANG. Good morning, Mr. Chair, Ms. Edwards, 

Committee Members. Thank you for the invitation to speak with 

you today. 

Species in Alaska have increasingly become targeted for listing 

based solely on speculated risks such as climate change despite 

their currently healthy status. This is best exemplified by the decision of the U.S. Fish and Wildlife Service to list polar bears as 

threatened species worldwide. Polar bears are listed based on models that hypothesize that climate change will result in a decline of 
30 

sea ice habitats and a speculation that lost sea ice habitat will 

threaten currently healthy populations with extinction by 

midcentury. This listing was made despite the fact that the worldwide polar bear population remains at all-time record numbers. 

Furthermore, many underlying critical assumptions and 

hypotheses in the models went untested. 

Alaska disagrees that the Act should be used as a precautionary 

tool to list currently healthy species based solely on model results 

of future threats such as climate change. The State is challenging 

this listing and the precedent it is setting. The National Marine 

Fisheries Service recently proposed to list ringed seals, which number between three to seven million based on the same modeling approach, an action we are also opposing. Ultimately, what species 

could not be listed? 

It is apparent to us that the Act is being used by federal agencies 

to gain control over landscapes and seascapes rather than to arrest 

species extinction. We do not believe Congress intended the Act to 

be used in this manner, nor do we believe Congress intended the 

Act to be used by federal agencies to wrest control of currently 

healthy populations from state management authority. 

Another issue is a threshold question regarding when it is necessary to list a species. In the past, species were listed based on 

relatively high risk of extinction within the near-term future. Recently, however, federal agencies have begun extending the period 

of foreseeable future into the more distant future, yet retaining low 

risk of extinction probability. This raises the question as to whether species that have low risk of extinction within the immediate future should be precautionarily listed. It also raises the question as 

to how far into the future can population trends be reasonably predicted. Finally, what is a reasonable level of extinction risk? 

We are concerned with how recovery goals are being established 

and used in Section 7 consultations also. For example, the recovery 

goal for delisting Steller sea lions in western Alaska numbers over 

100,000 animals. This is far higher than simply needed to remove 

the risk of extinction in our opinion. However, despite the fact that 

the population currently is numbering over 73,000 animals and 

growing overall across its range, the National Marine Fisheries 

Service has released a new Biological Opinion that found that fishing in some areas of the western Aleutians is jeopardizing the stock 

and adversely modifying its habitat and has adopted new closures 

and restrictions to fishing. These closures are economically devastating to local economies and raise environmental justice concerns. 

The State raised serious questions regarding the foundational 

science associated with this decision. The National Marine Fisheries Service did not conduct an independent review of their work, 

which would have highlighted the analytical shortcomings the 

State identified. In fact, a subsequent independent analysis substantiated many of the scientific concerns identified by the States 

and affected users. 

This raises a question as to whether recovery goals are being set 

too high. Should recovery goals reflect the number required to remove the risk of extinction or to a number higher that represents 

some level of historical abundance? Should recovery plans contain 
31 

non-population objectives that must be achieved—for example, 

greenhouse gas emission targets? 

Another concern is the manner in which the two Services identify 

subspecies or Distinct Population Segments for listing under the 

Endangered Species Act. In 1973, Congress had no way to predict 

the genome of several plants and animals could actually be 

mapped. We know now enough about genetics to detect even the 

most subtle differences not just between species but individuals 

within given species. Couple this knowledge with the ability to use 

the Endangered Species Act to list ‘‘subspecies’’ and ‘‘distinct population segments’’ and every local population with slight geographic 

or genetic differences or population at the edge of species’ range become candidates for ESA listings, regardless of their overall abundance of the species. 

Alaska is also concerned with how critical habitat is being designated. Following its decision to list the polar bear as a threatened 

species, the U.S. Fish and Wildlife Service listed—designated a 

vast area of Alaska and its offshore areas as critical habitat. The 

area designated is the largest ever designated for a species and encompasses an area larger than the size of California. The designated habitat includes any place a polar bear might roam during 

its life. This is a dramatic deviation from previous critical habitat 

designations where specific areas of critical importance were only 

designated. The State and others are challenging this designation 

as well as what we believed were serious underestimation of the 

economic impacts associated with this designation. 

Finally, when Congress—when passing the Act, Congress clearly 

identified a unique role for States and all Endangered Species Act 

decisions. This role is contained in Section 4(i) of the Act. This section clearly grants States a place at the table in all ESA decisions, 

including the application of science in these decisions. Unfortunately, States are not being given equal deference on science during implementation of the Act. Instead, the Services are increasingly using their deference to discount valid questions raised by 

States on federal interpretation of science. They are also using 

their deference as a basis for their defense of flawed science. We 

believe States should have equal deference in science in all ESA decisions. 

Thank you for the opportunity to testify and I look forward to 

any questions you may have. 

[The prepared statement of Mr. Vincent-Lang follows:] 

PREPARED STATEMENT OF MR. DOUGLAS VINCENT-LANG, 

SENIOR BIOLOGIST, ALASKA DEPARTMENT OF FISH AND GAME

Thank you for the invitation to speak with you today. My name is Doug VincentLang. I am a Special Assistant to the Commissioner of the Alaska Department of 

Fish and Game (ADF&G). 

Today I would like to address concerns the State of Alaska has with the application of science in several recent Endangered Species Act (ESA) decisions in Alaska. 

Congress passed the ESA as a tool to ensure that species would not become extinct. 

The act was meant as the ultimate safeguard and has been used successfully to prevent species extinctions where species were in significant decline and facing immediate risk of extinction, and when the threats to the species’ survival were imminent 

and easily identifiable and manageable. It is a goal we all should support. It is one 

Alaska supports. 

An example of the successful application of the ESA in Alaska was the Aleutian 

Canada (Cackling) Goose. These geese were in precipitous decline. The main threats 
32 

were identified to be predation by foxes and loss of overwintering habitat. The 

threats were addressed and the species recovered and was removed from the ESA, 

notably without designation of critical habitat. 

Recent ESA actions, however, have caused concern about how the ESA is being 

applied in Alaska. Species in Alaska have increasingly been targeted for listing 

based solely on speculated risks such as climate change, despite currently healthy 

and stable numbers. This is best exemplified by the decision by the U.S. Fish and 

Wildlife Service (USFWS) to list the polar bear as a threatened species worldwide. 

The polar bear was listed as a threatened species based on habitat envelope models 

that hypothesized that climate change will result in a decline of sea-ice habitats, 

and on speculation that lost habitat will threaten currently healthy populations 

with extinction by mid-century. This listing was made despite the fact that the polar 

bear population remains at all-time record numbers, despite past sea ice loss which 

should have caused population declines if the models are right, and despite that 

many underlying hypotheses and assumptions in the models were and remain untested. 

The decision to list polar bears was based largely on ‘‘habitat envelope models’’. 

These models use present-day species-habitat relationships to speculate on the potential distributions and viability of species under future climate conditions. The 

utility of these models, however, to assess species viability is questionable. Predictions of species responses based solely on projected changes in the quantity and 

quality of suitable habitat are likely to be inaccurate because they fail to account 

for important ecological processes that influence extinction. Furthermore, shifts and 

contractions of suitable habitats do not easily translate into viability assessments 

or extinction risks. Consequently, these models have increasingly come under question by a wide range of experts, especially when they are applied into the distant 

future (those beyond about 15 years). 

In the case of the polar bear, the USFWS used a habitat envelope model to assess 

the future viability of polar bears based on changing habitat and its carrying capacity related to changing ice conditions. In short, the model predicted the amount of 

sea ice habitat that would be lost due to a warming climate and used this to speculate upon the future viability of polar bear populations into the distant future (in 

this case 45 years) based on potential loss in habitat. 

In our review of this model we raised several concerns including, but not limited 

to: 

1.A declining trend in habitat may not correlate to a decrease in numbers unless 

polar bears are at carrying capacity throughout their range. If bears are not 

at their carrying capacity, they could lose a significant portion of their habitat 

and not suffer any loss in numbers or viability. This critical assumption was 

not tested or verified by the USFWS. In fact, recent data has shown that it 

is not likely valid. Polar bears sampled in the Chukchi Sea, an area that has 

experienced the greatest amount of sea ice loss in the Arctic, have demonstrated they are not under nutritional stress and do not have reduced survival. 

2.The model assumed that polar bear numbers would decrease in response to 

lower observed survival rates in recent years associated with increased loss of 

sea ice. However, in their analysis the USFWS only used five years of recent 

data despite historic data being available dating back to the 1980s. These data 

showed that about one-third of the years between 1986 and 2006 had survival 

less than those required to sustain the population, yet the population over this 

period actually grew or remained stable, strongly suggesting that the assumption about ice loss and survival is not valid. Simple hind-casting of the model 

to verify this assumption should have been performed. 

Despite the fact that the USFWS candidly acknowledged the weaknesses in their 

models, the District Court for the District of Columbia stated in its upholding of the 

USFWS’s decision to list the polar bear that it is ‘‘bound to uphold the agency’s determination that the polar bear is a threatened species as long as it is reasonable, 

regardless of whether there may be other reasonable, or even more reasonable, views’’. 

The State believes this grants too much deference to a federal agency’s interpretation of fundamentally flawed analyses. The State continues to believe that the 

science does not justify the listing of polar bears and is appealing this decision. 

There is little evidence that polar bears are threatened with extinction now or within the near term foreseeable future. 

Alaska disagrees that the ESA should be used as a precautionary tool to list currently healthy species based solely on model results of future threats such as climate change. The State is challenging this listing and seeking to overturn it and 
33 

the precedent it is setting. The National Marine Fisheries Service (NMFS) recently 

proposed to list ringed seals, which number between 3–7 million, based on this same 

modeling approach, an action we are also opposing. Ultimately, what species could 

not be listed? 

It is apparent to us that the ESA is being used by federal agencies to gain control 

over landscapes and seascapes, rather than to arrest species extinction. We do not 

believe Congress intended the act to be used in this manner. Nor do we believe Congress intended the Act to be used by federal agencies to wrest control of currently 

healthy populations from state management authority. We also believe it is imperative that underlying assumptions within models be tested before they are used to 

list a species. 

Another issue is a threshold question regarding when it is necessary to list a species. In the past, species were listed based on relatively high risks of extinction 

within the near term future (10–20 years). Recently, however, federal agencies have 

begun extending the period of ‘‘foreseeable future’’ into the more distant future, yet 

retaining low risks of extinction probability. An example is the beluga whale in 

Cook Inlet. The NMFS listed the beluga whale as an endangered species based on 

modeling that showed that the population had a greater than 1% chance of going 

extinct beyond 50 years. Put another way, the models predicted that the population 

had more than a 99% of NOT becoming extinct within the next half century. Their 

decision to list was partially based on modeled extinction probabilities. The NMFS 

actually modeled, and used as a basis for their decision, extinction probabilities for 

these whales out to 300 years based on a 12-year data base. Alaska is challenging 

the decision to list beluga whales in Cook Inlet as endangered. We feel the decision 

is unjustified given the low risk of immediate extinction and questions related to 

the validity of modeling extinction risks out to 300 years based on 12-year data sets. 

This raises the question as to whether species that have low risks of extinction 

within the immediate future should be listed at all. It also raises the questions as 

to how far into the future can population trends be reasonably predicted– ten years, 

50 years, 100 years, or 300 years? Finally, what is a reasonable level of extinction 

risk– 1%, 10%, 20%, or 25%? 

We are also concerned with how recovery goals are being established and used 

in Section 7 consultations. For example, the recovery goal for delisting Steller sea 

lions in western Alaska numbers over 100,000 animals. This is far higher than 

needed simply to remove the risk of extinction. However, despite the population currently numbering over 73,000 animals and growing overall across its range, the 

NMFS has released a new Biological Opinion (BiOp) that found that fishing in some 

areas of the western Aleutians is jeopardizing the stock and adversely modify its 

habitat, and has adopted new closures and restrictions to fishing in the western 

Aleutians. These closures are economically devastating to local economies and raise 

environmental justice concerns. 

The conclusion that fishing is affecting the western stock of Steller sea lions was 

based on speculation, not hard facts. Let’s look at the scientific data upon which the 

NMFS based their jeopardy and adverse modification: 

1.The western stock of Steller sea lions as a whole is recovering and is not in 

jeopardy at this time. This stock is growing at a rate of 1.4% per year and now 

numbers over 73,000 animals. As noted in the BiOp itself ‘‘Since 2000, the decline has ceased and in most sub-regions the wSSL population is increasing.’’ 

2.Recovery objectives established by the 2008 Steller Sea Lion Recovery Plan are 

not being violated; rather the current status of the stock achieves the criteria 

established by the Recovery Plan. To achieve recovery, the plan criteria dictate 

that the population trend in any two adjacent sub-regions cannot be significantly declining. In fact, the data show that no two adjacent sub-regions are 

significantly declining: one area does show a decline, but it is not possible to 

determine if this decline is significant. The plan also dictates that the population trend in any one sub-area cannot have declined by more than 50%. The 

data show that the population in one sub-region, the Western Aleutians, has 

declined, but at a rate less than 50%. 

3.The primary rationale for the positive jeopardy and adverse modification finding is that the Atka mackerel and Pacific cod fisheries are causing ‘‘nutritional 

stress’’ to Steller sea lions. There is little sound evidence, however, that nutritional stress is causing the slower-than-desired rate of recovery in the western 

Aleutians, and the scant available evidence is extremely weak. For example, 

of the 17 possible life history indicators identified to assess nutritional stress 

for which the NMFS has data to evaluate, only one indicator showed a positive 

relationship: reduced birth rate. The remaining 16 biological indicators showed 

a negative relationship. These negative findings included emaciated pups, re-
34 

duced pup body size, reduced pup weight, reduced growth rate, reduced pup 

survival, reduced juvenile survival, reduced adult survival, reduced overall survival, reduced pup counts, reduced non-pup counts, changes in blood chemistry, 

and increased incidence of disease. And even the reduced birth rate relationship should be viewed with caution given the lack of life history data for sea 

lions in the western Aleutians. Low birth rates could be attributed to factors 

other than nutritional stress, for example, predation. Other recent data, collected by the ADF&G and funded by cooperative research monies from the 

NMFS, confirms that first-year Steller sea lions pups in the western stock 

show no evidence of poor body condition. This is yet another source of data that 

calls into question the Service’s unproven and untested nutritional stress theory, on which their onerous Reasonable and Prudent Alternative is based. In 

addition, other NMFS funded research demonstrates out-migration of branded 

Steller sea lions that move between the western and eastern Steller sea lion 

stock boundaries, which calls into question the assertion in the BiOp that there 

is no cross-migration between the two stocks. 

4.The case for restrictions for Pacific cod as an important prey species for Steller 

sea lions in the western Aleutians is tenuous at best and the basis for its inclusion in the Reasonable and Prudent Alternatives and interim final rule is unjustified. Information available to assess sea lion diets in the western Aleutians 

is extremely limited. Only 46 total scat (feces) samples are available, and within that limited sample, 94% of the scat samples collected contained no cod at 

all. Information to assess the extent of sea lion feeding ranges is also extremely 

limited. The primary justification for the expansive closures in the western 

Aleutians is the foraging behavior of 3 juvenile males, which may not be representative of all Steller sea lions, particularly adult females, the population 

component most critical for determining population trends. 

5.While it may be theoretically possible for commercial fisheries to adversely impact the prey field of Steller sea lions, the data are very inconclusive. Studies 

funded by the NMFS, but largely ignored in the BiOp, reveal that correlations 

between Steller sea lion population growth and fishing intensity over time and 

space indicate no significant relationship, much less a negative relationship. 

6.The biomass of both Pacific cod and Atka mackerel were increasing under the 

prior management regime, thus negating the need for the drastic changes implemented by the NMFS. As a result, the management measures imposed by 

the final Reasonable and Prudent Alternatives are not consistent with the most 

recent 2010 biomass estimates for either Pacific cod or Atka mackerel, which 

were not considered in the BiOp and Reasonable and Prudent Alternative analysis even though they were available before the final BiOp was signed. These 

most recent (November 2010) biomass surveys for these two species show increasing biomass in the western Aleutians, even to levels sought as targets in 

the Reasonable and Prudent Alternative. 

7.Finally, even accepting as true the false conclusion that fishing is negatively 

affecting Steller sea lions in the western Aleutians, the BiOp presented no information demonstrating that this effect is adversely modifying critical habitat 

as a whole for the western stock, as required under the ESA. 

In summary, there is simply insufficient scientific evidence to conclude that fishing is causing any nutritional stress and thus jeopardy to western Steller sea lions 

and adverse modification of their critical habitat, much less any level of effect that 

would require immediate implementation of corrective actions at this time. 

Alaska submitted extensive comments identifying these foundational science 

issues, as well as regarding issues with the process used by the NMFS to reach 

their decision. We do not believe that the NMFS adequately considered the State’s 

concerns. Instead, they strongly relied on their deference to justify their conclusions. 

In reaching their conclusion, the Service failed to conduct an independent review 

of their work, as is normally undertaken and which we believe would have highlighted these shortcomings. In fact, a subsequent independent analysis contracted 

by the States of Alaska and Washington substantiated many of the scientific concerns identified by affected users. 

Another example is the northern sea otter. In this case, the USFWS recommended 

threshold for delisting is 103,417 otters. We question whether a population of over 

100,000 sea otters is really necessary before delisting can occur. We note that the 

recovery objective for the southern sea otter is much lower (the average population 

must exceed 3,090 for three years) and appears aimed at removing the risk of near 

term extinction rather than attainment of long term recovery to some historic level 

of abundance or supportable carrying capacity. 
35 

This plan also includes an ecosystem based criteria. This criterion states that ‘‘sea 

otters must be sufficiently abundant to either maintain, or bring about, a phase shift 

to the kelp-dominated state.’’ So not only must sea otter number over 100,000, but 

kelp must be also be restored, before delisting could occur. We believe it is inappropriate to establish criteria which stipulate that listed species (in this case sea otters) 

could not be delisted, despite the fact that they had attained a desired population 

goal, unless an ecosystem goal (in this case a target level of kelp forests) is also restored. This is beyond the scope of species recovery. 

Finally, the criterion which states that ‘‘All known threats are being adequately 

mitigated’’ is problematic. All populations face a multitude of threats that potentially impact their growth rate in varying degrees throughout time. The key question is whether the overall impact of the threats in combination is negatively impacting over species viability. If the population is meeting its desired growth rate, 

the influence individual threats have is somewhat irrelevant. Inclusion of criteria 

for single threats allows such criteria to be used as de facto veteos on down- or 

delisting decisions regardless of overall population health. As such, it is inappropriate to include specific criteria for each known threat that could prevent downor delisting if overall the population is meeting stated growth rate objectives. 

In total, these recovery goals and their application raise the question as to whether recovery objectives are being set too high. Should recovery measures reflect the 

required number required to remove the risk of extinction, or be set to a number 

that represents some level of historic abundance or full recovery? Can threats ever 

be completely removed? Should recovery plans contain non-population objectives 

that must be achieved (e.g., greenhouse gas emission targets)? We believe that ESA 

recovery goals and objectives should appropriately be designed to remove the risk 

of extinction in the near future, not fully recover the population to some level of past 

abundance or supportable carrying capacity. Once the threat of extinction in the 

near term foreseeable future is removed, the species should be delisted and ESA 

protections should be removed. 

Another concern is the manner in which the two Services identify subspecies or 

Distinct Population Segments for listing under the ESA. In 1973, Congress had no 

way to predict that the genome of a several plants and animals could actually be 

mapped. We now know enough about genetics to detect even the most subtle differences between not just species, but individuals within a given species. Couple this 

knowledge with the ability to use the ESA to list ‘‘subspecies’’ and ‘‘distinct population segments’’, and every local population with slight geographic or genetic differences, or populations on the edge of the species’ range become candidates for ESA 

listing, regardless of the overall abundance of the species. 

Alaska is also concerned with how critical habitat is being designated. Following 

its decision to list the polar bear as a threatened species, the USFWS designated 

a vast area of Alaska and its offshore areas as critical habitat. The area designated 

is the largest ever designated for a species, and encompasses an area larger than 

the State of California. The habitat designated includes any place a polar bear 

might roam during its life. This is a dramatic deviation from previous critical habitat designations where specific areas of critical importance to recovery were designated. The State and others are challenging this designation as well as to what 

we believed was a serious underestimation of the economic impacts associated with 

the designation. 

With respect to the economic impacts, the USFWS’s Final Economic Impact Analysis for the critical habitat designation did not adequately consider the relevant factors as required under the ESA. Among other things, the Service specifically failed 

to adequately consider: 

• The economic impacts of the additional ESA Section 7 consultations or portions 

of consultations and project requirements and modifications that the adverse 

modification of critical habitat standard imposes; 

• The economic impact of the additional costs of litigation, project delay, project 

slippage, deferred production or closure, uncertainty and risk (The Service stated that ‘‘potential for indirect impacts, such as litigation, uncertainty, and 

project delays is real’’ but failed to analyze such impacts); and, 

• The economic impact to the oil and gas industry, construction and development, 

and commercial shipping and marine transportation. Specifically, the Final Economic Impact Analysis did not include a regional economic impact analysis of 

reduced oil and gas activity or an assessment of the economic impacts of critical 

habitat designation on commercial shipping and marine transportation. 

The area designated includes the largest areas of potential oil and gas deposits 

in the United States and are of economic importance to the State as well as of stra-
36 

tegic importance to the Nation. The designation puts the area under federal control 

and opens all permit decisions to potential litigation and delay. 

Finally, when passing the Act Congress clearly identified a unique role for states 

in all Endangered Species Act decisions. This role is contained in Section 4(i) of the 

Act. This section clearly grants states a place at the table in all Endangered Species 

Act decisions, including the application of science in these decisions. Unfortunately, 

states are not being given equal deference on science during the implementation of 

the Act. Instead, the Services are increasingly using their deference to discount 

valid questions raised by states on federal science. They are also using their deference as a basis of their defense of flawed science. We believe that states should 

have equal deference on science during all ESA decisions. 

In closing, these examples point to how recent application of the ESA has 

stretched the original intent of this well intentioned Act. We are challenging what 

we believe is unsound science application as well as unwarranted applications of the 

Act hoping to bring it back to its original intent. We believe there needs to be increased scientific rigor applied in ESA decisions. We also believe that there needs 

to be limits placed on the amount of deference granted to federal agencies in ESA 

decisions. States should have equal deference. We welcome legislation to fix the act. 

We believe reform is needed and the time is now. 

Thank you for the opportunity to speak with you. 
37 

Chairman BROUN. Thank you, Mr. Vincent-Lang. I appreciate 

your testimony. I love your State, too. I have had the opportunity 

to visit there and hunted brown bear, sheep, moose and caribou. It 

is a wonderful place. 

I now recognize our next witness, Dr. Wilkins. You are recognized for five minutes, sir. 

STATEMENT OF DR. NEAL WILKINS, DIRECTOR, 

TEXAS A&M INSTITUTE OF RENEWABLE 

NATURAL RESOURCES 

Mr. WILKINS. Mr. Chairman, Members of the Committee, thank 

you for putting attention to this important issue. 

I work as a Professor of Wildlife Science at Texas A&M University where I also direct two research institutes that are part of 

AgriLife Research and Extension, part of our Land Grant University System. I have spent much of the last 20 years dealing with 

endangered species science and endangered species conservation. 

Science and its application to conservation has progressed substantially since the Endangered Species Act first passed, which was 

in the Nixon Administration, but the Act has not had any substantial change since the Reagan Administration. Around that time, the 

Service began using science-specific information to guide the process for considering candidates to the Endangered Species List, but 

this approach was never added to the law. Therefore, the Service 

is still required to review every new listing petition within 12 

months, regardless of what we really know about the species. 

The result is the well known backlog of pending decisions, litigation, and court orders. The Service has made some strides in implementing ESA through development of habitat conservation plans, 

mitigation banking, safe harbors, and some newer market-based incentives like recovery credit systems. These innovations have 

helped advance the science for implementing the Act, but these are 

not enough. 

There are still significant barriers to the use of reliable science 

in guiding endangered species policy and decision-making. By not 

deferring to States’ efforts, we miss some important opportunities 

for more effective conservation actions than the one-size-fits-all 

protections under ESA. 

The case of the dunes sagebrush lizard provides some good lessons. In December of 2010, the Service released a proposal to list 

this species which had previously been a candidate for listing starting in 1982. The lizard’s listing proposal caught many off guard 

and created a lot of attention as the listing threatened to impact 

oil and gas development in the Permian Basin of West Texas. Our 

research group at Texas A&M quickly fielded a large team that in 

1 month collected more information on the species range in Texas 

than had been collected in the previous 40 years. Such swings in 

attention and activity occur when the program is driven by lawsuits. 

On a high note, the Endangered Species Taskforce in Texas, a 

group that was recently put together by our state legislature, 

quickly developed a conservation plan for the lizard that is now in 

the federal register for review. It shows that some of the options 
38 

for deferring ESA recovery actions to the States can make some 

sense. 

The golden-cheeked warbler is another good example of how ESA 

policy can drift unmoored from science. This songbird was believed 

to number less than 32,000 birds when it was listed as endangered 

in 1992. Our recent surveys across private ranchlands in 35 counties in Texas demonstrated that there were likely greater than 

200,000 males of this species in its breeding range. This new information differs widely with what is currently in the official record, 

so there is some real resistance to making decisions on this new 

information as it could pose a risk for a lawsuit. 

The deadline-driven process often requires the Service to use 

some unreliable information that is presented in a petition as bestavailable science. And once that information is on the official 

record, it is tough to counter when scientists finally generate better 

information on the species. 

As we have seen in the case of Rocky Mountain wolves and other 

species, it is possible to recover species biologically and fail to acknowledge this bureaucratically because the law is in the way. 

There are at least four things we can do about this. 

Number one, we need to require a standardized, independent 

peer review of scientific information used in the listing process. 

Current peer reviews are inconsistent and really not independent. 

With adequate peer review, we might avoid locking in on whatever 

information is available at the time as persistent truth regardless 

of its quality or subsequent discoveries. 

Second, we can clear the backlog of listing petitions by authorizing the ESA listing process to work according to a science-based 

priority system instead of a 12-month deadline. Twelve-month 

deadline means the Service will often accept speculation and other 

unreliable information as best science. A science-based priority system would return these decisions to field science and an open public process. 

As a third recommendation, we can separate the listing and recovery functions of the ESA by delegating recovery planning to the 

States as an option. 

Finally, you can incentivize species recovery by linking the 

delisting process to reaching recovery goals. Recovery goals mean 

something and they ought to be acted upon. 

This remains an important topic and deserves some action. I 

thank you again for giving it your attention. 

[The prepared statement of Mr. Wilkins follows:] 

PREPARED STATEMENT OF DR. NEAL WILKINS, DIRECTOR, 

TEXAS A&M INSTITUTE OF RENEWABLE NATURAL RESOURCES

Chairman Broun, Ranking Member Edwards, and Members of the Subcommittee, 

my name is Neal Wilkins. I am director of the Texas A&M Institute of Renewable 

Natural Resources and the Texas Water Resources Institute. I am also a Professor 

of Wildlife Science at Texas A&M University. Thank you for the opportunity to appear before you today to emphasize the importance of using more reliable science 

in the implementation of the Endangered Species Act. Before joining the faculty of 

Texas A&M in 1998, I spent six years directing the endangered species and environmental compliance programs for a large private forest landowner in the Pacific 

Northwest. For much of my career—and specifically in the past two decades—I have 

worked to apply science to endangered species issues. 
39 

1For a discussion, see Wilkins, N. 2011. ‘‘Improving the ESA’s Performance on Private Lands’’ 

in Rebuilding the Ark: New Perspectives on Endangered Species Act Reform, ed. J.H. Adler. The 

AEI Press, Washington, D.C., 56–80. 

Working through Texas AgriLife Research, our Texas A&M scientists are deeply 

engaged in research and monitoring of ESA-listed species and the candidates for 

such listing. Under contract from the U.S. Fish & Wildlife Service, my team has 

performed the science assessments for rangewide status reviews for golden-cheeked 

warblers and black-capped vireos. Our scientists have long-term research projects 

on species ranging from endangered Key deer in Florida to willow-flycatchers in the 

desert Southwest. We lead large multi-stakeholder efforts to provide for the conservation and recovery of species that depend upon the Edwards Aquifer for their 

survival while simultaneously providing reliable water supplies for San Antonio, 

Texas. Over the past year, our science group expanded ranks to include a team of 

freshwater mussel specialists that is already doing groundbreaking science on several species that are proposed for listing throughout the streams and river systems 

of Texas. We also have a research team that leads the research and monitoring efforts for the dunes sagebrush lizard—a species whose proposed listing as endangered and its potential implications for oil and gas development, became a subject 

of widespread national media coverage throughout this summer. This work keeps 

me constantly engaged in the space between science, policy and decision-making for 

managing related to the ESA. 

Using science to conserve species has become more difficult over the last 20 years 

because although science and management have improved, the Endangered Species 

Act has not been updated. The last major change to ESA was the addition of the 

experimental population designation, which allowed the specific science for a species 

to guide its reintroduction. Around that same time, the Service began using speciesspecific science to guide the process for considering adding new species to list, but 

this approach has never been added to the law. Therefore, the Service is still required to review every potential new listing within 12 months regardless of the specifics of what we know about the species. The result is the well-known backlog of 

pending decisions, litigation, and court orders. 

During the last 20 years, the Service has made great strides in considering the 

specific science of land management by entering into Habitat Conservation Plans. 

But, for lack of changes to ESA, the Service has not been able to apply this same 

approach to evaluating the conservation efforts of states, even when those state efforts are more effective and less costly than one-size-fits-all protections under ESA. 

Applying good science to endangered species issues has always been tough, but 

it seems to be getting tougher. The U.S. Fish & Wildlife Service faces some steep 

challenges in its lead role in administering the Endangered Species Act. Lawsuits 

and threats of lawsuits cause agency staff to be constantly on-guard, and this affects 

the administration of the ESA at all levels. For managing endangered species 

issues, the Service is now forced to focus so much on process and procedure that 

the use of reliable science has suffer. In my testimony today, I want to focus briefly 

on three interrelated topics: 

• Barriers to collecting reliable information on species status 

• Inadequate scientific information used for listing decisions 

• Inconsistent use of peer-reviewed science for ESA decision-making 

I will conclude with some recommendations for a fresh look at some reforms that 

would improve the use of science in guiding ESA policy and decision-making. 

Barriers to collecting reliable information on species status. 

In its annual report to Congress, the Service describes the status of species listed 

under ESA as stable, declining, or improving. For the reports from 1988 to 2002, 

it did not have information to assess status for about 40% of the species listed. 

Much of this information could be collected, but is not, because of denied access of 

scientists to private lands. Many private landowners simply fear that allowing scientists to access their property for endangered species surveys could create a regulatory burden and constrain their economic land use. And they have a good point— 

the threat. 1

How do we get beyond this? With some of our work, we have created data confidentiality agreements so that site-specific information we collect is not made public. These data confidentiality agreements have created some disputes with individual Service biologists and groups that would like to know about site-specific endangered species information—but by protecting this information we have been able 

to access millions of acres of private lands for scientific information that would have 
40 

otherwise not been collected. We are able to report the overall results of our work— 

it is only the detailed locations of site-specific information that remains confidential. 

The dunes sagebrush lizard. In December, 2010 the Service issued a proposed 

rule to list the dunes sagebrush lizard as endangered. This lizard is a habitat 

specialist that lives only in sand dune outcrops dominated by shinnery oak 

(a low-growing species of oak). For the lizard’s four county range in West 

Texas, it was known to recently occur at only three locations. After the proposed listing, we conducted an intensive three to four week systematic survey 

of available habitats in Texas, resulting in an additional 28 locations for the 

species—most of which were previously undocumented. The collection of 

these data required our research crew of 14 wildlife biologists to get access 

to numerous private ownerships. Very few of those property owners would 

have allowed access if, in fact, we had not been able to provide them with 

some confidence that we would not release site-specific information from 

their property to the U.S. Fish & Wildlife Service. 

This lizard has been considered a candidate for ESA listing since 1982. The fact 

that more scientific information was collected in a 3–4 week period than in the previous 39 years speaks volumes about the barriers to encourage the collection and 

use of good science. 

The Texas surveys were actually funded by members of the Texas Oil & Gas Association once they realized that scientific information could drive the development of 

a Texas Conservation Plan for the species. The Texas Conservation Plan for the 

dunes sagebrush lizard, prepared by an Interagency Task Force on Economic Growth 

and Endangered Species, is a serious conservation effort that conserves important 

habitats while allowing for greater regulatory certainty for oil and gas development 

as well as agricultural land use. Participants in the plan hope that it will either 

help avoid the species’ listing or support an incidental take permit if the species is 

eventually listed. While the dune sagebrush lizard is not yet listed, the plan nevertheless provides for contributions to species recovery throughout the species’ range 

in Texas. This is an excellent example of a state-level action that is likely to result 

in a net conservation benefit to the species and provide some tangible benefits to 

the plan’s participants should the species actually become listed. 

There are two additional lessons illustrated here: 

1. By instituting some simple reforms that allow separation of site-specific data 

from regulatory oversight, we could make huge long-term gains in collecting 

the scientific information needed to adequately assess species status. 

2. When given the incentive, the state-based groups can work directly with affected property owners, industry, conservation groups and other public agencies to create conservation plans that get buy-in from a wide range of stakeholders. 

Inadequate scientific information used for listing decisions. 

A determination that a species is warranted for threatened or endangered status 

under ESA—a ‘‘listing’’ decision—is supposed to be based entirely on scientific 

merit. There are times when the bright line of scientific merit is not as clear as it 

sounds. This stems from two main reasons. First, when it comes to gaining reliable 

knowledge about rare species, the science does not always lead to consensus. In 

other words, real science and real scientists can legitimately disagree. Over time, 

the scientific process tends to solve these disagreements. The second reason is that 

decisions can be made on material that is selective or intentionally slanted to make 

a case for a particular decision—this can be the case when special interest groups 

submit information. 

Treating pre-existing information as authoritative science. Once a decision for 

listing a species is made, there is enormous resistance to reconsidering any of 

the ‘‘best available science’’ used to make the original decision. For many species, the information presented in the original status review is more influential 

than information later gathered, even if the later information is of higher quality. There are several reasons for this, one being that any new scientific evidence that might challenge or question the existing status of a species may require a large bureaucratic response. Information published as part of the original listing petition tends to have a strong incumbent advantage over any new 

information that might challenge the basis for a prior decision—this is not how 

science is supposed to work. 

The golden-cheeked warbler. When it was listed as endangered in 1992, the 

golden-cheeked warbler was thought to have been reduced to a population size 

of less than 32,000 individuals. Most of the species’ potential breeding habitat 
41 

2For a discussion see McCleery, R.A., R.R, Lopez, N.J. Silvy. 2007. Transferring research to 

endangered species management. Journal of Wildlife Management. 71(7):2134–2141. 3Federal Register Vol. 76, No. 187:59836–59862 

is on private lands across 35 counties in central Texas. Until recently, there 

had been no systematic surveys to determine species status across private 

ranchland. Beginning in 2008, researchers from Texas A&M began a systematic 

survey to estimate the species’ population. Using confidentiality agreements 

with private ranchers, this research team accessed hundreds of private ranches. 

The surveys of suitable habitat and succeeding analyses demonstrated that 

there were likely more than 200,000 male golden-cheeked warblers across the 

species’ breeding range. 

This effort demonstrated the flaws in the original information used to support 

listing of the golden-cheeked warbler. As you might expect, the results were 

controversial. Even though some of the results had already been accepted for 

peer-review publication, the U.S. Fish & Wildlife Service required an independent peer-review process to determine if the work could be considered ‘‘best 

available science.’’ Our researchers involved in this work are well-published 

and serious scientists who focus their efforts on experimental design, survey 

methodology, statistical analyses, and interpretation of results to gain more reliable knowledge of species status, ecology, and management implications—so 

they welcomed the peer review. 

Even following a largely positive peer review, there continues to be some resistance by the Service to using the new information on golden-cheeked warblers. 

There is external pressure on the Service to discredit the new information, and 

it is likely that any decision to reconsider the endangered status of goldencheeked warblers would result in a lawsuit. Status reviews, compliance, consultation and recovery programs for individual species are generally managed 

by a small group of staff biologists who work closely together. The threat of 

controversy, increased scrutiny, and lawsuits can put a chill of resistance to accepting new scientific evidence that challenges the basis for previous decisions. 2

Decoupling some of the functions under ESA administration would likely result 

in less entrenchment and more reliable use of new science for endangered species management. 

Incumbent information in an overburdened system. The listing process has recently been driven by large multi-species petitions and legal action from advocacy groups seeking multiple listings. This flood of listing petitions eliminates 

efforts by the Service to conduct a rational science-driven process for 

prioritizing listing decisions. In evaluating the scientific evidence for these listings, the Service tends to simply accept the information as presented, particularly when evaluating the petitions for little-known and cryptic species. Consider this example from a recent 90-day finding from the petition seeking a listing decision on over 400 species in the southeastern US. 

‘‘Due to the large number of species reviewed, we were only able to conduct 

cursory reviews of the information in our files and the literature cited in the 

petition. For many of the narrowly endemic species included in the 374 species, we had no additional information in our files and relied solely on the 

information provided in the petition and provided through NatureServe.’’ 3

When information like this is published in a 90-day finding, it is more likely 

to find its way into a 12-month status review and ultimately become part of 

the foundation for a listing proposal. This is another case of pre-existing information gaining undeserved authority simply because it was all that could be 

used at the time, not because it was reliable. 

Using speculation as best available science. At times, what is presented as ‘‘best 

available science’’ is not always good enough for decision-making. This is certainly the case when speculation is mistaken for good science. When listing decisions are driven by the petition process, the speculations of scientists are 

often used to support the petition. 

The recent 12-month finding for five species of freshwater mussels that live in 

the rivers and streams of central Texas provides a good example of the use of 

speculation as best available science. The bulk of the information used to support the petition—and ultimately used to support the finding—originated from 

a collection of un-reviewed agency reports. While these reports did contain 

some valuable information, they lacked standard detail on methods for data collection and they reported mainly on opportunistic surveys at bridge sites and 
42 

reservoirs. The reports made observations and offered speculation on why certain species might be absent from a site—these speculations, once cited in the 

petition, were then interpreted as fact in the 12-month finding. These species 

of freshwater mussels may have indeed suffered reductions and might actually 

deserve a determination of endangered—but the current record relies on speculation that may turn out to be unreliable. Scientists speculate about cause and 

effect all the time—this is part of the scientific process. Speculation is how 

hypotheses are posed; and those hypotheses are then tested by collecting data. 

But treating speculation as science is a mistake—and it weakens the credibility 

of ESA determinations. 

Inconsistent use of peer-reviewed science for ESA decision-making 

By subjecting their methods, results and conclusions to the scrutiny of other experts in the field, scientists maintain standards and ultimately improve the reliability of their findings. Reliable information for many species is often scarce, lacking, contradictory and/or not easily interpreted. The only remedy is subjecting status 

reviews to an independent, more consistent, and transparent expert peer-review. 

Status reviews that support listings and other ESA decisions should be developed 

using reliable information—some of which may be from peer-reviewed science. 

Too often, the ‘‘science’’ included in citizen listing petitions is directly relied upon 

in the 90-day findings and is then codified as ‘‘fact’’ by the time the 12-month review 

is completed. The 12-month reviews are sometimes subjected to ad hoc and informal 

peer reviews that may amount to no more than an email distribution of the document with informal comments received. This would not pass as an independent 

peer-review process in any other situation. 

Conclusions 

In conclusion, the effectiveness of the ESA could be improved through improving 

the use of science. Specific reforms that could insure better use of science include: 

• Require a standardized independent peer-review of scientific information used in 

the listing process. The science for inclusion in the 12-month status review deserves the greatest scrutiny; and it is that information that tends to gain a special status once published in the federal register. There has been recent action 

by the Service to conduct peer-review. The current peer reviews are not independently administered; and they tend to ignore the biggest question of all: Is 

the available science substantial enough to support a decision? 

• Clear the backlog of multi-species listing petitions by authorizing the ESA listing 

process to work according to science-based priority system instead of a 12-month 

deadline. The requirement to decide on each petition within 12 months often 

forces the Service to accept substandard scientific information or disregard species that are a higher priority. Such a deadline also forces listing decisions into 

the courts. A science-based priority system would return these decisions to field 

science and an open public process. 

• Separate the listing and recovery functions of the ESA by delegating recovery 

planning to the states as an option. This separation would create an incentive 

to drive recovery programs with the most reliable science and policy innovations, supporting a more effective recovery effort. This would also remove some 

barriers blocking access to private lands thus increasing the amount of information available for informing recovery actions 

• Incentivize species recovery by linking the delisting process to reaching recovery 

goals. This would accelerate the recovery process and provide additional incentives for research and monitoring efforts that could contribute to the sciencebase for listed species. 

In the end, if the ESA is to meet its goals there will need to be reforms that result 

in more appropriate use of reliable science to inform policy. 

Thank you for the opportunity to speak with the Committee about this important 

topic. 
43 

Chairman BROUN. Thank you, Dr. Wilkins. As a Georgia Bulldog, 

I want to welcome you and Texas A&M to the SEC. 

Mr. WILKINS. We hope to do well in there. 

Chairman BROUN. Welcome. Join the toughest football league in 

the country. 

Mr. WILKINS. Yes, sir. 

Chairman BROUN. Mr. Adler, you are recognized for five minutes. 

STATEMENT OF MR. JONATHAN ADLER, PROFESSOR, 

CASE WESTERN RESERVE UNIVERSITY SCHOOL OF LAW 

Mr. ADLER. Thank you, Mr. Chairman, Congresswoman Edwards, and Members of the Subcommittee, for the invitation to testify this morning regarding the nexus of science and policy under 

the Endangered Species Act. 

I have submitted a longer written statement for the record and 

I want to stress two key points in my oral remarks. First, it is important to distinguish between questions of science and questions 

of policy. And second, the Act itself puts undue pressure on scientific inquiry. If we are concerned about scientific integrity in conservation decision-making, we have to do something about the 

structure of the Act and the pressures it puts upon scientific decision-making. 

As to the first point, the political debate over the use of science 

under the Endangered Species Act tends to obscure the dividing 

line between science and policy, and as a consequence, undermines 

the development of more effective and equitable conservation strategies. Species conservation efforts are heavily dependent upon 

science. Biological research is necessary to inform species conservation decisions, but species conservation is not and indeed cannot be 

a purely scientific exercise. Whether a given species is at risk of extinction may be a scientific question but what to do about it is not. 

The likelihood that habitat loss or the introduction of an invasive 

species will compromise a species’ chance of survival in the wild is 

a question that can be answered by science. 

On the other hand, how we should interpret incomplete or ambiguous data, what conservation measures to adopt to address 

threats to a given species, and at what cost, are policy questions. 

Science can and indeed must inform all such inquiries, but science 

alone does not tell us what to do and we don’t serve the goals of 

species conservation when we pretend otherwise. Debates over conservation policy are often dressed up as debates over conversation 

science, and this hampers our ability to reach policy consensus and 

obscures what is really at stake. 

Where science is used, it is important to ferret out instances of 

real scientific misconduct and science politicization. Agency personnel and others should not be permitted to distort or misrepresent scientific findings, whatever the purpose. And when true 

science abuse occurs, it should be exposed and corrected and those 

responsible should be disciplined, but it is also important to understand that not all disputes over science-related questions are truly 

disputes about science. And further, it is important to understand 

how the structure of the Act itself contributes to the politicization 

and manipulation of science and how it creates incentives that 

compromise the scientific integrity of conservation decisions. 
44 

It is now widely recognized and well documented that the Endangered Species Act itself creates perverse incentives that discourage 

species conservation, particularly on private land. What is less well 

understood is that these same provisions in the Act, the same regulatory structures places pressure on science and can discourage the 

discovery and collection of needed scientific information about potentially imperiled species, again, particularly on private land. 

Just as the threat of land-use regulation discourages the creation 

or maintenance of species habitat, the threat of such regulation discourages private landowners from disclosing information and cooperating with scientific research on their land. Landowners are increasingly reluctant to allow biologists and other researchers onto 

their land to survey species populations and conduct other research 

out of fear of regulatory constraints that could follow the discovery 

of a rare animal or plant. 

Yet information about the location and status of species populations is essential to the development of effective species recovery 

plans. The lack of more complete data on endangered species and 

their habitat greatly complicates species conservation efforts. Yet 

the Act itself compromises our ability to know which species are in 

most need of help and where they may be most endangered, and 

the Act itself often causes us to know far less about a species than 

we should before adopting regulatory measures or other constraints 

on productive economic activity. 

And this is a particularly severe problem because we know that 

the vast majority of species that are listed rely upon private land 

for habitat. And so the Act is discouraging our ability to know what 

species are on private land and what condition they are in. The Act 

itself is tying one hand behind our back in dealing with the majority of species that we are concerned about. And this is particularly 

important because we have what economists refer to as an information asymmetry. Private landowners are in a much better position 

to know what is on their land and what condition it is in than biologists, the Fish and Wildlife Service, or research universities. If 

they can’t work together and if the Act discourages them from 

working together, we will have a hard time developing conservation 

plans and environmental strategies that will actually work. 

It is the structure of the Act that does this, just as it is the structure of the Act that makes scientific judgments such as the decision 

to list a species extremely consequential. When you list a species, 

certain regulatory measures kick in automatically and can form the 

basis of private citizen suits to force additional regulatory controls, 

and as a consequence, warring factions devote substantial resources to influencing scientific outcomes. This makes science 

abuse and politicization all but inevitable. 

Safeguarding science requires statutory reforms that will insulate scientific judgments from policy decisions and lower the stakes 

of listing decisions. More broadly, we need to make saving endangered species more important than saving the Endangered Species 

Act as it is currently written. 

Thank you again for the opportunity to present my views on this 

important subject, and I am willing to answer any questions this 

Committee may have. Thank you. 

[The prepared statement of Mr. Adler follows:] 
45 

PREPARED STATEMENT OF MR. JONATHAN ADLER, 

PROFESSOR, CASE WESTERN RESERVE UNIVERSITY SCHOOL OF LAW

Thank you, Mr. Chairman and Members of this Subcommittee, for the invitation 

to testify regarding the nexus of science and policy under the Endangered Species 

Act. My name is Jonathan H. Adler, and I am the Johan Verheij Professor of Law 

and Director of the Center for Business Law and Regulation at the Case Western 

Reserve University School of Law, where I teach several courses in environmental, 

administrative, and constitutional law. 

I particularly appreciate the opportunity to testify today about the Endangered 

Species Act (ESA). I have researched and written on environmental law and policy 

for over twenty years, and have conducted a significant amount of research on the 

ESA and species conservation generally. My work on the ESA includes an awardwinning article, Money or Nothing: The Adverse Environmental Consequences of Uncompensated Land-Use Controls, 49 BOSTON COLLEGE LAW REVIEW 301 (2008), 

and a recently published book, Rebuilding the Ark: New Perspectives on Endangered 

Species Act Reform (AEI Press, 2011). I’ve drawn upon this work in preparing this 

testimony. 

The ESA is among the nation’s most important and powerful environmental laws. 

It is also a source of great conflict and controversy. There is little question that species conservation is an important and worthwhile endeavor. Regrettably, there are 

many reasons to question whether the ESA effectively serves that goal. The Act has 

likely helped prevent some species from going extinct, but the Act endeavors to do 

more. There is very little evidence the Act helps species recover from the brink of 

extinction and increasing evidence that the ESA itself creates incentives that undermine sound environmental stewardship and politicize scientific inquiry. 

The listing of individual species, the designation of critical habitat and the implementation of conservation measures often prompt fierce legal and political battles. 

Sound science is often a casualty in these conflicts as the combatants twist and manipulate the available scientific evidence to support predetermined policy preferences. Activists on all sides claim that ‘‘sound science’’ supports their respective 

positions, and scoff at the ‘‘junk science’’ relied upon by the other side. In actual 

fact, what often divides the respective camps is not a devotion to science, but sharply divergent policy preferences dressed up in scientific garb. The political debate 

over the use of science under the ESA tends to obscure the dividing line between 

science and policy and undermines the development of more effective and equitable 

conservation strategies. 

Species conservation efforts are heavily dependent upon science. Biological research is necessary to inform species conservation decisions. But species conservation is not—and cannot be—a wholly scientific exercise. Whether a given species is 

at risk of extinction may be a scientific question, but what to do about it is not. 

The likelihood that habitat loss or the introduction of an invasive species will compromise a species chance of survival in the wild is a question that can be answered 

by science. On the other hand, what conservation measures should be adopted to 

address such threats, and at what cost, are policy questions. Whether reducing the 

chance that given species of fish will go extinct is worth limiting water use or imposing other regulatory controls is not a question science can answer. Science can—indeed, must—inform such inquiries, but science alone does not tell us what to do. 

Nonetheless, debates over conservation policy are often dressed up as debates over 

conservation science, hampering our ability to reach policy consensus and obscuring 

what is really at stake. 

The addition of an imperiled species to the list of endangered and threatened species should be a relatively routine matter driven by scientific considerations. Unfortunately it is not. A proposal to list a species often signals the onset of fierce political and administrative battles in which true scientific concerns are subordinated to 

policy objectives. One reason for this is that the scientific determination that a given 

species is threatened or endangered triggers non-discretionary regulatory requirements. Therefore, the surest way to control a policy outcome is to control the 

science. Activists on all sides recognize this fact, which is why activists spend so 

much time trying to influence the scientific conclusions. 

It is important to ferret out instances of scientific misconduct and science 

politicization. Agency personnel should not be permitted to distort or misrepresent 

scientific findings, whatever the purpose. The ends of species conservation and environmental protection do not justify distorting scientific inquiry. Nor does a desire 

to alleviate the regulatory burdens faced by landowners, businesses, and workers in 

resource-dependent industries. When science abuse occurs, it should be exposed and 

corrected, and those responsible should be disciplined. But it is also important to 

understand how the structure of the Act contributes to the politicization and manip-
46 

1 Martin B. Main, Fritz M. Roka, and Reed F. Noss, Evaluating Costs of Conservation, 13 

CONSERVATION BIOLOGY 1263 (1999). 2 Id. at 1265. 3 Betsy Carpenter, ‘‘The Best-Laid Plans,’’ U.S. News & World Report (Oct. 4, 1993), at 89. 4See Dean Lueck and Jeffrey Michael, Preemptive Habitat Destruction under the Endangered 

Species Act, 46 JOURNAL OF LAW AND ECONOMICS 27 (2003). 5See Daowei Zhang, Endangered Species and Timber Harvesting: The Case of Red-Cockaded 

Woodpeckers, 32 ECONOMIC INQUIRY 150 (2004). 

ulation of science and creates incentives that compromise the scientific integrity of 

conservation decisions. 

It is now widely recognized that the ESA creates perverse incentives that can discourage species conservation on private land. What is less well understood is that 

the same regulatory provisions of the act can discourage the discovery and collection 

of needed scientific information about potentially imperiled species, particularly on 

private land. 

The reason the ESA creates perverse incentives against species conservation is 

that the Act effectively penalizes the owners of land upon which endangered species 

depend. Under Section 9 of the act, it is illegal for a private landowner to engage 

in activities that could ‘‘harm’’ an endangered species, including habitat modification, without first obtaining a federal permit. Knowing violations can lead to fines 

of up to $25,000 and even jail time. As a practical matter, the law requires private 

landowners to obtain permission from the FWS before modifying endangered species 

habitat on their own land. 

Such regulations can reduce private land values and antagonize private landowners who might otherwise cooperate with conservation efforts. Writing in Conservation Biology, a group of wildlife biologists observed that ‘‘the regulatory approach to conserving endangered species and diminishing habitats has created anticonservation sentiment among many private landowners who view endangered species as economic liabilities.’’ 1 They further explained: 

Landowners fear a decline in the value of their properties because the ESA restricts future land-use options where threatened or endangered species are found 

by makes no provisions for compensation. Consequently, endangered species are 

perceived by many landowners as a financial liability, resulting in 

anticonservation incentives because maintaining high-quality habitats that harbor or attract endangered species would represent a gamble against loss of future opportunities. 2

As the late Sam Hamilton, former Director of the Fish & Wildlife Service, observed in 1993, when he oversaw FWS efforts in Texas: ‘‘The incentives are wrong 

here. If I have a rare metal on my property, its value goes up. But if a rare bird 

occupies the land, its value disappears.’’ 3

The effect of the ESA on private landowners, and the incentives it creates, are 

important because a majority of listed species rely upon private land for some or 

all of their habitat. In some cases, such regulations may even encourage landowners 

to destroy or degrade potential habitat on their land. It is not illegal to modify land 

that might become endangered species habitat some day in the future, nor are landowners required to take affirmative steps to maintain endangered species habitat. 

There is increasing empirical evidence that the perverse incentives created by the 

ESA are undermining species conservation efforts and compromising scientific inquiry. Several recent empirical studies document how the ESA undermines effective 

conservation on private land. One study found that private landowners engage in 

preemptive habitat destruction when the presence of endangered red-cockaded 

woodpeckers places landowners at risk of federal regulation and a loss of their timber investment. 4 Providing habitat for a single woodpecker colony could cost up to 

$200,000 in foregone timber harvests. To avoid the loss, those landowners at greatest risk of restrictions were most likely to harvest their forestlands prematurely and 

reduce the length of their timber harvesting rotations. The ultimate consequences 

of this behavior were potentially significant in that it resulted in a loss of several 

thousand acres of woodpecker habitat, a major habitat loss for a species dependent 

upon private land for its survival. 

A second study involving the red-cockaded woodpecker similarly found that ‘‘regulatory uncertainty and lack of positive economic incentives alter landowner timber 

harvesting behavior and hinder endangered species conservation on private lands.’’ 5

This study further found that ‘‘a landowner is 25% more likely to cut forests when 

he or she knows or perceives that a red-cockaded woodpecker cluster is within a 

mile of the land than otherwise.’’ This study concluded that ‘‘the ESA has a strong 
47 

6See Amara Brook et al., Landowners’ Responses to an Endangered Species Act Listing and 

Implications for Encouraging Conservation, 17 CONSERVATION BIOLOGY 1638 (2003). 7Stephen Polasky & Holly Doremus, When the Truth Hurts: Endangered Species Policy on Private Land with Imperfect Information, 35 JOURNAL OF ENVIRONMENTAL ECONOMICS 

AND MANAGEMENT 41 (1998). 8 Brook, et al. 

9See Jason F. Shogren, Rodney B. W. Smith, & John Tschirhart, ‘‘The Role of Private Information in Designing Conservation Incentives for Property Owners,’’ in Species at Risk: Using 

Economic Incentives to Shelter Endangered Species on Private Lands 217 (Jason F. Shogren ed., 

2005) (noting that ‘‘imperfect information’’ complicates conservation efforts). 10See, e.g., Deborah Dawson & Jason Shogren, An Update on Priorities and Expenditures 

under the Endangered Species Act, 77 LAND ECONOMICS 527 (2001); Andrew Metrick & Martin L. Weitzman, Conflicts and Choices in Biodiversity Preservation, 12 JOURNAL OF ECONOMIC PERSPECTIVES 21 (1998). 

negative effect on the habitat’’ of the red-cockaded woodpecker and the effect appears to be substantial. 

The perverse incentives of the ESA unfortunately do not only affect the woodpeckers and other species dependent upon private timberland. A third study published in Conservation Biology found that listing a species could discourage landowners from participating in conservation efforts. 6 Based on surveys of private owners of habitat for the Preble’s Meadow jumping mouse, this study found that a substantial percentage of landowners would respond to a species listing by making their 

land less hospitable for it, and that ‘‘the efforts of landowners who acted to help the 

Preble’s were cancelled by those who sought to harm it.’’ This led the study’s authors to conclude that ‘‘as more landowners become aware that their land contains 

Preble’s habitat, it is likely that the impact on the species may be negative.’’ 

These studies, combined with numerous anecdotal accounts, taken together, provide powerful evidence that the ESA has the potential to discouraging species conservation on private land. Worse, they suggest that the net effect of the ESA on private land could be negative. Recent administrations have sought to offset these effects through various cooperative conservation programs designed to encourage voluntary conservation efforts and provide landowners with greater regulatory certainty. Insofar as these initiatives have been effective, however, they have effectively deactivated the ESA’ regulatory provisions. 

The punitive nature of the ESA’s restrictions on private land not only undermine 

conservation, they also appear to be undermining the science upon which successful 

species conservation efforts depend. This occurs in two ways. First, landowners are 

increasingly resistant to allowing biologists and others onto their land to conduct 

research, survey species populations and the like out of fear that regulatory constraints could follow the discovery of a rare animal or plant. Second, because the 

listing of a species as endangered automatically triggers regulatory consequences, 

there are substantial stakes up for grabs when a listing decision is made, leading 

to efforts to control the outcome, without regard for the science. 

Just as the threat of land-use regulation discourages the creation or maintenance 

of species habitat, the threat of regulation discourages private landowners from disclosing information and cooperating with scientific research on their land. 7 The 

aforementioned Conservation Biology study of the effect of listing the Preble’s Meadow jumping mouse on landowner behavior found that more landowners would refuse 

to give biologists permission to conduct research on their land to assess mouse populations, out of fear that land-use restrictions would follow the discovery of a mouse 

on their land, than would allow such research. 8 Yet information about the location 

and status of species populations is essential to the development of effective species 

recovery plans. The lack of more complete data on endangered species and their 

habitat greatly complicates species conservation efforts. 9 This, again, is a particularly severe problem because so many endangered and threatened species rely upon 

private land. Due to information asymmetries, if private landowners do not allow 

researchers on their land, important scientific information about potentially imperiled species may never be discovered. 

The structure of the ESA also creates tremendous pressure to twist or distort scientific research. The decision to list a species can have substantial regulatory consequences. The ESA may require that decisions to list endangered and threatened 

species are determined by the ‘‘best available’’ scientific evidence. Yet there is ample 

empirical evidence that political and other non-scientific factors influence listing decisions. Species that were more ‘‘charismatic’’—that is that are more ‘‘warm and 

fuzzy’’ and those more politically popular—were more likely to be listed and to receive funding. 10 Other recent studies have found that the political and environmental attitudes of legislators on relevant congressional committees appear to influ-
48 

11See, Bonnie Harllee, Myungsup Kim, and Michael Nieswiadomy, Political Influence on Historical ESA Listings by State: A Count Data Analysis, 140 Public Choice 21 (2009). 12See Barton H. Thompson, Jr., The Endangered Species Act: A Case Study in Takings and 

Incentives, 49 STANFORD LAW REVIEW 315, 350 (1997). 13See Amy Whritenour Ando, Waiting to Be Protected under the Endangered Species Act: The 

Political Economy of Regulatory Delay, 42 JOURNAL OF LAW AND ECONOMICS 52 (1999) 14 See Amy Whritenour Ando, Economies of Scope in Endangered-Species Protection: Evidence 

from Interest Group Behavior, 41 Journal of Environmental Economics and Management 312 

(2001); see also Amy Whritenour Ando, Do Interest Groups Compete? An Application to Endangered Species, 114 PUBLIC CHOICE 137 (2003) (finding interest group involvement in species 

listings increases with the expected costs and benefits of such listings). 15See Ando, Waiting, at 34 (‘‘Long delay in the addition of a species to the endangered species 

list can reduce the likelihood that the species will escape extinction; species have even been 

thought to have become extinct while waiting for final action from the agency. Thus, delay diminishes the benefits of a listing. It also reduces the costs.’’). 16Quoted in Ike C. Sugg, Caught in the Act: Evaluating the Endangered Species Act, Its Effects 

on Man and Prospects for Reform, 24 CUMBERLAND LAW REVIEW 1, 53, n335 (1993). 17See Marco Restain and John M. Marzluff, Funding Extinction? Biological Needs and Political Realities in the Allocation of Resources to Endangered Species Recovery, BIOSCIENCE (Feb. 

2002), at 175. 18Katrina Miriam Wyman, Rethinking the ESA to Reflect Human Dominion Over Nature, 17 

NYU ENVIRONMENTAL LAW JOURNAL 490, 497 (2008). 19 Id. at 496. 

ence listing decisions as well. 11 These findings should not surprise. Listing decisions 

can force the federal government to adopt various regulatory measures with significant economic consequences. With so much at stake, it would be surprising if political and other factors did not influence listing decisions. 

Given the structure of the ESA, various interest groups seek to manipulate the 

listing process so as to trigger or preempt the imposition of land-use restrictions. 

Property owners who own potential habitat for a given species are likely to oppose 

listing of the species so as to prevent regulation of their land. 12 Opponents of development are likely to take the opposite view. Interest group activity also appears to 

influence how quickly species move through the ESA listing process. 13 Interest 

group opposition to species listing proposals increases as listings threaten development. 14 At the extreme, this has produced incentives to manipulate the scientific 

evidence supporting species listing. 

Delay in the listing of a species can benefit those landowners and economic interests would have borne the costs of the ESA’s regulatory limitations. At the same 

time, it can be harmful to conservation. 15 Delay in listing a species increases the 

opportunity for landowners to respond to the perverse incentives created by the Act. 

It also deprives biologists, environmental groups, conservation-minded landowners, 

and others of the information that a given species is in need of assistance if it is 

to survive. 

Groups opposing development or resource extractive industries also have an incentive to manipulate the listing process and identify potentially endangered species 

that can serve as a proxy for their other goals. Environmentalist groups have acknowledged that some species listings are sought out of a desire to control land use. 

For example, Andy Stahl of the Sierra Club Legal Defense Fund acknowledged that 

‘‘the ultimate goal’’ of litigation to list the northern spotted owl was ‘‘to delay the 

harvest of old growth forests so as to give Congress a chance to provide specific statutory protection for those forests.’’ According to Stahl, the owl was a ‘‘surrogate’’ 

that could ensure ‘‘protection for the forests’’ under the ESA. 16 The spotted owl litigation was not without its environmental costs, however. In order to respond to environmentalist lawsuits, the FWS was forced to divert resources from more pressing 

needs, compromising overall recovery efforts. 17 This does not appear to be an isolated instance, as the pattern of environmentalist litigation challenging FWS listing 

decisions does not appear to align with species conservation priorities. 

Insofar as such litigation sets listing priorities, it threatens to divert resources 

away from those species most in need. According to the FWS, it has spent ‘‘essentially all’’ of its listing appropriations on litigation-related and administrative 

costs. 18 As Professor Katrina Wyman of NYU has explained, ‘‘the FWS has lost control over the listing process as decisions about whether to list species are largely 

made in response to citizen petitions for listing and litigation.’’ 19 Both environmentalist groups and development interests wage legal wars over the listing and 

delisting of individual species as a proxy for fights over policy and regulatory priorities. 

The ESA’s current regulatory structure both discourages conservation and compromises conservation science. One possible remedy for this problem, suggested by 

Professor Wyman is ‘‘decoupling’’ the listing decision from mandatory conservation 
49 

20 Id. at 516. 21 Id. at 519. 22See U.S. Fish & Wildlife Service, Threatened/Endangered Species ‘Box Score,’ available at 

http://ecos.fws.gov/tesslpublic/pub/Boxscore.do (accessed Oct. 11, 2011). 23See U.S. Fish & Wildlife Service, Delisting Report, available at http://ecos.fws.gov/ 

tesslpublic/pub/delistingReport.jsp (accessed Oct. 11, 2011). 24 Martin Miller, ‘‘Three Decades of Recovery,’’ Endangered Species Bulletin, vol. 28, no. 4 

(July/Dec. 2003), 4. 25D. Noah Greenwald, Kieran F. Suckling, and Martin Taylor, ‘‘The Listing Record,’’ in The 

Endangered Species Act at Thirty, Volume 1: Renewing the Conservation Promise, Dale D. Goble, 

J. Michael Scott, & Frank W. Davis eds. (Washington, D.C.: Island Press, 2006), 51. 26See U.S. Government Accountability Office, Endangered Species Act Decision Making, GAO– 

08–688T (May 21, 2008), at 20–22. 

measures. 20 This would release the pressure to manipulate listing decisions and enable federal agencies ‘‘to develop protections tailored to the needs of each species 

and its circumstances.’’ At present, however, the ESA’s ‘‘protections’’ are triggered 

once a species is listed, irrespective of their value for that particular species. Decoupling would also make species listing decisions less contentious and monumental, 

and reduce the time and expense it takes for such decisions to be made. FWS biologists would be able to focus on getting the science right, and devote less time responding to litigation. While it would still make sense for listing to trigger a legal 

obligation for the FWS to develop a conservation strategy and recovery plan, it 

would not force the imposition of specific regulatory controls. This would mean that 

outside organizations would no longer be able to use endangered species as a proxy 

for other battles. As Professor Wyman explains, ‘‘One of the advantages of decoupling the listing of a species from decisions about how it should be protected is that 

there should be greater room for developing creative measures tailored to species’ 

needs and circumstances.’’ 21

Finally, I think it is worth stepping back and looking at the overall record of the 

ESA. Congress enacted the ESA in 1973. Since that time, approximately 2,000 species of plants and animals, foreign and domestic, have been listed as ‘‘endangered’’ 

or ‘‘threatened.’’ 22 The express goal of the ESA is to recover listed species so that 

they no longer need the Act’s extraordinary protections. Yet in nearly forty years, 

this goal has been reached with scarcely over one percent of listed species. As of 

this month, the U.S. Fish & Wildlife Service reports that only 48 species have been 

removed from the list of endangered and threatened species. 23 Of these, only 22 are 

deemed to have recovered. Of the remaining 26 species, 17 were delisted due to data 

errors of one sort another, such as a mistaken taxonomic classification or undercounting of a species’ population, and nine were delisted because they are believed 

to have gone extinct. In other words, fewer listed species have been recovered than 

have been delisted because they went extinct or never should have been listed in 

the first place. 

The above statistics may actually overstate the Act’s relative effectiveness at recovering species. In addition to the nine species that were delisted because the FWS 

believes they went extinct, there are another 28 listed species believed to have gone 

extinct that have yet to be delisted. 24 In addition, at least 42 additional species 

have gone extinct awaiting listing under the Act. 25 Looking at FWS recoveries, 

some recovered species saw their status improve for reasons wholly unrelated to the 

ESA. In other cases, as the GAO has reported, species have been delisted before 

their respective recovery criteria have been met. 26

As I stated at the outset of my testimony, species conservation is an important 

goal. Serious efforts are necessary to stem the loss of biological diversity and to reconcile our nation’s environmental aspirations with other social goals. Whether or not 

this committee accepts my policy recommendations, I hope all Members recognize 

that substantial reform is necessary, both to insulate scientific research from political pressures, as well as to advance the cause of species conservation more generally. Saving endangered species should be more important than saving the Endangered Species Act. 

Thank you again for the opportunity to present my views on this important subject, Mr. Chairman. I hope that my perspective has been helpful to you, and will 

seek to answer any additional you might have. 
50 

Chairman BROUN. Thank you, Mr. Adler. 

Dr. Grifo, you are recognized for five minutes. 

STATEMENT OF DR. FRANCESCA T. GRIFO, SENIOR SCIENTIST 

AND DIRECTOR, SCIENTIFIC INTEGRITY PROGRAM, UNION OF 

CONCERNED SCIENTISTS 

Dr. GRIFO. Chairman Broun, Ranking Member Edwards, and 

Members of the Committee, thank you for the invitation to participate in this hearing. My name is Francesca Grifo, and I am a Senior Scientist and Director of the Scientific Integrity Program at the 

Union of Concerned Scientists, a leading science-based non-profit 

working for a healthy environment and a safer world. 

I come here today with 30 years of training, research, teaching, 

and policy experience, a passion for the natural world, and a mother’s concerns about her children’s future. One of the great strengths 

of the Endangered Species Act is its foundation in robust scientific 

principles. Objective scientific information and methods should be 

used in protecting species. The habitat needs of endangered species 

should be scientifically well informed and the standard of bestavailable science must rely on impartial scientific experts. Actions 

have consequences with wide-ranging implications and we need to 

understand that and that means science—making observations, 

asking questions, analyzing results. 

Unfortunately, under the previous Administration, the science of 

the Endangered Species Act was attacked and it happened at every 

stage of the process—90-day findings to listing to recovery plans to 

the designation of critical habitat and even delisting, affecting more 

than 80 species. One might say so what? Except an emerging body 

of research is now uncovering a hugely important range of benefits 

of biodiversity for human health. In a broad sense, most ecosystem 

services such as water purification and food provision have a direct 

or indirect impact on our health. But ecosystems also provide more 

specific benefits. Plants and bacteria are well recognized key 

sources of new medicines and other important links include benefits for mental health and the complex influence of the natural environment on the spread of infectious diseases. 

Many links between biodiversity and health remain unknown, 

but there is a growing body of evidence that disturbances to ecosystems may have large consequences for human well being. Thus, 

protecting biodiversity, both the number of species and the structure of communities helps minimize undesirable or expensive or 

unintended impacts on our health. 

Furthermore, three-quarters of Americans participate in active 

outdoor recreation each year and spend money, create jobs, and 

support the local—support the economies of local communities 

when they do. The number of New Englanders who participate in 

trail-based recreation annually is greater than the combined attendance for all 81 Boston Red Sox games—home games. An active 

outdoor recreation—and the outdoor active recreation economy employs five times more Americans than Wal-Mart, the world’s largest private employer. 

The ESA works. Less than one percent of listed species have 

gone extinct since 1973, while ten percent of candidate species still 

waiting to be listed are gone. In addition to the hundreds of species 
51 

that the Act has protected from extinction, listing has contributed 

to population increases or the stabilization of populations for at 

least 35 percent of listed species, and perhaps significantly more, 

as well as the recovery of such signature species as the Peregrine 

falcon. 

While complete recovery has been realized for just two percent 

of the species listed, given the precarious state of most species 

when listed, this represents significant progress. Arguably, the 

most notable success of the Endangered Species Act is that listed 

species improve in status through time. More species are down-listed than the converse. More species transition from stable to improving than the converse. 

The science advisor asked agencies to tackle the issue of scientific integrity, and the Department of the Interior was the first 

out of the box to do so. While they are well on their way to creating 

a culture of accountability and scientific integrity, we look forward 

to learning more about their ambitious plans for training, the 

progress of the Scientific Integrity Officers, and their forthcoming 

revised peer review and communications policies, and we expect 

them to be good. 

Science cannot be a mask behind which decision-makers can do 

anything that special interests or ideology might dictate. The rightful place for science is as the basis of broad participatory and 

transparent conversations about how to solve the challenges we 

face. It is not okay to say the science made me do it while changing 

the science to justify policy decisions. 

Thank you for your interest in endangered species conservation 

and for the opportunity to testify. I am happy to respond to questions you or other Members of the Committee may have. 

[The prepared statement of Dr. Grifo follows:] 
52 

PREPARED STATEMENT OF DR. FRANCESCA T. GRIFO, SENIOR SCIENTIST AND

DIRECTOR, SCIENTIFIC INTEGRITY PROGRAM, UNION OF CONCERNED SCIENTISTS
53 
54 
55 
56 
57 
58 
59 
60 
61 
62 

APPENDIX I 
63 
64 
65 
66 
67 

Chairman BROUN. Thank you, Dr. Grifo. 

And I thank the panel for you all’s testimony. Reminding Members that the Committee rules limit questioning to five minutes, 

the Chair at this point will open the round of questions. The Chair 

recognizes himself for five minutes. 

Mr. Frazer, in your testimony you state that the joint Fish and 

Wildlife Service and National Marine Fisheries Service policy on 

information standards under the Endangered Species Act issued in 

1994 requires your biologists and managers to ‘‘ensure that the information that we use is reliable and credible and represents the 

best data available.’’ Do you believe the work of federal scientists 

on the Central Valley Project and the State Water Project Biological Opinion in California adhere to the standards outlined in this 

policy? And if so, how do you respond to a Federal Judge stating 

that the testimony of these two employees were so contradictory 

and inconsistent that it amounted to deliberate deception and bad 

faith on the Department—on the part of the Department of Interior? 

Dr. FRAZER. Mr. Chairman, we do believe that our Biological 

Opinion was based on the best available scientific information. As 

I stated in my opening statement, it has been through five separate 

independent peer reviews, one by a National Research Council 

panel. We disagree with Judge Wanger’s characterizations, but we 

are taking it as a serious allegation and we are using our scientific 

integrity policy to thoroughly investigate that and determine 

whether there is any basis for his statements. We do note and appreciate that he sought to clarify those statements in a following 

hearing that he held the week after. 

Chairman BROUN. Okay. Your testimony states, ‘‘the Department 

is seeking independent experts to evaluate the allegations.’’ Will 

these experts be independent of the Service and the Bureau of Reclamation, independent of the Department, or independent of the 

Administration? 

Dr. FRAZER. We have an existing contract to go to an outside 

party to enlist independent experts to be able to conduct this review, and they will provide a report to the Scientific Integrity Officers of the Fish and Wildlife Service and the Bureau of Reclamation. 

Chairman BROUN. How will you ensure that the experts have 

sufficient independent scientific expertise and investigative backgrounds? 

Dr. FRAZER. Through—our scientific integrity policy of the Department lays out the process for conducting such reviews and we 

will be—we have developed a statement of work that lays out the 

qualifications and requirements of the parties that will be involved. 

Chairman BROUN. Do you believe the Inspector General should 

be involved in this inquiry? 

Dr. FRAZER. The Department’s science integrity policy and the 

Services’ procedures don’t have a role for the Inspector General in 

these sorts of things. This is part of our management structure 

within the Department and the Fish and Wildlife Service. 

Chairman BROUN. Will the final report be made public? 

Dr. FRAZER. The report will be provided to the Science Integrity 

Officers of the two bureaus and they will determine whether there 
68 

is any basis for any sort of action. If there is an action, it would 

be a conduct issue and it would be the personnel and human resources policies of the agencies that would be brought into play, 

and that would be the basis of determining whether that report 

would be made public. 

Chairman BROUN. Well, I hope it is made public. Have you all 

seen Judges in—utilize their own political philosophy and bend and 

try—in making decisions on ESA determinations? 

Dr. FRAZER. There are many different Judges and many different 

opinions, and I am not one that spends much time trying to analyze any philosophy behind those rules so—— 

Chairman BROUN. Well, I think we have seen in many instances 

where Judges have used their own political philosophies have bent 

to affect how they judge things and not entirely independent and 

I wonder in this case whether that might be so. 

Dr. Wilkins, the Endangered Species Act requires listing determinations to be made purely based on best available science. Are 

policy decisions ever made while conducting science and do scientists make choices and decisions in the course of their work? 

Mr. WILKINS. That is a great question and there is a lot of nuances there. So I am in the business of training scientists, and that 

means we teach them to think. And in addition to research methodologies and statistical methods and interpretations of scientific 

data, we teach them how to test policy, how to develop policy innovations, how to determine the implications of policy. So there are 

policy questions and there are policy implications that intentionally 

become part of scientific work. I think that is appropriate and it 

is mostly appropriate because that is the only way to know the difference between objectivity and when you are using a particular 

policy preference to shade or distort your scientific findings. And so 

that ends up being the only way to maintain objectivity and integrity I believe is to know the difference and to know the difference 

of when you are presenting science versus when you are presenting 

policy implications. We just simply need to ask questions in such 

a way as to best inform management through our science, and 

management is a form of policy. 

Chairman BROUN. Thank you, Dr. Wilkins. My time has expired. 

I now recognize Ms. Edwards for five minutes. 

Ms. EDWARDS. Thank you, Mr. Chairman. And again thank you 

to the witnesses. 

Dr. Grifo, I would like to turn to you. I wonder if you have some 

assessment of—during Mr. Manson’s tenure at the Interior Department that one of the most egregious examples of politicization of 

science occurred, could you provide the Committee a thumbnail account of what happened during his tenure and in the years immediately after he left service in 2005? 

Dr. GRIFO. Sure. I mean I think, you know, there were many, 

many, many species that were interfered with. I think what was 

going on was the modus operandi—if you will forgive that expression—was really—there were three things, and it was really Ms. 

McDonald who was at the core of these issues. She consistently 

called field biologists in the field, used foul language, bullied them, 

was incredibly abusive. You don’t have to believe me; it is in the 

IG report. That was one thing. I think the second was that she sent 
69 

internal Department of the Interior documents out to various 

places, to an online gaming friend and to the Farm Bureau in California and other places. But the third which I think is the most incredible is that she changed scientific results. If we look at Gunnison sage-grouse, Gunnison’s prairie dog, white-tailed prairie dog, 

roundtail chub, bull trout, marbled murrelet, Arizona bald eagle, 

tabernaemontana, delta smelt, I could go on and on. It is a very 

long list. But what I find the most remarkable are the times that 

she did it and tracked changes in a Word document and we were 

able to obtain through FOIA requests and other means those documents with her changes that were clearly, you know, scientific 

edits in those documents. So I don’t know how much more, but I 

could obviously talk for a while. 

Ms. EDWARDS. Thank you. I appreciate that, Dr. Grifo. And I just 

wonder if you know how many ESA listings had to be withdrawn 

in the wake of the IG’s finding on Ms. McDonald’s misconduct? 

Dr. GRIFO. There were investigations into a number of species. 

You know, some were revised but not all. 

Ms. EDWARDS. Thank you. 

Mr. Frazer, I wonder if you can add any insight into how much 

work had to be redone at Interior after Mrs.—Ms. McDonald resigned? 

Dr. FRAZER. At the request of the Deputy Secretary at the time, 

the Service reviewed determinations that had been made and concluded that there were eight listing determinations, either petition 

findings or listing determinations or critical habitat designations 

that warranted revisiting and the Service revisited all of those and 

revised those determinations. 

There were other cases in which there have been merits challenges that were filed and we either lost those cases or we determined that we didn’t have a defense and had to take them back 

and redo those. And I don’t have a comprehensive list of all of 

those right now. 

Ms. EDWARDS. Thank you, Mr. Frazer. 

And now I would like to turn to Judge Manson. I noticed in your 

opening statement that you actually challenge the integrity of the 

IG, which strikes me because if that is—you know, if that is in 

question, then I think we have some other questions. 

But I would like to know whether the actions that you supported 

ended up costing the government a significant amount of money in 

having to redo studies and legal findings due to Ms. McDonald’s direct interference. She was your employee. 

Mr. MANSON. First of all, I did not challenge the integrity of the 

IG. I meant to challenge the integrity of those who brought into 

question some of those activities during the time that I was there 

and the time that I subsequently was a law professor for 4 years. 

Ms. EDWARDS. But Judge Manson, you are aware of the rework 

that had to be done at the—within the Department because of—— 

Mr. MANSON. I am aware of some of—— 

Ms. EDWARDS. Let me finish—because of Ms. McDonald’s conduct, and it is estimated that it may have cost at least hundreds 

of thousands of dollars. That is taxpayer money that that cost. Do 

you have a disagreement with that estimate? Is it too low? Is it too 
70 

high? Is it just about right? Can you put a price on what that mismanagement under your tenure cost the American taxpayer? 

Mr. MANSON. I have no way of putting a price on something that 

I don’t regard as mismanagement. 

Ms. EDWARDS. Well, the IG—I mean whether you regard it that 

way or not, I mean the Inspector General certainly regarded it as 

mismanagement enough to question the integrity of dozens and 

dozens of scientific-based—what we thought was scientific-based 

research at the Department. And so I would urge you if you have 

some other estimate of that cost that you would please submit for 

our record because we would like to stack it up against the IG’s 

conclusions. 

Mr. MANSON. I am not—— 

Ms. EDWARDS. And with that, I—my time has expired. Thank 

you. 

Chairman BROUN. Thank you, Ms. Edwards. 

I now recognize Dr. Benishek for five minutes. 

Dr. BENISHEK. Thank you, Mr. Chairman. 

Like all my other colleagues in this room today, I routinely hold 

town hall meetings throughout my district, and a few months ago 

I was approached by one of my constituents as I left the town hall 

and he was holding a very large garbage bag and asked if I would 

like to take a look. This was Mr. John Koske of Bessemer, Michigan. And Mr. Chairman, the bag held the carcass of a cat from his 

farm that had been killed by a grey wolf. And he confronted me 

with this picture that came out of it. The town hall was pretty 

shocking. I would like to submit a copy of this photo for the record. 

Chairman BROUN. So ordered. 

[The information appears in Appendix II.] 

Dr. BENISHEK. Unfortunately, farmers are not the only—pardon 

me? 

Chairman BROUN. So ordered. 

Dr. BENISHEK. Thank you. 

Unfortunately, farmers are not the only constituents with grey 

wolf problems. I receive letters from families with family pets who 

have been killed by wolves in their own backyards. Hunters in my 

district feel threatened by the wolf as they have no recourse 

against the animal. It worries me that many of my constituents 

feel that they can no longer enjoy the outdoors due to an out-ofwhack wolf population. 

The most recent study completed by the Michigan DNR early 

this year indicated a minimum of 687 wolves in Northern Michigan. The goal for recovery in Michigan was 200 wolves. The Fish 

and Wildlife Service, Michigan DNR, and my constituents all agree 

that the wolf should be delisted in Michigan. 

Mr. Frazer, can you speak to the science that impacted the Service’s decision to begin this process? 

Dr. FRAZER. Wolves are originally listed under the Endangered 

Species Act back in the ’70s after they had been persecuted in the 

lower 48 States by elements of the former Fish and Wildlife Service 

at—when times and societal values were different. At that point, 

wolves existed in the lower 48 only in Northern Minnesota. We 

have we believe successfully recovered wolves. We have a proposal 

to delist wolves. In the western Great Lakes out right now we in-
71 

tend and expect to make a final determination on that by the end 

of this calendar year. We believe in the wolves in the western 

Great Lakes have recovered and it is appropriate to have them 

again managed by the States. 

Dr. BENISHEK. Have there been any political issues that have impacted this process? 

Dr. FRAZER. No, sir. 

Dr. BENISHEK. Mr. Frazer, would your agency ever consider giving a partial or a state waiver to the ESA? 

Dr. FRAZER. I am not sure what you mean by a state waiver. 

Dr. BENISHEK. Well, to allow the States to manage the population without—I mean at this point in time. 

Dr. FRAZER. We work within the authorities we have under the 

Act and there are certainly ways in which States can assume management lead for listed species. In the northern Rocky Mountains, 

the States of Idaho and Montana had approved management plans 

for wolves that allowed them under our experimental population 

rules to essentially be the lead management agency—— 

Dr. BENISHEK. Thank you. 

Dr. FRAZER. —to administer the Act. 

Dr. BENISHEK. Mr. Manson, the political fight over the delta 

smelt has been wrapped up in environmental terms but what about 

the impact of these rules on your users? I mean how are California 

farmers and other water users impacted by the restrictions that 

have been contemplated? 

Mr. MANSON. Well, the Court found in 2009 that there were severe economic and social dislocations as a result of the application 

of the 2008 Biological Opinion. That included unemployment, it included a loss of crops, it included even things that go so far as foreclosures of homes in the Central Valley, so the impact has been 

quite severe. 

And I would like to say with respect to Judge Wanger, he is a 

neutral Judge who has ruled against water users and ruled in 

favor of environmental interests at times and ruled against environmental interests at other times and in favor of water users. And 

I sat in the courtroom at each of the hearings at which the witnesses testified and as a former litigator and a former Judge myself, I was appalled at the testimony that was given and I believe 

that his characterization of that testimony was correct. 

Dr. BENISHEK. Thank you very much. 

Mr. Chairman, I yield back my time. 

Chairman BROUN. Thank you, Dr. Benishek. 

I now recognize Mr. Miller for five minutes. 

Mr. MILLER. Thank you, Mr. Chairman. 

The reason we have these hearings is to build a factual record 

for conduct—for decisions before Congress, whether they be about 

legislation or about funding. And the Chairman is correct in his 

opening statement—there can be honest disagreements between 

honest people but frequently the question comes down to what to 

believe and that comes down to who to believe. So questions about 

the credibility of the people who testify before us is entirely proper 

just as it is in court. I have raised questions before about the financial interests that have been undisclosed by witnesses at other 

hearings before this Subcommittee and others. There has been ve-
72 

hement criticism of those questions by Members of the majority, 

but we just heard today in the Chairman’s opening statement questions about the credibility of environmentalists, of environmental 

group because their income came in part from litigation that they 

pursued over ESA decisions. 

Again, going to credibility of witnesses or credibility of scientists, 

the Chairman questioned in his opening statement or quoted some 

District Court Judge in California I have never heard of as saying 

that a scientist’s testimony was the testimony of a zealot, that the 

Agency had acted in bad faith and attempted to mislead and deceive the Court. I don’t know anything about that Judge at all. The 

Chairman’s testimony suggested that that must be the gospel truth 

if it was a Judge saying it, but then he went on in questions and 

said that Judges use their own political philosophies instead of 

fact-finding. So it appears that it is—I mean I think we should 

properly consider the credibility of witnesses, whether they have an 

interest, whether they—you know, that is not to say that everybody—anybody who is consciously lying but where we—what our financial interests are has a tendency to color what we think. And 

that is something we should properly ask. 

And also instances of conduct. Judge Manson, there have already 

been questions about the Inspector General’s report. I think, Mr. 

Chairman, that report should properly be part of the record today 

and I would like to move it into evidence of the hearing as part of 

the record. 

Chairman BROUN. Without objection, so ordered. 

[The information appears in Appendix II] 

Mr. MILLER. Mr. Manson, Ms. Grifo said that most of the conduct 

was by Julie McDonald. The findings—not allegations—findings of 

the Inspector General are pretty striking, that she did in fact consciously edit findings of the—about the—under the ESA, that many 

were set aside, two were apparently set aside by courts as arbitrary 

and capricious, and that she had improperly disclosed confidential 

information within the agency, outside of the agency, and on and 

on, and found that you had—when you were interviewed, there 

were no—you had no criticisms at all of her conduct. Do you still 

have no criticisms at all of her conduct? 

Mr. MANSON. I have no criticisms of her conduct. 

Mr. MILLER. Have you kept in touch with her? Do you know 

what she is doing now? 

Mr. MANSON. I do. 

Mr. MILLER. What is she doing now? 

Mr. MANSON. She is a consultant. 

Mr. MILLER. And do you continue to have professional relationships with her? 

Mr. MANSON. From time to time. 

Mr. MILLER. Has she done any work for Westlands? 

Mr. MANSON. She has. 

Mr. MILLER. Okay. Has she done any work recently for 

Westlands? 

Mr. MANSON. I don’t know that. 

Mr. MILLER. You are counsel for Westlands, right? 

Mr. MANSON. Yes, but I—she doesn’t do legal consulting. 

Mr. MILLER. Okay. 
73 

Mr. MANSON. I don’t know the last time she did anything specifically for Westlands. 

Mr. MILLER. All right. Can you tell me what the Center for Environmental Science Advocacy and Reliability is? 

Mr. MANSON. Yes, that is a nonprofit organization that I began 

while I was a law professor at McGeorge School of Law. 

Mr. MILLER. Okay. And are you the Executive Director of that 

now? 

Mr. MANSON. I am. 

Mr. MILLER. Are you compensated for that? 

Mr. MANSON. No, I am not. 

Mr. MILLER. You are—okay. You act entirely as a volunteer in 

that? 

Mr. MANSON. Yes. 

Mr. MILLER. All right. What is the funding for CESAR? 

Mr. MANSON. It comes from donors of all sorts, and as I understand the law, the donors’ lists may remain confidential. 

Mr. MILLER. All right. 

Mr. Chairman, I will yield back my last 30 seconds. 

Chairman BROUN. Okay. Thank you, Mr. Miller. 

The—now, I will yield the Chairman of the whole committee, Mr. 

Ralph Hall. Chairman Hall, you are recognized for five minutes. 

Chairman HALL. I will not use my five minutes. 

I want to inquire of Mr. Vincent-Lang. The Fish and Wildlife 

Service’s testimony mentions that the Policy Regarding the Role of 

State Agencies in Endangered Species Act Activities. This policy 

recognizes that States possess broad trustee authority over fish, 

wildlife, plants, and their habitats within their border as well as 

scientific data and valuable expertise on the status and the distribution of such species and habitats. Can you tell us a little about 

your experience with this policy? 

Mr. VINCENT-LANG. Well, the policy I think is well intentioned. 

However, it has been—— 

Chairman HALL. I don’t know that I agree with you to start with, 

but go ahead. 

Mr. VINCENT-LANG. Well, I think it is well intentioned because 

it is trying to define a role of States into the ESA process. However, it has been applied very inconsistently. Our experience in 

Alaska is that we are being treated really no differently than any 

other stakeholder in the ESA decision processes. We find this kind 

of out of the compliance with the policy. This said, there is an effort 

underway to reevaluate this policy and we welcome this and look 

forward to having the value and roles of States recognizes in the 

ESA processes in a formalized and consistent process for getting 

the States’ management programs put into place. 

I might add that States are well positioned to manage currently 

healthy populations and the threats facing them. We have an excellent history and the tools necessary to manage species and the 

threats facing them under our jurisdiction. This ranges from sustainable harvest programs to habitat protections for habitats that 

are under threat. In Alaska we have an excellent history in our 

short 50-year statehood no species have gone extinct underneath 

our trust responsibilities. 
74 

Chairman HALL. I thank you. We read your testimony. I admired 

it, thought it was—maybe my offhand remark to you at the beginning I would have to withdraw that. I thank you. 

I have to withdraw a lot of things I say nowadays. 

Dr. Wilkins, your testimony indicates that the State efforts are 

more effective and less costly than one-size-fits-all protections 

under ESA. I surely agree with that. Would you like to explain that 

for the record and what efforts are more effective and cost-efficient? 

Mr. WILKINS. Certainly. It is good to see you, Representative 

Hall. 

We know the state agencies and state government, at least in my 

experience and in the experience of several others has a set of 

science resources that simply aren’t available to our federal agencies, not the least of which are the research extension and outreach 

components of our State Land Grant University Systems, our ability for state government to mobilize forces and mobilize taskforces. 

We saw an example of that in Texas just this last year. In fact, if 

recovery goals were optionally deferred to the States, I am sure 

that in many instances, we would find state-level recovery plans 

that would be scientifically reliable, science-based, and actually deliver greater performance on the Act at a lesser cost than the way 

recovery plans are administered at present, sir. 

Chairman HALL. I thank you, sir. 

And I yield back my time, Mr. Chairman, and I thank you. And 

thank you for having the hearing. 

Chairman BROUN. Thank you, Mr. Chairman. 

I now recognize Mr. McNerney for five minutes. 

Mr. MCNERNEY. Thank you, Mr. Chairman. 

I want to thank the witnesses for your testimony this morning. 

My first question goes to Honorable Manson. As you may know, 

I represent a large portion of the San Joaquin Delta, which is the 

most important estuary on the West Coast. A healthy Delta supports jobs for thousands of farmers and fisherman, small businessmen, and last week I met with senior officials from the Bay Delta 

Conservation Plan, which included a representative from the 

Westlands District. And I have to say what I heard was absolutely 

unacceptable. I cannot accept a massive canal or tunnel that would 

severely degrade the water quality for the entire Delta. 

So in your opening statement you mentioned the constitutional 

rights, including property rights, and I believe that we all agree 

with that. So I have a simple question for you. Do you think it is 

okay to use people’s lands, to steal their water, and destroy their 

livelihoods without their consent? 

Mr. MANSON. Well, certainly not. 

Mr. MCNERNEY. Thank you. 

Mr. MANSON. But I think the issue of Bay Delta is one that is 

going to require a lot of cooperation from a lot of different entities. 

The water users have funded a great deal of the planning and the 

habitat conservation aspects of the Bay Delta plan and have not invaded and stealing anyone’s land or water. 

Mr. MCNERNEY. So then by building massive tunnels in the 

Delta where people who live there are adamantly opposed and are 

not included in the discussion and have been excluded from the 
75 

process, is that okay? And that is what has happened. Those are 

the facts. 

Mr. MANSON. Well, I can’t speak to the larger Bay Delta process. 

There are many moving parts to it, many of which we don’t participate in. We are looking for a stable, reliable water supply from the 

Delta and along with that we have funded investigation—scientific 

investigations into conservation efforts in the Bay Delta region. 

Mr. MCNERNEY. So you are looking for a stable water supply, for 

example, with 15,000 CFS tunnel that would cause tens of millions 

of dollars in agricultural losses in the Delta. 

Mr. MANSON. There is no specific plan at this time. 

Mr. MCNERNEY. That is one of the proposals that has been advocated by Westlands and do you think it is appropriate for the federal, state, and local agencies to sign agreements to fund the BDCP 

without any input from the Delta residents, which has happened? 

Mr. MANSON. Well, I don’t know that that has happened, but I 

will take your word for it. 

Mr. MCNERNEY. Okay, thank you. 

My next question is for Gary Frazer. The decline of the Delta 

ecosystem has important human implications, as you may know. 

Poor water quality is a severe threat to local farmers, and following 

record water diversions in the 2008 and 2009 periods, the California Salmon Fishery collapsed costing thousands of jobs. The 

Central Valley Project Improvement Act required the Interior to 

double wild salmon populations by 2002, but unfortunately, we saw 

the opposite happen; salmon declined. Doesn’t the federal law require us to do more not less to protect the Delta ecosystem and the 

jobs that it supports? 

Dr. FRAZER. Congressman, I am afraid that I am not an expert 

on that particular authority and that program, but I would be very 

happy to get back to that specific question in—for the record. 

Mr. MCNERNEY. Okay, thank you. 

Dr. Wilkins, I appreciate your thoughtful testimony actually. You 

are actually proposing things that might make sense. Under scrutiny, I don’t know yet. But you have been involved for a number 

of years with the projects at Ft. Hood, Texas, which is a major 

Army installation. This program has been reported as having 

very—been very successful in protecting habitat for the goldencheeked warblers while also allowing flexibility to the Army to conduct the exercises they require. 

Mr. WILKINS. Yes. 

Mr. MCNERNEY. I believe this is known as a recovery credit system. Can you talk a little bit about what you have been doing at 

Ft. Hood and is that a model that could be used in other locations? 

Mr. WILKINS. Yes, sir, I can. And it is a model that could be used 

in other locations. The recovery credit system at Ft. Hood was a 

proof of concept. Essentially, we demonstrated that we could get 

flexibility for training on a major defense installation through those 

actions that might disturb or take endangered species habitat on 

the installation. There was contracts that were let with private 

landowners who had habitat on their properties to maintain and 

enhance that habitat to more than offset any degradation to habitat that might occur on a defense installation. Therefore, there was 

a net benefit to recovery for that species in that exchange so that 
76 

we had a better set of progress towards the recovery efforts on private lands with private ranchers in Central Texas which, 20 years 

ago, would have been unheard of, sir. 

Mr. MCNERNEY. All right, thank you. I yield back. 

Chairman BROUN. Thank you, Mr. McNerney. 

The Chair now recognizes Ms. Adams for five minutes. 

Mrs. ADAMS. Thank you, Mr. Chair. 

Mr. Frazer, in the view of the Administration, does the USFWS 

consider state-run wildlife management plans an important component of the ESA and species recovery? 

Dr. FRAZER. We do. We view the State Fish and Wildlife Agencies as special partners in endangered species conservation while— 

before species are listed, they are the agencies that in almost all 

cases have the management authority Fish and Wildlife implants. 

We recognize the partnership as so important that under the leadership of former Director Sam Hamilton and current Director Dan 

Ashe, we are participating in a specific task force—Fish and Wildlife Service, National Marine Fisheries Service, and State Fish and 

Wildlife agencies to grow and strengthen the collaborative partnership, and that can certainly include working together on recovery 

planning, more importantly, on conservation of species before they 

actually decline to the point—— 

Mrs. ADAMS. So it is an important component? 

Dr. FRAZER. Very important. 

Mrs. ADAMS. If a State specifically incorporates hunting as a part 

of their management plan, what is the Administration’s position on 

the use of hunting as a management tool for species recovery? 

Dr. FRAZER. The Act lays out a very narrow exception for the 

use—or for the allowance of regulated taking in the concept of conservation. So to the extent that we have had case law on application of hunting or trapping programs, it is not one that gives us 

a whole lot of latitude, but it is something we continue to explore 

in appropriate circumstances. 

Mrs. ADAMS. Can you please provide what scientific criteria 

USFWS uses to determine the likelihood of a species being at risk 

of extinction over a 50-year period or a 300-year period? Please provide the specific criteria to justify such lengthy timelines. Do you 

have that with you? 

Dr. FRAZER. We don’t have specific criteria—— 

Mrs. ADAMS. Can you provide that? 

Dr. FRAZER. You are referring I believe to what and how we determine what is foreseeable future in determining whether a species is a threatened species? 

Mrs. ADAMS. Do you have specific criteria for that? 

Dr. FRAZER. No, we do not. 

Mrs. ADAMS. So how do you determine? 

Dr. FRAZER. On the basis of the best available scientific information at the time of the listing determination. 

Mrs. ADAMS. Mr. Chair, I would like to have them for the record 

bring forth that kind of information to the Committee. 

Chairman BROUN. Ms. Adams, we are going to allow them to answer any written questions—or ask them to answer any written 

questions, so you should be able to get that information. 
77 

Dr. FRAZER. Congresswoman, we certain lay that out in detail 

every time we interpret that phrase in the context of a listing determination, so we could certainly—— 

Mrs. ADAMS. So it is different for each time as you go along? 

Dr. FRAZER. It is. 

Mrs. ADAMS. Okay. USFWS recently settled lawsuits with litigants WildEarth Guardians and Centers for Biological Diversity to 

make the decisions on hundreds of species within an agreed-upon 

timeline. Can you please explain how this settlement comports 

with the ESA as written given that it appears to remove any opportunity for public input or comment, including that of outside scientists and experts in the study of species under consideration? 

Dr. FRAZER. The settlement simply resolved outstanding deadline 

litigation that was facing the Service. We were not meeting the 

deadlines that were laid out in the Act. 

Mrs. ADAMS. So does it stop—because it appears to stop any 

input from the public, any comments from the public, experts? 

Dr. FRAZER. Absolutely not. As I said in my written statement, 

we will be making listing determinations through the rulemaking 

process with public notice and comment on all of our proposals, 

independent peer review. They will go through the standard process that has extensive opportunity to public engagement. 

Mrs. ADAMS. Well, the two settlements recently in Alaska, the 

USFWS agreed to dates after which the Service will no longer be 

able to consider certain species to—in Alaska to be candidate species. Were the State of Alaska and its wildlife biologists consulted 

in the decision on how to prioritize these species for these settlements’ imposed deadlines? 

Dr. FRAZER. I am not—I don’t know what circumstances you are 

referring to. 

Mrs. ADAMS. Okay. Well, we will have to submit that so you can 

give us the answer to that. 

Dr. FRAZER. We would be happy to respond for the record. 

Mrs. ADAMS. Because I would like to know if the State was considered. 

You state in your testimony that we are facing an extinction crisis, yet later on in your testimony you say that ESA is a success 

because ‘‘relatively few observed extinctions have occurred in the 

United States during the last 4 decades.’’ If that is the case, where 

is the crisis you are talking about? 

Dr. FRAZER. The Endangered Species Act was set up as a safety 

net. We extend the provisions of the Act to—— 

Mrs. ADAMS. I am asking where the crisis is. 

Dr. FRAZER. It is on the number of species that are at risk of 

being lost from our Nation’s biodiversity. 

Mrs. ADAMS. Would you not agree that your statements kind of 

contradict each other? 

Dr. FRAZER. I don’t believe that they do contradict. 

Chairman BROUN. Thank you, Ms. Adams. 

The Chair now recognizes Mr. Tonko for five minutes. 

Mr. TONKO. Thank you, Chairman Broun. 

Welcome to our panelists. I appreciate your input. 

I have here an Anchorage Daily News article from May 25 of I 

believe 2008 entitled, ‘‘Email Reveals State Dispute over Polar 
78 

Bear Listing.’’ And I ask that it be made part of the record, Mr. 

Chair. 

Chairman BROUN. Without objection, so ordered. 

[The information appears in Appendix II] 

Mr. TONKO. Thank you. 

The articles reports allegations that State scientists were not all 

in agreement over then-Governor Palin’s decision to have the State 

oppose listing the polar bear as endangered. This story is interesting to me because of a new policy of your new Governor, Governor Parnell. That policy states, ‘‘Once a department position or 

policy is established, employees must present or adhere to such a 

position or policy when representing the Alaska Department of 

Fish and Game whether directly or through use of its affiliation or 

resources.’’ In plain English, this indicates that once the State denies that a species is endangered, as the State has with the polar 

bear and beluga whale, State employees including scientists cannot 

be involved in any program or study that is built on an assumption 

that they are endangered. All a scientist can do, in my opinion, is 

repeat the State’s position regardless of facts. 

I would like to enter, Mr. Chair, an Anchorage Daily News article from June 6 of this year on this policy at this point in the 

record. 

Chairman BROUN. Without objection, so ordered. 

[The information appears in Appendix II] 

Mr. TONKO. Thank you. 

This policy has had immediate consequences. The National Marine Fisheries Service, NMFS, has removed two Alaska State scientists from the Cook Inlet Beluga Whale Recovery Team because 

the state policy directly conflicts with the purpose of the scientific 

panel. 

Now, Mr. Vincent-Lang, you have been quoted in the Alaska 

press as supporting this new policy. Is that accurate? Do you support this policy? 

Mr. VINCENT-LANG. Through the Chair, Mr. Tonko, yes, I do support the policy. I think the policy is meant to encourage frank and 

open discussion regarding how the state position is set up, but once 

we have that state position defined, I think it is our responsibility 

then as an agency to have a single position so that the public isn’t 

confused about that position and we are clearly articulating it. 

Nothing in that policy though prohibits an honest and open debate 

about how we are going to reach a position. 

Mr. TONKO. But I could lead to non-scientists making that policy 

where there was suggestion that there was not—there wasn’t scientific support for some of the administrative decisions. 

Mr. VINCENT-LANG. Well, as you can probably understand even 

in your own staff there is probably a wide range of views on any 

single issue. I think it is the responsibility of the leadership of the 

Department to take all those divergent views and come up with a 

single position that best reflects our agency’s position. We did that, 

and in the case of the polar bear article, there was a single individual that had a different perspective than the entire leadership 

of the Department. 

Mr. TONKO. Um-hum. 
79 

Mr. VINCENT-LANG. In the case of the Cook and the beluga 

whale, we asked our biologists to simply represent those views 

when they were participating in the recovery panel. And we offered 

them the opportunity if they didn’t want to do that to participate 

in that panel on their own separate from the Department. 

Mr. TONKO. Now, Mr. Vincent-Lang, given that the policy requires state employees to articulate no position but the State’s position, could even tell us here today under oath if you disagreed 

with that policy without potentially facing employment consequences back home? 

Mr. VINCENT-LANG. If I disagreed with that policy? 

Mr. TONKO. Um-hum. 

Mr. VINCENT-LANG. Well, I don’t. I agree with the policy so—— 

Mr. TONKO. To Dr. Grifo, you have been following scientific integrity issues for many years and head up UCS’s project on this subject. Do you have any comment that you would share with this 

panel as to—that you would want to make about the State of Alaska’s policy regarding its state scientists on scientific panels? 

Dr. GRIFO. Yes, thank you. I mean I find this policy to be extremely troubling. I am not aware that when you become a scientist and gain state employment that you give up your First 

Amendment rights. I mean I think the Federal Government and 

the scientific integrity policies and the communication policies that 

we are working on within those call for a personal views exception 

where a scientist may stand up and be very clear that they are now 

expressing their own personal view and not the view of the agency. 

I also believe that it is incredibly important in these conversations 

to capture dissenting opinions. Everyone isn’t going to agree and I 

think sometimes we think, oh, that confuses the public and it is 

hard, but I think it is okay to have those dissenting opinions represented in the record. 

Mr. TONKO. Um-hum. Now, with dissenting opinions—— 

Chairman BROUN. The gentleman’s time has expired. 

Mr. TONKO. Okay. 

Chairman BROUN. I thank the witnesses for you all’s valuable 

testimony and the Members for their questions. 

The Members of the subcommittee may have additional questions 

for the witnesses and you can ask those and Ms. Adams can, too. 

And we ask all of you to please respond to those in writing. The 

record will remain open for two weeks for additional comments 

from Members. 

The witnesses are excused and the hearing is now adjourned. 

And thank you all. 

[Whereupon, at 11:35 a.m., the Subcommittee was adjourned.] 

(81) 

Appendix I: 

ANSWERS TO POST-HEARING QUESTIONS
82 

ANSWERS TO POST-HEARING QUESTIONS

Responses by Mr. Gary Frazer, Assistant Director, 

Endangered Species, U.S. Fish and Wildlife Service 

Questions submitted by Chairman Broun 

Q1. How often is the precautionary principle the basis of a listing decision? If two 

competing scientific views exist, does the U.S. Fish and Wildlife Service 

(USFWS) determine that the ‘‘best available science’’ is the one that allows for 

greater protection? 

A1. We never use the precautionary principle as the basis of a listing decision unless ordered to do so by a court. In our view, the precautionary principle has no applicability on the preliminary question as to whether a species is in fact threatened 

or endangered. Instead, as the Act requires, we make listing determinations according to the statutory definitions of ‘‘threatened species’’ and ‘‘endangered species,’’ 

considering the factors and standards found in section 4(a)(1) and (b)(1). Likewise, 

we also do not use section 4(b)(1)’s requirement that listing determinations be based 

solely on the best scientific and commercial data available as a justification for picking whichever of competing view allows for greater protection. There is often limited 

or conflicting data available when we make decisions. We use our professional judgment and expertise to review the data to come to what we conclude is the most accurate, not necessarily the most protective, outcome. 

Q2. USFWS’s testimony alludes that when the Service makes a ‘‘warranted, but precluded’’ finding to a listing petition, it is based on a prioritization of resources. 

What scientific information is used to make these prioritizations? How do you 

determine that one species deserves protection now, but another is precluded 

from protection? 

A2. In determining whether a proposal will be developed for a species that warrants 

listing under the ESA or if the development of that proposal is precluded by other 

higher priority listing actions, the Service considers primarily two factors: (1) the 

listing priority of the species based on the Service’s 1983 ‘‘Endangered and Threatened Species Listing and Recovery Priority Guidelines’’ (LPN guidelines) and (2) 

budgetary and staff resources available to work on the action. The LPN guidelines 

established a priority ranking system from one to 12 that takes into consideration 

scientific information related to the taxonomic classification of a species, the magnitude of threats to the species, and the immediacy of threats to the species. Species 

most at risk (LPN of 1) are considered by the Service to be the top priority species 

for which a proposal to list will be developed once budgetary and staff resources are 

available. Species for which a warranted-but-precluded determination has been 

made are considered ‘‘Candidate Species.’’ The statuses of Candidate Species are reviewed on an annual basis and their priority rankings are updated as appropriate. 

Q3. What science was used in the Service’s settlement agreement for the six year 

work plan? Is it feasible to make an informed, scientific decision about the protection status of 250 species in six years? 

A3. The scientific information used in developing the work plan was related to the 

status of each of the Candidate Species and their priority ranking per the LPN 

guidelines (discussed in response to question 2) when the species were initially determined to be candidates and as part of the annual review of Candidate Species. 

The Service carefully considered the workload associated with making informed, 

science-based decisions about the species outlined in the workplan, ensuring that robust peer review and public comment will take place before any decision is made. 

We are confident that we can complete the workplan, assuming that we are able 

to maintain the level of funding and staffing we have had available in recent years. 

Q4. What does the term ‘‘best available science’’ mean to USFWS? Does the Service 

ensure that all science used is peer-reviewed? Can the Service use ‘‘gray’’ data, 

or unconfirmed information, as ‘‘best available science’’ if nothing else exists? 

A4. The phrase ‘‘best available science’’ means a consideration of all relevant known 

scientific and commercial information available when making a determination. The 

Service considers a wide range of information in its decision-making process including peer-reviewed published literature, ‘‘gray’’ data, traditional ecological knowledge, 

empirical information, and other types of information. It is the responsibility of the 

Service to consider all of this information, assess its scientific reliability, and use 

it appropriately and transparently in making its decision. The weight we give infor-
83 

mation in making listing determinations takes into account indications of reliability, 

such as peer review. 

Q5. In your opinion, what percentage of listings is initiated from Federal scientists 

and what percentage of listings are initiated due to petitions? What is the difference in the quality of the science generated by Federal scientists versus outside 

groups? 

A5. Over the last ten years the Endangered Species Listing Program has been driven, in a large part, by litigation and petitions. Greater than 90 percent of listing 

determinations during that timeframe were initiated through the public petition 

process. The quality of petitions varies greatly—some are wholly inadequate, while 

some are every bit as impressive as the work conducted by our own biologists. However, the same data standards and rigorous process of evaluating the best scientific 

information available are used when determining whether a species warrants listing 

regardless of whether the action was initiated through a petition or by Service scientists. 

Q6. Would the Service support reforming the petition process to prohibit the mass 

listing petitions that have become commonplace in recent years? Has the Service 

evaluated the quality of science used in those listing determinations? 

A6. The Service does not have a position on reforming the petition process to prohibit mass listing petitions. The Service evaluates the science provided in large listing petitions, such as the one related to 404 aquatic species in the Southeastern 

United States, as it would any other petition. In addition, the Service reviews the 

information in its files about the petitioned species to complete its 90-day finding. 

Ultimately, the Service makes individual findings for each species as it would with 

individually-petitioned species. 

The same data standards and rigorous process of evaluating the best scientific information available, conducting peer review, and soliciting public comment are used 

when determining whether a species warrants listing regardless of whether the action was initiated through a petition or by Service scientists. 

In the recent multi-district litigation, the Service and two of the most frequent 

plaintiff groups (WildEarth Guardians and the Center for Biological Diversity) entered into two separate but complementary settlement agreements. One settlement 

agreement limits the number of species that can be petitioned by the Guardians 

during the six year workplan. The other settlement agreement provides for various 

consequences that will be triggered if the Center exceeds a specified number of 

deadline-related lawsuits in any given year. Together, these two plaintiffs have submitted the majority of petitions in recent years. As a result, we expect the number 

of petitions will decrease notably. Furthermore, in accordance with the President’s 

Executive Order to review and evaluate government regulations and to provide for 

a more balanced listing program that still allows for public participation, the Service 

is considering a variety of ideas for increasing the effectiveness and efficiency of 

many programs, including the petition process. 

Q7. What percentage of the Service’s Endangered Species Act listing budget is expected to be used on completing the work required by the settlement agreements? 

Will this preclude the Service from working on other species that might have a 

higher priority? 

A7. The multi-district settlement agreements allow some flexibility in our rulemaking commitments. The percentage of our budget that is expected to be used on 

completing work required by the settlement agreements is contingent on our appropriation level. While our highest priority is to fulfill our commitments under these 

settlement agreements, which will comprise the majority of our work, these commitments will not preclude us from addressing emergency listing actions that may arise 

during that time. In addition, if we determine that compliance for the settlements 

would prevent us from working on crucial, high-priority listing actions, we could 

seek modification of the settlement, either with the agreement of the plaintiffs or 

from the court. 

Q8. What is the Service planning to do with any new listing petitions filed during 

the process of complying with the settlement agreements? Would they be placed 

on the candidate species list until the settlement work is completed? 

A8. Because the multi-district litigation settlement agreements limit the number of 

species that can be petitioned by or incentivizes restraint on the part of the plaintiffs during the six year workplan, as these plaintiffs represent a large contingent 

of all our listing requests we expect the number of petitions will decrease notably. 

We intend to complete 90-day findings for those petitions that we receive over the 
84 

course of the six year workplan. However, the degree to which we are able to make 

additional 12-month findings on new petitions will depend on our progress in implementing our workplan and funding and staffing available. To the extent that we 

identify additional species that warrant listing during the six year workplan, but 

are not emergency listing actions, we anticipate that in most cases they would be 

added to the candidate list at least until completion of the workplan. 

Q9. USFWS’s testimony highlights that the Endangered Species Act requires decisions to be made ‘‘solely on the basis of the best scientific and commercial data 

available’’ under deadlines imposed by the Endangered Species Act. However, 

these deadlines are policy choices, not scientific ones. How would science be impacted if your agency was given more time to review available data? What if it 

had six months to make an initial determination instead of only 90 days? 

A9. No matter the time frame allotted for an initial determination for a petition 

finding, there is always the potential for workload to overwhelm the resources available. If resources were kept consistent with funding and staffing in recent years, 

we have forecasted an ability to handle our existing workload (as outlined by the 

six year workplan) within the existing statutory 90-days for initial determination on 

petitions and 12-months for a species status review in a thorough and scientifically 

defensible manner. 

Q10. USFWS’s testimony notes that the reason for the deferral of action related to 

‘‘warranted but precluded’’ listings was ‘‘because of the need to allocate resources for other work.’’ To what other work is the testimony referring? Did species protection suffer as a result of this diversion of resources? 

A10. The other work to which the testimony is referring is work that was courtordered or related to other settlement agreements, in addition to work on other 

higher priority candidate species with lower LPNs. These activities are not a result 

of a diversion of resources, but rather a direction of limited resources to the highest 

priority activities. Furthermore, the high volume of deadline-related litigation required the Service to work on initial 90-day and 12-month petition findings to the 

exclusion of listing determinations for existing candidate species. These factors were 

a motivation behind the multi-district litigation settlement agreements, which outline a plan for making listing decisions on the current list of candidates, and will 

also reduce new deadline litigation cases and the number of new petitions. These 

factors were also the motivation for the petition subcap language the Administration 

requested and the Congress included in the Interior appropriations bill. 

Q11. How much in legal fees does the U.S. government expect to pay in the two recent settlements with WildEarth Guardians and the Center for Biological Diversity? How is this amount determined? 

A11. The amount of any fees awards is subject to ongoing and confidential settlement negotiations between the Department of Justice (DOJ) and both plaintiffs. The 

two settlement agreements resolved thirteen separate lawsuits that were consolidated in these MDL proceedings, and the parties are currently attempting to settle 

the fees-related claims for all of these lawsuits. Because the parties’ fees-related negotiations are complex and ongoing, it is not possible to estimate the amount of any 

fees awarded at this time. If the parties are unable to agree on the amount of any 

fees awards, the court will determine the appropriate amount. As you are aware, 

in such cases, the prevailing party is entitled to recover its additional costs for litigating the amount of the award, should the parties be unable to reach agreement. 

Q12. The USFWS has a practice of denying ESA ‘‘enhancement of survival permits’’ 

for the importation of endangered species trophies, regardless of the fact that 

the Service has admitted that hunting of certain foreign species and importation by U.S. hunters of the trophies of those species enhances the survival of 

those species. [68 Fed.Reg. 49512 (Aug. 18, 2003)] 

• How does the Service scientifically justify the denial of such permits, and how 

does the Service reconcile the denial with its statutory obligation to encourage 

foreign governments to conserve their species? [Endangered Species Act, 16 

U.S.C. Section 1537] 

A12. The Service believes that a properly managed, scientifically based hunting program can provide benefits to certain species in the wild. The Service is supportive 

of hunting programs that stimulate stronger conservation for both game and nongame species. Consequently, we issue hundreds of import permits every year for trophies of species that are listed as threatened. However, not all hunting programs 

are identical, nor do they all provide a benefit to the hunted species, particularly 

endangered species. 
85 

All applications received by the Service are reviewed on a case-by-case basis using 

the best available scientific and commercial information. Requests to import endangered species, whether a hunting trophy or scientific specimen, are evaluated based 

on the issuance criteria established in our regulations (50 CFR 17.22(a)(2)) to determine whether the importation of the specimen would enhance the propagation or 

survival of the species. For hunting trophies, we are particularly interested in determining if the species is being managed according to sound scientific principles and 

professionally accepted management practices, including whether legal hunting is 

effectively controlled at sustainable levels and illegal hunting is being effectively 

controlled or eliminated, and whether the hunting program provides a benefit to the 

species. Benefits can be direct—by generating funds that support the management 

program—as well as indirect, such as by providing economic benefits to local communities so that they support the protection and maintenance of the species. 

To date, with the exception of bontebok, which are successfully managed on South 

African ranches and game reserves, we have not been able to find that the killing 

of an animal listed as an endangered species through sport hunting provides sufficient enhancement to overcome the loss of the animal from a population that, by 

definition, is currently in danger of extinction. However, species with a listing status 

of threatened would not have so high a threshold for enhancement, thus increasing 

the likelihood we could allow the import of trophies obtained through well-managed 

sport hunting program. 

The Service’s statutory obligation to encourage foreign governments to conserve 

their species is accomplished through various measures and is not limited to authorizing the import of hunting trophies. For example, the Service may provide grants 

that support the development of management programs for species, including antipoaching measures, which may eventually lead to the improvement of the status of 

the species and the possibility that we could then allow the import of trophies. Permit denials often result in consultations between the Service and the foreign government to provide them guidance on where improvements are needed to allow trophies 

to be imported into the United States. This generally means achieving a consistent 

level of protection and management across countries and across species, often within 

the same geographic region (e.g., southern Africa). 

Q13. Listing Decisions and Recovery Plans are required to undergo peer review. Are 

Consultations and Biological Opinions also required to undergo peer review? 

• If they are not required to undergo peer review, should assessments and 

BiOps that have such a significant impact on land-use be required to undergo 

peer review? 

• If they are required to undergo peer review, is that peer review conducted 

by an external body, or by other agency staff? 

• If they sometimes undergo peer review, how does the agency determine when 

to seek peer review, and how does the agency determine whether the peer 

review will be internal or external? 

A13. The Service generally does not incorporate independent peer review in section 

7 activities, including biological opinions. All Service biological opinions undergo internal management review before they are distributed to the action agency. The extent of internal review varies and depends largely on the degree of complexity or 

controversy of the proposed Federal action as well as the extent of any scientific uncertainty. Biological opinions that conclude the proposed action is likely to jeopardize the continued existence of any listed species must be reviewed and approved 

by a Regional Director. Biological opinions that conclude the proposed action is not 

likely to jeopardize the continued existence of any listed species must be reviewed 

and approved by Field Office supervisors. 

The statute and our implementing regulations focus our efforts on providing timely consultation and biological opinions to Federal action agencies to help them satisfy their obligations under the ESA without unnecessarily delaying their decisions. 

The statute specifies that consultation is to be concluded within 90 days of initiation, and that the Federal agencies (the action agency and the Service) may extend 

this timeline by mutual agreement. However, the statute further specifies that when 

an applicant is involved, the Federal agencies may not extend the consultation for 

more than 60 days without the consent of the applicant. The implementing regulations further specify that the Service is to deliver its biological opinion within 45 

days of the conclusion of consultation, which means that consultations are expected 

to be completed in 135 days, unless extended. Such a timeline does not lend itself 

to conducting external peer reviews. 

In unusual situations, the Service and the Federal action agency may choose to 

conduct a peer review of a biological opinion. The decision to undertake such a re-
86 

view is generally based on the complexity and level of controversy as well as the 

extent of any scientific uncertainty regarding the effects of the action and is only 

implemented with the mutual agreement of the Service and the Federal action 

agency. The decision to undertake such a review requires the Federal action agency 

to accommodate the additional time commitment and to handle the expense and logistics of the peer review. 

Q14. What efforts will you and your agency undertake to investigate the actions of 

USFWS employee Jennifer Norris, accused of providing false or misleading testimony before Judge Wanger? How long is this investigation expected to take? 

Will outside individuals be brought in to undertake this investigation or will 

it only be conducted by agency personnel? If so, please list the individuals that 

will be involved in the investigation along with their affiliations and titles. Will 

the investigation results be made public? 

A14. We firmly believe that wise decisions about the future of the Bay Delta must 

be guided by the best available science. The Service stands behind the consistent 

and thorough work that our scientists have done on the Bay Delta over many years. 

Their expertise and professionalism remain vital to the success of our efforts to meet 

the co-equal goals of improving water reliability and restoring the health of the Bay 

Delta. 

A14. We also believe that, when questions arise regarding the integrity of scientific 

work, it is important to resolve them swiftly, independently, and decisively. The 

Service has taken the comments by Judge Wanger very seriously and treated as allegations of scientific misconduct under the Department of the Interior Manual 305 

DM 3 Integrity of Scientific and Scholarly Activities. The Service retained a contractor, Atkins North America, to engage a panel of independent reviewers who are 

external to both the Service and Bureau of Reclamation to evaluate the testimony 

and declarations made to the court by Dr. Norris. The panel was asked to determine 

whether the testimony and declarations made to the court were appropriately based 

upon the extensive scientific record on this issue. The panel produced a report which 

has been evaluated by the Service’s Scientific Integrity Officer. The panel found 

that, although certain of the judge’s questions could have been answered more clearly, Dr. Norris committed no wrongdoing or misconduct, and her testimony fell within the well-established norms and standards of acceptable scientific conduct. The 

Service’s Scientific Integrity Officer, therefore, found that there is no indication that 

Dr. Norris violated the Department’s Scientific and Scholarly Integrity Policy. The 

same is true with respect to a Bureau of Reclamation scientist, Frederick Feyrer, 

who was also criticized by Judge Wanger. 

Questions submitted by Representative Sandy Adams 

Q1. The two recent ESA Settlements with WildEarth Guardians and Center for Biological Diversity commit the USFWS to various deadlines over the next six years 

for the 251 species currently on the candidate species list and other species. For 

each of these species, the Service has agreed either to (1) decide a listing is not 

warranted or (2) propose a rule to list the species. [CBD Settlement, para. B.3; 

WEG Settlement, para. 2] The settlement agreements therefore prohibit the Service from making ‘‘warranted but precluded’’ findings for any of the existing candidate species and other species subject to the settlements. 

• How can the Service deprive itself of the authority Congress gave it to make 

a ‘‘warranted but precluded’’ finding, including for the 251 species currently 

on the candidate species list? 

• How can the Service know now, scientifically speaking, that at the time it 

reaches each of the settlement-imposed deadlines, it will not be faced with 

species with higher listing priorities that would necessitate a continued ‘‘warranted but precluded’’ finding for the species that are the subject of the settlement agreements? 

A1. The Service has already determined that the 251 species on the candidate list, 

many of which have been candidates for a decade or more, warrant a listing proposal under the ESA. However, until such time as we propose listing each of these 

species, we will be re-certifying our ‘‘warranted but precluded’’ finding for each relevant species each year in the Candidate Notice of Review. The six year work plan 

and the negotiated settlement agreements will reduce the amount of deadline litigation and the number of petitions filed. This will allow the Service to reclaim a greater measure of control over our listing activities, to resolve our backlog of listing actions in a timely and cost-effective manner, and to focus our limited resources on 
87 

the species most in need of ESA protection. With relatively few exceptions, the settlement agreements allow the Service to use our biologically based listing priorities 

to schedule our work, so that the highest priority species will proceed to listing determinations first. We also purposely reserved the discretion and capability to handle emergency listing needs during the course of this workplan. 

Questions submitted by Representative Randy Neugebauer 

Q1. What percentage of the dunes sagebrush lizard’s potential habitat has the 

USFWS studied in the process of analyzing Federal protection status of the species? How can you be sure of the science behind the lizard’s status without studying the entire land area that will be affected by the regulation? 

A1. The best available scientific information at the time of our listing proposal indicated that the lizard is found only in the shinnery oak sand dunes in southeastern 

New Mexico and west Texas. While a majority of the lizard’s habitat has been surveyed, portions of suitable habitat on private lands have not been surveyed due to 

access issues. Note that the best-available-science standard of the ESA requires us 

to make determinations in the absence of perfect information. The best available 

science indicates that the shinnery oak sand dunes habitat has suffered significant 

losses over recent years, which contributed to our decision to propose the lizard for 

listing. 

On December 5, 2011, the Service published in the Federal Register a six month 

extension of the final determination of whether to provide protection under the ESA 

for the lizard. The Service is taking this action in order to solicit additional scientific 

information and public comment before making any final listing determinations regarding the agency’s proposal. Publication of this announcement will reopen the 

comment period on the proposed rule to list the species (published on December 14, 

2010) for 45 days. In addition to the original comment period associated with the 

publication of the proposed rule, we held two public meetings in April 2011 and reopened the comment period to accept additional public comments. That comment period closed on May 9, 2011. 

Public comments received since the publication of the proposed rule have expressed concerns regarding the sufficiency and accuracy of the data related to the 

lizard’s status and trends in New Mexico and Texas. The Service has received new 

survey information for the lizard in New Mexico and Texas and an unsolicited peer 

review study on our proposed rule. During the 45-day comment period, the Service 

is soliciting input from concerned governmental agencies, the scientific community, 

industry, or any other interested party concerning the proposed rule in light of the 

concerns raised to date and the additional information the Service has received. 

Q2. Do you have baseline population estimates for the dunes sagebrush lizard? Just 

because a lizard is no longer found at a specific site where it once lived, does 

that mean that that particular lizard has died, or could it have migrated to a 

different location? What does the USFWS consider to be a viable population 

number for the lizard, and how do you come to that conclusion? 

A2. Populations of lizards vary over time due to a number of factors such as the 

abundance of invertebrates (prey), drought, or the availability of mates. It is true 

that the absence of lizards does not mean that lizards have died, but it does mean 

that they are no longer found at a given site, or are at such low numbers that they 

are undetected. The Sias and Snell study, which determined that lizards were less 

abundant adjacent to oil and gas development, was completed in areas where lizards 

were still present. Areas within oil fields where lizards were not present were excluded from the study. It is reasonable to expect that lizards will be found in areas 

where habitat remains, and not be found in areas where suitable habitat no longer 

exists. The proposed rule does not define a viable population for the lizard, but 

makes a direct connection to the availability of habitat and the lizard’s persistence. 

As previously noted, comments received since the publication of the proposed rule 

have expressed concerns regarding the sufficiency and accuracy of the data related 

to the lizard’s status and trends in New Mexico and Texas. Therefore, in consideration of the disagreements surrounding the lizard’s status, the Service is extending 

the final determination for six months in order to solicit scientific information that 

will help to clarify these issues. The Service has also opened another 45-day comment period on the proposed rule that began on December 5, 2011. The Service welcomes any scientific information available that is relevant to the question. 

Q3. The petition filed by the Center for Biological Diversity and the Chihuahuan 

Desert Conservation Alliance in May 2002 to list the sand dune lizard as threatened or endangered relied upon studies performed by the University of New 
88 

Mexico’s Department of Biology in the mid-1990s. That petition clearly ignored 

parts of the studies that conflict with the petition’s goals. For example, the population of the lizard in areas where oil wells were present was found to have increased by a factor of 2.4 from 1996 to 1997, compared to an increase by a factor 

of 1.6 where wells were absent. The reports also conceded that the lizard continues to live in areas where there have been oil fields in existence for over 40 

years. If we are talking about threats to the lizard, how can you justify moving 

forward with this listing in the face of scientific evidence that contradicts the 

popular view that human activity such as oil drilling is responsible for killing 

off the species? Do you have a response to the data and studies referenced above? 

A3. As mentioned previously, populations of lizards vary over time due to a number 

of factors such as the abundance of invertebrates (prey), drought, or the availability 

of mates. For this reason, the authors (Sias and Snell) compared surveys each year 

independently. There were periods during the study where lizards were more abundant at a developed site, but throughout the five year study, the researchers found 

statistically significant differences between the developed and undeveloped sites. 

The statistical evidence allowed the authors to conclude the relationship between 

the abundance of lizards at developed and undeveloped sites could not be explained 

by chance. 

As previously noted, comments received since the publication of the proposed rule 

have expressed concerns regarding the sufficiency and accuracy of the data related 

to the lizard’s status and trends in New Mexico and Texas. Therefore, in consideration of the disagreements surrounding the lizard’s status, the Service is extending 

the final determination for 6 months in order to solicit scientific information that 

will help to clarify these issues. The Service has also opened another 45-day comment period on the proposed rule that began on December 5, 2011. The Service welcomes any scientific information available that is relevant to the question. 

Q4. Do you have baseline population estimates for the lesser prairie chicken? What 

percentage of the lesser prairie chicken’s potential habitat has USFWS studied? 

A4. Scientifically sound historical baseline population estimates are not available. 

Instead the Service has relied on the best scientific knowledge of species experts as 

reported in the scientific literature. From these accounts we can determine, with 

some confidence, the historically occupied range and estimated abundance of lesser 

prairie-chickens. Knowledgeable sources considered the lesser prairie-chicken to be 

abundant to common in the late 1800s. One source estimated that as many as two 

million lesser prairie-chickens may have existed in Texas alone at that time. By the 

1930s, the species had begun to disappear from areas where it had been considered 

abundant—populations were nearly extirpated from Colorado, Kansas, and New 

Mexico, and were markedly reduced in Oklahoma and Texas. In the mid-1960s, the 

total rangewide population was estimated to be between 36,000 to 43,000 individuals. 

The fish and game agencies in each of the five States where the lesser prairiechicken occurs conduct surveys for the lesser prairie-chicken. In all five States, survey routes are established throughout much if not all of the known range of the lesser prairie-chicken. While the actual amount of known range sampled by each route 

is small, the surveys provide an index of the status of the lesser prairie-chicken, by 

State, over the entire range. The methodology is useful in documenting long-term 

trends but is limited in its ability to reliably estimate population numbers. Recently, 

the States received funding to implement aerial surveys for lesser prairie-chickens, 

which may provide more reliable indicators of population status, but these surveys 

have not yet been completed rangewide. 

Q5. How effective have volunteer conservation agreements with private land owners 

and industries been in protecting the habitats of the dunes sagebrush lizard and 

the lesser prairie chicken? Does USFWS take these options into account when 

conducting scientific studies of mitigation strategies? 

A5. Conservation agreements are in place in three of the five lesser prairie-chicken 

States. In Texas, there are currently 17 enrolled ranches in a Candidate Conservation Agreement with Assurances (CCAA), representing 199,781 acres in 8 counties. 

In New Mexico, there are currently 34 oil-gas companies enrolled in the Candidate 

Conservation Agreements (CCA) for a total of 574,763 mineral acres enrolled. In addition, 34 New Mexico ranchers have enrolled in the CCA and CCAA, representing 

1,353,924 enrolled acres. An approved CCAA has been developed with a single landowner in the State of Kansas. Oklahoma, under the leadership of the Oklahoma Department of Wildlife Conservation, is currently developing a CCAA. As in all species, the Service does consider the agreements when conducting research, or imple-
89 

menting conservation measures for the lesser prairie-chicken or dunes sagebrush 

lizard. 
90 

Responses by The Honorable Craig Manson, 

General Counsel, Westlands Water District 

Questions submitted by Chairman Paul Broun 

Q1. In your professional opinion, what percentage of listings are science-based and 

what percentage of listings are policy or politically driven? 

A1. In my experience, each listing decision has a varying degree of science supporting that decision. Generally, it is often the perceived sufficiency, or lack thereof, 

of objective scientific support for a particular decision that leads to controversy. In 

addition, each listing decision requires the decision-maker to: 

tak[e] into account those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such 

species, whether by predator control, protection of habitat and food supply, or 

other conservation practices, within any area under its jurisdiction; or on the 

high seas. 

16 U.S.C. § 1533(b)(1)(A). 

Q2. There seems to be a concern that a balance needs to be struck when designating 

critical habitat for protected species. What type of science is used to determine 

the critical habitat? 

A2. Under the Endangered Species Act, ‘‘the best scientific and commercial data 

available’’ is required to be used for determining critical habitat. 16 U.S.C. 

§1536(a)(2). As I indicated in my testimony before this Committee, section 4(b)(2) 

requires that the Secretary in designating critical habitat: 

tak[e] into consideration the economic impact, the impact on national security, 

and any other relevant impact, of specifying any particular area as critical 

habitat. The Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying 

such area as part of the critical habitat, unless he determines, based on the 

best scientific and commercial data available, that the failure to designate such 

area as critical habitat will result in the extinction of the species concerned. 

16 U.S.C § 1533(b)(2). 

Congress provided this power of exclusion to allow the Secretary to make informed decisions regarding the comparative value of designating critical habitat 

with the consequences of doing so, precisely to ensure a balance was struck between 

a wide variety of policy values and species protection. 

Q2. Would ending the outside petition process better allow the U.S. Fish and Wildlife Service to focus its attention on species that need the most help instead of 

species that may be more ‘‘charismatic’’ than others? 

A2. No, I believe that when used appropriately, the outside petition process is an 

important tool in protecting endangered species. In the past, Congress amended the 

ESA as a reaction to the failure of the Service to promptly make key decisions by 

including mandatory time limits for making decisions. In some instances, the Service has been unable, or unwilling, to meet the time limits that are in current law. 

Congress may choose to evaluate the merits or adequacy of the existing time limits 

contained within the ESA. 

Q4. Given your unique experience dealing with all sides of the Endangered Species 

Act, how would you improve the Act? 

A4. As an initial matter, any changes to the ESA should be in relatively small bitesize pieces in order to make them manageable. Moreover, as I mentioned in my testimony before this Committee, we need to return to the notion that science can tell 

us what is, while policy determines what ought to be done. To do that, the listing 

decisions should be de-coupled from the automatic, discretion-less application of regulation. That would require congressional action. Additionally, the quality of science 

would be vastly improved and court litigation sharply reduced if the Secretary was 

required to make listing determinations by formal-rulemaking under the Administrative Procedure Act. 

Q5. Please define and explain Consultations and Biological Opinions, or ‘‘BiOps?’’ 

How do Consultations and BiOps impact proposed federal projects and activities? Can they have a significant impact? 

A5. Section 7(a)(2) of the ESA requires Federal agencies to ensure, in consultation 

with, and with the guidance of either the Secretary of the Interior or the Secretary 
91 

of Commerce, based on ’’the best scientific and commercial data available,’’ that 

their proposed actions will not be ‘‘likely to jeopardize the continued existence of any 

[listed] species or result in the destruction or adverse modification of the critical 

habitat of such species.’’ 16 U.S.C. § 1536(a)(2) (2010). 

In general, once an action agency has made the determination that a proposed 

action ‘‘may effect’’ a listed species or its critical habitat, the formal consultation requirement is triggered, and the federal action agency provides a biological assessment to the consulting agency (U.S. Fish and Wildlife (FWS) or National Marine 

Fisheries Service (NMFS)) and then looks to the consulting agency for advice and 

guidance. Section 7(b)(3)(A) of the ESA requires that the consulting agency provide 

the action agency with a ‘‘written statement . . . detailing how the agency action affects the species or its critical habitat. If jeopardy or adverse modification is found, 

the Secretary shall suggest those reasonable and prudent alternatives which he believes would not violate subsection (a)(2) and can be taken by the Federal agency 

or applicant in implementing the agency action.’’ 16 U.S. C. § 1536(b)(3)(A). Once 

the action agency receives the written statement, commonly referred to as a ‘‘biological opinion’’, consultation is complete and, ‘‘it remains the responsibility of each Federal agency to insure that it is in compliance with section 7(a)(2) and that it has 

established an administrative record for a given activity which demonstrates such 

compliance.’’ Interagency Cooperation– Endangered Species Act of 1973, 51 Fed. 

Reg. 19,926, 19,956 (June, 1986). 

As seen in the instance of a small fish in the Sacramento-San Joaquin Delta in 

California, the delta smelt, a biological opinion can have a significant impact on the 

human environment. On December 15, 2008, FWS issued and Reclamation conditionally accepted a biological opinion concerning the effects of the operations of the 

Central Valley Project and the State Water Project (collectively the ‘‘Projects ’’) on 

the delta smelt. The biological opinion called for a drastic reduction in the amount 

of water that the Projects could deliver to its customers. In May 2010, a Federal 

District Court in California found that implementation of the 2008 biological opinion 

caused rampant unemployment, increased poverty and hunger, and damage to 

prime agricultural land. The Consolidated Smelt Cases, 717 F.Supp.2d 1021 (E.D. 

Cal. 2010). 

Q6. How does science inform a Consultation or BiOp? Does the agency conduct new 

science, or simply review existing literature? 

A6. The ESA exists at the confluence of science, law, and policy. It is not a purely 

scientific decision scheme. The ESA requires science-informed decisions, not merely 

scientific decisions. Science can tell us what is, while policy determines what ought 

to be done. 

Under the ESA, a federal agency’s action must be based on ‘‘the best available 

scientific and commercial data available.’’ 16 U.S.C. § 1536(a)(2). 

Questions submitted by Ranking Member Donna Edwards 

Q1. You stated at the hearing that, ‘‘I found it curious that the Inspector General 

of the Department of the Interior took two years after I had left the Department 

to come ask me anything about any of those cases. I found it interesting that 

during the time that any of these things were happening, no one approached me 

and asked me any questions about any of those things. And so it made me suspect of their motives and calls into question—in my mind at least—their integrity.’’ 

In response to a later question you clarified that you were not suggesting that the 

IG lacked integrity, but that you ‘‘meant to challenge the integrity of those who 

brought into question some of those activities during the time that I was there and 

the time that I subsequently was a law professor for 4 years.’’ 

On November 22, 2005, Secretary Norton announced that you had submitted your 

resignation as Assistant Secretary for Fish and Wildlife and Parks. According to a 

Department of Interior release, that resignation was to be effective December 31, 

2005. Staff have checked with the Department of Interior Inspector General’s office. 

They indicate that they received allegations about the misconduct of your Deputy, 

Julie MacDonald, on April 11, 2006. You were interviewed in the course of that investigation within a few months of its opening. In short, it was a matter of months 

after you left your position before you were swept up into the first investigation of 

Julie MacDonald. 

Do you wish to clarify your claims to the Subcommittee regarding how long it took 

for the Interior staff to complain to the IG about misconduct and for IG investigators 

to approach you regarding Ms. MacDonald’s activities? 
92 

A1. No. 

Q2. In your oral testimony you stated, ‘‘Now, I want to talk about the incident with 

Gary Frazer. Gary was the one who brought to my attention a flaw in a rule 

that we were issuing, and I appreciated that very much . . . ‘‘ Your comments 

then went on to explain why you ordered an erroneous rule to be published in 

the Federal Register. However, you did not address the other element of this incident that had been referenced in my opening statement. You did not discuss 

your role in having Gary Frazer sent to USGS as a liaison, removing him from 

his post at Fish and Wildlife where he had been trying to stop some of Ms. MacDonald’s more egregious conduct. The Inspector General’s report documents this 

incident with some care. 

• Did Julie MacDonald ever communicate to you that Gary Frazer (either by 

name or title) was trying to interfere or oppose some of her efforts at the Department? 

• Did Julie MacDonald ever communicate with you in any way about having 

Frazer removed from his post at the Fish and Wildlife Service? 

• If you appreciated Mr. Frazer’s bringing Ms. MacDonalds error to your attention ‘‘very much,’’ why did you participate in removing Gary Frazer from the 

Fish and Wildlife Service? 

• Do you believe that a high-profile removal and reassignment of a Fish and 

Wildlife staffer widely known to have been a roadblock to Ms. MacDonald’s 

conduct on ESA issues would have no impact on staff perceptions of the probability of retaliation if they complain about Ms. MacDonald’s misconduct so 

long as you were the Assistant Secretary? 

A2. Mr. Frazer was reassigned, not removed. It is my understanding that by entering the Senior Executive Service Mr. Frazer decided he wanted to be within a class 

of employees that could be appropriately reassigned based upon the needs of the 

agency, subject to certain procedural requirements. 

Ms. MacDonald, as Deputy Assistant Secretary for Fish, Wildlife, and Parks, had 

no line authority to make personnel decisions over Fish and Wildlife Service employees. 

Q3. Your testimony regarding internal complaints at Interior and the Inspector General’s investigation is somewhat ambiguous. You seem to suggest that no employee or staff member of the Department of the Interior ever approached you 

to bring any complaints regarding Ms. MacDonald’s conduct on Endangered 

Species Act issues to your attention. Did no one ever complain about Ms. MacDonald’s conduct? 

• Did you ever receive complaints or information that would lead you to believe 

the Pacific Legal Foundation or any other private party had received internal 

Departmental documents from Ms. MacDonald that would be considered predecisional or deliberative? 

• Did you ever approve Ms. MacDonald providing internal Departmental documents that would be considered deliberative or pre-decisional to an outside 

party? 

• Did you ever provide internal Departmental documents that would be considered deliberative or pre-decisional to an outside party? 

• Did you ever receive complaints or information about Ms. MacDonald’s personal conduct, often described as abusive, with other members of the staff? 

• Did you ever receive complaints or information about Ms. MacDonald’s communicating with science staff in the field challenging their findings or ordering them to change their findings? 

A3. I do not recall receiving complaints regarding Ms. MacDonald’s conduct, except 

that she set high expectations of staff. The remainder of the question is vague and 

ambiguous in that no definition of ‘‘predecisional’’ or ‘‘deliberative’’ is set forth. I 

would note that the Assistant Secretary for Fish and Wildlife and Parks ‘‘is authorized to exercise all of the authority of the Secretary . . . ‘‘ 209 DM 6 [DOI Departmental Manual, Part 209, section 6]. Thus, it was up to me to determine what was 

‘‘predecisional’’ or ‘‘deliberative.’’ Furthermore, to the extent that these terms, 

‘‘predecisional’’ or ‘‘deliberative,’’ are intended by the questioner to refer to documents covered under what is known as ‘‘Exemption 5’’ of the Freedom of Information Act, 5 USC §552 (b) (5), it must be understood that Exemption 5 exempts documents from mandatory disclosure and does not prevent an authorized official to dis-
93 

close such documents in an exercise of the official’s discretion. This interpretation 

is fully compatible with President Obama’s 2009 Memorandum for Heads of Agencies, Subject: Freedom of Information Act. 

Q4. Between the time Ms. MacDonald was hired by you in 2002 and the time you 

left the Department you promoted her—ultimately she became Deputy Assistant 

Secretary—and participated in awarding her at least one significant bonus. The 

Department’s Inspector General documented Ms. MacDonald’s misconduct in 

painful detail based on multiple witnesses in three reports. How is it possible 

that you could not have known of any element of the misconduct by the Deputy 

Assistant Secretary—a member of your staff who was personally close to you? 

A4. While there have been many statements made concerning Ms. MacDonald, it 

is important to note that Ms. MacDonald brought a defamation action against the 

Center for Biological Diversity (CBD) regarding certain allegations it made concerning her conduct at Interior. It is my understanding that CBD settled this lawsuit and posted an apology to Ms. MacDonald on its website. 

Q5. I asked you about the costs of setting right the consequences of mismanagement 

that occurred during your time at the Department and due to subsequent activity 

by Ms. MacDonald. You seemed to suggest you did not agree with the Inspector 

General’s conclusions about mismanagement or the IG conclusions regarding the 

minimal costs of that mismanagement, which they place in the hundreds of 

thousands of dollars—at a minimum. Please explain why you do not accept 

those conclusions and why you believe the cost estimate is inaccurate. 

A5. I have no way of knowing what the purported costs are and have no personal 

insight into the costs after I left the Department of the Interior. 

Questions submitted by Representative Brad Miller 

Q1. In your testimony to the Committee you admitted that Ms. MacDonald has done 

work as a consultant to Westlands. Please provide to the Committee information 

regarding when Ms. MacDonald has worked for Westlands, what issues she has 

worked on and the amount of remuneration that Westlands has provided for 

those services. Response: Ms. MacDonald does not have a consulting contract 

with Westlands. It is my understanding that Westlands has a consulting contract with National Environmental Strategies (NES). It is also my understanding that Ms. MacDonald has worked with NES. 

Q2. Did Ms. MacDonald provide any assistance to you in preparing your written testimony for the Subcommittee’s hearing? Did she compose any or all of it in draft 

or final form; edit the testimony, review the testimony, provide comment on the 

testimony or any other service associated with the testimony? Response: No. 

Q3. You indicated to the Committee that you established the Center for Environmental Science Advocacy and Reliability. Can you please specify when you established the Center? Response: I established CESAR in 2008 while I was a law 

professor at University of the Pacific, McGeorge School of Law. It was intended 

to be an ancillary resource for my scholarly research. 

Q4. Has Ms. MacDonald done any work for CESAR, either paid or unpaid? If the 

answer is yes, please indicate the time frame of her work and the issues or products she has provided to CESAR. Response: CESAR benefits from a wide range 

of volunteer work from a number of members of the community. Ms. MacDonald 

has not been paid for any work associated with CESAR. 

Q5. The Pacific Legal Foundation (PLF) is identified as representing CESAR in at 

least one legal action that the staff could find. Please provide a record of the 

history of the Pacific Legal Foundation acting to represent or support the work 

of CESAR. Identify all cases, either current or past, in which PLF has provided 

representational services to CESAR. 

A1–5. PLF represented CESAR concerning a petition before the U.S. Fish and Wildlife Service under 16 U.S.C. §1533(b)(3)(D), In the Matter of the Petition to Rescind 

Critical Habitat for the Perdido Key beach mouse under the Endangered Species Act. 
94 

Responses by Mr. Douglas Vincent-Lang, 

Senior Biologist, Alaska Department of Fish and Game 

Questions submitted by Chairman Paul Broun 

Q1. Your testimony highlighted the role states can and should have in Endangered 

Species Act (ESA) decisions. Please provide some examples of how a greater state 

role could impact the ESA process and properly protect endangered species without burdening American jobs? 

A1. States have the primary trustee responsibility for fish and wildlife and their 

habitats. As such, states hold significant expertise on their trust resources and their 

conservation. Given this, states are in an excellent position to inform all ESA process decisions, from listing decisions to biological opinions to recovery planning to 

delisting/uplisting/down-listing decisions. 

Recognizing this, when passing the Endangered Species Act Congress clearly identified a unique role for states in all Endangered Species Act decisions. This role is 

contained in Section 4(i) of the Act. This section clearly grants states a place at the 

table in all Endangered Species Act decisions. Congress’ intent is recognized by the 

Services in their Interagency cooperative policy regarding the role of State agencies 

in Endangered Species Act initiatives, which was recently re-affirmed by the Services. 

Despite these recognitions, states are not being given equal deference in the implementation of the ESA. Instead, the Services are increasingly using their deference to discount valid questions raised by states on ESA decisions. They are also 

using their deference as a basis of their defense of flawed science. It is imperative 

that states be granted equal deference during all Endangered Species Act decisions. 

These actions would conserve and recover listed species without burdening American jobs. 

Q1. Alaska is viewed as a state with unique economic development challenges. How 

will the broad scale of the recently imposed polar bear habitat protection area 

hurt the economy of your state and put jobs at risk? In addition, how will these 

protections impact our nation’s ability to reduce the use of imported oil from 

volatile regions of the world? 

A2. The United States Fish and Wildlife Service’s (the ‘‘Service’’) designation of 

187,157 square miles of polar bear critical habitat, an area larger than California, 

the third largest state in the United States, is unprecedented. Nine percent of the 

final critical habitat designation covers lands owned by the State of Alaska. The 

State’s legal title and regulatory interests extend to its offshore submerged lands 

and waters, which include significant portions of the designated polar bear critical 

habitat. The area designated includes the largest areas of potential oil and gas deposits in the United States and are on economic importance to the State as well as 

of strategic importance to the Nation. The designation puts the area under federal 

control and opens all permit decisions to potential litigation and delay. 

The designation of polar bear critical habitat interferes with Alaska’s management of its own oil and gas resource lease sales and the development of mitigation 

measures for those lease sales. Specific activities affected by the polar bear critical 

habitat designation include oil and gas leasing in and adjacent to Alaska including 

the proposed Beaufort Sea Area-wide 2009 Oil and Gas Lease Sale and the North 

Slope Area-wide 2008 Oil and Gas Lease Sale. These dates refer to the original date 

of the final best interest finding for the area-wide sales issued by the Director of 

the Division of Oil and Gas. These are geographic and site-specific examples of oil 

and gas leasing in the Beaufort Sea and North Slope planning areas that will be 

affected by the Service’s polar bear critical habitat designation, as well as more generally areas that are the subject of the Alaska Department of Natural Resources’ 

current five-year plan for area-wide oil and gas lease sales for the Beaufort Sea and 

North Slope planning areas scheduled for 2011, 2012, 2013, 2014, and 2015. Additionally, State activities concerning existing pipelines (including the TransAlaska 

Pipeline); roads; other industry and local infrastructure projects are similarly affected by the polar bear critical habitat designation. The State’s own oil and gas 

leasing activities, together with the federal offshore oil and gas leasing activities, 

are important to the State’s operations, management, and income—both for wildlife 

management (including the polar bear) and other purposes-due to the royalty and 

tax revenue the activities generate and because throughput from the TransAlaska 

Pipeline system provides income and economic benefit to the State of Alaska and 

its citizens as well as being strategically important to the nation. 
95 

The Service’s continuous imposition of overlapping critical habitat designations on 

the map of Alaska makes it increasingly difficult for Alaska’s native entities, economic interests, and the State itself to delineate permissible activities and act in 

the best interests of Alaska. Of notable concern is the contiguous band of critical 

habitat along the entire Alaskan coastline from the Canadian border to Kuskokwim 

Bay, which includes an area from 0–3 miles of state waters. This inserts a federal 

overlay that will require mitigation and conservation protections and conditions developed and approved by the federal government in State waters. This could significantly impact oil and gas development within the area of critical habitat designation. 

The polar bear critical habitat designation is especially detrimental to Alaska’s interests because the designation imposes additional injury through ESA requirements, especially in the Section 7 consultation process, that constrain the destruction or adverse modification of critical habitat. These are requirements that have 

no analog under the MMPA or pre-ESA listing programs to which polar bear management and conservation may have been subject, and are in addition to the requirement in the Section 7 consultation process for federal agencies to ensure that 

their actions are not likely to jeopardize the continued existence of the polar bear. 

The critical habitat considerations in the Section 7 consultation process will hinder 

and increase costs associated with projects of significant potential economic value 

to the State of Alaska and the nation. 

Q3. The U.S. Fish and Wildlife Service (USFWS) testimony states that the ESA has 

been a success? Do you agree or disagree? Why? 

A3. Let there be no doubt that we should everything in our power to prevent the 

extinction of species facing imminent and addressable threats in the near future. It 

would be irresponsible to not take the necessary actions to prevent extinction. 

While the extinction a small number of species have been prevented by their listing, the ACT has a dismal record in terms of preventing species extinction and recovering species to the point that they can be removed from protection under the 

Act. Less than 1% of the species listed have been removed as recovered. Given this 

record, it is hard to agree that the Act has been a success. 

We believe reform is needed to improve the Act. Specifically, we recommend the 

following: 

• Make designation of critical habitat discretionary. 

• Only allow a species to be listed if the factor can be addressed by the ESA 

• Define foreseeable future and acceptable level of risk. 

• Provide specific guidance on when and how the Services can designate Distinct 

Population Segments and/or subspecies. 

• Relax requirement for 90-day findings and 12 month status reviews. 

• Define recovery as the number necessary to remove extinction, not to fully recover the species and its habitat. 

• Disallow recovery goals aimed at ecosystem restoration—keep the goals focused 

on species recovery. 

Questions submitted by Ranking Member Paul Tonko, 

Q1. Mr. Vincent-Lang, in response to a question from Mr. Tonko, you testified that: 

‘[I]n the case of the Polar bear article, there was a single individual that had a 

different perspective than the entire leadership of the department.’’ 

However, the attached email indicates that at least three individuals from within 

the Division of Wildlife Conservation agreed with the conclusions of the USGS studies relied upon by the Federal Government to list the Polar bear as threatened. This 

email also seems to suggest that these individuals were the primary individuals 

within your department responsible for reviewing the science behind the USGS studies. 

Can you please explain this apparent discrepancy with your sworn testimony in 

front of the Committee? In addition, can you also please confirm that due to the State 

of Alaska’s communications policy, the three individuals noted in this email would 

be prohibited, under threat of dismissal, from publically airing their findings that 

the science behind listing the Polar bear was sound. 

A1. I misunderstood the question being asked, my apologies. Mr. Tonko is correct 

that three individuals performed cursory reviews of the USGS reports. They did not, 

however, as acknowledged in the aforementioned email perform ‘‘in-depth reviews’’ 

of the reports. 
96 

Upon further discussion with these staff, it became evident that because the reviews were not in-depth, their reviews may have not been through enough to assess 

methods and analytical approached in the depth required to ascertain the validity 

of the primary conclusions and inferences made in the reports. 

To provide additional insights into the reports, other professional scientists in the 

Department were asked to perform in-depth reviews. These reviews identified significant methodology and analytical issues that raised concern over the validity of 

the report conclusions. The final comments represented the combined review of the 

Department. As such it represents the combined expertise of the entire Department, 

rather than that of a select few individuals. 

Individuals are free to provide all opinions in the development of a state position. 

However, once that position is developed and finalized, all employees are expected 

to portray the state position when acting in their official capacity. Talking with 

other state and federal agencies, this is commonplace practice. 

I note that the Service in their Court filings on litigation over this listing decision 

acknowledged many of the science issues raised by the state. 

Questions submitted by Representative Sandy Adams 

Q1. The USFWS recently settled lawsuits with the Wild Earth Guardians and the 

Center for Biological Diversity. In the two settlements, the Service agreed to 

dates after which the Service will no longer be able to consider certain species 

in Alaska to be candidate species. Were the State of Alaska and its wildlife biologists consulted in the decision on how to prioritize these species for these settlement imposed deadlines? 

A1. No, states, including Alaska, were excluded from the settlement talks with Wild 

Earth Guardians and the Center for Biological Diversity on the candidate species 

list. States had much to inform these discussions in terms of ongoing work and conservation efforts. This knowledge was not brought forward to inform these talks because states were prohibited from entering into the talks. 

Specifically for Alaska, we were planning to conduct research on Kittlitz’s 

murrellets that would have provided key information to inform a status review on 

this species. However, because the State was excluded from these talks we were not 

able to bring this information into the talks. The settlement agreement scheduled 

this review for 2013. As a result, the State has cancelled its research as the data 

analysis would not be complete before the start of the status review. If we had been 

involved in the settlement talks, this information could have informed the talks. 

It is imperative that states be granted automatic intervener status for all lawsuit 

involving species within their jurisdictions. 
97 
98 

Responses by Dr. Neal Wilkins, Director, 

Texas A&M Institute of Renewable Natural Resources 

Questions submitted by Chairman Paul Broun 

Q1. You stated in your testimony that although science and management approaches 

have improved over the last 20 years, the Endangered Species Act (ESA) has not 

been updated to reflect these improvements. What improvements have been made 

in the past two decades that the ESA in its current format hinders from use? 

A1. The science of wildlife conservation and management has advanced considerably over the past two decades. One of the most notable science advancements is 

the ability to develop accurate models for predicting species occurrence, abundance 

and changes over time. This is aided considerably by the technological progress in 

remote sensing and image processing. Models and our ability to use them with computer processing are more site-specific, accurate and meaningful than could have 

been imagined 20 years ago. So, for many species we can predict the overall outcome 

of a combination of habitat change and human activities. These modeling approaches have stimulated real advancements in habitat conservation planning—but 

they have also allowed us to more easily grasp the relationships between incentives 

and trade-offs that can benefit species conservation. The potential applications of 

wildlife science & management are now at the point where we can more readily account for trade-offs and efficiently apply market-based approaches for achieving species recovery. But we first need some changes in policy. 

The incidental take prohibition of ESA (Section 9)—which is the tip of the spear 

for implementing the Act on private lands—is focused on the take of individuals, 

and this focus on protecting individuals is often at the expense of conserving an entire population. This is an antiquated approach. Section 9 of the ESA could be revised to give more specific guidance for allowing broad exemptions from incidental 

take prohibition. Modifications to the ESA could allow exemptions for combined actions that demonstrate a net benefit to a species’ population, even if this might 

cause harm to one or more individual organisms. This action alone would further 

stimulate the application of science and technology to achieve recovery benefit for 

many of those species that are currently listed under ESA. 

Q2. You also stated that pre-existing information is viewed as the ‘‘best available’’ 

science, even if new information is collected. Is there a provision in the ESA that 

creates a hurdle for new scientific evidence being weighed as much as the existing information? How are competing scientific views resolved? 

A2. By the ESA not requiring independent peer review for establishing the ‘‘best 

available science’’ individual service personnel are allowed to make their own determinations. As a result, when those same personnel are challenged for prior decisions, they have no well-established procedure for inclusion of new information. In 

other words, by not requiring a standardized independent peer review process, the 

ESA indirectly creates a hurdle for new scientific evidence being consistently 

weighed as much as existing information. In the end, competing scientific views are 

resolved through collecting information to test both views. A standardized peer-review process would guard against selective use of information. 

Q3. Your testimony indicated that there is a disincentive for private landowners to 

provide access to scientists. The rationale is that if a species were found, their 

land would be severely impacted. Would a requirement that all such populations 

census be anonymous help better identify populations that have been overlooked? 

A3. Yes. Like any other information, we have found that private landowners are 

more likely to allow access for scientific work if they have the option to have their 

identity and location held confidential. Until the disincentive of the incidental take 

prohibition of Section 9 is resolved, it makes sense for individual states to allow information collected for scientific purposes to be shielded from public information requests. 

Q4. What is your view of the quality of scientific work submitted through listing petitions filed by outside groups? How does the quality of science submitted by outside groups seeking a listing compare to that developed by the U.S. Fish and 

Wildlife Service (USFWS) or state agencies? 

A4. My views are based on the recent trend of activist organizations preparing most 

listing petitions. Overall, there seems to be a pattern of selective use of information 

in building a case for listing a species in many of the petitions prepared by outside 

groups. In some cases, the reliability of information is not revealed—and in other 

cases it is only opinion and anecdotal observations that are cited as scientific au-
99 

1Wilkins, N. 2011. ‘‘Improving the ESA’s Performance on Private Lands’’ in Rebuilding the 

Ark: New Perspectives on Endangered Species Act Reform, ed. J.H. Adler. The AEI Press, Washington, D.C., 56–80. 

thority. Given the glut of listing petitions, the Service is simply not able to do any 

of their own work in checking the scientific validity of many of these petitions. 

I cannot comment on the comparison of outside petitions to those prepared by the 

Service or state agencies as recently there are very few proposals from the Service 

that have not been petitioned by an outside group. However, the oversight of professional wildlife biologists—i.e., those Certified by The Wildlife Society—would provide an additional safeguard on the reliability and completeness of science included 

in listing petition process. The Service, and most state agencies, do have professional wildlife biologists on staff or available to them. 

Q5. Would mandatory outside peer review help improve the quality of the science 

used by federal agencies? Would it be practical? What types of scientific work 

should be peer reviewed? 

A5. Yes. In my view, mandatory peer review should be used to review the science 

used in listing, de-listing, and other critical ESA decisions. Yes it would be practical—especially if the Service sought the aid of The Wildlife Society or other professional organizations in the design and implementation of the process. 

Q6. In your professional opinion, what percentage of listings are science-based and 

what percentage of listings are policy or politically driven? 

A6. I am sorry, but I am not able to directly speculate on the percentages. However, 

as there certainly are some politically driven listings—and many of these are of 

great impact—there should be some attention spent on minimizing these. And they 

impact not only local economies but they serve to discredit the ESA and its purpose. 

Q7. There seems to be a concern that a balance needs to be struck when designating 

critical habitat for protected species. What type of science is used to determine 

the critical habitat? 

A7. I do not have enough specific experience with designations of critical habitat 

to have recognized any pattern regarding the use of science. 

Q8. Would you support ending the use of outside listing petitions? Would this benefit 

the ESA listing process? 

A8. Outside listing petitions probably serves a purpose for engaging the public in 

the ESA. However, the artificial deadlines for decisions on outside petitions should 

be removed in favor of a science-based priority process. This would probably serve 

to greatly reduce the number of outside petitions, as it appears that the recent flood 

of outside petitions is contingent upon the ability to file lawsuits in response to the 

Service’s inability to meet a deadline for considering the petition. 

Q9. The USFWS testimony states that the ESA has been a success? Do you agree 

or disagree? Why? 

A9. I disagree. The ESA was intended to promote the recovery of imperiled species. 

As I recently reviewed in detail 1, the listing of a species under ESA has not only 

proved to be largely ineffective, but it is often detrimental to the very species that 

is listed. The ESA has been successful in creating public dialogue on endangered 

species; it has perhaps been successful in creating a safety net that has kept a few 

species from becoming further imperiled. But it has not been successful in meeting 

its primary goals. We can do better. 

Q10. How does science inform a Consultation or BiOp? Does the USFWS conduct 

new science, or simply review existing literature? If USFWS conducts new 

science, is it always peer-reviewed? If it is not, do you think it should be? Is 

this practicable? 

A10. In my experience, the Service rarely conducts new science for informing a Biological Opinion. The research and monitoring for a BiOp is routinely conducted by 

a proponent in order to gain information to support their Biological Assessment. 

Also, the Service may require specific research and monitoring as part of the ‘‘reasonable and prudent measures’’ of the Biological Opinion A Biological Assessment 

informs the Service’s Biological Opinion (BA)—and new science is often presented 

in a BA, but it is mostly conducted by consultants or university researchers. 

The science used to support a Biological Opinion should come mostly from the 

peer-reviewed body of science, but it may not be practical to require that the sitespecific research and monitoring done to support a specific federal action be subject 
100 

to an independent peer-review process prior to its use for decision-making on all 

projects. 

Again, it is the use and interpretation of science in status reviews, recovery plans, 

and listing decisions that is most important. For federal projects requiring a Biological Opinion, it may not be practical to require peer review in all cases. That said, 

for projects for which the decisions might have a significant impact—either economically or ecologically—it may be important to subject the Biological Opinion to an 

outside peer review process. 
101 

Responses by Mr. Jonathan Adler, Professor, 

Case Western Reserve University School of Law 

Questions submitted by Chairman Paul Broun, 

Q1. Your testimony indicated that charismatic species are more likely to be listed 

and receive federal funding. Since the U.S. Fish and Wildlife Service (USFWS) 

has been inundated by hundreds of listing petitions filed by outside groups, 

would one solution be to either give priority to agency originated listed actions 

or to simply ban outside petitions all together? 

A1. There are good reasons to allow outside groups and individuals to petition the 

FWS to list species as threatened or endangered. Among other things, researchers 

and conservationists who work in the field are more likely to discover or become 

aware of endangered and threatened species than government officials working 

within the agency. The petitioning process allows the FWS to take advantage of the 

dispersed ecological knowledge held by those engaged in species-related research or 

conservation efforts around the country. 

The problem is that some groups and individuals have an incentive to list species 

for reasons other than environmental conservation. Because the listing of a species 

can trigger the imposition of regulatory controls under the ESA, there is an incentive for those opposed to land or resource development to seek to list species that 

can be used as a proxy for their anti-development goals. It also creates an incentive 

to skew the relevant science in favor of a listing decision, and increases conflict over 

listing decisions. Just as anti-development groups make seek to see species listed, 

pro-development groups have an incentive to oppose species listings. This places 

pressure on the listing decision, and often leads to litigation—litigation that is a further drain on FWS resources, which in turn causes further delays in future listing 

decisions. 

The best way to address this problem is to insulate the listing process from the 

regulatory process. Decoupling the listing decision from the ESA’s regulatory provisions would eliminate the incentive to use species listings as a weapon in fights over 

land and resource development, lessen the pressure on listing decisions, reduce interest-group involvement in (and litigation over) listing decisions, and make it easier 

for the FWS to focus on the underlying scientific questions. 

Q2. Is it fair to say that the Endangered Species Act has been used to promote policy 

goals separate from species preservation? If so, what can Congress do to prevent 

this? 

A2. Unfortunately, some activist groups have used the Endangered Species Act as 

a weapon against resource use and development. Specifically, some environmentalist 

groups sue to force the imposition of greater regulatory restrictions on land-use and 

other economic activities, preventing the FWS and other government agencies from 

basing their enforcement and implementation decisions on ecological concerns. The 

best way to address this would be to disarm the various regulatory triggers within 

the act through which outside groups can use federal courts to direct ESA implementation and enforcement. This can be done by decoupling the listing decision 

from the imposition of specific, mandatory regulatory measures and granting the 

FWS greater flexibility in developing recovery plans and greater ability to rely upon 

non-regulatory conservation strategies. 

Q3. The USFWS testimony states that the ESA has been a success? Do you agree 

or disagree? Why? 

A3. I do not believe the ESA has been a success. The express goal of the act is to 

‘‘recover’’ species listed as ‘‘threatened’’ or ‘‘endangered,’’ and yet as of October 2011 

fewer than 50 of the approximately 2,000 listed species have been delisted, and only 

22 of these were classified as recoveries by the FWS. If anything, this overstates 

the Act’s relative success, as the recovery of many of these species had little if anything to do with the Act. For example, several bird species listed as recoveries were 

helped by the banning of widespread DDT use, but this was done in 1972, one year 

before the ESA was enacted, let alone enforced. 

As I discuss in my book, Rebuilding the Ark, the ESA may be credited with preventing the extinction of some species, but it is also responsible for creating incentives against species and habitat conservation on private land. This is significant 

because most listed species rely upon private land for some or all of their habitat. 

Further, as one recent study concluded, those species listed as endangered are less 

likely to be improving than those listed as threatened, despite the increased regulatory ‘‘protection’’ the former receive. While there is evidence that spending on re-
102 

covery plans can help listed species, there is little evidence the Act’s current regulatory structure does much to help those species in greatest need. 

Q4. Your work on the ESA highlights some of the perverse incentives created by the 

restrictions that accompany a listing decision. Please describe ways to create 

positive incentives for species protection? 

A4. Before the ESA, or any other statute, can create effective positive incentives for 

species conservation, the perverse incentives which discourage species conservation 

must be reduced, if not eliminated. The most effective ways to do this would be to 

reduce the economic consequences of listing decisions and habitat determinations for 

private landowners. This can be accomplished by decoupling the listing decision 

from the imposition of land-use restrictions under Section 9 and the application of 

Section 7 consultation requirements to programs that impose limitations on private 

land use. It can also be accomplished by creating greater flexibility within Section 

9, so as to allow the FWS the ability to adopt other conservation measures in lieu 

of land-use controls, or by providing compensation to landowners for the imposition 

of land-use restrictions. In terms of developing effective incentive programs, I would 

recommend looking at the success of voluntary, incentive-based programs such as 

Partners for Wildlife and the North American Waterfowl Management Plan, as 

these programs have managed to conserve substantial acreage in a cost-effective 

manner. 
(103) 

Appendix II 

ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD
104 

SUBMITTED STATEMENT FOR THE RECORD BY REPRESENTATIVE RANDY NEUGEBAUER

Thank you, Chairman Broun, for holding this important hearing to examine the 

science behind the Endangered Species Act and the protection of certain species 

under that law. Such listings have profound impacts on jobs, economic development, 

and industrial capabilities across the country. Two species that are being considered 

for an endangered listing, the dunes sagebrush lizard and the lesser prairie chicken 

(LPC), have habitats in my district. If protected under the Endangered Species Act, 

my district and other surrounding areas will see oil production, wind development, 

agricultural production, and transportation improvements severely limited. Decisions of this magnitude require the utmost consideration and sound scientific evidence, and I am not convinced the proper care has been taken to guarantee this. 

In a May joint hearing before the House Agriculture Committee and Natural Resources Committee, I asked then acting-Director Gould of the U.S. Fish & Wildlife 

Service (USFWS) about how the science behind the potential listing of the dunes 

sagebrush lizard. In response, he said, ‘‘I am not familiar with. the science behind 

the lizard you are referring to.’’ To begin with, this lack of familiarity with a major 

listing is troubling. I am hoping that Mr. Frazer can provide greater insight into 

this particular case because I am concerned that the Fish & Wildlife Service is not 

making decisions based on accurate science, but rather to avoid lawsuits from environmental organizations. According to an Associated Press article from April 28, 

2011, ‘‘Neither environmentalists nor federal wildlife managers have population estimates for the lizard but they point to distribution studies that show about a quarter of sites where the lizard was once found are no longer occupied.’’ This lack of 

data and seemingly assumptive science is troublesome considering that roughly 20 

percent of America’s domestic oil production occurs in this region where the lizard 

may live. It is no small matter to list a species that could potentially halt that production, which would kill thousands of jobs and make our country even more dependent on foreign oil. 

This issue is also important in the potential decision to classify the lesser prairie 

chicken an endangered. The projected habitat regions of the LPC in Texas alone 

contribute an estimated $28 billion to our nation’s economy and accounted for 

350,000 jobs in 2009. Industries that would be affected by LPC being listed include 

wind energy, agriculture, oil and gas, and transportation. In an effort to prevent 

habitat loss for the LPC, Texas agreed to a Candidate Conservation Agreement with 

Assurances (CCAA) with USFWS in 2006. The CCAA encourages beneficial habitat 

management activities among private landowners on a voluntary basis. These efforts should be taken into consideration and should be studied as potential mitigation techniques for habitat loss. In the state of Oklahoma, about $23.5 million has 

already been spent in the last five years to protect the lesser prairie chicken. These 

efforts should not be overlooked. 

In general, I am concerned that we are disrupting enormous amounts of economic 

productivity for species we may know too little about. Attempting to list species 

without knowing even its very basic biological characteristics is absolutely unacceptable. This lack of sound evidence could result in killing thousands of jobs and billions of dollars in economic activity before anyone can even prove that harm is truly 

being done. I believe the standard of science here may not be good enough. If the 

‘‘best available data’’ doesn’t actually include population statistics or does not tell 

us if the numbers have increased or declined in the past ten years, I do not see how 

this ‘‘best available data’’ is sufficient to justify making such momentous decisions. 
105 

PHOTOGRAPH SUBMITTED FOR THE RECORD BY REPRESENTATIVE DAN BENISHEK
106 

UNITED STATES DEPARTMENT OF THE INTERIOR, OFFICE OF INSPECTOR GENERAL’S

‘‘REPORT OF INVESTIGATION: THE ENDANGERED SPECIES ACT AND THE CONFLICT

BETWEEN SCIENCE AND POLICY,’’ 

SUBMITTED FOR THE RECORD BY REPRESENTATIVE BRAD MILLER
107 
108 
109 
110 
111 

The full version of the report can be found at: http://www.doioig.gov/ 
112 

ARTICLE ENTITLED, ‘‘EMAIL REVEALS STATE DISPUTE OVER POLAR BEAR LISTING,’’ 

SUBMITTED FOR THE RECORD BY REPRESENTATIVE PAUL TONKO
113 
114 
115 

ARTICLE ENTITLED, ‘‘STATE POLICY LEADS BELUGA TEAM TO REMOVE ALASKA

SCIENTISTS,’’ SUBMITTED FOR THE RECORD BY REPRESENTATIVE PAUL TONKO
116 
117 
118 
119 
120 

THE DELTA SMELT CASES, SAN LUIS & DELTA-MENDOTA WATER AUTHORITY, 

ET AL. V. KENNETH LEE SALAZAR, ET AL., 09–CV–407, REPORTER’S TRANSCRIPT

OF PROCEEDINGS, SEPTEMBER 16, 2011 
121 
122 
123 
124 
125 
126 
127 
128 
129 
130 
131 
132 
133 
134 
135 
136 
137 
138 
139 
140 
141 
142 
143 
144 
145 
146 
147 
148 
149 
150 
151 
152 
153 
154 
155 
156 
157 
158 
159 
160 
161 
162 
163 
164 
165 
166 
167 
168 
169 
170 
171 
172 
173 

Æ