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

71-642 PDF 2013

THE ENDANGERED SPECIES ACT: 

HOW LITIGATION IS COSTING JOBS 

AND IMPEDING TRUE RECOVERY 

EFFORTS 

OVERSIGHT HEARING 

BEFORE THE

COMMITTEE ON NATURAL RESOURCES 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

Tuesday, December 6, 2011 

Serial No. 112-88 

Printed for the use of the Committee on Natural Resources 

( 

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html 

or 

Committee address: http://naturalresources.house.gov 

(II) 

COMMITTEE ON NATURAL RESOURCES 

DOC HASTINGS, WA, Chairman 

EDWARD J. MARKEY, MA, Ranking Democratic Member 

Don Young, AK 

John J. Duncan, Jr., TN 

Louie Gohmert, TX 

Rob Bishop, UT 

Doug Lamborn, CO 

Robert J. Wittman, VA 

Paul C. Broun, GA 

John Fleming, LA 

Mike Coffman, CO 

Tom McClintock, CA 

Glenn Thompson, PA 

Jeff Denham, CA 

Dan Benishek, MI 

David Rivera, FL 

Jeff Duncan, SC 

Scott R. Tipton, CO 

Paul A. Gosar, AZ 

Rau ́l R. Labrador, ID 

Kristi L. Noem, SD 

Steve Southerland II, FL 

Bill Flores, TX 

Andy Harris, MD 

Jeffrey M. Landry, LA 

PJon Runyan, NJ 

Bill Johnson, OH 

Mark Amodei, NV 

Dale E. Kildee, MI 

Peter A. DeFazio, OR 

Eni F.H. Faleomavaega, AS 

Frank Pallone, Jr., NJ 

Grace F. Napolitano, CA 

Rush D. Holt, NJ 

Rau ́l M. Grijalva, AZ 

Madeleine Z. Bordallo, GU 

Jim Costa, CA 

Dan Boren, OK 

Gregorio Kilili Camacho Sablan, CNMI 

Martin Heinrich, NM 

Ben Ray Luja ́n, NM 

John P. Sarbanes, MD 

Betty Sutton, OH 

Niki Tsongas, MA 

Pedro R. Pierluisi, PR 

John Garamendi, CA 

Colleen W. Hanabusa, HI 

Vacancy 

Todd Young, Chief of Staff 

Lisa Pittman, Chief Legislative Counsel 

Jeffrey Duncan, Democratic Staff Director 

David Watkins, Democratic Chief Counsel 

(III) 

CONTENTS 

Page 

Hearing held on Tuesday, December 6, 2011 ........................................................ 1 

Statement of Members: 

Fleming, Hon. John, a Representative in Congress from the State of 

Louisiana, Prepared statement of ............................................................... 107 

Hastings, Hon. Doc, a Representative in Congress from the State of 

Washington .................................................................................................... 1 

Prepared statement of ............................................................................... 2 

Markey, Hon. Edward J., a Representative in Congress from the State 

of Massachusetts ........................................................................................... 3 

Prepared statement of ............................................................................... 5 

Statement of Witnesses: 

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

Department of the Interior, Washington, D.C. ........................................... 82 

Prepared statement of ............................................................................... 84 

Budd-Falen, Karen, Owner/Partner, Budd-Falen Law Offices, L.L.C., 

Cheyenne, Wyoming ..................................................................................... 6 

Prepared statement of ............................................................................... 8 

Leshy, John D., Professor, U.C. Hastings College of the Law, San 

Francisco, California ..................................................................................... 35 

Prepared statement of ............................................................................... 37 

Middleton, Brandon M., Attorney, Pacific Legal Foundation, Sacramento, 

California ....................................................................................................... 39 

Prepared statement of ............................................................................... 41 

Miller, Doug, General Manager, Public Utility District No. 2 of Pacific 

County, Raymond, Washington ................................................................... 13 

Prepared statement of ............................................................................... 15 

Schwaab, Eric, Assistant Administrator for Fisheries, National Marine 

Fisheries Service, National Oceanic and Atmospheric Administration, 

U.S. Department of Commerce, Washington, D.C. .................................... 88 

Prepared statement of ............................................................................... 89 

Suckling, Kieran, Executive Director, Center for Biological Diversity, 

Tucson, Arizona ............................................................................................. 18 

Prepared statement of ............................................................................... 20 

Article submitted for the record ............................................................... 81 

Tutchton, Jay, General Counsel, WildEarth Guardians, Santa Fe, New 

Mexico ............................................................................................................ 26 

Prepared statement of ............................................................................... 28 

Additional materials supplied: 

Access for All, Klamath, California, Statement submitted for the record ... 107 

Alliance for Justice; Center for Justice & Democracy at New York Law 

School; Center for Law and Social Policy; Consumer Action; Consumer 

Watchdog; and Sargent Shriver National Center on Poverty Law, 

Statement submitted for the record ............................................................ 111 

List of documents retained in the Committee’s official files ......................... 110 

Natural Resources Defense Council and The Wilderness Society, Letter 

submitted for the record ............................................................................... 112 

Rivera, Hon. David, Hon. Thomas J. Rooney, Hon. Ted Deutch,, Hon. 

Richard Nugent, Hon. Vern Buchanan, Hon. Debbie Wasserman 

Schultz, Hon. Allen West, Members of the U.S. House of Representatives, Letter to President Barack Obama dated November 22, 2011, 

submitted for the record ............................................................................... 103 

Salvo, Mark N., Acting Wildlife Program Director, WildEarth Guardians, 

Letter submitted for the record ................................................................... 115 

(1) 

OVERSIGHT HEARING ON ‘‘THE ENDANGERED 

SPECIES ACT: HOW LITIGATION IS COSTING 

JOBS AND IMPEDING TRUE RECOVERY 

EFFORTS.’’ 

Tuesday, December 6, 2011 

U.S. House of Representatives 

Committee on Natural Resources 

Washington, D.C. 

The Committee met, pursuant to call, at 10:05 a.m. in Room 

1324, Longworth House Office Building, The Honorable Doc 

Hastings [Chairman of the Committee] presiding. 

Present: Representatives Hastings, Young, Gohmert, Lamborn, 

Fleming, McClintock, Benishek, Rivera, Duncan of South Carolina, 

Tipton, Gosar, Labrador, Flores, Harris, Runyan, Amodei, Markey, 

Kildee, Napolitano, Holt, Bordallo, Costa, Sablan, Garamendi, and 

Hanabusa. 

The CHAIRMAN. The Committee on Natural Resources will come 

to order. The Committee on Natural Resources meets today to hear 

testimony on ‘‘The Endangered Species Act: How Litigation Is 

Costing Jobs and Impeding True Recovery Efforts.’’ 

As usual, the opening statements are for the Chairman and the 

Ranking Member. However, I ask unanimous consent if any 

Member wishes to submit a statement for the record, they submit 

it before close of business today. Without objection, so ordered. 

I will now recognize myself for my opening statement. 

STATEMENT OF THE HON. DOC HASTINGS, A 

REPRESENTATIVE FROM THE STATE OF WASHINGTON 

The CHAIRMAN. Today’s hearing is the first of several this 

Committee will hold over the next year to examine and review the 

Endangered Species Act. Enacted in 1973 and last reauthorized in 

1988, the ESA’s fundamental goal is to preserve, protect and 

recover domestic key species. This is an objective that I believe we 

can all support. 

However, it has been 23 years since Congress has reviewed or 

updated the ESA. I believe it is the responsibility of this Committee and Congress to ask questions and examine if the original 

intent of this law is being carried out two decades later. The intent 

of this hearing and those to follow is to have an honest conversation about both the strengths and weaknesses of the ESA and consider if there are ways to update the law to make it work better 

for both species and for people. 

The purpose of the ESA is to recover endangered species, yet this 

is where the current law is failing and failing badly. Of the species 

listed under ESA in the past 38 years, only 20 have been declared 

recovered. That is a 1 percent recovery rate, and I firmly believe 

that we can do better. In my opinion, one of the greatest obstacles 

2 

to the success of the ESA is the way in which it has become a tool 

for excessive litigation. 

Instead of focusing on recovering endangered species, there are 

groups that use ESA as a way to bring lawsuits against the government and thus sometimes block job opportunities. These groups 

have filed hundreds of lawsuits against the Fish and Wildlife Service and the National Marine Fisheries Service. In fact, in July the 

Interior Department agreed to a settlement that covered 779 species in 85 lawsuits in legal actions. Information provided to us over 

the past few months from these agencies indicates they have a 

combined total of over 180 pending ESA-related lawsuits. These 

lawsuits direct valuable resources away from real recovery efforts. 

Last May, the Department of the Interior stated, and I quote, 

‘‘The Fish and Wildlife Service’s highest priority is to make implementation of the ESA less complex, less contentious and more 

effective.’’ While I applaud this goal and look forward to hearing 

the Service’s progress, I am concerned that the Interior Department’s real approach to addressing the growing docket of ESA 

cases appears limited to settling lawsuits with a few litigant 

groups. These settlements reward the groups by having the taxpayers pay their attorney fees and increase the already large list 

of species the Department is struggling to recover. 

American tax dollars and government biologists and personnel 

should be focused on helping to save species from extinction, not 

responding to hundreds of lawsuits. The litigation mindset that is 

consuming the Endangered Species Act has had significant job and 

economic impacts throughout the West, unnecessarily pitting 

people against species. During these challenging economic times, 

America cannot afford runaway regulations and endless lawsuits. 

In the Pacific Northwest, my area, the ESA-related litigation 

touches nearly everyone, be it through Federal judges determining 

the fate of irrigated agriculture and clean renewable hydrodams, 

the impact of the listed spotted owl on timber communities and 

jobs, the fear of litigation that has blocked renewable wind projects 

or uncertainty of whether predatory wolves are endangered on one 

side of the highway, but not on the other side of that same highway. 

I hope to hear more from our witnesses today about how 

litigation is impacting species projection, job creation and economic 

development across the country. We are also looking for an 

explanation of why the Obama Administration settled these lawsuits and how much time and resources litigation takes away from 

real recovery efforts. 

By strengthening and updating the Endangered Species Act, 

improvements can be made so it is no longer abused through lawsuits and instead can remain focused on fulfilling its true and 

original goal of species recovery. 

[The prepared statement of Mr. Hastings follows:] 

Statement of The Honorable Doc Hastings, Chairman, 

Committee on Natural Resources 

Today’s hearing is the first of several this Committee will hold over the next year 

to examine and review the Endangered Species Act. Enacted in 1973 and last reauthorized in 1988, the ESA’s fundamental goal is to preserve, protect and recover key 

domestic species. This is an objective I believe we all can support. 

3 

However, it’s been 23 years since Congress has reviewed or updated the ESA. I 

believe it’s the responsibility of this Committee and Congress to ask questions and 

examine if the original intent of this law is still being carried out two decades later. 

The intent of this hearing and those to follow is to have an honest conversation 

about both the strengths and weaknesses of the ESA and consider if there are ways 

to update the law to make it work better for both species and people. 

The purpose of the ESA is to recover endangered species—yet this is where the 

current law is failing—and failing badly. Of the species listed under the ESA in the 

past 38 years, only 20 have been declared recovered. That’s a 1 percent recovery 

rate. I firmly believe that we can do better. 

In my opinion, one of the greatest obstacles to the success of the ESA is the way 

in which it has become a tool for excessive litigation. Instead of focusing on recovering endangered species, there are groups that use the ESA as a way to bring lawsuits against the government and block job-creating projects. 

These groups have filed hundreds of lawsuits against the Fish and Wildlife Services and the National Marine Fisheries Service. In fact, in July the Interior Department agreed to a settlement that covered 779 species in 85 lawsuits and legal actions. Information provided to us over the past few months from these agencies indicates they have a combined total of over 180 pending ESA-related lawsuits. 

These lawsuits direct valuable resources away from real recovery efforts. Last 

May, the Department of Interior stated: ‘‘The Fish and Wildlife Service’s highest priority is to make implementation of the ESA less complex, less contentious, and more 

effective.’’ While I applaud this goal and look forward to hearing the Service’s 

progress, I am concerned, that the Interior Department’s real approach to addressing the growing docket of ESA cases appears limited to settling lawsuits with a few 

litigious groups. These settlements reward the groups by having the taxpayers pay 

their attorneys’ fees and increase the already large list of species the Department 

is struggling to recover. 

American tax dollars and government biologists and personnel should be focused 

on helping save species from extinction—not responding to hundreds of lawsuits. 

The litigation mindset that is consuming the Endangered Species Act has had significant job and economic impacts throughout the West—unnecessarily pitting people against species. During these challenging economic times, American cannot afford runaway regulations and endless lawsuits. 

In the Pacific Northwest, the ESA-related litigation touches nearly everyone—be 

it through federal judges determining the fate of irrigated agriculture and clean renewable hydropower dams, the impact of the listed spotted owl on timber communities and jobs, the fear of litigation that has blocked renewable wind projects, or 

uncertainty of whether predatory wolves are endangered on one side of a highway 

but not the other. 

I hope to hear more from our witnesses today about how litigation is impacting 

species protection, job creation and economic development across the country. We 

also looking for an explanation of why the Obama Administration settled these lawsuits and how much time and resources litigation takes away from real recovery efforts. 

By strengthening and updating the Endangered Species Act, improvements can be 

made so it’s no longer abused through lawsuits and instead can remain focused on 

fulfilling its true and original goal of species recovery. 

The CHAIRMAN. With that, I am pleased to recognize the distinguished Ranking Member, Mr. Markey. 

STATEMENT OF THE HON. EDWARD MARKEY, A 

REPRESENTATIVE FROM THE STATE OF MASSACHUSETTS 

Mr. MARKEY. Thank you, Mr. Chairman. 

It is hard to believe that it was almost 50 years ago that Rachel 

Carson warned us of the potential for a ‘‘Silent Spring.’’ At that 

time bird populations, including our national symbol, the bald 

eagle, were decimated. Bears and wolves, icons of the western 

wilderness, were on the verge of extermination. Whales that had 

once been plentiful in the ocean were rare, although whale oil 

brings to mind the era of Herman Melville in ‘‘Moby Dick’’. The 

auto industry was still using it as a lubricant in 1970. 

4 

In response to these palpable losses, Congress passed the Endangered Species Act in 1973 to save species and their habitats. The 

law has been extremely successful at preventing extinction and in 

setting species on a path to recovery. In fact, only two species have 

gone extinct after receiving protection by the law. 

Much like the animals it is bound to protect, the Endangered 

Species Act is that rarest of laws that has become a victim of its 

own success. We struggle to recall the dire circumstances that led 

to its creation in the first place. Preventing extinction and recovering species is not just the right thing to do, it is the economically 

sensible thing to do. Biodiversity of plants, fish and wildlife provide 

us with important benefits, from life-saving drugs to clean drinking 

water. Nature has been producing cures for millions of years, including aspirin from the willow tree and high blood pressure medications from the pit viper. Imagine that, a weeping tree that solves 

pain and snake oil that actually soothes the heart. Hunting, fishing and wildlife watching produces $120 billion in 

annual revenues and employs more than 2.6 million people. In 

2008 alone, tourists spent more than $125 million to travel and 

visit Stellwagen Bank National Marine Sanctuary off the coast of 

my home state of Massachusetts. The Endangered Species Act also 

continues to receive strong support across state and party lines. 

The vast majority of Americans, both Democrats and Republicans 

of all ages, ethnicities and education strongly support the Endangered Species Act. 

Americans also agree that decisions about wildlife protection 

should be made by scientists and not by politicians, as the law requires, and yet the majority through legislative proposals, reductions in appropriations and funding limitations continue to demonstrate their predilection for extinction. 

If we want to recover endangered species, we must first work to 

provide adequate funds to implement the Act. The Endangered 

Species Act has been chronically underfunded. Our Republican 

counterparts have cut the Fish and Wildlife Service’s endangered 

species budget for next year by $44 million and the National Oceanic and Atmospheric Administration’s budget for protected species 

by $28 million. 

Today we will hear from the Majority that litigation is hindering 

the recovery of endangered species, but the majority of activities 

that occur because of the Endangered Species Act take place without litigation. For example, on the Lower Colorado River, a longterm program is in place to balance the interests of water users 

with the conservation of endangered species, all without litigation. 

When appropriate litigation is used by industry and environmental groups alike to ensure that the government follows the rule 

of law, litigation gives citizens the ability to challenge the decisions 

of the government when they believe that they have been wronged. 

It is as fundamental to our rights as freedom of speech or the right 

to vote. 

Captain Ahab is famously known for fixating all of his anger and 

blame on Moby Dick. Similarly, the Majority’s white whale is the 

litigants who are striving to ensure that the Endangered Species 

Act is implemented in accordance with the law. This whale of a 

tale only serves to distract us from preventing extinction and recovVerDate Nov 24 2008 14:08 Feb 19, 2013 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6602 L:\DOCS\71642.TXT Hresour1 PsN: KATHY
5 

ering species for our own benefit and for the benefit of future generations. 

I yield back the balance of my time. 

[The prepared statement of Mr. Markey follows:] 

Statement of The Honorable Edward J. Markey, Ranking Member, 

Committee on Natural Resources 

Thank you, Mr. Chairman. 

It is hard to believe that it was almost fifty years ago that Rachel Carson warned 

us of the potential for a silent spring. At that time bird populations—including our 

national symbol, the Bald Eagle—were decimated. Bears and wolves, icons of the 

western wilderness, were on the verge of extermination. Whales that had once been 

plentiful in the ocean were rare. Although whale oil brings to mind the era of Herman Melville and Moby Dick, the auto industry was still using it as a lubricant in 

1970. 

In response to these palpable losses, Congress passed the Endangered Species Act 

in 1973 to save species and their habitats. The law has been extremely successful 

at preventing extinction and in setting species on a path to recovery. In fact, only 

two species have gone extinct after receiving protection by the law. 

Much like the animals it is bound to protect, the Endangered Species Act is that 

rarest of laws that has become a victim of its own success. We struggle to recall 

the dire circumstances that led to its creation in the first place. 

Preventing extinction and recovering species is not just the right thing to do, it 

is the economically sensible thing to do. Biodiversity of plants, fish, and wildlife provide us with important benefits, from lifesaving drugs to clean drinking water. Nature has been producing cures for millions of years, including aspirin from the willow tree and high blood pressure medications from the pit viper. Imagine that—a 

weeping tree that salves pain and snake oil that actually soothes the heart. 

Hunting, fishing and wildlife watching produces $120 billion in annual revenues 

and employs more than 2.6 million people. In 2008 alone, tourists spent more than 

$125 million to travel and visit Stellwagen Bank National Marine Sanctuary off the 

coast of my home state of Massachusetts. 

The Endangered Species Act also continues to receive strong support across state 

and party lines. The vast majority of Americans, both Democrats and Republicans, 

of all ages, ethnicities, and education, strongly support the Endangered Species Act. 

Americans also agree that decisions about wildlife protection should be made by scientists, not politicians, as the law requires. 

Yet Republicans, through legislative proposals, reductions in appropriations, and 

funding limitations, continue to demonstrate their predilection for extinction. 

If we want to recover endangered species, we must first work to provide adequate 

funds to implement the Act. The Endangered Species Act has been chronically underfunded. Our Republican counterparts have cut the Fish and Wildlife Service’s endangered species budget for next year by $44 million and the National Oceanic and 

Atmospheric Administration’s budget for protected species by $28 million. 

Today we will hear from the Majority that litigation is hindering the recovery of 

endangered species. But the majority of activities that occur because of the Endangered Species Act take place without litigation. For example, on the lower Colorado 

River, a long-term program is in place to balance the interests of water users with 

conservation of endangered species, all without litigation. 

When appropriate, litigation is used by industry and environmental groups alike 

to ensure that the government follows the rule of law. Litigation gives citizens the 

ability to challenge the decisions of the government when they believe they have 

been wronged. It is as fundamental to our rights as freedom of speech or the right 

to vote. 

Captain Ahab is famously known for fixating all of his anger and blame on Moby 

Dick. Similarly, the Majority’s white whale is the litigants who are striving to ensure that the Endangered Species Act is implemented in accordance with the law. 

This whale of a tale only serves to distract us from preventing extinction and recovering species for our own benefit and for the benefit of future generations. 

The CHAIRMAN. I thank the gentleman for his statement and for 

his colorful metaphors that we always look forward to. 

I want to welcome our first panel. We have with us Ms. Karen 

Budd-Falen, Attorney for the Budd-Falen Law Offices in Cheyenne, 

6 

Wyoming; Mr. Doug Miller, General Manager of the PUD District 

No. 2 in Raymond, Washington, the other side of the state from 

where I reside, but I am very familiar with PUDs; Mr. Kieran 

Suckling, the Executive Director for the Center for Biological Diversity in Tucson, Arizona; Mr. Jay Tutchton, General Counsel, 

WildEarth Guardians from Santa Fe, New Mexico; Mr. John Leshy, 

Professor at U.C. Hastings, very good name, College of the Law in 

San Francisco; and Mr. Brandon Middleton, Attorney for the Pacific Legal Foundation in Sacramento, California. 

Your full statement will appear in the record and that little fiveminute light in front of you, let me explain for those of you who 

are not familiar with it. When the green light goes on that means 

you have the full five minutes. When the yellow light goes on you 

have one minute remaining, and when the red light goes on that 

means that your five minutes have expired, and if you could quickly end your remarks at that time and keep your remarks within 

the five-minute time period, I would very, very much appreciate it. 

So, with that, we will start with testimony from our panel and 

we will start with Ms. Karen Budd-Falen. You are recognized for 

five minutes. Would you get closer to that and turn on the microphone? I forgot to mention that. 

Ms. BUDD-FALEN. OK. Is it the red button? 

The CHAIRMAN. You are on now, yes. 

Ms. BUDD-FALEN. All right. Thank you. 

The CHAIRMAN. You bet. 

STATEMENT OF KAREN BUDD-FALEN, ATTORNEY, 

BUDD-FALEN LAW OFFICES, CHEYENNE, WYOMING 

Ms. BUDD-FALEN. Chairman Hastings, Ranking Member Markey, 

and Members of the Committee, thank you for the honor of presenting testimony to you today. My name is Karen Budd-Falen. I 

am a fifth-generation rancher from a family owned ranch in Big 

Piney, Wyoming, and an attorney and owner of the Budd-Falen 

Law Office in Cheyenne, Wyoming. 

My law firm engages in a significant amount of Federal court 

litigation both against the Federal government and intervening in 

litigation on behalf of the Federal government when it is sued by 

radical environmental groups who are seeking to eliminate the livelihoods of farmers, ranchers and private property owners as well as 

the stability of rural communities. 

The question today is whether litigation is costing jobs and impeding true recovery of listed species. I do not believe that Congress envisioned that this Act would become a mechanism to put 

every species imaginable on some list while taking less than 2 percent off the list. The legislative history of the ESA stated that its 

purpose was to provide a mechanism to recover species, not to just 

simply put them on a list. 

On July 12, 2011, the Fish and Wildlife Service announced two 

settlement agreements with the Center for Biological Diversity and 

WildEarth Guardians that will require the Fish and Wildlife Service and NOAA to consider the listing of critical habitat designation 

for 1,053 species in the next four years. That is a huge undertaking. The ESA has been in place for 30 years and today there are 

7 

approximately 1,069 listed American species and 590 foreign species on that list. 

The CBD and WEG sued because of missed deadlines. While it 

is true that the agency missed the deadlines, Congress should be 

asking whether these settlements actually help further the purpose 

of the ESA. Specifically, if FWS and NOAA are spending all of 

their time putting species or habitat on a list, what time do they 

have in taking species off of that list? Instead of focusing on the 

recovery of species through the development of habitat conservation 

plans or conservation agreements the settlement simply focuses on 

adding more species to the list, which kills jobs because it stops 

private, state and Federal property and water use because of producers’ fears of the significant fines and possible prison time for 

harming a species or modifying its habitat. 

On top of this, the agencies didn’t seem to save themselves a lot 

of trouble with these agreements. The petitions filed by other 

groups still have to be considered under the mandatory ESA timeframes, and even the settlement agreement still allowed the CBD 

and WEG to continue to file listing petitions, albeit a limited number, and to litigate over a whole host of other ESA issues, not just 

the timeline issue. 

So the settlement agreements have not stopped litigation, and 

once a species is listed it can certainly take an act of Congress to 

remove it. Opponents to ESA reform claim that species are not removed from the list because they would simply have had not 

enough time to recover. However, the Rocky Mountain gray wolf is 

a perfect example that even when a species has met its recovery 

goals these groups continue to litigate to keep the species on the 

list. 

Finally, I believe that the driving force behind this endless 

stream of litigation is the Federal government’s payment of attorneys’ fees. Since 1995, there has been no accounting of this money. 

Congress and the taxpayers should know how much money is being 

spent to reimburse attorneys in ESA and other litigation. Some of 

my own clients have received reimbursement of attorneys’ fees. 

While I believe that the facts show that environmental groups receive a significantly higher amount and percentage of attorneys’ 

fees than do individuals or industry groups, there is only one way 

to disprove my hypothesis: through accountability and transparency. My clients and I are willing to undergo that scrutiny. I 

would argue that those who are against transparency and accountability have something to hide. 

I do not advocate the repeal of the ESA, but we are being told 

that Americans have to make some choice between species protection, private property rights, a clean environment, rural community 

and jobs. I would argue that these things are not mutually exclusive and that this type of fear-mongering is only for those who 

want to raise money based on fear. The ESA should be promoting 

conservation and incentive-based recovery plans, not adding more 

species to the list and becoming a bigger threat to American jobs. 

Thank you for allowing me to testify. I would be happy to answer 

any questions. 

[The prepared statement of Ms. Budd-Falen follows:] 

8 

Statement of Karen Budd-Falen, Owner/Partner, 

Budd-Falen Law Offices, L.L.C. 

My name is Karen Budd Falen. I am a fifth generation rancher in Wyoming and 

an attorney specializing in protecting private property rights and rural counties and 

communities. I offer this testimony to provide legal and factual information and to 

voice my concern over the current interpretation and implementation of the Endangered Species Act (‘‘ESA’’) and the role federal court litigation has taken in driving 

decisions under the ESA. 

Contrary to some belief, the implementation of the ESA has real impacts on real 

landowners, ranchers, farmers, businesses, employers and others who are a vital 

part of America’s present and future. Rather than saving species and conserving 

their habitats, the ESA is used as a sword to tear down the American economy, 

drive up food, energy and housing costs and wear down and take out rural communities and counties. The purpose of the ESA was NOT just to put domestic and foreign species on an ever-growing list and tie up land and land use with habitat designations, but to recover species and remove them from the list. According to a November 29, 211 U.S. Fish and Wildlife Service (‘‘FWS’’) report, there are currently 

165 American and 59 foreign species on the ESA list, 25 candidate species, 44 critical habitat designations and 12 recovery plans. See http://ecos.fws.gov/tess.public/ 

SpeciesReport. On the delisting side, the same website shows that a total of 51 species have been removed from the list, 18 of the 51 species because of a listing error, 

1 because the species were determined to be extinct and 23 because the ESA worked 

and the species was recovered. See http://ecos.fws..gov/tess_public/DelistingReport. 

In other words, since 1979, the ESA has worked as intended in 2 percent of the 

cases. 

While I do not advocate the complete repeal of the ESA, and neither do the landowners, families and communities I represent, this Act is a threat to private property use, working ranch families and resource and job providers. Consider just one 

example. Charlie Lyons owns the Percy Ranch located in Mountain Home, Idaho. 

Eighty percent of the ranch consists of federally managed and state owned lands. 

Ted Hoffman is also from Mountain Home, Idaho, and owns a ranch named the Broken Circle Cattle Company. In 21, an environmental group, the Western Watersheds Project (‘‘WWP’’) sued the FWS to list the Slickspot peppergrass which grows, 

or has the potential to grow, on these ranches. The 21 WWP litigation only involved 

whether the FWS had to make a decision regarding whether to list the grass species 

under the ESA, not whether the grass was scientifically threatened or endangered. 

In this litigation, the Court determined that the FWS had violated the mandatory 

time deadline for making a listing decision and remanded the matter to the FWS 

who ultimately decided against listing the Slickspot peppergrass. However, because 

the Court determined that the FWS had to make a decision regarding listing of the 

species, the FWS agreed to pay the WWP $26,663 in ‘‘reimbursement’’ for attorneys 

fees and costs. See Committee for Idaho’s High Desert v. Badgley, 1-cv-1641 (D.Or. 

21). 

After this first round of litigation, a number of local ranchers including Lyons and 

Hoffman came together with the State of Idaho and created a Candidate Conservation Agreement (‘‘CCA’’) which was approved by the FWS under the ESA. This was 

a pro-active Agreement that required certain on-the-ground measures be taken to 

improve the species. Also, through this Agreement, a great deal of research was 

dedicated to the status of the Slickspot peppergrass. In a report in 29, the Slickspot 

peppergrass had the highest recorded population numbers since they started counting plants. 

Following the decision of the FWS to not list the Slickspot peppergrass and despite the CCA, the WWP sued the FWS again in 24 seeking a court order to list 

the species. The affected ranchers, including Lyons and Hoffman, intervened. However, WWP was successful in their attempt to force the FWS to list the Slickspot 

peppergrass. The total amount of money the ranchers spent on participating in the 

litigation was approximately $3,. WWP was awarded $86,5 in attorneys fees, plus 

another $15, to enforce the judgment, for a total award of $11,5. See Western Watersheds Project v. Foss, 4-cv-168, (D.Id. 24). 

In 2007, the FWS withdrew the 24 listing decision based upon the fact that the 

Slickspot peppergrass was already well protected by the implementation of the CCA. 

However, the WWP disagreed and sued the FWS over the Slickspot peppergrass 

again. WWP won and received an award in attorneys fees of $11,. See Western Watersheds Project v. Kempthorne, 7-cv-161, (D.Id. 29). The FWS has now prepared 

its draft designation of critical habitat for the plant. The comment period closes on 

December 12, 211. Thus far, the total attorneys fees paid related to the ESA listing 

of the Slickspot peppergrass is $238,163.. 

9 

According to these ranchers, WWP’s objective in litigating over the Slickspot 

peppergrass is to run ranchers off the land in the spring. According to Mr. Lyons, 

if the WWP is successful in their efforts, it would mean a death sentence to the 

Slickspot peppergrass and ruination of our ranches. These ranchers would have to 

sell their cattle and in some cases that money would not cover the mortgage on the 

ranch. The plant would ultimately burn. These ranches are located in one of the 

highest frequency fire areas in the country. The FWS admits that fire plays a major 

role in the survival of the Slickspot peppergrass. Ranchers play a major role in putting out the fires because they are on the land almost every day and can call and 

tell the federal and state agencies when a fire starts. Once there is no economic 

value and reason for the ranchers to be on the land, the fire suppression efforts will 

be greatly diminished. Additionally, if these ranchers have to limit their grazing and 

sell their livestock, they will be left with no choice but to subdivide their private 

land. Housing subdivisions do not make good plant and animal species habitat. 

Additionally according to the Natural Resources Conservation Service, ‘‘[n]o large 

ungulates, either domestic or wild use the [Slickspot peppergrass] plant (USDI, 29). 

This species has no known agricultural, economic or other human uses at this time.’’ 

St. John, L. and D.G. Ogle. Plant Guide for Slickspot peppergrass (Lepidium 

papilliferum). USDA Natural Resources Conservation Service, Plant Materials Center, Aberdeen, Id. The CCA, which the landowners signed to protect the plant is 

useless and the faith and hard work that the landowners put into management for 

the plant is down the drain. No one can show that this plant is any better protected 

by an ESA paper designation than it was by true on-the-ground management. 

Under this scenario, the ranchers have lost, the plant has lost and the public has 

lost. 

The ESA is ‘‘the most comprehensive legislation for the preservation of endangered species ever enacted.’’ See Tennessee Valley Authority v. Hill, 437 U.S. 153, 

18 (1978). The goal of the Act is ‘‘to provide for the conservation, protection, restoration, and propagation of species of fish, wildlife, and plants facing extinction.’’ Wyoming Farm Bureau Federation v. Babbitt, 199 F.3d 1224, 1231 (1th Cir. 2), citing 

S. Rep. No. 93–37, at 1 (1973) and 16 U.S.C. § 1531(b). Under the ESA, a threatened 

species means any species which is likely to become an endangered species within 

the foreseeable future throughout all or a significant part of its range, see 16 U.S.C. 

§ 1532 (2), and an endangered species means any species which is in danger of extinction throughout all or a significant portion of its range other than insects that 

constitute a pest whose protection would present an overwhelming and overriding 

risk to man. 16 U.S.C. § 1532(6). 

Anyone can petition the FWS or the National Oceanic and Atmospheric Administration—Fisheries Division (‘‘NOAA’’) to have a species listed as threatened or endangered. 16 U.S.C. § 1533. Listing decisions are to be based on the ‘‘best scientific 

and commercial data available.’’ 16 U.S.C. § 1533(b)(1)(A). However, there is no requirement that the federal government actually count the species populations prior 

to listing. Additionally, although species that present an ‘‘overriding risk to man’’ 

are not to be listed, there are no economic considerations included as part of the 

listing of a threatened or endangered species. 

Once a species is listed as threatened or endangered, prohibitions against ‘‘take’’ 

apply. 16 U.S.C. § 154. ‘‘Take’’ means to harass, harm, pursue, hunt, shoot, wound, 

kill, capture, or collect, or attempt to engage in such conduct. 16 U.S.C. § 1532(19). 

‘‘Harm’’ within the definition of ‘‘take’’ means an act which actually kills or injures 

wildlife. Such act may include significant habitat modification or degradation where 

it actually kills or injures wildlife by significantly impairing breeding, sheltering or 

feeding. 5 C.F.R. § 17.3. Harass in the definition of ‘‘take’’ means intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying 

it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding or sheltering. 5 C.F.R. § 17.3. ‘‘Take’’ 

may include critical habitat modification, if such modification results in the death 

of a listed species. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995). If convicted of ‘‘take,’’ a person can be liable for civil penalties of $1, per day and possible prison time. 16 U.S.C. § 154(a), (b). 

Once a species is listed as threatened or endangered, the FWS or NOAA must ‘‘to 

the maximum extent prudent and determinable,’’ concurrently with making a listing 

determination, designate any habitat of such species to be critical habitat. Id. at 

§ 1533(a)(3). By definition, critical habitat (‘‘CH’’) are ‘‘specific areas’’ see 16 U.S.C. 

§ 1532(5)(A) and must be ‘‘defined by specific limits using reference points and lines 

found on standard topographic maps of the area.’’ 5 C.F.R. § 424.12(c); see also 

§ 424.16 (CH must be delineated on a map). For ‘‘specific areas within the geographical area occupied by the [listed] species,’’ the FWS may designate CH, provided such habitat includes 1) ‘‘physical or biological features;’’ 2) which are ‘‘essenVerDate Nov 24 2008 14:08 Feb 19, 2013 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6621 L:\DOCS\71642.TXT Hresour1 PsN: KATHY
10 

tial to the conservation of the species;’’ and 3) ‘‘which may require special management considerations or protection.’’ 16 U.S.C. § 1532(5)(A)(I); 5 C.F.R. § 424.12(b). 

CH must also be designated on the basis of the best scientific data available, 16 

U.S.C. § 1533(b)(2), after the FWS considers all economic and other impacts of proposed CH designation. New Mexico Cattle Growers Assoc. v. United States Fish and 

Wildlife Service, 248 F.3d 1277 (1th Cir. 21) (specifically rejecting the ‘‘baseline’’ approach to economic analyses). CH may not be designated when information sufficient to perform the required analysis of the impacts of the designation is lacking. 

5 C.F.R. § 424.12(a)(2). The FWS may exclude any area from CH if it determines 

that the benefits of such exclusion outweigh the benefits, unless it determines that 

the failure to designate such area as CH will result in extinction of the species concerned. 16 U.S.C. § 1533(b)(2). 

Once a species is listed, for actions with a federal nexus, ESA section 7 consultation applies. Section 7 of the ESA provides that ‘‘[e]ach Federal agency [must] in 

consultation with and with the assistance of the Secretary [of the Interior], insure 

that any action authorized, funded, or carried out by such agency . . . is not likely 

to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species 

which is determined by the Secretary . . . to be critical . . . .’’ 16 U.S.C. 

§ 1536(a)(2). The first step in the consultation process is to name the listed species 

and identify CH which may be found in the area affected by the proposed action. 

5 C.F.R. § 42.12(c-d). If the FWS or NOAA determines that no species or CH exists, 

the consultation is complete, otherwise, the FWS must approve the species or habitat list. Id. Once the list is approved, the action agency must prepare a Biological 

Assessment or Biological Evaluation (‘‘BA’’). Id. The contents of the BA are at the 

discretion of the agency, but must evaluate the potential effects of the action on the 

listed species and critical habitat and determine whether there are likely to be adverse affects by the proposed action. Id. at § 42.12(a, f). In doing so, the action agency must use the best available scientific evidence. 5 C.F.R. § 42.14(d); 16 U.S.C. 

§ 1536(a)(2). Once complete, the action agency submits the BA to the FWS or NOAA. 

The FWS or NOAA uses the BA to determine whether ‘‘formal’’ consultation is necessary. 5 C.F.R. § 42.12(k). The action agency may also request formal consultation 

at the same time it submits the BA to the FWS. Id. at § 42.12(j-k). During formal 

consultation, the FWS will use the information included in the BA to review and 

evaluate the potential affects of the proposed action on the listed species or CH, and 

to report these findings in its biological opinion (‘‘BO’’). 5 C.F.R. § 42.14(g-f). Unless 

extended, the FWS or NOAA must conclude formal consultation within 9 days, and 

must issue the BO within 45 days. Id. at § 42.14(e); 16 U.S.C. § 1536(b)(1)(A). 

If the BO concludes that the proposed action will jeopardize any listed species or 

adversely modify critical habitat, the FWS’ BO will take the form of a ‘‘jeopardy 

opinion’’ and must include any reasonable and prudent alternatives which would 

avoid this consequence. 16 U.S.C. § 1536(b)(3)(A); 5 C.F.R. § 42.14(h). If the BO contains a jeopardy opinion with no reasonable and prudent alternatives, the action 

agency cannot lawfully proceed with the proposed action. 16 U.S.C. § 1536(a)(2). If 

the BO does not include a jeopardy opinion, or if jeopardy can be avoided by reasonable and prudent measures, then the BO must also include an incidental take statement (‘‘ITS’’). 16 U.S.C. § 1536(b)(4); 5 C.F.R.§ 42.14(I). The ITS describes the 

amount or extent of potential ‘‘take’’ of listed species which will occur from the proposed action, the reasonable and prudent measures which will help avoid this result, and the terms and conditions which the action agency must follow to be in 

compliance with the ESA. Id.; see Bennett v. Spear, 52 U.S. 154, 17 (1997). 

Once a species is listed, ESA section 1 also applies on private land, even if there 

is no federal nexus. In order to avoid the penalties for ‘‘take’’ of a species, and still 

allow the use and development of private land, the ESA also authorizes the FWS 

to issue ITSs to private land owners upon the fulfillment of certain conditions, specifically the development and implementation of habitat conservation plans 

(‘‘HCPs’’). 16 U.S.C. § 1539. A HCP has to include (a) a description of the proposed 

action, (b) the impact to the species that will result from the proposed action, (c) 

the steps that the applicant will take to minimize any negative consequences to the 

listed species by the proposed action, (d) any alternatives the applicant considered 

to the proposed action and why those alternatives were rejected, and (e) any other 

measures that the FWS may deem necessary for the conservation plan. 16 U.S.C. 

§ 1539(a)(2)(A). Once a HCP is presented, the FWS must make certain findings before it can issue an ITS. Those findings include (a) that the taking of the species 

is incidental to the proposed action, (b) that the proposed action implements a lawful activity, (c) that the applicant, to the maximum extent possible, will minimize 

and mitigate any negative impacts to the listed species, (d) that the HCP is adequately funded, (e) that the taking will not appreciably reduce the survival and reVerDate Nov 24 2008 14:08 Feb 19, 2013 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6621 L:\DOCS\71642.TXT Hresour1 PsN: KATHY
11 

covery of the species, and (f) any other measures deemed necessary will be carried 

out. 16 U.S.C. § 1539(a)(2)(B). As a practical matter, mitigation means that the applicant will either fund programs supporting the listed species or will provide or set 

aside land. 

Although the legal ESA requirements sound fairly benign, that is not how the 

ESA is being used and interpreted by either the Courts or the federal agencies and 

why oversight by the Congress is needed. Consider the following examples: 

A. Multi-District Litigation Settlement Agreement 

On July 12, 211, the Justice Department and the FWS announced ‘‘an historic 

agreement’’ which will require the American taxpayers to pay approximately 

$26,98,92 to just process the paperwork deciding whether to include 153 species 

under various categories under the ESA. See In Re Endangered Species Act Section 

4 Deadline Litigation, 1-mc-377 (D.D.C. 21). These two settlement agreements are 

the culmination of what is known as the ESA multi-district litigation. This case was 

formed in 21 by combining 13 federal court cases filed by either the WildEarth 

Guardians (‘‘WEG’’) or the Center for Biological Diversity (‘‘CBD’’) regarding 113 

species. On May 1, 211, the FWS announced its settlement agreement with the 

WEG with the promise that the agreement would help the FWS ‘‘prioritize its workload.’’ That settlement agreement was opposed by the CBD who wanted other species added to the list. The Justice Department obliged the requests of the CBD and 

on July 12, 211 filed the second settlement agreement. These agreements require 

the FWS to make 121 decisions on proposed listing, listing and critical habitat designations for 153 species. See Exhibits 1, 2. 

Since part of this Oversight Hearing is to discuss the costs of litigation related 

to the ESA, this settlement agreement provides a good case study. According to a 

November 1, 21 FWS Federal Register Notice, the median cost for the federal government to prepare and publish an ESA 9-day finding is $39,276; for a 12-month 

finding, $1,69; for a proposed listing rule with a critical habitat designation, $345,; 

and for a final species listing rule with a critical habitat designation, the median 

cost is $35,. See 75 Fed. Reg. 69,222, 69,23 (Nov. 1, 21). The Multi-district ESA settlement agreements discuss which ESA actions have to be taken for which species, 

so by simply multiplying the number of species with the median cost per individual 

action, the cost to the American taxpayers for implementation of this settlement 

agreement is $26,98,92. Those costs do not include any costs related to completing 

recovery plans, habitat conservation agreements, incidental take statements, section 

7 consultation requirements or any on-the-ground measures for protection of currently listed or proposed newly listed species. This $2,, cost is simply to complete 

paperwork related to species that the CBD and WEG believe should be considered 

by the FWS for ESA inclusion. 

This $26,98,92 figure also does not include the amount of money that the Justice 

Department has agreed it will pay in attorneys fee reimbursement to the CBD and 

WEG. The Justice Department and the environmental plaintiffs have petitioned the 

court for additional time to discuss settlement of the attorneys fees claim. The Court 

has granted the parties request and according to the court docket sheet, the CBD/ 

WEG are to file their attorneys fee petition or a settlement agreement by December 

8, 211. With regard to payment of attorneys fees, the Justice Department has already agreed that the CBD and WEG are ‘‘prevailing parties;’’ so the only remaining 

question is how much money will be paid to these groups. 

There is also a question of how the number of species in the settlement agreement 

grew exponentially from the number of species in the original litigation. According 

to the combined complaints before the multi-district panel, the FWS was in alleged 

violation of the ESA by failing to timely respond to the CBD and WEG petitions 

for 113 species. However, the settlement agreements expanded the number of species to 153. It is not clear how the environmental plaintiffs convinced the Justice 

Department to expand the workload of the FWS envisioned by the original Complaints. Relatedly as stated above, there are currently 169 species on the list since 

the passage of the Act in 1979 (a period of 3 years) and these settlement agreements 

require consideration for 153 more species in just four years. If the FWS and NOAA 

cannot complete all required recovery actions for the species already on the list, how 

can the agencies continue that work if the list is approximately double in size? 

Additionally, although the FWS has claimed that these settlement agreements 

will help it prioritize its workload, although the settlement agreement limits the 

number of additional ESA listing petitions that can be filed by the CBD and WWP, 

those are the only two groups impacted by the agreements. Thus, other environmental groups such as National Wildlife Federation, Western Watersheds Project, 

Sierra Club, the Humane Society of the U.S. or other groups can continue to file 

listing petitions to which the FWS and NOAA have 9 days to respond. If the federal 

12 

government violates this timeline with relation to a listing petition filed by any 

other group, more ESA litigation will occur. Species will be added to the list, but 

no equal action is taken to get species off the list. I do not believe that simply adding species to the list and tying up land for habitat is the goal of the ESA. 

B. Changes in Interpretation of Areas Designated as Critical Habitat 

Additionally, the FWS appears to have expanded its determination of the area to 

be included in critical habitat designations. Under prior determinations, CH was interpreted as the area specifically occupied by the species. The ESA defines critical 

habitat as including ‘‘the specific areas within the geographical area occupied by the 

species, at the time it is listed . . . and . . . specific areas outside the geographical 

area occupied by the species at the time it is listed . . . upon a determination by 

the Secretary that such areas are essential for the conservation of the species.’’ 16 

U.S.C. 1532(5)(a)(I), (ii). The key issue for the FWS therefore is what areas are ‘‘occupied’’ by the species. Under past interpretations, the term ‘‘occupied’’ included 

only those areas that were actually inhabited by the species. Now, however, that 

definition seems to be expanding to also include areas that are used only intermittently by the listed species. The courts, such as the Ninth Circuit Court of Appeals, 

have held that they will defer to the FWS determination that CH can include areas 

used only intermittently by a species. See e.g. Arizona Cattle Growers Association 

v. Salazar, 66 F.3d 116 (9th Cir. 21). Recent CH designations have shown that the 

FWS expansion of the term ‘‘occupied’’ are more commonplace. See e.g. 75 Fed.Reg. 

7686 (Dec. 7, 21) (polar bear CH designation); 76 Fed.Reg. 3226 (June 2, 211) (Hawaiian monk seal CH designation); 75 Fed.Reg. 77962 (Dec. 14 21) (Santa ana sucker CH designation). 

C. Foreign Species Listings 

Although the United States has no jurisdiction over land use in foreign countries, 

the ESA allows species in foreign nations to be listed as threatened or endangered. 

In fact, as of November 28, 211, there were 59 foreign species listed on the United 

States threatened or endangered species list. http://ecos.fws.gov/tess.public. Foreign 

countries who have species on the American list include but are not limited to 

China, Mongolia, Kyrgyzstan, Pakistan, Afghanistan, India, Palau, Canada and 

Mexico. 

With regard to the reasons for listing, recent FWS releases include concerns about 

private land use in these foreign countries and climate change. For example, a December 28, 21 FWS foreign species press release states: 

All seven species face immediate and significant threats primarily from the 

threatened destruction and modification of their habitats from conversion 

of agricultural fields (e.g., soybeans, sugarcane, and corn), plantations (e.g., 

eucalyptus, pine, coffee, cocoa, rubber, and bananas), livestock pastures, 

centers of human habitation, and industrial developments (e.g., charcoal 

production, steel plants, and hydropower reservoirs). 

Although there is limited information on the specific nature of potential impacts from climate change to the species included in this final rule, we 

[FWS] are concerned about projected climate change, particularly the effect 

of rising temperatures in combination with the potential loss of genetic diversity, and population isolation; and cumulative effects including El Nin ̃ o 

events. Furthermore, we have determined that the inadequacy of existing 

regulatory mechanisms is a contributory risk factor that endangers each of 

these species’ continued existence. 

See Exhibit 3. 

Additionally, once a foreign species is listed on the U.S. threatened or endangered 

species list, the ESA gives the American government the authority to buy ‘‘land or 

water or interests therein’’ in foreign countries. 16 U.S.C. § 1537. 

D. Payment of Attorney Fees with No Transparency or Accountability 

The final issue I would raise with the Committee is the accountability and transparency of the amount of attorneys fees paid out of the U.S. Treasury for ESA (and 

other cases). The waiver of sovereign immunity of the federal government allowing 

litigation against the FWS and NOAA for alleged violations of the failure to list species or designate critical habitat is authorized under section 9 of the ESA. 16 U.S.C. 

§ 154(g). Because the ESA contains its own ‘‘citizen suit’’ provision, any awarded attorneys fees come from the Judgment Fund. The Judgment Fund is a permanent 

indefinite Congressional authorization. 31 U.S.C. § 134. ESA awards paid by the 

Judgment Fund allows ‘‘reimbursement’’ of attorneys to the ‘‘prevailing party.’’ 16 

U.S.C. § 154(g)(4). 

13 

Although environmental groups claim that they recover attorneys fees only when 

they have proven that the government was not following the law, that does not seem 

to be the case. Based upon data collected from the PACER National Case Locator 

federal court data base, in 21 percent of the cases filed by 14 environmental groups, 

attorneys fees were paid in cases where there was no federal court decision, let 

alone a decision that the plaintiff was a prevailing party. See e.g. Center for Biological Diversity v. Norton, Docket No. 5–341 (D. Az. 25). This data search was only 

conducted in 19 states and the District of Columbia, so I believe it is only the tip 

of the iceberg. With specific consideration of the ESA, if the federal government fails 

to respond to a petition to list a species within the 9 day time period mandated by 

the ESA, an environmental group can sue and almost always get attorneys fees 

paid. See e.g. WildEarth Guardians v. Kempthorne, Docket No. 8–443 (D.D.C. 28). 

In these cases, the court is not ruling that the species is in fact threatened or endangered, but only that a deadline was missed by the FWS. 

Additionally concerning is that in 1.5% of the same cases reviewed through the 

PACER data base, the court docket sheets revealed that attorneys fees were paid, 

but no amount was given. See Exhibit 5. The expenditure of public funds for attorneys fees should be available to the public. 

Finally, while not directly related to ESA cases, there are attorneys fees ‘‘settlements’’ that are not well explained. Consider the case of WildEarth Guardians v. 

U.S. Forest Service, Docket No. 7–143–JB (N.M. 21). In that case, litigated in the 

U.S. District Court for the District of New Mexico, the WildEarth Guardians lost 

on all counts and claims before the federal district judge. The WildEarth Guardians 

appealed the case to the Tenth Circuit Court of Appeals, and even though there was 

NO ruling by a court on the merits overturning the federal district judge’s written 

decision, the WildEarth Guardians and the Forest Service jointly petitioned the federal district court to allow the Justice Department to voluntarily settle the case, including a payment of attorneys fees. The WildEarth Guardians lost their case; the 

Justice Department settled and paid attorneys fees. 

In conclusion, while neither I nor the people I represent want to repeal the entire 

Act, this testimony illustrates that there are significant flaws in the Act and loopholes that should be closed. The use of the Act now appears to be more to produce 

paper, than implement on-the-ground species and habitat improvement. American 

landowners can be important and vital partners in protecting species and the habitats in which they live and the American taxpayer money should be spent on habitat improvement rather than attorneys fees and litigation. 

Thank you. 

The CHAIRMAN. Thank you very much, and I apologize for mispronouncing your name. I made it long instead of short and I 

apologize for that. 

Ms. BUDD-FALEN. It is not a problem. 

The CHAIRMAN. I recognize Mr. Doug Miller, the Manager of the 

Pacific County PUD, for five minutes. 

STATEMENT OF DOUG MILLER, GENERAL MANAGER, PUBLIC 

UTILITY DISTRICT NO. 2 OF PACIFIC COUNTY, RAYMOND, 

WASHINGTON 

Mr. MILLER. Good morning, Chairman Hastings, Ranking Member Markey, and Distinguished Members of the Committee. My 

name is Doug Miller and I am the General Manager of Public Utility District No. 2 of Pacific County in Washington State, testifying 

on behalf of Energy Northwest and four public utility districts concerning the Radar Ridge wind project. 

I am pleased to have this opportunity to provide brief remarks 

concerning the project. With me today is Jim Lynch, Project Attorney, who will respond to any legal questions you may have. Jim is 

here behind me. 

Four public utility districts joined together to develop a wind 

energy project on Radar Ridge, located in Pacific County, Washington. These four project participants are members of Energy 

14 

Northwest, a joint operating agency or JOA formed under the laws 

of the State of Washington. Energy Northwest provided project 

management and oversight for the development of the Radar Ridge 

wind project. 

The utilities pursued this project on Radar Ridge because, one, 

it was an economically attractive winter peaking wind energy resource; two, it would have been located in western Washington, 

avoiding further taxing of heavily loaded transmission lines that 

cross the Cascade Mountain Range; and, three, it would have been 

located on State Department of Natural Resources land managed 

for and containing existing industrial activities such as telecommunications towers, an active gravel quarry and logging operations. Another attractive aspect of the project was favorable financing sources obtained by Energy Northwest. 

The utilities applied for and were granted authority to use over 

$200 million in clean renewable energy bonds or CREBs to finance 

project construction. Energy Northwest worked closely with state 

fish and wildlife agencies and the U.S. Fish and Wildlife Service 

to conduct studies and evaluate the effects of the project on wildlife 

in the project area. The studies concluded that the project was not 

likely to have a significant adverse impact on any wildlife. 

To address concerns expressed by Fish and Wildlife Service regarding marbled murrelet, a species listed under the Endangered 

Species Act, Energy Northwest agreed to develop an incidental take 

permit in collaboration with Fish and Wildlife Service. The permit 

would have contained measures to minimize and mitigate the effects of the project on listed marbled murrelets over the life of the 

project. Energy Northwest spent considerable time developing a 

permit application over a span of two years in collaboration with 

the Service and thought it had captured the Agency’s concerns. 

During the development of the ESA permit application Fish and 

Wildlife Service expressed a desire for Energy Northwest to sponsor the development of an environmental impact statement, or EIS, 

to analyze the potential impacts of the project on the environment. 

Energy Northwest agreed to this more lengthy environmental review process only after Fish and Wildlife Service committed to a 

schedule to complete the permitting process by December 31, 2011, 

over three years after the permitting process was first initiated. 

This date was important because it would have enabled the utilities to make use of the CREBs’ financing. This schedule and the 

parties’ agreement to work together on these matters is reflected 

in a Memorandum of Understanding executed in 2009 by Energy 

Northwest, Fish and Wildlife Service and the Bonneville Power Administration. 

In early 2011, it became apparent that Fish and Wildlife Service 

would be unable to complete the EIS and issue the permit according to the schedule contemplated in the MOU. The reasons for this 

delay by Fish and Wildlife Service were severalfold but included 

the Service’s delays in securing contracts with a NEPA contractor 

and peer reviewers. 

In late 2011, after more than three years of interactions, Fish 

and Wildlife Service outlined a new project permitting alternative 

which would have rendered the project uneconomic if adopted. The 

15 

addition of this new alternative would have required significant additional time to analyze, further delaying the process. 

In conclusion, it is highly unfortunate that the project could not 

proceed despite the best efforts of the many parties involved. The 

decision to abandon this project resulted in a loss of about $4 million in project development costs contributed by the utilities and 

the return of $200 million in CREBs to the Federal government. 

Thank you for the opportunity to provide these remarks, and I 

would be happy to answer any questions you may have about this 

project. 

[The prepared statement of Mr. Miller follows:] 

Statement of Doug Miller, General Manager, 

Public Utility District No. 2 of Pacific County 

Good morning Chairman Hastings, Ranking Member Markey and distinguished 

Members of the Committee. My name is Doug Miller, and I am the General Manager of Public Utility District No. 2 of Pacific County in Washington State, testifying 

on behalf of Energy Northwest and four public utility districts. I am pleased to have 

this opportunity to provide these brief remarks regarding the permitting process 

surrounding the Radar Ridge Wind Energy Project. 

I am here today to tell you about an unfortunate (and expensive) sequence of 

events affecting a well-intentioned renewable energy project we attempted to build. 

My hope is that my testimony will help bring attention to the overly-burdensome 

regulatory process preventing construction of renewable energy projects, and lessen 

the risk that others who simply want to do the right thing for their communities 

suffer a similar fate. 

Background of the Public Utilities 

Before speaking directly about the Project, I would like to provide you with a brief 

background on my Utility and the other participants in the Radar Ridge Wind 

Project. P.U.D. No. 2 of Pacific County is a medium-sized public utility in southwest 

Washington providing electricity service to just over 17,000 customers. Our P.U.D. 

offers a ‘‘green power’’ retail product for our customers and therefore must purchase 

enough of a renewable wholesale product to cover our ‘‘green power’’ purchases. Historically, the District has purchased a majority of our wholesale power, depending 

on the contract period, from the Bonneville Power Administration (‘‘BPA’’), of which 

greater than 75% comes from hydroelectricity, a resource that is not recognized as 

renewable. Therefore, our Utility was looking at the Radar Ridge Wind Project for 

two reasons, to: (1) meet the renewable needs of our green power retail customers, 

and (2) provide an economic boost to Pacific County since the Project would have 

been constructed in our County near the community of Naselle. 

The other three participating utilities—Clallam, Grays Harbor, and Mason #3 

County P.U.D.—were interested in developing the Project because they each have 

more than 25,000 customers and thus are required under Washington State’s renewable energy standard to have 15 percent of their wholesale power portfolio consist of renewable sources by 2020. 

All four Project participants are members of Energy Northwest, a Joint Operating 

Agency (‘‘JOA’’) formed under the laws of the State of Washington. Energy Northwest has 28 members, either public utility districts or municipal utilities within the 

State. The JOA is a wholesale electric utility that operates the Columbia Generating 

Station and explores and develops, with member interest, other generating projects 

such as the Nine Canyon Wind Project, and White Bluffs Solar Station. Energy 

Northwest provided project management for the Radar Ridge Wind Project with 

input from the four participants. 

Overview of the Radar Ridge Project 

Energy Northwest continually prospects for potential generating sites and in 

2006, contracted with my Utility to place a wind monitoring device on our communication tower atop Radar Ridge, located in Southwest Washington. The initial monitoring results from this location were encouraging—enough so that Energy Northwest asked its members if anyone would be interested in exploring the development 

of a wind project on Radar Ridge. The four P.U.D.’s became involved in this Project, 

and the five entities have worked for the past five years on a range of studies to 

evaluate and permit the Project, including wind monitoring, avian and wildlife studies, transmission connection agreements with the Bonneville Power Administration, 

16 

a site lease with the Washington Department of Natural Resources (‘‘WDNR’’), and 

a range of environmental permitting documents. 

Based on the initial studies and analyses developed by Energy Northwest, the 

utilities elected to pursue the Radar Ridge Wind Project because: 

(1) Radar Ridge possesses an economically attractive, winter-peaking wind resource that would serve the time of year during the period of highest customer load; 

(2) The Project would be located in western Washington, closer to our customer 

loads, and would avoid further taxing heavily loaded transmission lines that 

cross the Cascade Range; 

(3) The Project would be located near an existing BPA Substation that could 

be accessed via construction of a relatively short, three mile transmission 

line; 

(4) The Project would be located on State Department of Natural Resources 

land already used for industrial purposes, and containing existing telecommunications facilities, an active gravel quarry, and active logging operations. Money from the State lease for Project land would benefit Washington schools as well as the local community in which the Project exists; 

and 

Clean Renewable Energy Bonds 

During the development of permitting documents for the Project, the Utilities, 

with assistance from Energy Northwest, applied to the U.S. Treasury Department 

and were granted authority to use Clean Renewable Energy Bonds or ‘‘CREBs’’ to 

finance Project construction. The Utilities ultimately received authority to use over 

$200 million in CREBs to finance this and one other project; however, the CREBs 

expire in the first quarter of 2013, and must be issued in advance of this deadline. 

Energy Northwest developed a Project schedule in collaboration with FWS and BPA 

to obtain Project permits by December 31, 2011, to allow use of the CREBs. 

Development of the Project Permit Application 

As a condition of Energy Northwest’s lease with the WDNR, Energy Northwest 

studied the potential effects of Project construction and operation on marbled 

murrelets, a species listed under the Endangered Species Act (‘‘ESA’’). Energy 

Northwest worked closely with State fish and wildlife agencies, and the U.S. Fish 

and Wildlife Service over a period of several years to evaluate the effects of the 

Project on this species and other wildlife species in the Project area. The results 

from the Environmental Assessment were extensively peer reviewed. The studies 

concluded that the Project was not likely to have a significant adverse impact on 

marbled murrelets or other sensitive species. 

To address concerns expressed by FWS, Energy Northwest agreed to pursue an 

Incidental Take Permit (‘‘ITP’’) under the ESA. The permit would have contained 

measures to minimize and mitigate the impacts of the Project on listed marbled 

murrelets, and it would have authorized any potential take of listed marbled 

murrelets that could occur over the life of the Project. Energy Northwest engaged 

in a multi-year process with FWS to develop an acceptable application for an ITP, 

including numerous meetings, and technical workshops with the Service, the State, 

and environmental organizations. In addition, FWS performed an independent scientific peer review at its own expense evaluating scientific information contained in 

permit application documents. The level of study and peer review associated with 

this process remains unprecedented, and far exceeds any published agency policies. 

During this process of engagement, Energy Northwest worked closely with FWS, 

State wildlife agencies, and environmental organizations to identify Project proposals that would address environmental concerns. As an example, in response to 

suggestions from FWS, Energy Northwest secured an option to purchase 261 acres 

of murrelet habitat from a nearby timber company as mitigation for the Project. Energy Northwest developed Project proposals in an open, collaborative manner, with 

substantial opportunity provided for public comment, resulting in the development 

of an ESA permit application that was submitted to FWS in 2011 consistent with 

the parties agreed schedule. FWS and the State wildlife agencies provided substantial input into the ESA permit application, and Energy Northwest believed that the 

application incorporated the agencies’ comments. 

Environmental Review Process 

During the development of the ESA permit application, FWS expressed a desire 

for Energy Northwest to sponsor the development of an Environmental Impact 

Statement (EIS) to analyze the potential impacts of the Project on the environment. 

Energy Northwest had previously concluded that the Project would have no significant environmental impacts, and submitted a draft EA to FWS for its use in the 

17 

National Environmental Policy Act process. However, in the interest of collaborating 

with FWS, Energy Northwest agreed to support the development of an Environmental Impact Statement (‘‘EIS’’). Energy Northwest agreed to this more lengthy 

environmental review process only after FWS and the Bonneville Power Administration (‘‘BPA’’) agreed to complete the permitting process by December 31, 2011. This 

schedule, and the parties’ agreements to work together on these matters, are reflected in a Memorandum of Understanding (‘‘MOU’’) executed in 2009. This permitting schedule would have enabled the Utilities to make use of the CREBs. 

After executing the MOU, FWS sought bids from contractors to prepare an EIS. 

FWS retained a consulting firm to develop the EIS; however, the process to retain 

the NEPA contractor took longer than expected, and was longer than the process 

contemplated in the MOU. Nonetheless, Energy Northwest agreed to continue to 

fund EIS development based upon the assurances provided to it by FWS that FWS 

would continue to honor agreements contained in the MOU. 

Breakdown of the Process 

In early 2011, it became apparent that development of the EIS was significantly 

delayed for several reasons. First, FWS requested another peer review of available 

scientific information. The process to solicit and secure a contract with a qualified 

firm took longer than FWS expected. In addition, development of the EIS with the 

NEPA contractor was delayed, and deviated substantially from the schedule contained in the MOU. Energy Northwest tried on several occasions, working through 

BPA, to bring the Project back on schedule; however, these attempts were unsuccessful. At several junctures, BPA expressed frustration with the lack of progress 

on the EIS, and unresponsiveness of FWS during development of the draft EIS. 

In late 2011, Energy Northwest attempted to expedite completion of a draft EIS 

for public review and comment to salvage the Project and the CREBs. During this 

period, FWS indicated its intent to develop an alternative to the proposed permit 

application for inclusion in the EIS. After months of work, FWS outlined a new 

Project alternative that would have rendered the Project uneconomic if adopted. A 

comparison of the mitigation proposed by Energy Northwest based on the science 

and that of FWS under this new alternative is depicted below: 

Also, the addition of this new alternative would have required significant additional time to analyze in the EIS, making it highly unlikely that a final ESA permit 

would be issued on the schedule contemplated in the MOU. Energy Northwest communicated these concerns to FWS and BPA on several occasions; however, Energy 

Northwest was unable to resolve this situation. As a result, Energy Northwest was 

left with no choice but to abandon the Project, and relinquish its CREB allocation. 

Conclusion 

In conclusion, it is highly unfortunate that the Radar Ridge Wind Project could 

not proceed despite the best efforts of the many parties involved, including FWS, 

BPA, State agencies, environmental organizations, and the Utilities. The decision to 

abandon this Project, resulting in the loss of $4 million in Project development costs 

contributed by the Utilities, and the return $200 million in CREBs to the federal 

government, is not something the Utilities take lightly. The decision to abandon this 

Project was reached after careful deliberation, and after years of attempting in good 

faith to make the process work. 

The Project had, and continues to have, overwhelming support in Pacific County, 

and would have provided substantial economic and environmental benefits to the 

State of Washington. A unique aspect of this Project was that it was located on 


71642.001.eps
18 

State trust lands, and money generated under the State lease would have benefited 

public schools in the State of Washington as well as Pacific County through revenue 

sharing agreements. The Project would have also generated 250–300 temporary jobs 

and 9 permanent positions in Pacific County, along with indirect benefits to local 

businesses serving this workforce. Pacific County has been particularly hard-hit by 

the economic down turn, and these jobs and related tax revenues will be sorely 

missed by our local citizens. 

I am here today not simply to explain to you the unfortunate history of Radar 

Ridge, but as a public official, I am also here to help sort out how we avoid repeating these types of situations in Washington, and other similar communities. A lesson I would take away from this experience is that a more transparent, reliable permitting process is needed under the ESA to permit renewable energy projects. I 

would also say that more formal oversight by Congress of the permitting process is 

needed to insure that waste of public resources can be avoided. Finally, I would say 

a need exists for independent review of FWS decisions, short of litigation, to insure 

that the agency makes its decisions without delay, and on the basis of the best 

available scientific information. 

Thank you for the opportunity to provide these remarks. 

The CHAIRMAN. Thank you very much, Mr. Miller. 

Next I will recognize Mr. Kieran Suckling, the Executive Director 

of the Center for Biological Diversity in Tucson. You are recognized, Mr. Suckling. 

STATEMENT OF KIERAN SUCKLING, EXECUTIVE DIRECTOR, 

CENTER FOR BIOLOGICAL DIVERSITY, TUCSON, ARIZONA 

Mr. SUCKLING. Thank you for inviting me, Mr. Chairman. I have 

a PowerPoint presentation here. If we could go to the next slide. 

Yes, we have heard that the Endangered Species Act is not successful because only 1 percent of species have been removed from 

the Act. This is a critique we have been hearing for a decade or 

more, but it really begs the question how many should have been 

removed by now, and it presumes without any evidence whatsoever 

that hundreds or all of them should have been removed by now. 

This question has been looked at by the GAO recently, by scientists, and what they have all concluded is that the work of recovering species takes many decades. That work is outlined in Federal 

recovery plans. Of all the species on the endangered species list 

today, on average, they have been on the list for 21 years. The Federal recovery plans on average require 42 years for listing, so these 

species are only halfway through the government’s recovery program. 

So to assert that somehow they have failed because they did not 

recover twice as fast as the scientific plan to recover them says 

really doesn’t make any sense. It is a lot like someone starting a 

10-day course of antibiotics and declaring on day one the antibiotics don’t work, I’m going to stop taking them. 

So I want to go through a few slides to show the recovery trend 

of species versus their recovery time. If we can go to the next slide. 

This is the whooping crane. It was listed as an endangered species 

in 1967. Its Federal recovery plan says it will take 83 years to recover the species. It will recover in 2050. During that time it has 

increased from 54 pairs to 599. This is an endangered species success story, not a failure, and it is on the road to recovery. 

Next slide. This is the nene or the Hawaiian goose. It was listed 

in 1967. Its recovery plan says it will be listed in 2034. That is 67 

19 

years. Meanwhile it has increased from 875 birds to over 1,700 

birds. It is on its way to recovery. It is another success. 

We have another side, please. Florida panther, its recovery plan 

says it is going to take 116 years to recover the Florida panther 

listed in 1967. It is not slated to come off the list until 2083. After 

a very rocky start, it is on a steady upward swing right now. Much, 

much too early to declare the Endangered Species Act a failure for 

this species. 

Could we have the next slide? This is actually a picture of the 

Chairman and the Ranking Member discussing the Endangered 

Species Act. 

[Laughter.] 

Could we have the next slide? No, it is actually the Utah prairie 

dog. This is a territorial display. These guys actually fight each 

other and bump heads like big horn sheep, only much more exciting. So it was put on the endangered species list in 1973. Its recovery plan says it is going to take 67 years, and as you can see, it 

is on an upward trajectory. There is over 11,000 of them now, 

growing from about 3,000 back in 1973. 

Next slide. Shortnose sturgeon in the Hudson River. Its recovery 

plan says it is going to take 57 years from its listing in 1967 to 

recover. It is well on its way, increasing from 12,000 fish to 56,000 

fish. This species will actually probably be recovered in advance of 

its slated recovery date. 

Could we go to the next slide? So, when we look about how to 

measure the success of the Endangered Species Act, asking species 

to recover before the recovery plan say they should is not a good 

measure. What we should be asking is are we preventing extinction? Are we putting species on the road to recovery? And are they 

recovering in the right speed that we expect them to in relationship 

to their recovery plans? 

So can we go to the next slide, please? So, in terms of extinction, 

10 species have been removed from the list due to extinction. Only 

two of those went extinct after they were listed. The ESA is 99.9 

percent effective in preventing extinction. 

The next slide, please. To determine whether species are moving 

toward recovery at the proper rate, we examined every single native species in the eight northeast states. What we found was that 

93 percent of all of those species are on a path toward recovery, the 

populations are increasing, and 82 percent were downlisted or 

delisted in the timeframe set out by the recovery plans, so in fact 

the ESA has been very successful in doing what it is supposed to 

do. It is far from a failure. 

Could I have the next slide, please? Next. I guess we are done 

there. 

Then I want to mention one more thing finally in response to the 

settlement agreement that the Department of the Interior recently 

signed with the Center and with WildEarth Guardians. Karen 

Budd-Falen said it would require the designation of 1,053 critical 

habitats. That is entirely incorrect. The agreement covers I think 

about 10 critical habitats, not 1,053. 

The agreement primarily requires the Agency to make final listing decisions on 251 species on its priority list. These are the priority identified by the U.S. Fish and Wildlife Service. 

20 

The CHAIRMAN. Mr. Suckling, could you please—— 

Mr. SUCKLING. I will be done in one second, and the settlement 

simply allows them to finish their own priorities, sir. 

[The prepared statement of Mr. Suckling follows:] 

Statement of Kieran Suckling, Executive Director, 

Center for Biological Diversity 

The effectiveness of the Endangered Species Act cannot be measured by the number 

of delisted species because the vast majority of species have not yet reached 

their scheduled recovery date. 

‘‘Evaluating success as a measure of how many species are delisted is a non-informative metric.’’ 

The Performance of the Endangered Species Act—Schwartz (2008) 

‘‘The recovery plans we reviewed indicated that species were not likely to be recovered for up to 50 years. Therefore, simply counting the number of extinct and 

recovered species periodically or over time, without considering the recovery 

prospects of listed species, provides limited insight into the overall success of 

the services’ recovery programs.’’ 

Endangered Species: Time and Costs Required to Recover Species Are Largely Unknown—Government Accountability Office (2006) 

Critics of the Endangered Species Act often complain that the law is failing because only 1% of endangered species have recovered and been removed from the list. 

These critics, however, have never explained why they think more species should 

have recovered by now. They conspicuously fail to provide scientific support for the 

contention. They fail because the claim is illogical and contrary to scientific expectations. As quoted above, scientists and the U.S. GAO have examined the critique and 

declared it meaningless. 

It is meaningless because the timeline and action blueprint for recovery of endangered species is established in federal recovery plans and those plans stipulate that 

few species should have been recovered by now. There are currently 1,396 species 

protected under the Endangered Species Act. On average, they have been on the list 

21 years. Their federal recovery plans, however, expect that on average they will 

take 42 years from listing to be recovered. To complain that a species did not recover 21 years prior to the conservation timeline established in its recovery plan is 

like declaring an antibiotic to be a failure because it did not cure an infection on 

the first day of a ten day course. 

Hundreds of listed species have strong recovery trends but, as per their federal 

recovery plans, will not reach full recovery for several decades. Their progress is indicative of the Endangered Species Act’s effectiveness despite the fact they are not 

yet recovered. Here are just a few examples: 

Whooping Crane. The whooping crane was listed as an endangered species in 

1967. Its recovery plan anticipated downlisting to threatened status in 2035, 68 

years from listing. Full delisting would likely take until at least 2050, 83 years from 

listing. The population has grown from 54 birds (48 wild and 6 captive) at the time 

of listing in 1967 to 599 in 2011. 

Shortnose Sturgeon. The shortnose sturgeon was listed as an endangered species in 1967. Its recovery plan anticipates delisting in 2024, 57 years from listing. 

Most of the sturgeon’s 19 distinct populations have increased. The majority of fish 

occur in the Hudson River population, which increased from 12,669 fish in 1979 to 

56,708 in 1994–1996. 

Hawaiian Goose. The Hawaiian goose was listed as endangered in 1967. Its recovery plan anticipates delisting in 2034, 67 years from listing. The population increased from 300 birds in 1980 to 1,744 in 2006. 

Florida Panther. The Florida panther was listed as endangered in 1967. Its recovery plan anticipates delisting in 2083, 116 years from listing. Panthers increased 

substantially from about 30–40 individuals in the 1980s to 87 in 2003 and 130 in 

2010. 

Utah Prairie Dog. The Utah prairie dog was listed as endangered in 1973 and 

downlisted to threatened in 1984. Its recovery plan anticipates delisting in 2040, 67 

years from listing. The number of prairie dogs increased from 3,300 in 1973 to 

11,296 in 2010. 

21 

Measured by its three goals, the Endangered Species Act is remarkably 

effective. 

‘‘Critics, on the other hand, counter that it is an indication of the act’s failure that 

only 17 of these species have ‘‘recovered,’’ or improved to the point that they no 

longer need the act’s protection. However, we believe that these numbers, by themselves, are not a good gauge of the act’s success or failure; additional information 

on when, if at all, a species can be expected to fully recover and be removed from 

the list would provide needed context for a fair evaluation of the act’s performance.’’ 

Endangered Species: Time and Costs Required to Recover Species Are Largely Unknown—Government Accountability Office (2006) 

The Endangered Species Act is designed to prevent declining species from going 

extinct, turn their populations around so they increase toward recovery, and achieve 

recovery on the timeline set out in their federal recovery plans. As described below 

in greater detail, the Endangered Species Act has been remarkably effective on 

these three fronts: 

Prevention of extinction: 99.9 percent effective 

Population growth toward recovery goals: 93 percent effective 

Recovery within the time frame established by federal recovery plans: 

82 percent effective 

Goal 1: Extinction Prevention 

Ten species have been delisted because of extinction. Eight of these were extinct 

before being protected under the Endangered Species Act. Two went extinct while 

listed. Thus the Act has 99.9-percent success rate in preventing the extinction of the 

1,445 species placed on the domestic threatened and endangered lists. 

It should be noted that even without protection, not all 1,445 species would have 

become extinct by 2011. The polar bear, for example, is projected to be extirpated 

from the United States by 2050 and become completely extinct by the turn of the 

century if its habitat is not stabilized. To determine how many species would likely 

have gone extinct by now, U.S. Geological Survey scientist Michael Scott compared 

the actual and projected extinction rate of listed species, finding that Endangered 

Species Act prevented the extinction of 227 species (Scott and Goble 2006). 

Goal 2: Moving Species Toward Recovery 

On a biennial basis, the U.S. Fish and Wildlife Service scores all listed species 

as improving, stable, declining or unknown. Sixty-eight percent of species listed for 

at least six years with a known score were stable or declining (U.S. Fish and Wildlife Service 2005). This is impressive, given that most species are declining and at 

very low population numbers at the time they are listed (Wilcove et al. 1993). It 

must be noted, however, that these trend scores only reflect a brief two-year period; 

they don’t cover the trend since listing. The data are also limited because they include threat assessments, rather than being limited to population-size trends. This 

is not to say the data are erroneous or in any way wanting, they are simply not 

designed to reveal long-term, quantitative species population trends. 

The largest study to quantitatively examine changes in population size since species were listed is Measuring the Success of the Endangered Species Act: Recovery 


71642.002.eps
22 

Trends in the Northeastern United States (Suckling 2007). It examined the population trend and federal recovery plan expectations of all threatened and endangered species in the eight Northeast states: Maine, Vermont, New Hampshire, Massachusetts, Connecticut, Rhode Island, New York and New Jersey. It found that: 

• None of the species went extinct after being listed. 

• 93 percent increased in population size or remained stable since being listed. 

Goal 3: Recovery Within the Time Frame Established by Federal Recovery 

Plans 

The Northeast species were listed for an average of 24 years, while their federal 

recovery plans established recovery processes averaging 42 years. Thus not surprisingly, the recovery plans only expected 11 of the species to have been delisted. In 

fact, nine had been delisted, downlisted or proposed for such action. That the actual 

recovery trend is so close to that expected by recovery plans (=82 percent) is promising, given that the vast majority of the recovery plans were substantially underfunded. 

Litigation has aided recovery efforts 

Listing under the Endangered Species Act, the length of time listed, and the existence of critical habitat are correlated with positive recovery trends (Suckling et al. 

2004, Taylor et al. 2007). Unlisted species have a much higher extinction rate than 

listed species. Species are more likely to be improving the longer they are listed. 

Species are twice as likely to be improving if they have critical habitat than if they 

do not. 

A large percent (possibly the majority) of environmental lawsuits have sought to 

place species on the endangered species list and designate critical habitat for those 

already on the list. Environmental litigation has thus consciously sought to maximize actions known to improve species recovery status. The vast majority of these 

lawsuits have succeeded, causing the rate of species listings, the length of species 

listings and the designation of critical habitat designation to increase (Taylor et al. 

2007, Greenwald et al. 2006, Parenteau 2005). 

The third most common type of environmental litigation has been to ensure that 

federal agencies consult with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service when they conduct actions which may jeopardize the existence of endangered species. These consultations rarely stop projects from occurring, 

but often result in their negative impacts being reduced and/or mitigation measures 

being increase. 

An example of this type of litigation is a suit by the Center for Biological Diversity forcing the Bureau of Reclamation to consult with the U.S. Fish and Wildlife 

Service over its plan to increase the height of Roosevelt Dam on the Salt and Tonto 

Rivers in central Arizona. The consultation allowed the project to occur, but required the Bureau to expend $4 million purchasing and managing riparian habitat 

for the Southwestern willow flycatcher on the San Pedro River. The riparian habitat 

on that area has been restored, its flycatcher population has increased in size, and 

is the species is closer to meeting its recovery goal. 

Another example is litigation by the Center for Biological Diversity forcing the 

Bureau of Land Management to consult with the U.S. Fish and Wildlife over the 

impact is grazing, mining, and road building programs were having on 24 threatened and endangered species within the 24 million acre California Desert Conservation Area. Most of the activities were allowed to continue with mitigation measures 

and safeguards, some grazing allotments were purchased to eliminate sheep grazing, and some portions of some roads were closed. These actions have greatly benefited endangered species there, contributing to the population growth of the desert 

bighorn sheep and other listed plants and animals. 

Expenses associated with Endangered Species Act litigation are a very 

small portion of the U.S. Fish and Wildlife Service’s budget 

In a September 11, 2011 letter to the Association of Fish and Wildlife Agencies 

(see Attachment A), the U.S. Fish and Wildlife Service disclosed that in 2010 it 

spent $1.24 million to ‘‘manage, coordinate, track, and support ESA litigation’’ 

brought by environmental and industry groups. This amounts to one half of one percent of the endangered species budget, which was over $275 million in 2010. According to the letter, the amount the Service spent on litigation has remained relatively 

constant over the last ten years, meaning 2010 was a typical year in terms of the 

very small percentage of the endangered species budget that is spent managing litigation. 

23 

A large percent of Endangered Species Act litigation is brought by industry 

groups 

Industry groups, lobbyists and lawyers—and many in Congress closely associated 

with them—have complained that environmental groups file too many Endangered 

Species Act lawsuits. These groups, however, have never complained about lawsuits 

filed by industry groups. Nor have they provided evidence that environmentalists 

file more lawsuits—or more expensive lawsuits—than industry interests. 

In fact, 80% of all active critical habitat litigation in 2005 was filed by industry 

groups (Parenteau 2006). 

Similarly, the U.S. Government Accountability Office (USGAO 2011) recently 

found that industry groups filed 48% of lawsuits against the Environmental Protection Agency while environmental groups filed 30%. 

The Center for Biological Diversity receives little income from federal litigation fee and cost recovery 

Despite wildly erroneous and highly exaggerated claims by Karen Budd-Falen and 

other industry funded ‘‘researchers’’, the Center for Biological Diversity receives little money from recovery of fees and costs in federal litigation, and even less under 

the Equal Access to Justice Act: 

Budd-Falen’s complaints and calls for disclosure of environmental group fee 

awards are extraordinarily hypocritical in that her law firm receives substantial income from fee returns, yet she has never disclose the amount. Indeed in 2001, BuddFalen received $100,000 from a single lawsuit fee return, dwarfing retained federal 

fees from all Center for Biological Diversity suits in that year ($2,295). 

Another example this hypocrisy is the Pacific Legal Foundation. While railing 

against environmental groups for recovering litigation fees and costs, it often recovers much greater sums than the Center for Biological Diversity. In 2008, for example, the Pacific Legal Foundation recovered $1,400,577 in fees, dwarfing the Center’s 

retention of just $365,477 in federal fees and costs. In 2009, the Pacific Legal Foundation recovered $793,358, while the Center retained just $341,676. 

Note the Center is not complaining about Budd-Falen or the Pacific Legal Foundation recovering legal fees and costs. Such awards are a proper and integral part 

of our legal system. They level the playing field so that all Americans have equal 

access to justice. 

Our complaint is that such groups and their Congressional allies hypocritically ignore all industry suits and fee recoveries, while complaining bitterly about environmental suits. It is clear that their interest is not all about litigation or fee recovery 

in general, it is only about litigation they believe hinders the access of their industry allies to public resources. 

References 

Greenwald, D.N., K.F. Suckling and M.F.J. Taylor, M.F.J., 2006. Factors Affecting 

the Rate and Taxonomy of Species Listings under the US Endangered Species 

Act. In Goble, D, Scott, M.J. & Davis, F.W. (eds.), The Endangered Species Act 

at Thirty: Renewing the Conservation Commitment. Island Press. 

Miller, J.K., M.S. Scott, C.R. Miller and L.P. Waits. 2002. The endangered species 

act: dollars and sense? BioScience 52:163–168. 

Parenteau, P. 2005. An empirical assessment of the impact of critical habitat litigation on the administration of the Endangered Species Act. Vermont Law School 

Faculty Papers. Paper 1. http://lsr.nellco.org/vermontlaw_fp/1 

Schwartz, M.W. 2008. The Performance of the Endangered Species Act. Annu. Rev. 

Ecol. Evol. Syst. 2008. 39:279–99 


71642.003.eps
24 

Scott, J.M., D.D. Goble, L.K. Svancara and A. Pidgorna. 2006. By the Numbers in 

The Endangered Species Act at Thirty: Renewing the Conservation Promise 

(Dale D. Goble et al. eds. 2006). 

Suckling, K.F., R. Slack and B. Nowicki. 2004. Extinction and the Endangered Species Act. Center for Biological Diversity, Tucson, AZ. 

Suckling, K.F. 2007. Measuring the Success of the Endangered Species Act: Recovery Trends in the Northeastern United States. Center for Biological Diversity, 

Tucson, AZ. www.esasuccess.org/reports/northeast 

Taylor, M.F.J., K.S. Suckling and J.J. Rachlinski JJ. 2005. The effectiveness of the 

Endangered Species Act: A quantitative analysis. BioScience 55:360–67 

U.S. Fish and Wildlife Service. 2005. Report to Congress on the Recovery of Threatened and Endangered Species, Fiscal Years 2003–2004. U.S. Department of Interior, Washington, D.C. 

U.S. Government Accountability Office. 2006. Endangered Species: Time and Costs 

Required to Recover Species are Largely Unknown. Washington, D.C. 

U.S. Government Accountability Office. 2011. Environmental Litigation: Cases 

against EPA and Associated Costs over Time. Washington, D.C. 

Wilcove, D., M. McMillan, and K. Winston. 1993. What exactly is an endangered 

species? An analysis of the U.S. endangered species list: 1985–1991. Conservation Biology 7:87–93. 

25 


71642.011.eps

Attachment A 

United States Department of the Interior 

FISH AND WILDLIFE SERVICE 

Washington, D.C. 20240 

In Reply Refer To: 

FWS/AES/049428 

Mr. Paul J. Conry 

Chairperson, AFW A Threatened and 

Endangered Species Policy Committee 

Division of Forestry and Wildlife 

1151 Punchbowl Street, Room 325 

Honolulu, Hawaii 96813 

Dear Mr. Conry: 

::d 9 2011 

Thank you for your August 23, 2011, letter requesting information on Endangered Species Act 

(ESA) related litigation costs expended by the Fish and Wildlife Service (Service). We are 

pleased to provide the following information. 

Nationwide, the Service spent roughly $1.24 million in l'Y 2010 to manage, coordinate, track 

and support ESA litigation filcd against the Service pursuant to the citizens suit provision of the 

ESA (section II(g» and the Administrative Procedure Act. The Pacific Region, Pacific 

Southwest Region, Southwest Region, and Mountain-Prairie Region each support one full-time 

litigation coordinator to track, coordinate, and manage ESA litigation. The Washington Office 

supports two full-time litigation coordinators. Some regional coordinators work solely on listing 

and critical habitat litigation, while others, including the two Washington Office coordinators, 

manage all ESA litigation and Freedom of Information Act requests. The Service does not track 

the field office staff time needed to prepare administrative records to support litigation. In 

addition, the Service paid $87,306 in attorney fees in FY 2010. 

Concerning court orders received by our agency and the number of species affected by 

settlement agreements, the Service cllrrently has commitments under 23 active court orders 

involving 47 species. With the exception of one court-approved settlement agreement that 

commits to make listing determinations for 12 foreign species, these active court orders all 

concern deadlines for making petition findings or designating critical habitat. 

The Multidistrict Litigation (MDL) settlement agrecments, which have not yet been approvcd by 

the court, encompass 878 species, with commitments to make listing determinations [or 255 

species and petition findings for 623 species. As I mentioned at our meeting in Kansas City, the 

MOL settlement agreements relieve us from dcadlinc-related litigation and allow us to focus on 

listing determinations for cxisting candidate species tbat urgently need the ESA's protection. 
26 

The CHAIRMAN. Thank you very much. Next we will hear from 

Mr. Jay Tutchton, who is General Counsel for WildEarth Guardians in Santa Fe. Mr. Tutchton. 

STATEMENT OF JAY TUTCHTON, GENERAL COUNSEL, 

WILDEARTH GUARDIANS, SANTA FE, NEW MEXICO 

Mr. TUTCHTON. Thank you, Chairman Hastings. Jay Tutchton, 

General Counsel, WildEarth Guardians. I am testifying on behalf 

of the organization. I am also an adjunct professor of law at the 

University of Denver. I previously helped run the Environmental 

Law Clinic at the University of Denver and at the University of 

Colorado. I have probably been counsel in over 100 Endangered 

Species Act cases. 

The CHAIRMAN. Could you move the microphone a little bit closer 

to you? 

Mr. TUTCHTON. Is that better? 

The CHAIRMAN. That is better, much better. Thank you. 

Mr. TUTCHTON. I was saying I have probably been counsel in approximately 100 Endangered Species Act cases. I am afraid I am 

one of the lawyers that you directed your opening comments at. 

There is some evident controversy over the Endangered Species 

Act here in D.C. However, across the Nation it is broadly supported. In 1999, it was strongly supported or supported by 84 percent of the American public in all regions of the country. In February of this year, an identical 84 percent of the American public 

supported the Endangered Species Act. Cuts across party lines, 93 

percent of Democrats support the Endangered Species Act and 74 

percent of Republicans. 

The Act is popular, but to paraphrase Martin Luther King, ‘‘Vanity asks the question is something popular, conscience asks the 

question is it right.’’ As I tried to present in my written testimony, 

it is also right. Scientists agree we are in the midst of an extinction 

crisis. Scientists agree this extinction crisis is human-caused. There 

is obviously a moral dimension to protecting endangered species. 


71642.012.eps
27 

There is also a self-interest in protecting endangered species. It is 

prudent and conservative for a committee charged with natural resources conservation to want to protect biodiversity just as it is to 

protect timber or other Federal resources. 

Losing species to extinction is like burning the books in nature’s 

library. We will never know their benefits or their values if we lose 

them before we have even read them. The Endangered Species Act 

comes in for criticism for protecting bugs and weeds. I think this 

is a wrong-headed criticism. Much of the focus is on the big guys, 

the wolves, the bears, the eagles, the alligators. It is the little guys, 

the 99 percent if you will that actually run the world. These are 

the plants that give us our drugs. These are the insects that pollinate our crops and maintain our soil. The major species inspire and 

delight us. It is the minor species that actually keep us alive. 

As Mr. Suckling testified, the Endangered Species Act is working. I would like to turn my testimony to the issue of attorneys’ 

fees since that has come up. 

Now there is two claims out there, that we are filing frivolous 

lawsuits and that we are getting paid too much for doing so. Both 

cannot be true. If we file a frivolous lawsuit, we do not get paid. 

In fact, we should have to pay the other side’s attorneys’ fees, and 

it would be unethical to do so. As to the charge that we are doing 

this for money, it is the Equal Access to Justice Act signed by 

President Reagan to ensure that citizens had a chance against the 

Federal government in court. It has been used by my clients. It has 

been used by Ms. Budd-Falen’s clients. It is equal access. It is not 

exclusive to either side. 

To recover fees under this Act, you have to both win your case 

against the Federal government and prove that the government’s 

defense was not substantially justified. That is a hard standard to 

meet. Once you make those two findings of proof, that gets you entitlement to fees but not the amount. The amount is then decided 

by a Federal judge who reviews it for reasonableness. The Federal 

judges appointed and confirmed by Congress are by and large very 

reasonable and prudent people who view these settlements and do 

not willingly hand away Federal resources. 

The vast majority of cases that WildEarth Guardians have filed 

have dealt with enforcing deadlines when Congress has provided 

the agency a deadline to do something and the agency has failed 

to meet that deadline. Before we can file any of these lawsuits 

under the Endangered Species Act we must write what is called a 

60-day notice letter pointing out to the agency the specific violation 

of law of which we are going to accuse them, asking them to 

change their mind and come into compliance with the law, and only 

after the failure of that 60-day notice letter to deter the illegal 

agency conduct can we file any lawsuit. 

In my last 30 seconds I would just like to give you the actual 

numbers to put the scope of what you feel is a problem in perspective, to address the white whale as the Ranking Member indicated. 

In 2008, WildEarth Guardians recovered $10,000 in attorneys’ fees 

from the Federal government. In 2009, we recovered $94,000. In 

2010, we recovered $163,000. In all of those years it was less than 

10 percent of our budget. We do not do this for the money. We do 

this to protect the species. Thank you. 

28 

[The prepared statement of Mr. Tutchton follows:] 

Statement of James J. Tutchton, General Counsel, WildEarth Guardians 

Introduction 

The Endangered Species Act is our nation’s primary wildlife conservation statute 

designed to protect biological diversity. It grew out of an emerging consensus that 

the protection of both charismatic animals and other lesser-known species, once 

deemed valueless, is necessary if we are to succeed in protecting not only the species 

we find charismatic, but also the ecosystems on which they, and ultimately we, depend. As human understanding has grown, we have learned that ecosystems, not 

unlike a woven sweater, can begin to unravel when even a single thread is pulled 

out. When many threads are pulled, holes develop, and what was once a warm and 

protective sweater no longer exists. The same is true for an ecosystem that loses 

its parts, even those that may at first blush seem minor. For example, scientists 

have recently learned that a species as imposing as the grizzly bear, monarch of the 

Yellowstone ecosystem, relies on a species as little noticed as the white-bark pine 

for its survival—and that protecting the bear alone without the pine is inadequate, 

for the bear would have little to eat at certain times of year. The Endangered Species Act encompasses this scientific understanding of the interconnection between 

species, protecting both greater species and the smaller ones that allow the great 

creatures to survive. In the end, by protecting the full range of the tangled, and still 

poorly understood, web of life the Act ultimately protects humanity itself. 

Because the Act protects species, as it must, wherever they are found, regardless 

of land ownership, and because it protects all species great and small, regardless 

of their popularity or immediately perceived value to humanity, it has engendered 

a continuing level of controversy. However, this controversy neither indicates that 

the task of protecting biodiversity is unimportant or unpopular, nor that the Endangered Species Act is not working as intended. 

There are two false assumptions imbedded in the title of this hearing. First, that 

litigation directed at enforcing the Endangered Species Act is costing jobs. Second, 

that litigation enforcing the Act is impeding true recovery efforts. Both of these misguided charges obscure more meaningful inquiry into the source of the problems 

some members of this Committee apparently perceive. 

Litigation is a tool to enforce the law. Congress writes our laws, but it generally 

must rely on the executive branch to enforce them. However, at times, especially 

when Congress is concerned about whether the executive branch is willing or able 

to enforce a particular law, Congress has enacted provisions encouraging private 

citizens to enforce, or compel the executive branch to follow, the law. These ‘‘citizensuit’’ provisions, found in most environmental and civil rights statutes, represent a 

bedrock principle of our democracy: the idea that citizen oversight can make our 

government institutions better. They are most useful in situations where the volume 

of legal enforcement necessary to fully implement a law may outgrow the capacity 

of federal agencies, where the desire of private litigants to enforce the law may exceed that of federal officials, or when a law places obligations, such as deadlines for 

action, on federal agencies and Congress desires outside help to ensure that these 

federal agencies comply with the law. The citizen-suit provision in the Endangered 

Species Act serves all three of these functions. 

Accordingly, because litigation, whether conducted solely by government prosecutors or by private citizens, is merely a tool to increase compliance with the law, a 

charge that litigation is costing jobs is, at base, a charge that enforcing the law is 

costing jobs. There is little difference between having a law that is unenforced or 

unenforceable, and having no law at all. Thus, to the extent some members of this 

Committee perceive a conflict between enforcement of the Endangered Species Act 

and economic activity, this Committee should be not be considering whether it 

wants the law Congress has passed enforced via litigation, but whether it likes the 

law it has written or believes it should be amended. The question of whether the 

Endangered Species Act should be enforced is only a component of the larger issue: 

what does Congress think of the Act itself? 

Similarly, the second false assumption imbedded in the title of this hearing, that 

litigation to enforce the Endangered Species Act is impeding the recovery of species, 

also serves to obscure the fundamental inquiry. The clearly stated goal of the Endangered Species Act is to recover species from the edge of extinction. Congress 

drafted the various provisions of the Act to achieve this end. Thus, if members of 

this Committee perceive a conflict between enforcing the Endangered Species Act 

through litigation and achieving the Act’s goal of recovering species, the source of 

the perceived problem is not with the enforcement of the Act, but with the Act’s efficacy. Enforcement is simply implementation. The Committee’s concern should be 

29 

with whether the law works when enforced, not with limiting enforcement. Unenforced laws are worse than meaningless because they engender disrespect for both 

the rule of law and the legal system. 

In short, the two assumptions contained in the title of this hearing hide more fundamental questions that should be explored. The basic inquiry here is not, and 

should not be, whether litigation directed at enforcing the Endangered Species Act 

is a problem, but whether Congress wants the Endangered Species Act enforced as 

written and believes it is effective in meeting its goals. To focus on the litigation 

enforcing the law as the source of the problems some members of this Committee 

perceive masks the actual conflict. Simply put, if this Committee does not want the 

Endangered Species Act enforced—it does not want the Act. This Committee should 

openly acknowledge and debate the root cause of the problems some of its members 

perceive. Unfortunately, the title of this hearing indicates this Committee may be 

inappropriately focused on shooting the messenger, those who litigate to enforce the 

Endangered Species Act, rather than examining the questions behind the message: 

Are endangered species worth saving, does this nation remain committed to the saving them, and is the Endangered Species Act an effective means to achieve this end? 

As discussed below, the answer to these questions is clearly—yes. 

I. The Endangered Species Act is Needed 

A. The Endangered Species Act Protects Valuable Natural Resources 

The vast variety of species with which humans share this planet are of incalculable value to us. As stated by Representative Evans on the House floor in 1982: 

[I]t is important to understand that the contribution of wild species to the 

welfare of mankind in agriculture, medicine, industry, and science have 

been of incalculable value. These contributions will continue only if we protect our storehouse of biological diversity. . .[O]ur wild plants and animals 

are not only uplifting to the human spirit, but they are absolutely essential—as a practical matter—to our continued healthy existence. 

128 Cong. Rec. 26,189 (1982) (Statement of Rep. Evans of Delaware). 

As Americans, we have celebrated the comeback of the bald eagle, the very symbol 

of our country, from a low of 487 nesting pairs in the continental United States to 

more than 9,000 nesting pairs. In large part, the Endangered Species Act is responsible for the eagle’s recovery. Similarly, we now enjoy the company of approximately 

3 million American alligators, a species we almost lost before it was protected under 

the Act and quickly recovered. The whooping crane, a symbol of wisdom, fidelity, 

and long life in many cultures, has also benefited from protection under the Endangered Species Act, rebounding from a low of 16 individuals to approximately 400. 

However, though the Act has prevented the extinction of this species, the Whooper 

is not yet ready to graduate from the Act’s protection. Such charismatic creatures 

the Act has pulled back from the brink of extinction are frequently invoked in hearings on the Endangered Species Act. The law, however, does not deny its protective 

shield to creatures whose pictures may never grace a wildlife calendar. 

While some have criticized the Endangered Species Act for protecting ‘‘bugs and 

weeds,’’ these invertebrates and plants are frequently of the most utilitarian value 

to humans. As expressed by Harvard professor E. O. Wilson, if we do not protect 

the little things that run the world: 

New sources of scientific information will be lost. Vast potential biological 

wealth will be destroyed. Still undeveloped medicines, crops, pharmaceuticals, timber, fibers, pulp, soil-restoring vegetation, petroleum substitutes, and other products and amenities will never come to light. . .it is 

also easy to overlook the services that ecosystems provide humanity. They 

enrich the soil and create the very air we breathe. Without these amenities, 

the remaining tenure of the human race would be nasty and brief. The lifesustaining matrix is built of green plants with legions of microorganisms 

and mostly small, obscure animals—in other words, weeds and bugs. 

The Diversity of Life at 346–47. 

On a global scale, 25 to 40 percent of pharmaceutical products come from wild 

plants and animals. Kellert, Stephen R., The Value of Life: Biological Diversity and 

Human Society (1996). A full 70 percent of pharmaceutical products are modeled on 

a native species, despite only 0.1% of plant species having been examined for their 

medicinal value. Dobson, Andrew P. Conservation and Biodiversity, Scientific American Library (1996). Invertebrate pollinators are also of high value to humanity. A 

variety of pollinators, such as some butterflies and bats, are currently protected by 

the Endangered Species Act, although others are not. The loss of pollinators threatens ecological and economic systems across the country. Committee of the Status of 

Pollinators in North America, National Research Council, Status of Pollinators in 

North America, National Academies Press (2006). 

30 

One of the Endangered Species Act’s explicit purposes is ‘‘to provide a means 

whereby the ecosystems upon which endangered species and threatened species depend may be conserved.’’ 16 U.S.C. § 1532(b). This vision of ecosystem protection appears frequently throughout the Act’s legislative history. Rosmarino, Nicole J., Endangered Species Act Under Fire: Controversies, Science, Values & the Law, University of Colorado (2002) The economic benefits healthy ecosystems provide humanity 

dwarf even our national debt. Economists estimate the global value of ‘‘ecosystem 

services’’ at $33 trillion annually and in the U.S. alone at $300 billion annually. 

Pimentel, David, et al., Economic and Environmental Benefits of Biodiversity, BioScience 47(11) (1997) at 747–57; Costanza, R. et al., The Value of the World’s Ecosystem Services and Natural Capital, Nature 387 (1997) at 253–260. Even these 

dramatic estimates are conservative, as the value of ecosystems ultimately equates 

to the value of everything—as without ecosystems humans could not survive. 

Leakey, Richard et al., The Sixth Extinction: Patterns of Life and the Future of Humankind (1995). Moreover, most of the services, currently provided to us for free by 

ecosystems, are so intricate and provided on such a massive scale that it would not 

be feasible to replicate them at any cost even if scientists possessed the knowledge 

to do so. The tremendous value of ecosystems is placed at risk by the continued erosion of the biodiversity. Ehrlich, Paul R. and Wilson, E.O., Biodiversity Studies: 

Science and Policy, Science 253 (1991) at 758–62. 

Additionally, endangered species are of great aesthetic, symbolic, and recreational 

value. Animals and nature are ubiquitous in our children’s fairly tales and stories, 

which inform social codes of conduct. Continued destructiveness towards nature may 

consequently impact human cognition and social relations. ‘‘The more we know of 

other forms of life, the more we enjoy and respect ourselves. Humanity is exalted 

not because we are so far above other living creatures, but because knowing them 

well elevates the very concept of life.’’ Wilson, Edward O. Biophilia: The Human 

Bond with Other Species, Harvard University Press (1984) at 115. The recreational 

value of wildlife is also very significant. The U.S. Fish and Wildlife Service has determined that approximately 87 million adult Americans, or 38 percent of the adult 

population, spend more than $120 billion in the course of wildlife-related recreation 

annually. These expenditures support hundreds of thousands of jobs. U.S. Department of the Interior, 2006 National Survey of Fish, Hunting, and Wildlife-Associated Recreation. These jobs are every bit as valuable to those who hold them as are 

the jobs the Committee perceives at risk from enforcement of the Endangered Species Act. In short, the protection of biodiversity appears well worth the effort. Just 

as a nation should not squander its fiscal resources, it should not squander its natural ones. The Endangered Species Act is central to our national effort to conserve 

our irreplaceable natural resources. 

B. The Present Rate of the Loss of Species Is Alarming 

The current rate of species’ extinction worldwide is estimated at 1,000 times the 

natural rate of extinction and is increasing. The impact of seven billion humans on 

species diversity is comparable to that of the asteroid that wiped out most life on 

Earth 65 million years ago. Like geologists do today, future intelligent beings, 

should there be any, will be able to mark the current human-caused extinction 

epoch by observing the number and diversity of fossils preserved in future rock layers. Unless these trends are reversed, by the year 2020 up to 20 percent of all extant species will no longer exist. Wilson, Edward O., The Diversity of Life at 346. 

According to the International Union for the Conservation of Nature, one in every 

four mammals is facing a high risk of extinction in the near future. Almost half of 

all tortoises and freshwater turtles are threatened. More than one-fifth of the 

world’s birds face extinction according to Birdlife International. One third of the 

world’s amphibians are also vanishing. Stokstad, E., Global Survey Documents Puzzling Decline of Amphibians, Science 306: 391 (2004). At least two out of every five 

species on earth will go extinct due to human-caused climate change if greenhouse 

gas emissions are not promptly curtailed. Flannery, Tim, The Weather Makers, Atlantic Monthly Press (2005) at 183. 

Moreover, there is a trickle-down effect from species’ extinction as the loss of one 

species leads to the loss of other dependent species. For example, researchers recently calculated that the extinction of nearly 6,300 plants listed as threatened or 

endangered by the International Union for the Conservation of Nature would also 

result in the loss of nearly 4,700 species of beetles and 136 types of butterflies. Lian 

Pin Koh, et al., Species Coextinctions and the Biodiversity Crisis, Science 305 (2004) 

at 1632–34. 

In sum, there should be no legitimate debate over whether or not our planet’s biodiversity is rapidly diminishing. There should also be little debate that this loss is 

attributable to human activities and dramatic human population increases: 

31 

Human demographic success has brought the world to this crisis of biodiversity. Human beings—mammals of the 50-kilogram weight class and 

members of a group, the primates, otherwise noted for scarcity—have become a hundred times more numerous than any other land animal of comparable size in the history of life. By every conceivable measure, humanity 

is ecologically abnormal. Our species appropriates between 20 and 40 percent of the solar energy captured in organic material by land plants. There 

is no way that we can draw upon the resources of the planet to such a degree without drastically reducing the state of most other species. 

Wilson, Edward O., The Diversity of Life at 272. Over ninety-nine percent of scientists agree that a serious, world-wide loss of biodiversity is likely, very likely, or 

virtually certain. Rudd, Murray A., Scientists’ Opinions on the Global Status and 

Management of Biological Diversity, Conservation Biology 25(6) (2011) at 1165– 

1175. There is also strong scientific consensus that humans are responsible for this 

extinction crisis. Id. Indeed, last year the United Nations marked the first ever 

International Year of Biodiversity to call attention and spur action to address this 

problem. The United States Endangered Species Act serves as a model for many 

other nations and exhibits our national commitment to the international effort to 

save the diversity of life on Earth. 

II. The Endangered Species Act Enjoys Widespread Public Support 

As a remedy to stem the tide of extinction and protect species for the use and 

enjoyment of future generations the Endangered Species Act enjoys widespread public support. Passed almost unanimously by Congress and signed into law by President Nixon in 1973, the Endangered Species Act has consistently remained popular. 

In 1999, university researchers concluded that 84 percent of the American public 

supported the current Endangered Species Act, or an even stronger version of the 

law. Czech, Brian and Krausman, Paul R. Public Opinion of Endangered Species 

Conservation and Policy, Society and Natural Resources 12(5) (1999) at 469–79. A 

poll commissioned by the Endangered Species Coalition and conducted by Harris 

Interactive between February 16—20 of this year, found that despite the ensuing 

decade of attacks on the Act since 1999 and the controversies over its implementation and enforcement, an identical 84 percent of Americans adjusted for age, sex, 

race/ethnicity, education, region of the country, number of adults in the household, 

and number of phone lines in the household, supported or strongly supported the 

Endangered Species Act. While support was strongest among Democrats (93%), the 

majority of Republicans (74%) also supported or strongly supported the Act. The majority of Americans of both political parties (64%) also believe that the Act is a safety net providing balanced solutions to save wildlife and plants at risk of extinction. 

In short, the protection of endangered species is a broadly supported American 

value. Extinction is not. 

III. The Endangered Species Act Is Effective 

Not unlike the biblical Noah, checking off the animals boarding his Ark, two by 

two, the Endangered Species Act operates based on a list. Species on the list receive 

the Act’s protections while unlisted species do not. The leading cause of species imperilment in the U.S. is habitat destruction. Wilcove, David S. et al., Quantifying 

Threats to Imperiled Species in the United States, Bioscience 48(8) (1998) at 607– 

15. The protective provisions of the Endangered Species Act, particularly those that 

protect a listed species’ designated critical habitat, are effective at stemming habitat 

destruction and recovering species. Listed species with a designated critical habitat 

are twice as likely to be recovering as those without designated critical habitat. 

Suckling, Kieran F. and Taylor, Martin, Critical Habitat and Recovery, in The Endangered Species Act at Thirty (2006) at 86. 

Additionally, research shows that as of 2006 the Endangered Species Act had prevented the extinction of at least 227 species. Scott, Michael J., et al. By the Numbers, in The Endangered Species Act at Thirty, Island Press (2006) Vol. 1 at 16– 

35. Accordingly to the U.S. Fish and Wildlife Service, only nine of the approximately 

1,445 domestic species ever added to the Endangered Species Act list have been declared extinct. Seven of these were mostly likely extinct before they received the 

Act’s protection. Thus, the Act has only failed two species: a success rate in preventing extinction of over 99 percent. Conversely, protection under the Act has successfully recovered at least 22 species. Accordingly, the Endangered Species Act is 

succeeding in recovering species at least twice as often as it is has failed. Indeed, 

if the seven species that were likely extinct before they were listed under the Act 

are discounted, the Endangered Species Act is succeeding in recovering species at 

a rate more than 10 times that at which it fails. 

32 

IV. Enforcement through Litigation has Increased the Effectiveness of the 

Endangered Species Act 

While the Endangered Species Act has been over 99 percent successful in preventing extinction, it is still criticized by some because 1,397 species remain on the 

domestic protected species list, while only 22 have been finally recovered. However, 

this criticism is misplaced. The task of recovering species from the edge of extinction 

is difficult. The Endangered Species Act has been on the job for 38 years. However, 

many of the species currently protected by the Act, have not been listed nearly so 

long, but were added more recently. Moreover, pursuant to the requirements of the 

Act, the U.S. Fish and Wildlife Service has estimated the costs of, and planned for, 

the recovery of many endangered species on long time lines often exceeding 50 

years. Government Accountability Office, Endangered Species: Time and Costs Required to Recover Species are Largely Unknown (2006). 

Perhaps more importantly for purposes of the Committee’s inquiry into conflicts 

between the Endangered Species Act and economic activity, one must recognize that 

the timeline for species recovery is dependent on the resources devoted to recovery— 

and the strength of the protective regulations implemented to achieve recovery. 

Thus, increasing the rate of recovery will require additional resources and more, not 

less, protective regulations—the type of regulations that have the potential to affect 

economic activity. Any criticism of the rate of species recovery must recognize that 

this rate can only be increased by greater, not reduced, effort and thus calls for 

more effective enforcement of, or strengthening of, the Endangered Species Act. 

Additionally, the rate of species recovery is also dependent on how close to the 

abyss of extinction species are when they are first offered the protections of the Act. 

For example, seven species were likely already extinct before they were first listed. 

Many others have been listed only when their populations have fallen to incredibly 

low levels. The size of a vertebrate population at the time of listing is often so low 

that only the establishment of captive breeding populations will avoid extinction. 

Wilcove, David S., et al., What Exactly is an Endangered Species? An analysis of 

the U.S. Endangered Species List: 1985–1991, Conservation Biology 7(1) (1993) at 

87–93. This occurred in the well-known cases of the Mexican wolf, the black-footed 

ferret, and the California condor whose protection came only after each had dwindled to fewer to two dozen individuals. 

The majority of the cases filed by WildEarth Guardians pursuant to the citizensuit provision of the Endangered Species Act have involved efforts to compel the federal agencies responsible for administering the Act to meet the deadlines prescribed 

by Congress for making listing decisions. This effort to protect all deserving species 

under the Act sooner rather than later increases their chances for recovery and also 

serves to shorten the timeline needed to recover a species. Importantly, for this 

Committee’s inquiry into perceived conflicts between the Endangered Species Act 

and economic activity, adding species to the list before they are at the verge of extinction allows greater flexibility and accommodation of activities that might conflict 

with recovery through the Act’s regulatory mechanisms. 

Having an accurate and complete list of endangered species protected by the Act 

benefits those trying to save species, by allowing them to begin protecting and recovering deserving species sooner. It also benefits those engaged in planning economic 

activities that may be affected by a species listing by allowing them to modify their 

plans or activities to accommodate the needs of endangered species before devoting 

significant resources to those plans. An incomplete or inaccurate list of endangered 

species benefits no one. Thus, litigation directed at listing species that need the protection of the Endangered Species Act—to make the list complete and accurate—is 

beneficial to all parties concerned. 

In short, the debate should not focus on diagnosis (listing), but on the course of 

treatment (protection and recovery) we apply to listed species. Diagnosis is simply 

information upon which future decisions can be made. We understand this when it 

comes to visiting the doctor’s office. Accurate and timely diagnosis of disease is critical. Only once the diagnosis is made do we begin to discuss our treatment options 

with our doctor, with choices spanning the spectrum from intensive intervention to 

doing nothing. Our understanding of the Endangered Species Act, the law under 

which we provide emergency room care to species in need, should be no different. 

Accordingly, the Act provides that listing decisions must be based solely on the best 

available science and not account for economic impacts. The perceived conflict between economic activities and protecting endangered species should not influence 

listing decisions, but may be appropriately debated when we decide how to recover 

listed species and what level of economic dislocation we will tolerate in those efforts. 

However, because this Committee appears concerned that litigation conducted by 

WildEarth Guardians and others is somehow interfering with species recovery, it is 

important to note that both Guardians and the Center for Biological Diversity have 

33 

recently entered into separate, but overlapping, settlement agreements with the 

U.S. Fish and Wildlife Service. In Re Endangered Species Act Section 4 Deadline 

Litigation, Misc. Action No. 10–377 (EGS) (U.S. District Court for the District of Columbia). For those concerned that the process of listing species under the Act is 

overly litigious, these settlement agreements are good news. In its separate settlement, Guardians has agreed not to file litigation enforcing the Act’s listing deadlines 

for the next five years. In return, the U.S. Fish and Wildlife Service has agreed to 

make final listing decisions for all the species the Agency had previously concluded 

warranted the protection of the Act, but for which the Service had not made final 

listing decisions in its 2010 Candidate Notice of Review. Thus, the Service will be 

making final decisions for the species which it has preliminarily concluded are most 

deserving of the Act’s protections. Neither agreement requires the Service to list any 

particular species, but only to complete its analysis and make a final decision. Most 

of the species that will receive final listing decisions under these settlement agreements have been waiting for more than two decades for action. The agreements 

promise an end to this waiting and will result in a more accurate and complete endangered species list upon which future decisions can be made. Recovery efforts for 

the species the Service ultimately concludes deserve listing will begin sooner, and 

with this head start, recovery efforts should also be both more efficient and less disruptive to economic activity than if these species are allowed to continue declining 

without legal protection while waiting for action. 

These settlement agreements would not have come to pass without litigation to 

enforce the Act’s deadlines. In that sense, the litigation that led to the agreements 

benefitted both the enforcement of the Endangered Species Act and the quicker recovery of species which should in turn reduce the economic impacts of species protection. Any contrary conclusion is unwarranted. 

V. There are Actions that could Increase the Rate of Species Recovery 

A. Listing Decisions should be made Promptly and in Keeping with the Endangered 

Species Act’s Deadlines 

Finally, in response to this Committee’s apparent concern that species are not recovering rapidly or efficiently, there are actions Congress could take to increase the 

rate of recovery. As discussed above, the difficulty of recovery is proportional to the 

degree of imperilment a species faces when it is first added to the endangered species list. The Endangered Species Act provides a two to two-and-one-half year 

timeline for making a decision as to whether or not to add a species to the endangered species list once it has been petitioned for listing. The Act also provides that 

the responsible agencies may add a species to the list on their own initiative. In 

practice, Congress has failed to fund the U.S. Fish and Wildlife Service listing program at levels sufficient for it to timely address either the number of citizen petitions it receives or the number of species sliding towards extinction. Nor has the 

Service requested adequate funding for these tasks. Thus, the Service has been in 

chronic violation of the listing deadlines that Congress provided in the Act to compel 

agency action. These delays have caused WildEarth Guardians and others to litigate 

to enforce Congressional mandates and spur prompter action. Species continue to 

decline while the agency delays addressing their status and deciding whether or not 

they deserve the Act’s protections, thereby rendering recovery efforts more difficult. 

Accordingly, if the goal of Congress is to increase the rate and potential success of 

recovery efforts, the first step is to fund the listing program at levels that will allow 

the U.S. Fish and Wildlife Service to avoid breaking the law. Identification of the 

problem (prompt listing action) is the first step to its resolution (quicker recovery). 

Funding the Service at a rate sufficient for it to comply with the settlement agreements it recently entered with WildEarth Guardians and the Center for Biological 

Diversity will not only increase the recovery prospect for the species that receive 

final listing decisions by forcing action more promptly, but will avoid a return to 

litigation as the only means available to Guardians, the Center, and others to enforce the Act’s deadlines. 

B. Critical Habitat Designation should be Required for All Listed Species 

As a related matter, Congress amended the Endangered Species Act in 1978 to 

require the Fish and Wildlife Service to designate critical habitat for a species, to 

the extent determinable and prudent, at the time of listing. As discussed above, listed species with a designated, and thus protected, critical habitat are twice as likely 

to be recovering as those without designated critical habitat. Suckling, Kieran F. 

and Taylor, Martin, Critical Habitat and Recovery, in The Endangered Species Act 

at Thirty (2006) at 86. Accordingly, to increase the rate of recovery, Congress should 

also fund the Service at levels sufficient to allow the Agency to designate critical 

habitat for species at the time they are first listed. As an additional benefit, the 

34 

prompt designation of critical habitat supports better planning by those entities 

whose economic activities might need to be modified to protect listed species. Additionally, because Congress applied the requirement to designate critical habitat only 

to species designated after 1978, if Congress desires to increase the rate of species’ 

recovery it should remove the exemption for species listed prior to 1978 and require 

the designation of critical habitat, to the extent prudent and determinable, for all 

listed species, including those that have been on the list the longest. 

C. Deadlines for the Preparation of Recovery Plans should be Established, Recovery 

Plans should be Made Enforceable, and Recovery Plans should be Fully Funded. 

Lastly, and again if the concern is with increasing the rate of species’ recovery, 

Congress should focus on Section 4(f) of the Endangered Species Act, 16 U.S.C. 

§ 1533(f), the provision that requires the preparation of recovery plans for listed species. Unlike the other provisions of Section 4, the recovery planning provision contains no deadlines. Thus, this most important task of planning for species recovery 

may linger incomplete for many years. The responsible agencies have developed a 

goal of preparing a recovery plan for each listed species within two and one-half 

years of listing. However, in practice this timeline is not always followed. For example, the National Marine Fisheries Service failed to prepare recovery plans for the 

Sperm, Fin, and Sei Whales for more than 30 years until compelled to do so by a 

lawsuit filed by WildEarth Guardians. Accordingly, if Congress desires recovery to 

occur more rapidly, it should establish deadlines requiring prompt recovery 

planning. 

Furthermore, recovery plans are generally not enforceable by citizens. Thus, the 

actions the responsible agencies determine are necessary to recover species are undertaken solely at the pleasure of the agencies. Again, the agencies do not always 

implement the recovery plans they have prepared or delay their implementation. Accordingly, to compel agencies to carry out the tasks they have determined are necessary to recover listed species, Congress should consider making the development 

and implementation of recovery plans more enforceable by citizens. An unenforceable or unimplemented plan that simply gathers dust in an agency’s file cabinet is 

of little utility. Thus, conversely, the problem this Committee perceives with delayed 

recovery efforts is not caused by too much litigation, but by the inability of citizens 

to force federal agencies to do what they said they should and would do—through 

litigation forcing the implementation of recovery plans. 

Section 4(f) does require the responsible agencies to prepare timelines and estimate the costs of recovery actions. The success of these plans and the adherence 

to their timelines for action thus hinge on the amount of funding available. Accordingly, if this Committee desires to increase the rate of species recovery, Congress 

can drive that effort through funding, and it should take steps to insure both that 

the agencies request sufficient funding to meet their recovery plans and that Congress provides it. 

CONCLUSION 

The Endangered Species Act is this nation’s commitment that the tragic and irreparable extinctions of species that occurred prior to the Act’s passage will not be 

repeated. In passing the Act, Congress not only recognized that sharing this world 

with the vast variety of species on it increases human joy and well-being, but is, 

in the end, essential to human life. Existence without our fellow companions on this 

planet would not only be lonely, it would be impossible. The protection of fragile and 

unique species is not without cost. Frequently, these species have been driven to the 

edge of the abyss by untempered human expansion and monopolization of resources. 

Allowing for their survival requires a measure of restraint on our part. However, 

the perception that saving species from extinction costs jobs is shortsighted. Saving 

species is not only of substantial economic benefit, it allows for sustainable economic 

development by preserving resources so that they may be enjoyed and used by future generations. Our children will not forgive us if they are able only to learn of 

the wolf’s howl, the prairie chicken’s dance, or the bear’s roar in museums. More 

importantly, our descendents will not survive, or will survive only in a more hostile 

and unforgiving world, without all the little things, the bugs and weeds, that drive 

our ecosystems and allow the larger forms of life to thrive. Humans cannot pollinate 

their crops without the assistance of beetles, bees, butterflies, and bats. And humans will suffer if the mysterious storehouse of adaptations and unique properties 

found in plants and animals are thrown away without understanding. Driving species to extinction is not unlike burning a library. Driving species to extinction before 

we even begin to understand them is like burning the library without once reading 

the books. 

35 

Fortunately, extinction is not an American value. Since its passage, and despite 

numerous controversies, the American people have consistently and overwhelming 

supported the Endangered Species Act. This support cuts across all lines that might 

otherwise divide us. The Act is working, and will work even better with increased 

enforcement and renewed effort. Litigation, the focus of this hearing, is nothing 

more than a means to enforce the Act. More importantly, litigation has shown success in ensuring the Act is implemented as Congress intended. Though litigation is 

adversarial, such disagreements in a civil society are necessary to promote change, 

force action, and reach resolution. Congress recognized as much when it provided 

mechanisms for, and requested citizens to help, the government implement the Act 

and meet the obligations it placed on itself. It is inappropriate to denigrate successful litigation, brought by citizens, that has forced the government and others to follow the law. To do so, is to attack the law itself. If Congress does not want a law 

enforced it should not have such a law. WildEarth Guardians does not believe that 

this nation wants to abandon the Endangered Species Act, and it is proud of its efforts to enforce our bedrock national commitment to never again drive a species to 

extinction. Rather, Guardians believes this nation is committed to insuring our rich 

flora and fauna, and the ecosystems on which they depend, survive and flourish for 

future generations. 

The CHAIRMAN. Thank you very much, Mr. Tutchton. 

Next we will recognize Mr. John Leshy, Professor at U.C. 

Hastings College of the Law in San Francisco. Mr. Leshy, you are 

recognized. 

STATEMENT OF JOHN LESHY, PROFESSOR, U.C. HASTINGS 

COLLEGE OF THE LAW, SAN FRANCISCO, CALIFORNIA 

Mr. LESHY. Mr. Chairman, Members of the Committee, thank 

you very much for the opportunity to appear here today. I am 

appearing as a private citizen representing nobody, expressing my 

own views. 

I had extensive experience in the government, about 12 years 

working on endangered species issues, and I have also taught in 

this area for quite a long time, so I am speaking mostly from my 

government experience. 

The purpose of the Endangered Species Act is of course to protect 

the diversity of life on earth in the tradition of Noah and the ark, 

and as Mr. Tutchton pointed out, it has a moral dimension, but it 

also really has a very practical dimension. It is very much in our 

self-interest narrowly defined. Economists run the numbers on the 

value of so-called ecosystem services, the things that nature provides us and it runs into the trillions of dollars. 

The title of today’s hearing I respectfully submit paints a very 

misleading picture of the Endangered Species Act, implying that 

litigation is a dominant part of how the Act is implemented, that 

it is costly to the economy and that it and the Act itself are ineffective at protecting species. Each of these implications is based on 

my experience in working with the Act erroneous. 

First litigation, the media and the public love a good fight. A 

number of high-profile court cases gather a lot of attention and fuel 

this impression that the Act is all about litigation, but in my experience the truth is otherwise. Across the Nation every day in countless settings the Endangered Species Act is being successfully implemented with only rare resort to the courts. It puts endangered 

species concerns directly on the table when decisions about projects 

are made, but in the vast majority of situations those concerns are 

36 

accommodated with modest adjustments, little disruption and really almost no litigation. 

In many thousands of formal and informal consultations, which 

is the central procedural requirement of the Act that take place 

every year, almost all either allow the project to proceed with little 

change or result in modest changes, and many of these changes 

make the projects better from an economic as well as an environmental perspective. Only a relative handful are challenged in court. 

The Endangered Species Act has been there for 40 years. Most 

project planners now take it into account from the very beginning 

and that is a very good thing. In almost all the court cases the government is the principal defendant, and the opportunity, as Mr. 

Tutchton pointed out, it is an equal opportunity for all sides, the 

people who think the Act is overregulating can challenge in court, 

the people who think the Act is underregulating can challenge the 

government in court. Most of the time the government wins and I 

believe that is as it should be because I think the Executive Branch 

does a reasonably conscientious job of implementing the Act, but 

not always, and that too is as it should be. 

We live in an imperfect world where for a variety of reasons governments sometimes make mistakes, so the availability of judicial 

review is a good thing, giving all sides the opportunity to have a 

neutral decisionmaker, an independent judge, decide on the government’s compliance. 

Now let me address the contention that the Endangered Species 

Act costs jobs and reeks economic havoc. Here too a number of high 

profile court injunctions have tended to grab the attention and 

skew public perception, but headlines should not obscure the truth, 

which is that the Endangered Species Act has many times protected economic health and saved jobs. Indeed, from a larger perspective and longer view, that is more often the result than not. 

A concrete example I have given in my written statement at 

some length is the Edwards Aquifer in Texas. It is a large groundwater basin in the southcentral part of the state. It is a vital regional water supply. It supports thousands, hundreds of thousands 

of jobs. San Antonio, the seventh largest nation’s city, is wholly dependent on the Edwards Aquifer. Texas, frankly, was doing nothing 

to manage or safeguard the water supply of the aquifer. It did just 

the opposite actually. It treated it like a big soda, so anybody can 

suck the water out in unlimited quantities. 

And then the Endangered Species Act came along because by a 

quirk of fate the aquifer fed some springs where some listed endangered species were found, and after litigation and much negotiation, Texas for the first time began to manage the Edwards Aquifer 

to provide for the long term and to sustain the jobs and the regional economy and the millions of people who depend upon it. This 

was a real success story in the Endangered Species Act protecting 

the economic future of a large region of Texas. It is not the only 

example. 

Finally, in my remaining time let me just mention two quick 

things. I agree with Mr. Suckling that the recovery of species has 

to be measured over the long term because the Act, and this is kind 

of an unfortunate way the Act is administered, but it has this sort 

of emergency room atmosphere. Species don’t get listed until they 

37 

are really in very dire peril, and it obviously takes a long time, as 

Mr. Suckling’s slides show, for a species to work out of that. 

I think the administration of this Endangered Species Act has 

been successful overall. It is also getting better and I think as the 

Committee moves forward there are many success stories that it 

can focus on to help improve the Act and its administration. Thank 

you very much for the opportunity to testify. 

[The prepared statement of Mr. Leshy follows:] 

Statement of Professor John D. Leshy, Harry D. Sunderland Distinguished 

Professor, U.C. Hastings College of the Law 

I appreciate your invitation to testify today. I am a law professor at the University of California, Hastings College of the Law (on leave this semester as a visiting 

professor at Harvard Law School). I appear today as a private citizen, expressing 

my own views. 

I have dealt with the Endangered Species Act in a variety of settings in and out 

of government practically since it was enacted. During almost a dozen years of government service, I helped administer the statute and advised agencies regarding 

compliance. Many times I helped defend government agencies who were being sued 

for violating the Act. I have also taught the Endangered Species Act to many law 

students in dozens of courses over the years, and have written about it in two law 

casebooks I co-author (dealing with water law and with public lands & resources 

law) as well as in articles and book chapters. 

I believe, based on this extensive experience, I am well-qualified to comment on 

how the Act has worked in practice, and the role litigation has played in its administration. 

The Endangered Species Act has a clear and overriding purpose—to protect the 

diversity of life on earth, in the tradition of Noah and the Ark. Its objective is important. Famed naturalist E.O. Wilson has said that to fail to take strong action 

to stem the loss of species diversity would be the ‘‘folly’’ our descendants are ‘‘least 

likely to forgive.’’ 

Nature’s loss is our own. Preserving as much of creation as possible has a moral 

dimension, but it is also very much in our self-interest, more narrowly defined. 

Economists put the value of ‘‘ecosystem services’’—the many ways that the natural 

world and its biodiversity support and protect the quality of human life on earth, 

from providing medicines and foodstuffs to pollinating crops to cleansing water—in 

the trillions of dollars. 

The title of today’s hearing, I respectfully submit, paints a very misleading picture 

about the Endangered Species Act. It implies that litigation is a dominant part of 

the Act’s implementation, that it is costly to the economy, and that it, and the Act 

itself, are ineffective at protecting species. Each of these implications is, based on 

my experience working with the Act, erroneous. 

The media and the public love a good fight. A small number of high-profile court 

cases garner a lot of attention and fuel the impression that the Act is all about litigation. 

In my experience, the truth is otherwise. Across the nation, in countless settings, 

the Endangered Species Act is being successfully implemented with only rare resort 

to the courts. While the Act puts endangered species concerns squarely on the table 

when decisions about projects that could affect them are made, in the vast majority 

of situations, those concerns are accommodated with modest adjustments, little disruption, and no litigation. Of the many thousands of formal and informal ‘‘consultations’’—the Act’s central procedural requirement—that take place every year, almost 

all either allow the project to proceed with little change (because it has been 

planned with the Act in view), or result in modest changes. Often these changes 

make projects better, from an economic as well as environmental perspective, Only 

a relative handful are ever challenged in court. As this suggests, with nearly forty 

years of operation, the Endangered Species Act has become embedded in project 

planning and resource management, and that is a good thing. 

In almost all of the court cases brought under the Endangered Species Act, the 

government is the principal defendant, charged with inadequately complying with 

the Act. The opportunity to challenge the government is as available to those who 

think the government is over-regulating, as it is to those who think the government 

is under-regulating. Litigation, in other words, gives all sides equal opportunity to 

persuade a neutral decision-maker—a court—that the government is not doing its 

job. 

38 

In my experience, about as many Endangered Species Act cases are brought by 

those claiming over-regulation as by those claiming under-regulation. Furthermore, 

my fairly regular canvass of court opinions persuades me that those claiming overregulation win just about as often as those claiming under-regulation. 

Most of the time, though, the government wins. And that is, I believe, as it should 

be. In my experience, the executive branch usually does a reasonably conscientious 

job implementing the Act, and deserves and usually receives some deference from 

the courts. 

But not always. And that, too, is as it should be. We live in an imperfect world 

where, for a variety of reasons, government sometimes makes mistakes. So the 

availability of judicial review is a good thing, giving all sides—those who want more 

regulation and those who want less—a tool to make sure the executive branch is 

faithfully implementing the laws that Congress enacts. The American people have 

long been united on the value of judicial review, for litigation challenging government policy and performance has been a standard feature of American life almost 

since the beginning of the Republic. Our founders, by creating an independent judicial branch, understood the need to provide a check to hold other branches of government accountable. 

Next, I will address the contention that Endangered Species Act regulation costs 

many jobs and wreaks economic havoc. Here too, a handful of high-profile court injunctions have tended to grab attention and skew public perception. But headlines 

should not obscure the truth, which is that many times the Endangered Species Act 

has protected economic health and saved jobs. Indeed, from a larger perspective and 

longer view, that is more often the result than not. 

Here is a concrete example. The Edwards Aquifer in Texas, a large groundwater 

basin in the south-central part of the state, is a vital regional water supply for 

farms, industries and municipalities. One of the latter is San Antonio, the nation’s 

seventh largest city, and one of the largest cities in the world solely dependent on 

groundwater. 

Being so important to the health, welfare and economic livelihood of such a large 

population, one might expect that Texas would have been carefully managing the 

Edwards. Not so. Until the Endangered Species Act was brought to bear, Texas did 

just the opposite. It treated the Edwards Aquifer like a big soda, in which anyone 

could insert a straw and suck out unlimited quantities of water. If your straw was 

big enough, everyone else might suck air. 

Texas law purported to give landowners ‘‘property rights’’ in the Edwards (and 

other aquifers in the state), through the so-called ‘‘capture’’ doctrine. But these socalled ‘‘property rights’’ were hollow—they did not give their ‘‘owners’’ any ability 

to prevent others with bigger pumps and deeper wells from taking ‘‘their’’ water. 

The ugly truth was, the Texas capture doctrine gave landowners no real property 

rights at all in the water in the aquifer. Instead, it created a perfectly legal race 

to the bottom of the aquifer. (A Texas water lawyer once told me how, after he explained Texas groundwater law to his client, a large landowner and former prominent state politician, the client said, ‘‘Gee, I was all for the capture doctrine, until 

I understood it!’’) 

The capture doctrine had a predictable result: The Edwards Aquifer was in big 

trouble. And so was San Antonio and the regional economy. Many thousands of jobs 

were at risk. 

Enter the Endangered Species Act. By a quirk of fate, the Edwards Aquifer fed 

some springs. Rare species of fish, found nowhere else, were living in waters fed by 

those springs. The race to the bottom of the aquifer threatened to dry up the 

springs, which would have wiped out the species. 

Now perhaps only a few people would have genuinely grieved if these obscure species were erased from the face of the earth. They had no known value in the commercial marketplace. Their going extinct might have had no more impact than the 

popping of a single tiny rivet on the wing of a giant commercial airliner. 

But the more rivets that pop, the more danger to the plane. If the springs and 

the species died, how far behind might be the institutions and economy and culture 

and jobs that also depended on the Edwards Aquifer? 

Joseph Wood Krutch once wrote that ‘‘it is not a sentimental but a grimly literal 

fact that, unless we share the planet with creatures other than ourselves, we shall 

not be able to live on it for long.’’ It was that ‘‘grimly literal’’ fact led the Congress 

in 1973 to enact the Endangered Species Act (without almost no dissenting votes), 

and led President Nixon to proudly sign it into law with the words, ‘‘[n]othing is 

more priceless and more worthy of preservation’’ than the ‘‘rich array’’ of life on 

earth. 

39 

The U.S. Fish & Wildlife Service added the obscure species dependent on the 

Edwards Aquifer to the endangered species list, and the machinery of the Endangered Species Act was brought to bear on the problem. 

After years of litigation and negotiation, the state of Texas created a management 

authority and gave it marching orders to safeguard the aquifer for the long term. 

This put the region’s water supply, and the jobs and economic activity dependent 

on it, on a much sounder footing for the long term. 

Was the road to a resolution at Edwards bumpy? Yes. Was there headline-grabbing litigation and controversy? Yes. Are some people unhappy about the management scheme the legislature devised? Yes. Is the problem completely solved? No. 

But there is no denying that the economically vital Edwards Aquifer is being 

much better taken care of, and is much more likely to sustain the regional economy 

over the longer term, than it was before the Endangered Species Act—and litigation 

to enforce it—entered the picture. This is, to my mind, a clear example where the 

Endangered Species Act protected jobs, economic livelihood and human health of a 

large region. It is scarcely the only example. 

The Endangered Species Act has also been successful at its most immediate task, 

saving species from extinction and recovering them. One of the problematic aspects 

of how the Act is administered is that species tend not to be listed and brought 

under the Act’s protective umbrella until they are in dire peril of blinking out. This 

gives the Act a kind of desperate, emergency-room focus, and means that by the 

time a species is listed, it may be so far gone that recovering it to a healthy population may take many years. For this reason, the Act’s success cannot be measured 

by recovery in the short term. 

Happily, over the last couple of decades, steps have been taken administratively 

to allow the needs of species declining toward listing to be met before they get to 

the emergency room. In fact, a substantial consensus has emerged among states, 

major players in the regulated community, federal agencies and others to support 

such efforts, through such devices as habitat conservation plans that deal with unlisted species that are likely candidates for future listing if nothing is done, as well 

as listed species. Focusing on ways to promote these positive developments is, in my 

judgment, a far more productive exercise for helping species, and those at risk of 

being regulated by the Act, than focusing on the role of litigation in the Act’s administration. 

Finally, another very useful step to take in the short run is to provide the federal 

agencies more funding to administer the Act. Chronic under-funding has helped engender the kind of emergency-room-triage atmosphere that makes things more, not 

less, difficult for those who are regulated by the Act. Relatively small amounts of 

money, in the tens of millions of dollars, could make the Act work measurably better 

for them, and everybody else. 

Thank you for the opportunity to testify. I am of course happy to answer 

questions. 

The CHAIRMAN. Thank you very much for your testimony. 

And last we will recognize Mr. Brandon Middleton, Attorney for 

the Pacific Legal Foundation in Sacramento. Mr. Middleton. 

STATEMENT OF BRANDON MIDDLETON, ATTORNEY, 

PACIFIC LEGAL FOUNDATION, SACRAMENTO, CALIFORNIA 

Mr. MIDDLETON. Thank you, Mr. Chairman and Members of the 

Committee. As an attorney with Pacific Legal Foundation, a nonprofit organization dedicated to the protection of private property 

rights and individual rights, I thank you for this opportunity to express my views on ESA litigation. 

Perhaps the biggest reason why the ESA provides such a strong 

incentive for environmental groups to stop economic progress is because the ESA literally places the importance of endangered species above human well-being. I have had the pleasure of representing three California farmers in their fight to stop ESA from 

being used to take away their irrigation water. A misguided effort 

to protect the Delta smelt has resulted in my clients fowling of 

40 

their fields and has prevented them from hiring more workers and 

helping to alleviate rampant unemployment. 

Now, although progress has been made in their fight to stop the 

Delta smelt regulatory drought, my clients’ long-term water supply 

prospects remain grim, and this is because the ESA places the 

needs of the Delta smelt before people. This backwards 

prioritization is a result of the infamous 1978 Supreme Court decision TVA v. Hill, and in TVA the Supreme Court enjoined a Federal dam project from going forward because the operation of the 

dam would lead to the eradication of the nearly extinct snail darter 

fish species. But in terms of ESA litigation, TVA’s devastating impact is found not in the result it reached but in the precedent it 

set. 

By suggesting a legislative intent that is found nowhere in the 

text of the statute, the Supreme Court provided a gift for environmentalists that has been exploited for three decades. According to 

the Supreme Court, Congress’s intent in enacting the Endangered 

Species Act was to ‘‘halt and reverse the trend toward species extinction whatever the cost.’’ The Supreme Court also suggested that 

Congress made it clear that the balance has been struck in favor 

of affording endangered species the highest of priorities. 

TVA’s draconian language provides ammunition for environmental groups to use the ESA to deprive property owners and resource users of their rights while at the same time preventing 

courts from considering the hardship resulting from such an unbalanced approach. The reality is that there is nothing in the Endangered Species Act that prevents courts from placing human beings 

at least at the same level as endangered species. But the Supreme 

Court’s decision in TVA allows environmental groups to enjoin even 

so-called green projects without concern for the costs of ordering a 

business to cease all operations. 

In the Delta smelt litigation, Judge Wanger offered a more balanced approach to the ESA. He ruled that in certain circumstances 

it is appropriate for courts to balance human hardship against 

needs of protected species. While Judge Wanger allowed water 

users to at least have an equal voice in the Delta smelt proceedings, the Natural Resources Defense Council and Earth Justice 

have appealed and they have claimed that Judge Wanger’s view of 

TVA v. Hill is wrong and that the District Court improperly balanced the water supply impacts of ESA regulation against Delta 

smelt habitat concerns. 

This protest of even the slightest limitation of TVA demonstrates 

how environmental groups depend on TVA’s troubling precedent in 

cases where they seek to forestall economic development and 

human progress. 

If Congress were to determine that the Supreme Court’s interpretation of priorities under the Endangered Species Act is actually 

incorrect and that the human species is in fact entitled to at least 

as much priority as our animal species, then ESA litigation will 

shift to a more balanced approach that at least gives property owners and resource users an equal voice in the courtroom. 

Abandoning the ‘‘whatever the cost’’ approach would deprive the 

environmental community of one of the greatest litigation weapons. 

Moreover, allowing for a full balancing of harms and a considerVerDate Nov 24 2008 14:08 Feb 19, 2013 Jkt 000000 PO 00000 Frm 00044 Fmt 6633 Sfmt 6602 L:\DOCS\71642.TXT Hresour1 PsN: KATHY
41 

ation of the public interest would not preclude environmental 

groups from obtaining an injunction in all ESA cases but would instead enable a more balanced approach that better comports with 

traditional notions of equity and fairness. 

I wish to thank the Committee for this opportunity to provide 

this testimony and hope it will assist the Committee as it deliberates improvements to the Act. 

[The prepared statement of Mr. Middleton follows:] 

Statement of Brandon M. Middleton, Staff Attorney, 

Pacific Legal Foundation, Environmental Section, Sacramento, California 

Mr. Chairman, members of the House Committee on Natural Resources, thank 

you for this opportunity to express my views on Endangered Species Act litigation. 

The flaws behind the Endangered Species Act are numerous and well-known. 

Rather than provide incentives for conservation and environmental stewardship, the 

Endangered Species Act punishes those whose property contains land that might be 

used as habitat by endangered and threatened species. The statute’s success rate 

is dismal, at best–few species that are classified as endangered or threatened ever 

return to recovered, healthy populations. Further, expansive and inflexible Endangered Species Act regulation by federal agencies often frustrates innovative local 

and state conservation efforts, with the result being greater conflict and less compromise. 

These structural defects raise serious concerns over the Endangered Species Act’s 

efficacy as a conservation statute and demonstrate that the statute provides little 

meaningful benefit to endangered and threatened species. 

However, the statute’s structural defects that victimize Americans in environmental litigation are particularly troubling. The Endangered Species Act elevates 

species protection above human well-being, benefitting extreme environmentalists 

and encouraging them to seek low-cost court victories at the expense of individual 

Americans as well as federal agencies throughout the country. 

Specifically, environmental groups take full advantage of the Endangered Species 

Act’s lenient citizen plaintiff standard. ‘‘Any person’’ may sue under the statute, a 

broad provision which has led to what the U.S. Fish and Wildlife Service has recognized as a litigation crisis. 

Once environmental groups enter the courtroom, they enjoy precedent that stacks 

the deck in their favor. It is not difficult to win an Endangered Species Act lawsuit, 

but of equal concern is that courts often impose draconian and unhelpful remedies 

that harm businesses and property owners. The disturbing logic here is that the Endangered Species Act requires such results, no matter the costs. The fact that the 

Endangered Species Act generously authorizes attorneys’ fees to prevailing parties 

further encourages environmental groups to take an overly aggressive approach to 

litigation without regard for the costs imposed on public and private parties. 

With these structural defects in place, environmental groups would be foolish not 

to exploit them. Considering the state of the Nation’s economy and the continuing 

onslaught of Endangered Species Act litigation, these defects certainly deserve the 

attention of the American people. 

The Endangered Species Act’s Lenient Standard for Becoming a Citizen 

Plaintiff 

Numerous environmental groups thrive on bringing repeated Endangered Species 

Act cases to federal courtrooms. The Endangered Species Act is especially appealing 

to serial litigants because it provides that ‘‘any person may commence a civil suit’’ 

under the statute. 16 U.S.C. § 1540(g)(1). Justice Scalia has criticized this expansive 

citizen suit provision as ‘‘an authorization of remarkable breadth when compared 

with the language Congress ordinarily uses,’’ noting that in other environmental 

statutes, Congress has used more restrictive tests for citizen plaintiffs. Bennett v. 

Spear, 520 U.S. 154, 164–65 (1997). Some courts have gone so far as to rule that 

the Endangered Species Act authorizes animals themselves to sue in their own 

right. See Marbled Murrelet v. Pacific Lumber Co., 880 F. Supp. 1343, 1346 (N.D. 

Cal. 1995) (‘‘[A] protected species under the Endangered Species Act. . .has standing to sue ‘in its own right’’’ to enforce provisions of the Act.). 

To be sure, courts still demand that plaintiffs satisfy Article III of the Constitution by requiring a ‘‘case or controversy’’ before adjudicating a case. But the Endangered Species Act’s otherwise minimal pleading requirements have resulted in what 

the U.S. Fish and Wildlife Service has described as a ‘‘cycle of litigation’’ that is 

42 

‘‘endless, and is very expensive, thus diverting resources from conservation actions 

that may provide relatively more benefit to imperiled species.’’ 71 Fed. Reg. 58,176, 

58,176 (Oct. 2, 2006). 

Indeed, in its October 2006 critical habitat designation for the Alameda 

whipsnake, the Service noted that such designations generally are ‘‘the subject of 

excessive litigation,’’ and that ‘‘[a]s a result, critical habitat designations are driven 

by litigation and courts rather than biology, and made at a time and under a time 

frame that limits our ability to obtain and evaluate the scientific and other information required to make the designation most meaningful.’’ Id. The Service was clear 

that excessive Endangered Species Act litigation has compromised the integrity of 

the statute: 

We have been inundated with lawsuits for our failure to designate critical 

habitat, and we face a growing number of lawsuits challenging critical habitat determinations once they are made. These lawsuits have subjected the 

Service to an ever-increasing series of court orders and court-approved settlement agreements, compliance with which now consumes nearly the entire listing program budget. This leaves the Service with little ability to 

prioritize its activities to direct scarce listing resources to the listing program actions with the most biologically urgent species conservation needs. 

The consequence of the critical habitat litigation activity is that limited listing funds are used to defend active lawsuits, to respond to Notices of Intent 

(NOIs) to sue relative to critical habitat, and to comply with the growing 

number of adverse court orders. As a result, listing petition responses, the 

Service’s own proposals to list critically imperiled species, and final listing 

determinations on existing proposals are all significantly delayed. 

The accelerated schedules of court-ordered designations have left the Service with limited ability to provide for public participation or to ensure a defect-free rulemaking process before making decisions on listing and critical 

habitat proposals, due to the risks associated with noncompliance with judicially imposed deadlines. This in turn fosters a second round of litigation 

in which those who fear adverse impacts from critical habitat designations 

challenge those designations. The cycle of litigation appears endless, and is 

very expensive, thus diverting resources from conservation actions that may 

provide relatively more benefit to imperiled species. 

Id. 

More recently, the Service has asked Congress to set a limit on the number of 

species it is authorized to consider under the Endangered Species Act petition process. Without any such limit, the tactic for environmental groups appears to be ‘‘the 

more, the merrier’’ when it comes to Endangered Species Act listing petitions. After 

all, given the statute’s expansive citizen suit provision, multi-species petitions make 

sense because the Service’s inability to manage an overload of documents means 

only that the petitions will be settled in court, with the attendant attorney’s fees. 

As Gary Frazer, the Service’s assistant director for endangered species, has noted, 

‘‘[t]hese megapetitions are putting us in a difficult spot, and they’re basically going 

to shut down our ability to list any candidates in the foreseeable future.’’ Todd 

Woody, Wildlife at Risk Face Long Line at U.S. Agency, N.Y. TIMES, April 20, 2011, 

at A1. Mr. Frazer likewise recognized that if ‘‘all our resources are used responding 

to petitions, we don’t have the resources to put species on the endangered species 

list. It’s not a happy situation.’’ Id. 

The consequences of the Endangered Species Act’s friendly citizen suit provision 

are thus clear, albeit counter-productive. Citizen plaintiffs’ easy access to courts has 

come at the cost of meaningful recovery and environmental progress. 

Endangered Species Act Litigation Can Bring Handsome Rewards 

The Endangered Species Act’s attorney’s fees provision defies common sense because it allows an environmental group to obtain attorney’s fees even when a lawsuit is brought over a recovered and healthy species that has been recommended 

by the Service for delisting. In most litigation, ‘‘parties are ordinarily required to 

bear their own attorney’s fees–the prevailing party is not entitled to collect from the 

loser.’’ Buckhannon Bd. & Care Home v. W. Va. Dep’t of Health & Human Res., 532 

U.S. 598, 602 (2001) (citation omitted). Federal courts ‘‘follow a general practice of 

not awarding fees to a prevailing party absent explicit statutory authority.’’ Id. (citation and quotation omitted). 

The Endangered Species Act, however, provides that courts ‘‘may award costs of 

litigation (including reasonable attorney and expert witness fees) to any party, 

whenever the court determines such award is appropriate.’’ 16 U.S.C. § 1540(g). This 

is an extremely charitable provision, especially considering that environmental 

plaintiffs need not fear an award of attorney’s fees to the opposing party in the 

43 

event they do not prevail. See Ocean Conservancy, Inc. v. Nat’l Marine Fisheries 

Serv., 382 F.3d 1159, 1161 (9th Cir. 2004) (‘‘Under the ESA, defendants are not entitled to costs and fees unless the plaintiff’s litigation was frivolous.’’) (citation 

omitted). 

The Endangered Species Act attorney’s fees provision leads to absurd results. In 

Center for Biological Diversity v. Marina Point Development Co., a California business currently faces the prospect of paying the Center for Biological Diversity and 

another environmental group more than $1 million in fees and costs without proof 

of harm to any species. In that case, the anti-development plaintiffs sought and received an injunction to stop a commercial project based on claims the project would 

harm listed bald eagles. However, the U.S. Fish and Wildlife Service had already 

determined that bald eagles were fully recovered and should be delisted and that 

the challenged project would have no effect on the species. And, in fact, while the 

case was on appeal in the Ninth Circuit, the case became moot when the Service 

removed bald eagles from the list of threatened and endangered species altogether. 

But, while the Ninth Circuit recognized that the property owners activities did not 

violate the Endangered Species Act, it nonetheless ruled that the Center was entitled to fees under the statute, since the delisting of the bald eagle occurred while 

the Center’s dubious district court victory was on appeal. See Center for Biological 

Diversity v. Marina Point Dev. Co., 566 F.3d 794 (9th Cir. 2009). 

This suit provided no benefit to any species but imposed enormous costs on a private company without any proof of violation. Common sense dictates that the property owner should not have to pay for a statutory violation that it did not commit, 

but the Endangered Species Act’s attorney’s fees provision has enabled precisely this 

result. Surely, this is not what Congress intended. 

Did Congress really intend for the Endangered Species Act to be imposed 

‘‘whatever the cost’’? 

Thanks in part to the Endangered Species Act’s litigation incentives discussed 

above, the Natural Resources Defense Council (NRDC), Earthjustice, and other environmental groups sued in 2005 to shut down critical California water projects in 

order to supposedly protect an insignificant fish called the delta smelt, a species 

that until then had generated little interest outside the extreme environmental community. NRDC and Earthjustice won their lawsuit, leading to an unprecedented 

water supply crisis for the San Joaquin Valley and Southern California. See NRDC 

v. Kempthorne, No. 1:05-cv-1207–OWW–GSA, 2007 U.S. Dist. LEXIS 91968 (E.D. 

Cal. Dec. 14, 2007) (findings of fact and conclusions of law re: interim remedies). 

Yet, just a few years later, after the U.S. Fish and Wildlife Service capitulated 

to the environmental community and issued a formal delta smelt management regime that caused still more water supply uncertainty, the same federal judge who 

had previously ruled in favor of NRDC and Earthjustice ruled against them and the 

government, holding that the U.S. Fish and Wildlife Service had gone too far in its 

misguided effort to protect the delta smelt, and finding that federal staffers engaged 

in bad faith in attempting to defend delta smelt Endangered Species Act restrictions. See Delta Smelt Consol. Cases v. Salazar, 760 F. Supp. 2d 855 (E.D. Cal. 

2010) (invalidating 2008 Delta smelt Biological Opinion), and San Luis & DeltaMendota Water Authority v. Salazar, No. 1:09-cv-407–OWW, Reporter’s Transcript 

of Proceedings (Sept. 16, 2011) (finding agency bad faith), available at http:// 

plf.typepad.com/files/9–16–11-motion-to-stay-final-1.pdf (last visited Dec. 1, 2011). 

But what caught legal scholars’ attention was Judge Wanger’s remedy for the U.S. 

Fish and Wildlife Service’s Endangered Species Act violations. Despite the protests 

of NRDC and Earthjustice, Judge Wanger took a common sense approach and considered the harm that would result from allowing the illegal delta smelt regulations 

to go forward. In his August 31, 2011, decision to enjoin delta smelt-based water 

restrictions, Judge Wanger ruled that where the imposition of flawed ESA regulations would ‘‘affirmatively harm human communities through the reduction of water 

supplies and by reducing water supply security in future years,’’ it is appropriate 

for courts to balance this human hardship against the needs of protected species. 

As Judge Wanger wrote, ‘‘[i]f such harms cannot be considered in the balance in an 

ESA case, it is difficult to envision how a resource-dependent [party] would ever’’ 

prevail on an injunctive relief motion in an Endangered Species Act case. In re 

Consol. Delta Smelt Cases, No. 1:09-cv-407–OWW, 2011 U.S. Dist. LEXIS 98300, at 

*178 (E.D. Cal. Aug. 31, 2011). 

While Judge Wanger’s decision to consider human hardship in the delta smelt 

case deserves praise, it may seem remarkable that there was ever a question over 

the court’s authority to consider the human costs of ill-advised Endangered Species 

Act regulation. Unfortunately, Judge Wanger’s decision to balance the hardships 

and consider the public interest in natural resources is the exception in Endangered 

44 

Species Act cases, not the rule. More often than not, courts give the benefit of the 

doubt to environmental groups and the hundreds of species they represent, regardless of the circumstances. The deck is stacked such that environmental groups have 

an incentive to sue even when there would be little to no benefit to a species from 

litigation, and even though the harm and financial toll of such litigation may be 

great. 

One may ask, then, how this came to be–how are environmental groups able to 

argue with almost universal success that courts should consider the consequences 

their decisions have on endangered species, but at the same time claim that courts 

have no authority to consider the effects their decisions will have on those who actually bear the brunt of the Endangered Species Act, i.e., landowners and natural resource users? 

The answer stems from the Supreme Court’s notorious 1978 Supreme Court decision, TVA v. Hill. TVA concerned whether the Tennessee Valley Authority could proceed with the opening and operation of the nearly complete Tellico Dam project, notwithstanding the fact that the dam’s operation would either eradicate the nearly extinct snail darter species or at the very least destroy the fish species’ critical habitat. Although environmental groups contended that the Endangered Species Act required the injunction of the Tellico Dam, the district court declined to do so due to 

the amount of public money that had already been spent on the project, noting that 

‘‘[a]t some point in time a federal project becomes so near completion and so incapable of modification that a court of equity should not apply a statute enacted long 

after inception of the project to produce an unreasonable result.’’ Hill v. TVA, 419 

F. Supp. 753, 760 (E.D. Tenn. 1976), rev’d, 549 F.2d 1064 (6th Cir. 1977) (citation 

omitted). 

The Supreme Court, however, did not agree with the district court and enjoined 

the Tellico Dam project from going forward. Despite recognizing that ‘‘[i]t may seem 

curious to some that the survival of a relatively small number of three-inch fish 

among all the countless millions of species extant would require the permanent halting of a virtually completed dam for which Congress has expended more than $100 

million,’’ the Court concluded that ‘‘Endangered Species Act require[d] precisely that 

result.’’ TVA v. Hill, 437 U.S. 153, 172–73 (1978). 

TVA’s long-term impact, however, is found not in the result it reached, but in the 

precedent it set. In his majority opinion, Chief Justice Burger purported to discern 

Congress’s will in enacting the Endangered Species Act by suggesting a legislative 

intent that is found nowhere in the text of the statute: ‘‘The plain intent of Congress 

in enacting this statute was to halt and reverse the trend toward species extinction, 

whatever the cost.’’ Id. at 184. Similarly, ‘‘the plain language of the Act, buttressed 

by its legislative history, shows clearly that Congress viewed the value of endangered species as ‘incalculable.’’’ Id. at 187. 

Even more starkly, Chief Justice Burger suggested that Congress divested federal 

courts of their traditional equitable discretion in Endangered Species Act cases. According to the Court, there was no ‘‘mandate from the people to strike a balance 

of equities on the side of the Tellico Dam. Congress has spoken in the plainest of 

words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities. . ..’’ Id. at 194. 

TVA’s draconian language provided ammunition for environmental groups to use 

the Endangered Species Act to deprive property owners and resource users of their 

rights, while at the same time preventing courts from considering the hardship resulting from such an unbalanced approach. According to this view, TVA represents 

Congress’s intent that the Endangered Species Act restricted federal courts’ traditional equity jurisdiction. Yet in actuality, Congress did no such thing, even though 

it was fully capable of including an explicit provision that mandates the restriction 

of federal courts’ traditional equity jurisdiction. See generally Brandon M. Middleton, Restoring Tradition: The Inapplicability of TVA v. Hill’s Endangered Species 

Act Injunctive Relief Standard to Preliminary Injunctive Relief of Non-Federal Actors, 17 Mo. Envtl. L & Pol’y Rev. 318, 351 (2010). 

Indeed, TVA’s precedent has led environmental groups to routinely argue that the 

economic impacts of an Endangered Species Act injunction are irrelevant, and that 

courts are forbidden from considering economic hardship when fashioning injunctive 

relief. See id. at 322. The effort to exploit TVA has largely been successful. The 

Ninth Circuit, for example, holds that Congress ‘‘removed from the courts their traditional equitable discretion in injunction proceedings of balancing the parties’ competing interests. The ‘language, history, and structure’ of the ESA demonstrates 

that Congress’ determination that the balance of hardships and the public interest 

tips heavily in favor of protected species.’’ Nat’l Wildlife Fed’n v. Burlington N. R.R., 

23 F.3d 1508, 1510–11 (9th Cir. 1994) (citing TVA, 437 U.S. at 174 and citation 

omitted). 

45 

Similarly, in the First Circuit, courts hold that ‘‘[a]ltough it is generally true that 

in the preliminary injunction context that the district court is required to weigh and 

balance the relative harms to the non-movant if the injunction is granted and to 

the movant if it is not,’’ that is not the case in Endangered Species Act litigation, 

as ‘‘that balancing has been answered by Congress’ determination that the ‘balance 

of hardships and the public interest tips heavily in favor of protected species.’’’ 

Strahan v. Coxe, 127 F.3d 155, 171 (1st Cir. 1997) (quoting Burlington N. R.R., 23 

F.3d at 1510). 

Today, a primary reason for costly Endangered Species Act litigation and the injunction even of ‘‘green’’ energy projects can be found in TVA’s instruction that Congress placed endangered species above all other concerns, including humans. When 

a federal court stopped the development of a wind energy project in West Virginia 

two years ago due to alleged threats to the endangered Indiana bat, it repeatedly 

cited TVA and opined that ‘‘Congress, in enacting the ESA, has unequivocally stated 

that endangered species must be afforded the highest priority.’’ Animal Welfare Inst. 

v. Beech Ridge Energy LLC, 675 F. Supp. 2d 540, 581 (D. Md. 2009). In California, 

the same attorneys who forced the injunction of the West Virginia wind project are 

now attempting to prevent the City of San Francisco from engaging in flood control 

efforts at a municipal golf course, supposedly because flood control harms the California reg-legged frog. Of course, the environmental attorneys’ argument is based 

largely on TVA, as they claim that TVA prevents the district court from balancing 

the hardships of increased flooding against the needs of a local amphibian. See 

Plaintiffs’ Reply in Support of Motion for a Preliminary Injunction at 22 n.21, Wild 

Equity Inst. v. City & County of San Francisco, No. 3:11-cv-000958–SI (N.D. Cal. 

Nov. 4, 2011). 

Based on the environmentalists ‘‘species protection whatever the costs’’ approach 

to the Endangered Species Act, it should come as no surprise that Judge Wanger’s 

recent limitation of the TVA rule has found disfavor with the environmental community. While Judge Wanger allowed water users to at least have an equal voice in 

the delta smelt proceedings, NRDC and Earthjustice have appealed, arguing that 

the ‘‘district court’s view of TVA v. Hill is wrong,’’ and that the court ‘‘improperly 

balanced’’ the water supply impacts of Endangered Species Act regulation against 

delta smelt habitat concerns. See Appellants’ Opening Brief at 18–19, San Luis & 

Delta-Mendota Water Auth. v. Salazar, No. 11–17143 (9th Cir. Oct. 19, 2011). 

Keeping in mind Judge Wanger’s admonition that, in the context of delta smelt 

water supply impacts, ‘‘[i]f such harms cannot be considered in the balance in an 

ESA case, it is difficult to envision how a resource-dependent [party] would ever’’ 

prevail on an injunctive relief motion in an Endangered Species Act case, the environmental community’s protest of even the slightest limitation of TVA demonstrates 

just how much they depend on the decision’s troubling precedent in cases where 

they seek to forestall economic development and human needs. Courts, in general, 

recognize the extreme viewpoint of environmentalists, but all too often they punt on 

engaging in a balanced approach to the Endangered Species Act. Instead, the blame 

for the harsh realities of Endangered Species Act litigation is placed on the legislative branch, as it was Congress who purportedly ordered that endangered species 

be afforded ‘‘the highest of priorities,’’ no matter the costs. 

It is misplaced, of course, for courts to blame Congress on an approach to injunctive relief never imagined or sanctioned by the legislative branch. But although the 

harms resulting from the ‘‘whatever the cost’’ approach are all too real for property 

owners and resource users faced with an Endangered Species Act lawsuit, addressing the problem is fortunately not difficult. As the Supreme Court itself recognized 

in TVA, ‘‘[o]nce Congress, exercising its delegated powers, has decided the order of 

priorities in a given area, it is for the Executive to administer the laws and for the 

courts to enforce them when enforcement is sought.’’ TVA, 437 U.S. at 194. 

Thus, if Congress were to determine that the Supreme Court’s interpretation of 

the order of priorities under the Endangered Species Act is incorrect, and that the 

human species is entitled to at least as much priority as allocated to any other animal species, then litigation will shift more towards a balanced approach that at 

least gives property owners and resources users an equal voice in the courtroom. 

Abandoning the ‘‘whatever the cost’’ mandate would deprive the environmental community of one of their greatest litigation weapons, and would result in less of a perverse incentive for regulated parties to protect endangered species. Moreover, allowing for a full balancing of harms and consideration of the public interest would not 

preclude environmental groups from obtaining an injunction in all Endangered Species Act cases, but would instead enable a more balanced approach to the statute 

that better comports with traditional notions of equity and fairness. 

46 

Conclusion 

Incentives matter. Unfortunately, when it comes to the Endangered Species Act, 

the incentives favor the environmental community without providing a meaningful 

benefit to the species that the statute seeks to protect. 

This is especially so in the context of Endangered Species Act litigation. Numerous environmental groups enjoy successful practices that depend on Endangered 

Species Act restrictions of property owners, natural resource users, and government 

agencies alike. This is a testament to how much the statute encourages and fosters 

Endangered Species Act lawsuits. 

Unless lawsuits become more difficult to bring and draconian injunctions more 

difficult to obtain, the disturbing trend of endless and ongoing Endangered Species 

Act litigation is likely to continue. 

I wish to thank the committee for the opportunity to provide this testimony and 

hope this analysis will assist the committee as it deliberates improvements to the 

Endangered Species Act. 

The CHAIRMAN. Thank you very much, Mr. Middleton. I want to 

thank all the panelists for their testimony. We will start the question period, and I recognize myself for five minutes. 

Let me just ask one question to all of you, and I think a one-word 

answer would be sufficient. I alluded to this in my opening statement, but do you agree that the purpose of ESA is to recover species? Mrs. Budd-Falen? 

Ms. BUDD-FALEN. Yes, I do. 

The CHAIRMAN. Mr. Miller? 

Mr. MILLER. Yes, I do. 

Mr. SUCKLING. Yes, I do. 

Mr. TUTCHTON. Yes. 

Mr. LESHY. Yes. 

Mr. MIDDLETON. Yes. 

The CHAIRMAN. Good, we are unanimous. The meeting will be 

adjourned. 

[Laughter.] 

The CHAIRMAN. One of the frustrations that we have, however, 

is that process and all of us particularly in the West have parochial 

issues. One of the issues that we are dealing with a great deal in 

my part of the country, and I alluded to it in my opening statement, is the fish runs in the Columbia River system. Since records 

have been kept the fish runs right now are at their greatest than 

they have ever been, yet we are still subjected to a judge holding 

up a biological opinion in that part. 

Let me ask Mr. Suckling, and I will ask you first and then Mr. 

Middleton, do you believe that hatchery fish should be part of the 

fish count when we count fish coming back? Because the runs are 

not counting hatchery fish. Do you believe the hatchery fish should 

be part of that? 

Mr. SUCKLING. The hatchery fish should not be considered part 

of the endangered species fish count. 

The CHAIRMAN. They should not. Mr. Middleton, do you believe 

they ought to be? 

Mr. MIDDLETON. I do. 

The CHAIRMAN. OK. So we have a difference right there. In that 

regard, I find it a little interesting because, Mr. Suckling, again in 

your opening you listed a couple of the species that were listed 

prior to ESA being in place. Was the buffalo ever part of a listing 

to your knowledge? 

47 

Mr. SUCKLING. No, sir. 

The CHAIRMAN. Mr. Middleton, do you know if it was at all? 

Mr. MIDDLETON. I don’t believe so. 

The CHAIRMAN. I don’t believe it was either, and the reason I say 

that is because we recognize in our history how important the buffalo was. Buffalo roamed the plains. We heard a great deal about 

that. And yet right now buffalo is a commercial commodity, and it 

has recovered to where we don’t say that they are endangered. Yet 

the way that they recovered a purist would say would not be to run 

the Great Plains like they did. In fact, they recovered through a 

method that is very similar to farming or perhaps a hatchery process. In fact, you could say probably that the recovery of the salmon 

was because we counted hatchery buffalo even though they were 

never listed. 

And so I have a hard time trying to reconcile why we shouldn’t 

count hatchery salmon. The first hatcheries that were built on the 

Columbia River system were roughly in 1900. Now it varies maybe 

10 years one side of that. And if we take 1900 and say that the 

average lifespan of a salmon is roughly five years, I know it varies 

a little bit, but one year going out, three years in the ocean and 

one year coming back, that would be 22 generations of hatchery. 

Do we believe that every wild fish that we count coming back 

through the system that is not marked, is it logical to assume that 

part of them is the offspring of those hatchery salmons 22 generations ago? Does anybody want to refute that or anybody want to 

support that? 

[No response.] 

The CHAIRMAN. Well, you know, to me, it is a very interesting 

observation, and yet we somehow believe that the only fish that we 

can count as far as recovery in the Columbia River system is fish 

that has been marked, and do we believe that we mark 100 percent 

of them? 

See, this is the frustration when we look at what happens, and 

to kind of tie the knot on this, the bi-op or the management plan 

for the Columbia River system is 10 years in the making, virtually 

all, virtually all, not all, but virtually all of the stakeholders on 

both sides of the argument have agreed that the bi-op that is pending is something that is workable. Yet, because of litigation, it has 

been tied up in court, and I don’t think that does the Northwest 

very well, and when you look at common sense, fish runs are coming back at their largest ever even though hatchery is not part of 

it, yet we seem to have this frustration. 

So, when we talk about litigation, I think there certainly is a— 

if there is one example of that, it’s the Northwest and the runs of 

salmon. 

Thank you very much. I recognize Mr. Markey. 

Mr. MARKEY. Thank you, Mr. Chairman. 

Mr. Miller, as I understand it, your project was in line to receive 

$200 million in Federal bonding assistance, is that correct? 

Mr. MILLER. Yes, clean renewable energy bonds, that is correct, 

yes. 

Mr. MARKEY. And the State of Washington has a 15 percent renewable electricity standard by the year 2020? 

Mr. MILLER. That is correct, yes. 

48 

Mr. MARKEY. Without those two government policies, would you 

even have been able to consider this project? 

Mr. MILLER. I can’t speak for the other three public utility districts. They were covered under the renewable energy standard 

from the State of Washington. 

Mr. MARKEY. Without the $200 million in Federal assistance, 

would you have been able to consider the project? 

Mr. MILLER. Yes, my utility, Pacific County, would have considered, yes. 

Mr. MARKEY. OK. And what would your funding have been? 

Mr. MILLER. Probably tax-exempt bonding. 

Mr. MARKEY. Interesting. Mr. Leshy, is there a misunderstanding about the Endangered Species Act to the extent to which 

according to your testimony it’s used about half the time by plaintiffs claiming there is not enough regulation and about half the 

time by plaintiffs claiming there is too much regulation. So it 

comes from both sides using this mechanism, is that correct, almost 

in equal measure? What’s the impact in terms of the relationship 

between the government and ordinary citizens if we remove this 

ability to have access to the courts? 

Mr. LESHY. Well, I think it would be problematic, Mr. Markey. 

It is an equal access to justice situation. It is also very common not 

only in environmental laws but all kinds of other regulatory laws 

where people can challenge the government’s compliance in court 

if they think there is too much regulation or not enough, and that 

is the reason we have an independent judiciary. This really goes 

back to the founding of the country. And in my experience actually 

the government under the Endangered Species Act gets sued about 

the same amount by both sides and actually I think both sides win 

about the same amount of time, although the government wins 

most of the time as I said, and I think that is about right, and I 

think it would be a terrible mistake actually to take the courts out 

of it, and I think it would be a terrible mistake for people who are 

regulated as well as people who think there is not enough regulation. 

Mr. MARKEY. So it wins in equal measure, the government 

against either side? Whether it is this side bringing a case or this 

side bringing a case, the government wins most of the time? 

Mr. LESHY. I think that is right. I mean, I don’t have any hard 

statistics, but I read the court opinions when they come out, and 

that—— 

Mr. MARKEY. And about half the time the cases come from one 

side and half the time the cases come from the other side? 

Mr. LESHY. I think in general that is true. 

Mr. MARKEY. Can we move just quickly to job creation, whether 

it is Pacific salmon country or Greater Yellowstone area or Florida 

Keys? How does the Endangered Species Act help in job creation? 

Mr. LESHY. I am sorry. Are you asking me? 

Mr. MARKEY. Yes, please. 

Mr. LESHY. Well, as the Edwards Aquifer example shows, I think 

if you take the broad picture about does the Endangered Species 

Act make the administration of natural resources and the management of natural resources in this country better, more sustainable 

for the long term, and we depend upon those resources for all kinds 

49 

of economic activity, I think the answer is clearly yes, it does make 

it better. Edwards Aquifer, I mean, the jobs, the thousands of jobs 

that are dependent upon that are more secure, absolutely more secure because of the Endangered Species Act. 

Mr. MARKEY. Mr. Suckling, could you take on that question, 

please? 

Mr. SUCKLING. There was a recent study by some economists at 

MIT to try to answer the question of whether environmental regulations were hurting the economy or not, so they ranked every 

state in the country based on the strictness of its environmental 

laws, and then they ranked every state based on its economic 

health, and they found that the states with the strongest environmental laws were the states with the strongest environmental 

health as well, and that really is a good indicator of what I think 

we all know in some degree, which is that protecting the environment is good for the economy. 

Mr. MARKEY. OK. And Mr. Tutchton, again, the big charge here 

is that many of these are just frivolous lawsuits encouraged by the 

fact that there is an Endangered Species Act. How much money do 

you make when you bring a frivolous lawsuit? 

Mr. TUTCHTON. Zero. You could be sanctioned by the court and 

you could have to pay the other side’s fees. It is unethical to file 

a frivolous lawsuit. 

Mr. MARKEY. OK. So we are really not talking about frivolous 

lawsuits then. 

Mr. TUTCHTON. No. I think the criticism is actually directed at 

successful lawsuits where the plaintiffs have proven the government behaved in an unjustified manner. 

Mr. MARKEY. And if your organization defended the rights of veterans or small businesses, brought a substantial lawsuit, would the 

courts award attorneys’ fees? 

Mr. TUTCHTON. Well, we have to meet three criteria at least. We 

have to win. We have to convince the court that the government’s 

position was substantially unjustified, and then we have to convince the court that the amount of fees we sought is reasonable, 

and if we can do all three of those, we could get recovery. 

Mr. MARKEY. OK. So there is a test that has to be met and only 

then are you compensated for the case which you have won? 

Mr. TUTCHTON. Yes. In a typical case we never receive what we 

ask for, and it is not a productive way to make a living. 

Mr. MARKEY. Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you. Thank the gentleman. Next we will 

go to the gentleman from Michigan, Mr. Benishek. 

Dr. BENISHEK. Thank you, Mr. Chairman. 

Ms. Budd-Falen, in your testimony you mention that the implementation of the ESA has real impacts on ranchers and farmers 

and other working people, and I tend to agree with you. It is certainly true in my northern Michigan district. We often hear from 

farmers frustrated over the gray wolf. You know, it is still listed 

as an endangered species in the Great Lakes area, and really I 

think that the gray wolf has been a remarkable success and a testament to the fact that we can recover a species. I mean, at one 

point there was less than 20 gray wolves with a recovery goal of 

200, but now we have about 800 wolves. Farmers in my area are 

50 

bringing me carcasses showing me, you know, their cattle are being 

killed by the wolf, and I think it is a problem that the Michigan 

Department of Natural Resources can’t help control the wolf population because of its inability to get the wolf delisted from the endangered species list. 

What in your opinion would be the one thing that we could do 

to help the Endangered Species Act be more effective in its ability 

to actually control and help endangered species? I mean, to me, 

this environment of litigation does not allow the agency to spend 

its money most wisely. What do you think that we as a Congress 

should do to make that work better? 

Ms. BUDD-FALEN. I think that the most effective thing that we 

can do with regard to endangered species is for one thing change 

the timeframes. Part of the litigation problem is that these groups 

are not litigating over whether a species ought to be listed or not. 

They are litigating over the fact that the Federal government can’t 

comply with a 90-day timeframe or a 12-month timeframe when 

environmental groups have admitted that they are filing thousands 

of petitions that are simply going to crash the system. The Federal 

government can’t comply with those timeframes, so I think that is 

one problem. 

I think another problem is that when the government is spending so much time in litigation it doesn’t have time to look at recovery plans. It doesn’t have time to look at conservation agreements. 

I have worked with a group of landowners in Idaho where they had 

a conservation agreement for a plan. The Western Watersheds 

Project decided to file a petition with the court to force the listing 

anyway, and so all of that work and time and money that these 

landowners both at the state and Federal government did to create 

a conservation plan is totally out the window. 

I think that once a species gets recovered to the point of the 

wolves they need to come off the list. Taking a species off the list 

doesn’t mean all of a sudden that we are going to start going out 

and shooting every wolf or that we are going to do something to 

harm the species, but you could certainly turn the management 

back over to the states, allow the states to have more control, allow 

the landowners to participate instead of just simply saying the species is on the list, the habitat is designated, and you face Federal 

prison and substantial fines if you harm, harass or take a species. 

Dr. BENISHEK. Thank you. I will yield back the remainder of my 

time. 

The CHAIRMAN. Thank you. The Chair recognizes the gentleman 

from New Jersey, Mr. Holt. 

Mr. HOLT. Thank you, Mr. Chairman, and I thank the witnesses 

for fact-based testimony. Thank you. 

Mr. Leshy, would you care to comment on Mr. Middleton’s comment that the Endangered Species Act puts animal species above 

humans? 

Mr. LESHY. Yes, I am actually happy to debate whether the Supreme Court got it right in TVA v. Hill. The line that was quoted 

about whatever the cost actually came out of a report of a House 

committee that was debating the Endangered Species Act back in 

1973, and it does say in the tradition of Noah and the Ark that you 

51 

really have to do everything you can to protect endangered species. 

It has a very clear objective. 

Now how it gets there actually has a lot of flexibility and I think 

that flexibility has been shown over time, and the administration 

of the Act is getting better in that respect. For example, as I mention in my testimony, part of the problem with how the Act has 

been administered is the species actually don’t get on the list until 

they are really in very grave danger, which makes it very hard to 

provide for their needs. If you can get out in front of that process 

and if you can manage ecosystems more broadly to protect species 

that are sliding toward the list but not there yet, you can do a 

much more predictable job from the standpoint of the regulated 

community, and that is exactly what has happened. 

If you look in the last 20 years big so-called multispecies habitat 

conservation plans have become quite popular because the regulated community has joined with the government and conservationists to say we can get out in front of these problems and be more 

effective at it, and that is frankly the place I think that this Committee could have the most utility is to look at how those plans 

have been formulated and operated and are there ways we can improve the Act in that regard. 

Mr. HOLT. Mr. Suckling, following along that line, Mr. Leshy had 

talked about an ER triage approach that is necessary because species are listed so late in their decline. Do you see any ways of 

changing it, changing the law to improve that and to bringing more 

science-based thinking into it? 

Mr. SUCKLING. I think we can improve the speed at which we put 

species on the endangered species list, get them on there earlier so 

they can recover faster without changing the law at all. We can improve that simply by funding that program to do all it needs to do. 

Similarly, in the past we had a problem with species not having 

Federal recovery plans even if they got listed. That problem 

through funding has largely disappeared. The Agency has really remarkably improved the number that have recovery plans. So, in 

many regards, adequately funding the current Act and the government is all that is needed to improve species. 

Mr. HOLT. Thanks. That is good to know. 

This is going over ground that has been plowed a little bit this 

morning, but since it deals with the title of the hearing I think we 

really ought to maybe put to rest any misconceptions. Mr. Suckling, 

would you care to address again the contention of Ms. Budd-Falen 

that it is a failure because so few species have recovered? 

Mr. SUCKLING. Yes, the issue here is, you know, it took us hundreds of years to get these species to their imperiled state. I will 

give you an example. The right whale, it was called the right whale 

because it was the right whale to hunt to get oil from, that is why 

it is the right whale. We hunted the right whale to the very edge 

of extinction over a period of 1,000 years. That is how long it took 

to endanger that species. We got it on the endangered species list 

in 1967. Its Federal recovery plan says just to downlist it to threatened state is going to take 150 years. We don’t even know how long 

it will take to get it off the list. 

And so to say that it is going to take 150 years to fix a problem 

that was 1,000 years in the making is a very reasonable approach, 

52 

and it would just be incorrect to complain that in fact we have 

failed because that species has not yet recovered. It is going to take 

decades. We have Federal scientific recovery plans telling us what 

to do, how long to do it. The average is 42 years. The species on 

average have only been protected for 21. We have decades to go, 

and that is how it should be, but we are on track is the good news. 

Mr. HOLT. Thank you. Thank you, Mr. Chairman. 

The CHAIRMAN. Thank the gentleman. The Chair recognizes the 

gentleman from South Carolina, Mr. Duncan. 

Mr. DUNCAN OF SOUTH CAROLINA. Thank you, Mr. Chairman. 

First off, I would like to ask the Chairman to address at some 

future hearing the Equal Access to Justice Act because I think we 

need some more transparency in the whole process of this lose or 

pay system. I know in most states where you have lose or pay it 

deals with paying for the court cost, the cost of litigation, but not 

necessarily attorneys’ fees, and I understand the taxpayer dollars 

are going to pay the attorneys that are litigating against the U.S. 

Government, so just a request, and I know it is something that interests this Committee. 

The CHAIRMAN. It does interest us and that is part of what we 

are talking about today. 

Mr. DUNCAN OF SOUTH CAROLINA. Yes, sir. Thank you. 

My brother-in-law lives in northwest Montana, and I have been 

traveling out there since the 1980s, and I watch the timber industry being decimated because of the spotted owl, and we later 

learned that the spotted owl didn’t just need old growth forest, old 

growth stands, it could really reproduce and nest in things as simple as a K-Mart sign, so we have seen examples where the Endangered Species Act has decimated an industry. 

We witnessed recently, I think the gentleman from California 

mentioned the snail darter and the irrigation issue in California 

which really drove commodity prices and fruits and vegetable 

prices up. I am concerned about how the ESA is used to keep us 

from securing our southern border areas where fencing could be 

put in place and take care of the sovereignty of this nation. I think 

that is important. 

I have witnessed in South Carolina where the Federal Energy 

Regulatory Commission or FERC has halted a permit for a hydroelectric project, basically reissuing a permit because of a sturgeon 

that once resided in these waters but hadn’t been seen in this river 

since the late 1800s. So we think that just by denying an energy 

permit for a hydroelectric project that this sturgeon is going to 

magically reappear in South Carolina rivers. I think this whole Act 

needs to be revisited. 

The gentleman, Mr. Suckling, mentioned if you take an antibiotic 

for a day and it doesn’t work, then it won’t work if you have that 

mindset I guess, but if you take it for 30 years and then decide it 

won’t work, maybe you should have changed earlier. Maybe you 

should have changed the whole process earlier if it is still not 

working. So I am glad we are revisiting this. I hope we will rewrite 

this. 

I would like to ask Mr. Suckling a question because it deals with 

the Southeast and species, going back to that sturgeon example in 

2011. In July, you stated that the CBD’s petition to list 404 SouthVerDate Nov 24 2008 14:08 Feb 19, 2013 Jkt 000000 PO 00000 Frm 00056 Fmt 6633 Sfmt 6602 L:\DOCS\71642.TXT Hresour1 PsN: KATHY
53 

east species took over a year to develop and involved the work by 

at least three scientists. How was this work funded? 

Mr. SUCKLING. The Center has 43,000 members who provide 75 

percent of our funding, so they funded that work. I would also like 

to say for the record no spotted owl has ever nested in a K-Mart 

sign anywhere. 

Mr. DUNCAN OF SOUTH CAROLINA. Is there a way I can get a list 

of those 404 Southeast species? Can you provide that? 

Mr. SUCKLING. Yes. The list of those species is on our website if 

you go on there, and you will see a section about our settlement 

and all the species are on there. 

Mr. DUNCAN OF SOUTH CAROLINA. OK. I have nothing further, 

Mr. Chairman. I yield back. 

The CHAIRMAN. Would the gentleman yield to me? Before he 

yields back, would you yield to me? 

You mentioned a spotted owl in the Northwest in it was the old 

growth, and when you talk about economic impact there has been 

an huge economic impact because the timber industry in the Northwest is simply not there now. It is roughly 20 percent of what it 

was in the late 1980s. But what is also interesting is there is another study that came out that said in fact it was not the old 

growth that caused the demise of the spotted owl, it was actually 

a predator called the barred owl, which is a little bit larger species 

and it was more aggressive than the spotted owl. 

Now unfortunately that has become public, but nothing is still 

done. We still cling to the idea that only old growth can support 

the spotted owl, and I have personally by the way seen non-old 

growth where the spotted owl has in fact nested, so I thank the 

gentleman for bringing that up from your brother-in-laws’s perspective, but I just wanted to add one more part to that, that there is 

a study that says in fact it wasn’t old growth or lack of old growth, 

it was the barred owl, so I thank the gentleman for yielding. 

I will recognize the gentlelady from Guam, Ms. Bordallo is recognized. 

Ms. BORDALLO. Thank you very much, Mr. Chairman. My first 

question is to Mr. Tutchton and Mr. Suckling. 

Your organizations have been accused of using lawsuits as a way 

to generate income. The Pacific Legal Foundation, who Mr. Middleton is testifying on behalf of today, lists income from courtawarded attorney fees as approximately $1.44 million on their 2008 

audited financial statement. This is almost a quarter of the foundation’s income for 2008. Have court-awarded attorney fees ever approached this percentage of income for your organizations? And I 

would like just a short answer. 

Mr. TUTCHTON. No. 

Mr. SUCKLING. Now our Federal income fee is about 3 to 4 percent per year. In 2008, when the Pacific Law Foundation got $1.4 

million, the Center got $356,000 in retained legal fees. Very often 

the Pacific Legal Foundation gets far more money than Center 

each year. 

Mr. TUTCHTON. That is true for us as well, Ms. Congressman. We got $10,000 in 2008. I did want to say we did believe in full transparency. These numbers are reported on our 990s. They are reported in court-approved settlements signed by Federal judges 

54 

available to anyone. In 2008, that was less than 1 percent of our 

income 

Ms. BORDALLO. So I take it then that the answer is no in both 

cases. 

My second question, Mr. Tutchton, why is the settlement that 

your organization entered into with the Fish and Wildlife Service 

a good deal? 

Mr. TUTCHTON. Well, it is a very good deal if the purpose of this 

Committee is to reduce litigation. The settlement is a vast litigation reduction device which will also allow the Service to begin 

working first on the species they say are their highest priorities, 

so it will allow an entirely science-driven process where the Service 

will pick the species or they have already picked them, 250 of them 

that they will work on, and what the settlement does is actually 

force them to finish their work, and that is in everyone’s interest 

to get the list correct so that we can make future decisions based 

on an accurate list of species we are trying to protect. 

Ms. BORDALLO. So, for the record then, you are saying that it reduces litigation and allows science to drive the listing process? 

Mr. TUTCHTON. Yes. 

Ms. BORDALLO. Mr. Tutchton, I have another question for you. 

Could you respond to Ms. Budd-Falen’s comments on litigation for 

the purpose of meeting a deadline versus recovering an endanger 

species? Now how could a species recover if it is not listed? 

Mr. TUTCHTON. It cannot most of the time, 90 percent of the 

time. Deadlines are a method to force recovery. So, if the desire is 

to increase the rate of recovery, we need the Federal agencies to 

pay attention to deadlines. It is the chronic disregard of deadlines 

that has kept some species from people being able to work on their 

recovery sooner, so the sooner we can identify the correct species, 

get them on the list, the sooner we can begin working to get them 

off the list, and that is what deadline litigation accomplishes. 

Mr. SUCKLING. And if I may add, the Congress provides separate 

budgets for the U.S. Fish and Wildlife Service for their listing program and for their recovery program. So, regardless if they list fast 

or slow or not at all in the listing program has zero effect on the 

dollars available in the recovery program. So listing species does 

not in any way impede the recovery budget or the recovery work. 

Ms. BORDALLO. Thank you. 

Mr. Chairman, I would like to have a clarification of something 

here. I have listened to all the witnesses here and there has never 

been a mention—always the states. I represent the U.S. territory 

of Guam. My colleague here, Mr. Sablan, represents the Northern 

Marianas Islands. Now are we included in your statistics or are we 

not? 

Mr. TUTCHTON. Yes, you are. In fact, some of the species that are 

in the settlement reside in your territories, and you are fully included on equal footing with the states 

Ms. BORDALLO. Mr. Chairman, you know, I am always listening 

for this and really out of the territories that are part of this Congress we represent 4.5 million Americans, so I think we do deserve 

mention now and then. 

Mr. SUCKLING. And if I may, there is a way in which you are not 

represented, which is this. The majority of imperiled species that 

55 

are the most imperiled occur on those islands, but yet they are 

funded at a much lower level than the mainland. In fact, we have 

a very serious problem with the Endangered Species Act of the Pacific Islands not receiving funding in proportion to the number of 

species they have. 

Ms. BORDALLO. Thank you. Thank you very much. Thank you, 

Mr. Chairman. 

The CHAIRMAN. Thank the gentlelady. Recognize the gentleman 

from Nevada, Mr. Amodei. 

Mr. AMODEI. Thank you, Mr. Chairman. 

Mr. Suckling, you and—I am sorry, I am kind of new at this, the 

gentleman next to you. 

Mr. TUTCHTON. Mr. Tutchton. 

Mr. AMODEI. My colleague from Guam just talked about funds 

that had been awarded based on litigation compared to the Pacific 

Legal Foundation. It is my understanding that those funds are 

court-ordered based on results in specific litigation. Is that accurate? 

Mr. TUTCHTON. Yes. I mean, they are court-ordered. It depends 

on how many hours you spent to achieve the result. 

Mr. AMODEI. Well, I understand that, but if the Pacific Legal 

Foundation happened to have gotten a million something versus 

several hundred thousand, is it a true general statement to say 

they must have been more successful in the litigation that they 

chose to be involved in than the folks on the other side? 

Mr. TUTCHTON. It is a statement the Pacific Legal Foundation 

prevailed in its case against the Federal government. I would not 

say they are more successful than our litigation. I would say our 

litigation is more efficient. We did the same amount of work much 

less expensively. 

Mr. AMODEI. OK. So you would say that they prevailed in a 

much less efficient manner than you did and therefore they are 

getting four times more the funds awarded? 

Mr. TUTCHTON. Yes. 

Mr. AMODEI. That is a great answer. Thank you very much. Now 

let me ask you this. Also the fact that it is a larger part of the percentage of their budget, is that an indication on your success in 

fundraising outside the litigation process as opposed to theirs? 

Mr. TUTCHTON. Well, I think the issue here is that industry is 

complaining about funds. 

Mr. AMODEI. Excuse me. I get to form the question if I can, Mr. 

Suckling, so if you think it is a bad question, please feel free to say 

that, but the fact that it is a larger percentage of their budget is 

a function of how much money they raise as well as how much 

money they get awarded in court proceedings. Is that an accurate 

thing to say? 

Mr. SUCKLING. No, sir. 

Mr. AMODEI. OK. Then tell me where I have missed that in about 

30 seconds or less, please. 

Mr. SUCKLING. We get our money from a very large membership 

base. They get money from a few corporations and foundations. 

Mr. AMODEI. Oh, I am not asking where they got their money 

from. I am asking how much they raised compared to you. Do you 

56 

have any idea what your budget is compared to the Pacific Legal 

Foundation? 

Mr. SUCKLING. I do not know their budget, sir. 

Mr. AMODEI. Thank you for your honesty. Sir? 

Mr. TUTCHTON. Our budget is much smaller. Our budget is about $1.5 million in total. So, if $1.4 million is 25 percent of theirs, they 

are four times our size. 

Mr. AMODEI. OK. And how much did you say—I think you men- tioned you had recovered $300,000 or something in a year that you 

were talking about. So is it a quarter of your budget, the $300,000? 

Mr. TUTCHTON. The figure for WildEarth Guardians is $10,000 

in 2008. 

Mr. AMODEI. OK. 

Mr. TUTCHTON. That is about 1 percent, less than 1 percent. 

Mr. AMODEI. Thank you. Now is it my understanding, and if it 

is not, just correct me bluntly, this is an oversight hearing, so after 

looking at how the law has worked over the years it is like so whatever the powers that be have decided they want to revisit how this 

is working and hear from various stakeholders, obviously what you 

folks are, are you opposed to oversight and revisiting these issues, 

or do you think everything is just great the way it is and we ought 

to leave it alone, stay out of your business? 

Mr. SUCKLING. No, oversight is excellent. It helps bring out the 

facts that we have seen here today. 

Mr. AMODEI. OK. Final question. I am new, which is on abundant display at the moment I am sure. I have heard testimony 

about how long it takes for these recovery times and I have also 

seen information that you have put up about how we track numbers of species. Is there anything in the existing regulations or 

statutes which talk about revisiting Federal recovery plans based 

upon how numbers of, for instance, breeding pairs have risen or 

fallen? Do we revisit those or once that Federal recovery plan is in 

process is it a pretty hard thing to change even if it says, maybe 

rightly so, 150 years? Is there any reference to numbers in those 

two? 

Mr. SUCKLING. Yes, they are revisited in three ways. Every two 

years the Fish and Wildlife Service does sort of a quick and dirty 

study on species recovery trends of each species. Every five years 

it does a much more substantial review of the status of the species, 

including asking the question does the recovery plan need to be updated or amended or not, and then finally for many, many species 

they amend the recovery plan after seven or 10 years, so it is a constant revision process. 

Mr. AMODEI. And can you give me a general statement if you are 

able that indicates that as a result of the existing revisiting process 

of those plans how many species have had either their chronological timeframe reduced or their numbers reduced or you know? 

Mr. SUCKLING. Oh, I see. I can’t give you the number of them, 

but I can say that when new recovery plans are put out there that 

are amended they sometimes reduce the time they think will be 

needed to recover. They sometimes expand it depending on what 

the science at that time says. 

Mr. AMODEI. Do you have a sense of, because I don’t obviously, 

that is why I am asking the question, do you have a sense of 

57 

whether that recovery period is good, recovery period needs to be 

shortened or it needs to be increased? Has anybody tracked that? 

Mr. SUCKLING. Yes, they don’t I think track it as sort of a general statistical issue, but if you look at the rate at which species 

factually have recovered and you compare that to what the recovery plans say should happen, they match pretty well in about 82 

percent, and so I think that is an indication that things are generally on track. 

Mr. AMODEI. Thank you. Thank you, Mr. Chairman. 

The CHAIRMAN. Time of the gentleman has expired. The Chair 

recognizes the gentlelady from California, Mrs. Napolitano. 

Mrs. NAPOLITANO. Thank you, Mr. Chair. 

Mr. Leshy, the Majority argues that the litigation that seeks 

compliance with the Endangered Species Act impedes recovery. 

Was the Department engaged in ESA-related litigation during your 

tenure as Solicitor of the Department of Interior, and did active 

litigation prevent Fish and Wildlife Service from recovery efforts, 

and is it possible the litigation can ultimately lead to collaborative 

species recovery? All in one breath. 

Mr. LESHY. Excuse me, Mrs. Napolitano. I think the answer is 

yes to all of that. We were sued a lot when I was in the government, again as I said by all sides. Sued on listing issues, also sued 

on compliance issues in terms of biological opinions and the adequacy of them and that sort of thing, and I don’t think the listing 

litigation really had any effect on the recovery exercise because, as 

was pointed out, the budget process is separate. There is a listing 

budget and then there is the rest of the Act administration budget, 

so they are really compartmentalized and segregated, and so there 

is really no interference there I think in terms of litigation. 

Mrs. NAPOLITANO. But can this litigation ultimately lead to the 

species recovery? 

Mr. LESHY. Well, sure. I mean, you know, the full machinery of 

the Act does not come into play until species are listed, and so a 

species that is sliding toward extinction cannot go extinct unless it 

is listed because it is not really protected until it is listed. So the 

listing process is a very important process, getting species on the 

list, and it is really a science-driven process. I mean, the species 

is either in peril or it is not. That determination is made. If the 

answer is yes, then it is listed and then the rest of the Act machinery comes into play. 

Mrs. NAPOLITANO. One of my wild questions I have always asked 

is do you ever think there will be the human species listing? 

Mr. LESHY. I hope not. That would be—— 

Mrs. NAPOLITANO. We are a species, are we not? 

Mr. LESHY. Yes, we are. 

Mrs. NAPOLITANO. Thank you. Mr. Leshy, also in Mr. Middleton’s 

testimony he mentions the consolidated smelt cases and the court’s 

findings. The same judge recently has been in the headlines in 

California of course, and who has retained him as counsel, Judge 

Wanger? 

Mr. LESHY. Sorry, I missed that question. 

Mrs. NAPOLITANO. The same judge that was mentioned in the 

consolidation of the smelt cases. 

Mr. LESHY. Right. 

58 

Mrs. NAPOLITANO. Is recently retired from the bench and is now 

working for? 

Mr. LESHY. You know, I have been away from California the last 

six months, so if this has happened recently, I don’t know. 

Mrs. NAPOLITANO. I will tell you, Westlands. 

Mr. LESHY. Oh. Well, that is interesting. Well, Judge Wanger has 

been involved in many cases out there involving the—— 

Mrs. NAPOLITANO. Right. 

Mr. LESHY.—Endangered Species Act and other things and of 

course there is a Court of Appeals that sits to review decisions of 

District Court judges. 

Mrs. NAPOLITANO. Well, I am sure you have read his last ruling, 

right, DX-2, and could you tell briefly in your opinion who benefitted from it? 

Mr. LESHY. I haven’t read that ruling, so I must decline. 

Mrs. NAPOLITANO. OK. Well, my understanding is again 

Westlands’ district. 

Now I sat next to Judge Wanger, he was invited to address some 

Southern California elected officials and water agencies, and I did 

ask him because in his presentation to that group he never mentioned Westlands, and my importance to that of course is the 

Southern California water, and I was very surprised that he did 

not actually make mention of that because he went through his 

whole career, including his current renderings, which he said, and 

I quote, ‘‘I have a difference of opinion, but I have to follow the 

law.’’ 

So I am very concerned of course as to what could happen, and 

that is just my personal opinion because to us we also feel like Mr. 

Suckling mentioning that protecting the environment is good for 

the economy. California is one of the most environmental protected 

and great on the economy and that could hurt both, so with that, 

thank you. 

Mr. LESHY. If I could just comment briefly. On the Delta smelt 

litigation and also on the Pacific salmon litigation, at heart really 

in the short term as well as the long term this is sort of a jobs 

versus jobs issue. That is, we have a declining resource and there 

are people fighting over it, but there are as many people dependent 

upon a healthy salmon population for jobs in the Pacific Northwest 

as are regulated by the Endangered Species Act, and that is an important thing to keep in mind. 

Mrs. NAPOLITANO. Well, salmon, the endangered salmon was prohibited from fishing in California for three years, so a lot of the 

fishermen lost all their business and the economy in that area 

went down to nil. They are finally able to do some fishing, although 

it is a little bit less than they expected, but it did work and they 

are all happy and it is helping the economy, so with that, thank 

you, Mr. Chair, for your indulgence. 

The CHAIRMAN. Time of the gentlelady has expired. The Chair 

recognizes the gentleman from Idaho, Mr. Labrador. 

Mr. LABRADOR. Thank you, Mr. Chairman. I guess we just heard 

news here that California’s economy is actually doing well. I didn’t 

realize that, and I am sure the environmental movement has 

helped a lot with that recovery. But, Mr. Middleton, I don’t really 

know the facts about your organization, how much money you guys 

59 

make from lawsuits versus how much you get from donors, but how 

many organizations like yours, like the Pacific Legal Foundation 

are there? 

Mr. MIDDLETON. Well, there are quite a few organizations in the 

country like our organizations, and I would also add I think that 

Mr. Suckling’s comments on our fees are misleading because we 

don’t strictly do environmental litigation as opposed to CBD. We 

also litigate for the protection of civil rights and freedom of speech, 

for example, and that particular statistic used by Mr. Suckling, I 

don’t believe much, if any, of those fees were generated from environmental litigation. They were for the protection of civil rights. 

And so, to the extent that Mr. Suckling is equating fees generated in environmental litigation with fees that are generated 

through the protection of civil rights, I think that says a lot about 

where the priorities of the environmental movement are. 

Mr. LABRADOR. I am shocked that Mr. Suckling would try to mislead this panel in any way. 

Mr. Suckling, what is your educational background? You know, 

you gave us a lot of science. Are you a scientist? 

Mr. SUCKLING. I am not, sir. 

Mr. LABRADOR. You are a doctor, right? You are a Ph.D.? 

Mr. SUCKLING. I am not, sir, no. 

Mr. LABRADOR. But you were studying for a Ph.D.? 

Mr. SUCKLING. I was studying for a Ph.D., correct. 

Mr. LABRADOR. OK. And that was not in science? 

Mr. SUCKLING. No, it was in philosophy. 

Mr. LABRADOR. In philosophy. And you have indicated that one 

of your biggest goals is to see a lot of litigation so we can stop a 

lot of development in the future, isn’t that correct? 

Mr. SUCKLING. No, that is incorrect, sir. My goal is to protect the 

native species and the habitats they rely on. 

Mr. LABRADOR. Yes, let us talk about that. You gave us a lot of 

science today, again knowing that you are not a scientist, but I will 

still ask for your opinion. You said on average it takes 21 years— 

most species have been 21 years on a list and it takes 42 years for 

their recovery. And then you gave us a bunch of data on, you know, 

80 plus years for the whooping crane, you know, blah-blah-blahblah. 

Can you tell us who determined what the recovery programs 

should be for all these species? 

Mr. SUCKLING. The U.S. Fish and Wildlife Service assembles a 

recovery team for each species on the list. The recovery team typically has Federal biologists of the Fish and Wildlife Service, state 

biologists from their state’s game and fish program, and academic 

scientists from that state and that team of people develop the recovery plan. 

Mr. LABRADOR. OK. And who was this team of people? These 

were scientists? 

Mr. SUCKLING. Yes. Yes, sir. 

Mr. LABRADOR. OK. And the science never changes, so you never 

get to a point that you think, you know, something is actually recovering, so maybe we should shorten the time that the species 

should be on the list? 

60 

Mr. SUCKLING. No, sir, the science always changes, which is one 

reason why the recovery plans are revisited every five years and 

updated. 

Mr. LABRADOR. OK. So when they are changed why do we keep 

extending the—I mean, you showed us some pretty impressive 

charts that show that these species are all recovering. We have had 

the experience of wolves in Idaho where they recovered actually beyond the plan, and we still have environmentalists telling us that 

we need to have the wolves still on the list. 

Mr. SUCKLING. Well, you know, that is a very interesting example because when we say that the wolf met the recovery plan objectives that was a recovery plan written in 1980, and one of the objections we had to it is that the plan was very much out of date, 

did not reflect the new science. It should have been updated. 

Mr. LABRADOR. So as long as it doesn’t agree with your agenda, 

then you disagree with it, but as soon as we see recovery we don’t 

have any kind of movement toward delisting any of these species, 

is that correct? 

Mr. SUCKLING. No, the Fish and Wildlife Service is in the process 

of proposing and delisting many species, so yes, they are in that 

process. 

Mr. LABRADOR. And how long have they been in that process? 

Mr. SUCKLING. Well, they have been delisting species since I 

think probably the Reagan Administration was the first species 

delisting and each administration since then has delisted species. 

Mr. LABRADOR. OK. And can you tell me what statute the Endangered Species Act gives the Fish and Wildlife the authority to 

regulate species that only exist within one single state? 

Mr. SUCKLING. Yes, sir. The Endangered Species Act gives them 

that authority. 

Mr. LABRADOR. Just within one single state? 

Mr. SUCKLING. Correct. 

Mr. LABRADOR. OK. And where is that within the Endangered 

Species Act? 

Mr. SUCKLING. The Endangered Species Act says that every endangered species, every imperiled species rather, should eventually 

be listed as endangered regardless of whether it is in one or many 

states, and in fact the majority of them occur in a single state. 

Mr. LABRADOR. OK. And we have been confronted in Idaho with 

a potential listing of the slick shot pepper grass, which only exists 

within the State of Idaho. 

Mr. SUCKLING. Right. 

Mr. LABRADOR. Ms., is it Budd—— 

Ms. BUDD-FALEN. Falen. 

Mr. LABRADOR.—Falen, can you explain? You have had some experience with that, have you not? 

Ms. BUDD-FALEN. Yes, sir. 

Mr. LABRADOR. Can you explain what you think about that? 

Ms. BUDD-FALEN. I think it is actually—— 

The CHAIRMAN. Turn on the microphone if you would. 

Ms. BUDD-FALEN. Oh. 

The CHAIRMAN. And real briefly. 

Ms. BUDD-FALEN. I think it is actually disappointing because the 

Fish and Wildlife Service has been up and down on whether it 

61 

should be listed or note listed depending on who litigates against 

it at the time. There was a CCA in place though in which the Fish 

and Wildlife Service signed off on with the landowners, with the 

state, with all interested parties, and now because of the latest litigation it is going to be listed, and it cost the Federal government 

over $200,000 for those three cases to fight over whether the listing 

ought to be. That is just in attorneys’ fees. 

Mr. LABRADOR. So that was just one agreement in place and just 

because one group decided they didn’t like the agreement we don’t 

have the agreement, right? 

Ms. BUDD-FALEN. Yes, sir. 

Mr. LABRADOR. Thank you. 

The CHAIRMAN. The time of the gentleman has expired. The 

Chair recognizes the gentlelady from Hawaii, Ms. Hanabusa. 

Ms. HANABUSA. Thank you, Mr. Chair. 

Professor Leshy, in reading your testimony you basically said 

that you have dealt with the Endangered Species Act which was 

first passed in 1973 in various settings, and you made a reference 

to the fact that you also did it in government service. Can you tell 

me what kind of government service and for how long you were 

doing that? 

Mr. LESHY. I worked in the Carter Administration, that will date 

me, for almost the entire time, and I was in the Clinton Administration from day one until the last day. 

Ms. HANABUSA. And what role did you play in terms of working 

with the Endangered Species Act? 

Mr. LESHY. In the Carter Administration, I think my title was 

Associate Solicitor of the Interior Department for Energy and Resources, and in the Clinton Administration I was Solicitor. That is 

the fancy word for the head legal officer. 

Ms. HANABUSA. So I see why you said that you are probably 

more than qualified to testify about this. 

You spent a good deal of time in your testimony talking about 

the Edwards Aquifer in Texas, and it brings to mind something regarding state law as well as Endangered Species Act, and, first of 

all, I assume from your written testimony that there is nothing 

considered like some kind of riparian water rights in Texas law 

that would give landowners downstream or someone else the right 

to actually use the water source. Am I correct in that? 

Mr. LESHY. Well, yes. The issue in Edwards was the Texas law 

that applies to groundwater, water underneath the ground, and 

Texas basically had and still has outside the Edwards Aquifer I 

think no law. I mean, the law is anybody can stick a straw down, 

drill a well and pump out as much water as they want for any purpose, and the kind of cruel irony here is that Texas law actually 

tells landowners that they have property rights in the water underneath their land, but they have no right to keep anybody else from 

sucking that water out from under them, so it is not really a property right at all. It is called the capture doctrine, and it basically 

means that there is absolutely no thought to managing this water 

source for the future. 

And what happened at Edwards was because of this quirk that 

there were endangered species threatened by it, Texas had to start 

managing the Edwards Aquifer to look to the long term, to sustain 

62 

it over the long term and all those jobs and all that economic activity and all those people, millions of people living over the Edwards 

Aquifer depending upon it. So the Endangered Species Act resulted 

in a huge improvement, and I think most people who understand 

this in Texas would actually agree with that. 

Ms. HANABUSA. So I guess the other part of my question would 

be that in a situation like that, if you didn’t have the Endangered 

Species Act and intervention of the feds, that in essence you could 

have no aquifer left today? 

Mr. LESHY. Absolutely. I mean, this was a race to the bottom of 

the aquifer. That was what Texas was engaging in, and it was presumably going to dry up the aquifer before anything happened had 

the Endangered Species Act not been there. 

Ms. HANABUSA. Do you have any other examples? I know that 

you pointed out the Texas situation. So, in the time from the Carter Administration and the Clinton Administration and the role as 

the Solicitor, were there any other examples of actual intervention 

on a state level to ensure the preservation of an aquifer or water 

source? 

Mr. LESHY. Well, sure. I mean, there are a lot of rivers, for example, in the west that are being managed in part to protect endangered species. Almost all of these rivers are basically regulated, 

controlled by dams, usually Federal dams, and the Endangered 

Species Act is affecting how those reservoirs are operated, and in 

many cases, and I have referenced this already, there have been 

major successful efforts at these multispecies habitat conservation 

plans that apply to these river systems that have resulted in protecting the water supply for people but also protecting the species. 

There has been quite a success story, and they have involved intensive cooperation between state water authorities and Federal agencies. 

I mean, this is not a top down Federal exercise. This is really a 

cooperative exercise. And I think if you ask most water managers 

in the west are we managing water better because the Endangered 

Species Act is there, I think most of them would say yes. 

Ms. HANABUSA. So being a devil’s advocate, would you say that 

one of the concerns that people who are adverse to the Endangered 

Species Act is the fact that you could use that Act and actually step 

in and control, for example, a state’s water system? 

Mr. LESHY. Well, you know, the net effect at Edwards was the 

Federal law told the state you had to do something about managing 

this. The mechanics of what they did, and that system is a state 

law system, it was passed by the Texas legislature, it is reviewed 

by the Texas courts. I mean, so the Federal government sort of and 

the Endangered Species Act sort of provides the club, but the mechanics and the decisions about how that management is going to 

take place was entirely state. 

Ms. HANABUSA. Thank you. Thank you, Mr. Chair. 

The CHAIRMAN. The time of the gentlelady has expired. The gentleman from Louisiana, Mr. Fleming. 

Dr. FLEMING. Thank you, Mr. Chairman. 

I have been listening intently to the panel. I thank you today. 

So I want to see if I have this straight. The Endangered Species 

Act fails to require agencies to use sound science in their decisions 

63 

and to examine the economic consequences of their actions. The 

ESA allows the Federal government to prohibit landowners from 

making adjustments to their own property because the land could 

provide habitat to some endangered species. The ESA’s negative incentives encourage private landowners to clear their land of endangered species and suitable habitat. The ESA has cost hard-working 

taxpayers hundreds of millions of dollars, with some of this money 

being spent on countless lawsuits by environmental groups. And on 

top of that, ESA has only a 1 percent recovery rate. 

Ms. Budd-Falen, in your expert opinion, do I have this right? 

Ms. BUDD-FALEN. I believe that some of your statements are correct, and I respectfully disagree with some. 

Dr. FLEMING. OK. Go ahead and elaborate. 

Ms. BUDD-FALEN. The Endangered Species Act requires that the 

listing of a species be based on the best scientific evidence available, and so while the determination of what the best scientific evidence is is certainly up for debate and certainly up for litigation, 

that is the standard the Fish and Wildlife Service is supposed to 

follow. Now they don’t necessarily have to actually go out and 

count the number of species now and compare it to some number 

in the past, but you do have the scientific element. 

Economic impacts are not considered at all in the listing process. 

The only time economic impacts come in is in the designation of 

critical habitat, and there is actually a split in the court decisions 

about how those economic impacts are considered, whether they 

are considered only ‘‘for listing’’, which is the baseline analysis, or 

whether they include impacts—I mean, only designation of critical 

habitat or whether they include some of the impacts from listing 

because, quite honestly, it is really hard to separate whether a dollar sign comes from just the fact that the animal is there or the 

fact that it is designated critical habitat. 

So those are the two ‘‘scientific processes’’. The Agency has got 

very strict timelines to comply with those. Quite frankly, they 

never or very rarely do comply with those timeframes for whatever 

reason. 

Dr. FLEMING. How close do they stick to following through the 

scientific requirements? 

Ms. BUDD-FALEN. I can tell you that I have never initiated litigation against them for the ‘‘failure of best scientific information’’. I 

have litigated on critical habitat designations because in my experience and based on my clients’ needs they severely underestimate 

the economic impacts or damage from a critical habitat designation 

on private property rights, landowner rights, land use. 

Dr. FLEMING. OK. So it sounds like that you are seeing somewhat of a consideration of the science, but virtually none on the economics. 

Ms. BUDD-FALEN. In my opinion, that is correct. 

Dr. FLEMING. OK. Mr. Tutchton, same question to you. Do you 

agree with the list or do you disagree and if so, with what? 

Mr. TUTCHTON. Well, I disagree with the list respectfully. Let me 

give you a good example from your home state. I once represented 

the Louisiana Crawfish Producers Association that begged our environmental law clinic to sue to get critical habitat for the Louisiana black bear to protect their livelihoods by protecting the 

64 

Atchafalaya Basin, and so that is an example, as Mr. Leshy said, 

where it is not jobs versus species. It is jobs versus jobs. The bear 

could affect some jobs in the timber industry, but it was going to 

support jobs in the crawfish industry. So these things are not cut 

or dried either way. 

Dr. FLEMING. OK. While I have you, how many lawyers are in 

your organization? 

Mr. TUTCHTON. Three including myself. 

Dr. FLEMING. OK. And besides suing the Federal government in 

various Federal courts, appellate courts, et cetera, what other work 

do you and your colleagues engage in? 

Mr. TUTCHTON. Just the lawyers or the entire organization? 

Dr. FLEMING. Well, in terms of litigation, yes. 

Mr. TUTCHTON. We do sue the Federal government quite a bit. 

We sue Interior, Agriculture, EPA, National Marine Fisheries Service. We have sued private defendants, public utilities, coal-fired 

power plants, people who pollute rivers, sewers, the discharge of 

raw sewage. 

Dr. FLEMING. OK. And one final question. I am running out of 

time. Do you believe the public has a right to know how much taxpayer money is paid to your organization each year? 

Mr. TUTCHTON. Yes, I do. 

Dr. FLEMING. Can you give us that amount? 

Mr. TUTCHTON. In terms of attorneys’ fees, last year it was $163,000. In terms of grants from Federal agencies, it was approximately $600,000, primarily to restore streams by planting trees. 

Dr. FLEMING. OK, thank you. I yield back. 

The CHAIRMAN. The time of the gentleman has expired. The 

Chair recognizes the gentleman from Michigan, Mr. Kildee. 

Mr. KILDEE. Thank you, Mr. Chairman. 

Mr. Leshy, you have had the opportunity to work with the Endangered Species Act on both the side of the government and as 

a private citizen. This hearing today has focused on litigation, but 

it also merits a discussion on the Act itself. What would be the effect on endangered and threatened species if the Endangered Species Act was never enacted or was completely abolished? And to get 

to the point of this hearing, in your opinion, is there any other 

mechanism that could reasonably replace the citizen suit provision 

of the Act and continue to be effective to the same degree, Mr. 

Leshy? 

Mr. LESHY. Well, first of all, thank you, Mr. Kildee. If the Endangered Species Act were repealed, I think we would have quite a lot 

more extinctions. I think we would do a much worse job of managing natural resources. The Edwards Aquifer, for example, I think 

would be in a lot more peril and the people who depend upon the 

Edwards if the Endangered Species Act were repealed. 

I don’t think the problem would go away. Many states have Endangered Species Act. California actually has one that is in some 

respects tougher than the Federal law, so there would be a state 

safety net in some places but not in all, and so I think it would 

be really a terrible mistake to repeal the Endangered Species Act. 

It passed this Congress in 1973 with almost no dissenting votes, 

and when President Nixon signed it into law he said nothing is 

more priceless or worthy of preservation than the rich array of life 

65 

on earth. This was a tremendously popular Act and I think it really 

does touch something deep in the core of the American populace 

and I hope that it remains in place. 

In terms of the litigation tool, the Endangered Species Act is not 

unique in having a citizen suit provision and it is certainly not 

unique to have lawsuits filed against the government for failing to 

live up to laws. We have had that tool in place in this country virtually since the founding of the republic, and it is I think a useful 

tool. It is a tool that basically holds the government accountable, 

and it is really a tool that frankly serves the congressional interests, which is why I think Congress tends to put citizen suits in 

these acts. It is because it is a way for Congress to control the Executive Branch, to basically tell the courts help us make sure the 

Executive Branch complies with the law. That is exactly what citizen suits are supposed to do, and they provide equal access to the 

courts for anybody who thinks the government is not doing its job. 

And so, when a court orders the Executive Branch in one of these 

lawsuits to comply with the Endangered Species Act, the court is 

basically saying Congress has told you to do certain things and you 

are not doing them, we are going to help the Congress to see that 

these laws are carried out. So I think that is why citizen suits have 

actually remained I think relatively popular. 

Sure, in individual examples, they can create controversy and 

that sort of thing, but on the whole I think they have been a part 

of the American tradition for a long time, using the courts as an 

independent sounding board to hold the government accountable. 

Mr. KILDEE. Thank you very much. 

You know, back in 1973, it was generally considered an honorable, decent, appropriate, proper, progressive thing to assure that 

the endangered species would be less endangered. Now the country 

is so divided and this Congress is so divided you think that you 

had committed some mortal sin or something if you take one side 

or the other. 

Would it be possible for you and Mr. Middleton and some of your 

colleagues to get together for say a couple months and agree on 

something that might satisfy your perception of the needs of protecting or looking at the endangered species? Either one of you may 

answer. 

Mr. MIDDLETON. Well, I appreciate the question and, you know, 

we at Pacific Legal Foundation are certainly willing to work with 

others, including environmentalists, to get to the right approach. I 

think one of the real problems is there is a notion that has been 

advanced today that this litigation controversy is really nothing 

more than jobs versus jobs, and I think that is a laughable talking 

point. You know, I sympathize with people like the salmon fishermen in California or the folks in Louisiana that Mr. Tutchton represented, but the reality is when they engage environmentalists to 

represent them in litigation those environmentalists use the Endangered Species Act to dictate whatever the cost that ESA must 

be imposed. That is a stacked deck in their favor, and that I think 

is really why we have gotten to this point where we are today. 

The CHAIRMAN. The time of the gentleman has expired. 

Mr. KILDEE. Thank you, Mr. Chairman. 

66 

The CHAIRMAN. The Chair recognizes the gentleman from California, Mr. McClintock. 

Mr. MCCLINTOCK. Thank you, Mr. Chairman. 

To continue on that very line of questioning, there seems to be 

a lack of reasonableness in the application of these laws. We all 

support the Endangered Species Act and its objectives. Nobody 

wants to see any species go extinct, particularly when it can be 

saved. But like most movements I think the environmental movement arose over legitimate concerns over the quality of our environment, but like most movements, once it had achieved its legitimate goals, it began to attract a self-interested and self-serving 

constituency that has taken us from legitimate and sensible measures to the realm of political extremism and outright plunder, and 

I think that is what this hearing is about. 

The Chairman raised the issue earlier about the importance of 

captive breeding. I represent a portion of the Klamath Valley in 

northern California where the ESA is being used to justify the destruction of four perfectly good hydroelectric dams on the Klamath 

River because of what they describe as a catastrophic decline in 

salmon population. I asked how many salmon are we talking 

about? Oh, just a few hundred left. I then asked, well, why doesn’t 

somebody build a fish hatchery? And the answer is we have a fish 

hatchery at the Iron Gate Dam. That hatchery produces 5 million 

salmon smolts every year, 17,000 of those smolts return as fully 

grown adults to spawn in the Klamath every year, but they won’t 

let us include them in the ESA count, and to add insult to insanity, 

when they tear down the Iron Gate Dam the Iron Gate Fish Hatchery goes with it, and then we do have a catastrophic decline of the 

salmon population. 

Mr. Middleton, why don’t we include hatchery fish in these population counts? Why don’t we recognize the importance of captive 

breeding? The Chairman pointed out the buffalo were brought back 

from the brink of absolute extinction because of captive breeding. 

California condor today, the African elephant, why don’t we include 

such a simple cost-effective and productive method of restoring 

these populations? 

Mr. MIDDLETON. Right, and I think they should be included in 

the counts, and what it shows is that oftentimes alternative approaches to recovering species are put aside, and the answer seems 

to be in many circumstances to restrict development or to restrict 

energy use, and that I think leads to a counterproductive discussion because the people who are actually burdened by those restrictions really have no place at the table. And if we were able to offer 

alternative approaches that could satisfy both environmental concerns and natural resource users, I think that would be the better 

approach. 

Mr. MCCLINTOCK. And to what extent are we confusing natural 

phenomenon with manmade phenomenon? For example, the salmon in the Pacific Northwest coast, California, Oregon, Washington, 

we have watched a decline in salmon runs over the past decade as 

the same salmon runs in Alaska have absolutely exploded under 

exactly the same Federal regulations. The question is what is going 

on there. Well, it turns out there is a phenomenon called the Pacific decadal oscillation, which is a 10-year cycle of cold water curVerDate Nov 24 2008 14:08 Feb 19, 2013 Jkt 000000 PO 00000 Frm 00070 Fmt 6633 Sfmt 6602 L:\DOCS\71642.TXT Hresour1 PsN: KATHY
67 

rents that for the past 10 years has been favoring Alaskan waters 

and has now shifted back toward the Pacific Northwest. As the 

Chairman pointed out, we are now seeing dramatically increased 

salmon runs in the Pacific Northwest following that cold water current just as we are watching significant declines in Alaskan waters, 

and yet we find that that is somehow justification for massive regulations that are shutting down entire sectors of our economy. 

To what extent are we distorting or are we confusing natural 

processes with man-caused phenomenon? 

Mr. MIDDLETON. I think there is a great extent of that, and what 

oftentimes happens is human activity is scapegoated as the primary cause for species decline when in reality there are a variety 

of circumstances that should be examined. So, for example, with 

the Delta smelt litigation the environmentalists have really been 

pressing to get these pumps shut off in California, and it is true, 

you know, certain times when the Delta smelt go through the 

pumps they are killed, but that in no way includes the other factors that go into the species concerned. 

Mr. MCCLINTOCK. Couldn’t the Delta smelt be brought back by 

captive breeding? 

Mr. MIDDLETON. It is possible that it could. 

Mr. MCCLINTOCK. Building a fish hatchery would be a fraction 

of the cost and far more productive than all the costly measures 

that are currently being imposed by misapplication of the ESA. You 

ask somebody in the environmental left, well, why don’t you include these fish in the count, they say, well, they are just not the 

same. And you say, well, what is the genetic difference? Well, there 

is none. The biologists I have talked to have pointed out that the 

difference between a fish born in a hatchery and a fish born in the 

wild is the same difference as a baby born at a hospital and a baby 

born at home. And to the extent that you are increasing the genetic 

diversity of the gene pool you are giving more and more variations 

for the forces of natural selection to work. It seems to me that it 

is a sensible approach and yet it is one that the ESA is being used 

to totally obstruct. 

Mr. MIDDLETON. That is my understanding as well, and I do 

think that there really is a problem when it comes to the Endangered Species Act in terms of looking at alternative approaches 

rather than simply scapegoating human activity. 

The CHAIRMAN. The time of the gentleman has expired. The gentleman from the Northern Marianas, Mr. Sablan. 

Mr. SABLAN. Thank you very much. First, I would like to associate myself with the earlier comments from my colleague from 

Guam. I am from the Northern Mariana Islands, one of the territories on the Islands. Let me also say that I think nobody said the 

administration of ESA was going to be easy, but I also think it is 

because of many of the difficulties that has made it successful by 

preventing extinction and setting species on a path to recovery. 

But, Mr. Leshy, I have a little confusion because Mr. Middleton 

earlier made a distinction between his organization’s work on civil 

rights and environmental issues. Does the Equal Access to Justice 

Act distinguish the types of litigation, or is it a mechanism to ensure that individuals and small businesses can have their voices 

68 

heard when they feel like they have been wronged by their government? 

Mr. LESHY. The latter, sir. It applies across a broad array of Federal programs, not just environment. In fact, I think the environmental recovery fees and environmental actions is actually a small 

proportion of it. 

Mr. SABLAN. So that means trade associations, small businesses 

and other types of nonprofits can and have recovered fees using the 

Equal Access to Justice Act and the judgment fund. 

Mr. LESHY. Yes. 

Mr. SABLAN. Thank you. Mr. Suckling, let me because you are 

not a scientist, but do you employ scientists in your organization? 

I’m assuming because—— 

Mr. SUCKLING. Yes, I do, sir. 

Mr. SABLAN.—you said biological diversity. How many scientists 

do you have in your organization? 

Mr. SUCKLING. We have approximately 25 scientists on staff. 

Mr. SABLAN. So when you made the statement earlier stating the 

science you have people who can back this? 

Mr. SUCKLING. Absolutely, yes. 

Mr. SABLAN. I just wanted to make that clear. 

And, Mr. Suckling, what percentage of ESA lawsuits that your 

organization, what percentage do you win? 

Mr. SUCKLING. We win 93 percent, sir. 

Mr. SABLAN. And what are some of these lawsuits? 

Mr. SUCKLING. Many of them are to speed up the listing process 

for species that are not yet protected but should be put onto the 

list. Other suits are to get specific habitat areas mapped out and 

protected for them. Another group of suits we do is to get recovery 

plans for those species. One of the reasons why we tend to focus 

on those three kinds of suits is there have been numerous scientific 

studies that have been done that have said species are more likely 

to recover the earlier they are listed and the longer they are listed. 

They are more likely to recover if they have critical habitat areas. 

They are more likely to recover if they have recovery plans. So we 

tend to target our suits toward those things we know recover species. 

Mr. SABLAN. Thank you. I don’t want you to get me wrong here 

because we have our own issues, you know, with our government, 

especially in the application of the law in the Northern Marianas, 

but let me ask this to you, Mr. Tutchton. Did I say that right, sir? 

Mr. TUTCHTON. Tutchton. 

Mr. SABLAN. Tutchton, yes, sir, and also Mr. Suckling maybe. 

There are some who believe that the ability to recover attorneys’ 

fees from the judgment fund and under the Equal Access to Justice 

Act fund acts as an incentive for groups to continue to bring lawsuits or litigation against Federal agencies. Do you believe this is 

the case? 

Mr. TUTCHTON. No, I don’t. The folks I represent feel compelled 

to protect these species from a sense of moral obligation and a 

sense of turning over the future in a better condition to their descendants, and so they would do this regardless of where the 

money came from. 

69 

Mr. SUCKLING. And if I may answer. There was actual a study 

put out this year in the Journal of Forestry which looked at all 

Equal Access to Justice Act payments, and one of the questions it 

asked is are these providing an incentive for more litigation. They 

concluded that it was not the case. 

For my group, we can look at the numbers and see. I have a 

budget of approximately $8 million. Last year I received $7,500 

from the Equal Access to Justice Act. In the year before, my budget 

was about $7 million. Again I received $7,500 from the Equal Access to Justice Act. So the numbers are minuscule. They are just 

minuscule, one-tenth of 1 percent of my budget. They are not an 

incentive to do anything. 

Mr. SABLAN. Thank you. I have one last question. Mr. Tutchton, 

I was reading with some interest Ms. Karen Budd-Falen’s testimony. Do you have any comments on her analysis of the Equal Access to Justice Act and the Endangered Species Act specifically, 

specifically that plaintiffs can recover legal fees under the Equal 

Access to Justice Act even if they lose? 

Mr. TUTCHTON. Yes, I have a few comments very briefly. Plaintiffs cannot recover attorneys’ fees if they lose outright. Plaintiffs 

can recover attorneys’ fees in a settlement where the Federal government capitulates because it did not feel it had reasonable 

grounds upon which to continue the litigation. Those settlements 

actually save the Federal government money because if they had 

continued to fight the case and they eventually lost anyway, they 

would have owed more for dragging out the litigation, so they are 

a prudent response when the Federal government’s position is substantially unjustified. 

The CHAIRMAN. The time of the gentleman has expired. 

Mr. SABLAN. Thank you. 

The CHAIRMAN. The gentleman from Arizona, Mr. Gosar. 

Dr. GOSAR. Mr. Suckling, I am going to quote to you and I just 

want to make sure that you agree or disagree with this quote of 

yours: ‘‘Yes, we are destroying a way of life that goes back 100 

years, but it is a way of life that is one of the most destructive in 

our country. Ranching is one of the most nihilistic lifestyles that 

the planet has ever seen. It should end. Good riddance.’’ 

Do you agree with that statement? 

Mr. SUCKLING. I do not. I was caught up in the rhetorical heat 

of the moment, sir. 

Dr. GOSAR. How would you say that you changed? Is it something that you can work with ranchers? 

Mr. SUCKLING. We do work with ranchers on occasion, yes, sir. 

Dr. GOSAR. OK. Let me ask you another question. Give me a 

grade A through F, typically like we see in school, in regard to our 

forest health, especially in Arizona? Can you give me a grade? 

Mr. SUCKLING. It is down around D, approaching F. 

Dr. GOSAR. How about let us say F? 

Mr. SUCKLING. OK. 

Dr. GOSAR. I agree. We have problems. 

Mr. SUCKLING. We have real problems, yes, sir. 

Dr. GOSAR. Thank you. I know you are a supporter of the ‘‘Four 

Forest Restoration Initiative (4FRI)’’, OK, and this is very imporVerDate Nov 24 2008 14:08 Feb 19, 2013 Jkt 000000 PO 00000 Frm 00073 Fmt 6633 Sfmt 6602 L:\DOCS\71642.TXT Hresour1 PsN: KATHY
70 

tant to us because as scientists, and I am a dentist and we have 

to acknowledge successes and failures, right? 

Mr. SUCKLING. Yes. 

Dr. GOSAR. OK. Well, in the recent Wallow fire experience we 

lost over half of the spotted owl nests. Tell me who won in that 

interchange. 

Mr. SUCKLING. Well, I have to disagree that we lost over half of 

the owl territories. 

Dr. GOSAR. Wait a minute, no, no, no. What they have said according to—I mean, this is to the science that said over half of the 

nesting sites in the State of Arizona were lost in the Wallow fire, 

I mean statistically. Do you disagree with those? 

Mr. SUCKLING. The fire burned through areas with half the 

nests, correct. However, spotted owls are known to come back and 

nest in burned areas. So, in terms of what is the impact on the 

spotted owl, we do not know yet, but—— 

Dr. GOSAR. It was huge. I mean, the numbers—— 

Mr. SUCKLING. Well, we do not know yet if the owls are going 

to return and how many will nest there. My prediction is there will 

be a decrease in owls. It will not nearly be a 50 percent decrease. 

Dr. GOSAR. But that is speculative. 

Mr. SUCKLING. Excuse me? 

Dr. GOSAR. That is still speculative. 

Mr. SUCKLING. Well, it is based on what we know how spotted 

owls live in fire areas and many forests. 

Dr. GOSAR. I like owls too, but it is speculative, OK? My whole 

point is that regardless of what happened with our forests before, 

what we have to do is go forward in a process that we don’t have 

this happen again, not just to the people of Springerville and the 

eastern Arizona, the Apaches, but we need to have some standardization on how we look at our forests. Would you agree? 

Mr. SUCKLING. Yes, sir. 

Dr. GOSAR. Do you think that delays actually have a cost on industry? 

Mr. SUCKLING. Delays of what? 

Dr. GOSAR. Like saying 30 days or 60 days or 90 days delays 

with injunctions when we are talking about forest thinning? 

Mr. SUCKLING. No, 30, 60, 90 days have very little effect, sir. 

Dr. GOSAR. They have no effect? 

Mr. SUCKLING. Very little effect, yes. 

Dr. GOSAR. Oh, I disagree because there is always a cost for a 

delay because if you are going through a thinning process and you 

could actually in those 90 days take care of let us say 200 acres, 

it is 200 acres that less would burn, wouldn’t you say? 

Mr. SUCKLING. The planning of a timber sale is typically two to 

three years in length, so delaying 30 days at the end, no, it’s inconsequential. 

Dr. GOSAR. OK, so let me ask you, so you want to be more efficient, right? 

Mr. SUCKLING. Yes, sir. 

Dr. GOSAR. So you would be a proponent to start at looking at 

wide swaths proactively before the bid process in ‘‘4FRI’’, particularly in Arizona so that we could have no further delays? Would 

you agree to that? 

71 

Mr. SUCKLING. I am not exactly sure how to answer. 

Dr. GOSAR. I want the environment, I want to see your group 

being part of the solution process for the forests. Would you agree? 

Mr. SUCKLING. Well, we very much are a part, as you know. 

Dr. GOSAR. But I also—— 

Mr. SUCKLING. The ‘‘4FRI’’ agreement is one that the Center has 

been advocating. 

Dr. GOSAR. I understand, but I also want a template on how we 

actually do that so that we don’t have the consequences of this fire 

again. 

Mr. SUCKLING. Absolutely, and we have prepared a template for 

the issues that we are concerned about. 

Dr. GOSAR. And you are going to be prepared so that when this 

contract is awarded then we would go forward with that? Yes or 

no. 

Mr. SUCKLING. We can go forward with a contract if it obeys the 

laws, not if it violates the laws. 

Dr. GOSAR. The status that I am here is working with people, 

working with industry. Are you prepared to work with industry? 

Mr. SUCKLING. We work with both the industry and with the 

U.S. Forest Service. 

Dr. GOSAR. OK. I have one last question. Ms. Karen Budd-Falen, 

last year the Center for Biological Diversity was forced to pay the 

Chilton family of Arizona over $600,000 in damages relating to 

false claims against a ranching family. The Chilton family took on 

the Center for Biological Diversity after the organization accused 

them of poor ranch management that would impact different 

courts, but the CBD kept on appealing. The Western Farm Press 

indicated that CBD contemplated appealing to the Supreme Court. 

The Center for Biological Diversity said it would drop the appeal 

if the Chiltons paid them $35,000 for settling the case. They said 

no. Sadly, however, the Chiltons paid more in legal fees than they 

collected, but they still won. Is this kind of intimidation, is this 

common? 

Ms. BUDD-FALEN. In my personal experience, I believe this kind 

of intimidation is common. It is very painful for a producer, particularly the livestock industry, to have to have a project delayed 

30 days or 60 days, or a lot of times we see groups coming into 

court and saying you can’t turn out your cattle for another 30 days 

or 60 days because of an administrative appeal based on a term 

permit renewal. That is real money to real families, and that kind 

of intimidation is very, very difficult to deal with both financially 

when they have to hire me to intervene in the case as well as mentally and personally when your entire livelihood is on the line. 

Dr. GOSAR. I believe in common sense, but this is extortion. It 

is a form of extortion, and we need some common sense solutions 

all the way across the board. Thank you very much. 

The CHAIRMAN. The time of the gentleman has expired. The gentleman from Texas, Mr. Flores. 

Mr. FLORES. Thank you, Mr. Chairman. Mr. Chairman, thank 

you for calling this oversight hearing, and I want to remind everybody it is an oversight hearing, and I haven’t heard anybody in the 

conversations today advocate doing away with ESA. But in connection with any oversight hearing, it is good government to try to 

72 

look at the laws that are passed and to make sure they are being 

properly administered and interpreted, and so I am glad we are 

doing that today. 

Let me go into some other things. First of all, Mr. Leshy, your 

comments regarding Texas management of water rights are incorrect. I would suggest you go ahead and get updated as to where 

we are. We have some very protected water rights that even in 

some cases unfortunately trump private property rights, so I would 

encourage you to go get up to speed on that. 

I keep hearing this jobs versus jobs comment. I am a little troubled by that. Mr. Middleton, how many jobs were lost over the 

Delta smelt? 

Mr. MIDDLETON. Well, I think the latest figures—— 

Mr. FLORES. Just quick answers for everyone. 

Mr. MIDDLETON. Quick answer is several thousand. 

Mr. FLORES. OK. And then were any new jobs created as a result 

of that? Did we just magically create several thousand new jobs to 

offset those jobs? 

Mr. MIDDLETON. No. 

Mr. FLORES. OK. I didn’t think so. Same thing for you, Mr. Miller. Your project could have created some jobs, but I guess it didn’t. 

How many jobs have you estimated were lost because of the aggressive use of ESA? 

Mr. MILLER. We anticipated 250 to 300 during a six-to-ninemonth period of construction and then after that eight to nine permanent positions. 

Mr. FLORES. OK. And did some other jobs magically appear when 

your project got inhibited? 

Mr. MILLER. We just terminated it, so no, not at this point. 

Mr. FLORES. OK. So it is not a job versus job. These are real jobs 

by humans, and somewhere down the road I would like to see us 

talk about not only enhancing the use of the best scientific and 

commercial data in the ESA to also looking at the benefit of the 

physical and sociological and economic health of the human species. 

I think that would be an important change to look at. 

Now to my questions. Ms. Budd-Falen, one of the questions you 

were asked was about improvements that we could make to the 

ESA and one of them you said had to do with the listing timing 

I think. Any others just in a few seconds that you could list off, any 

improvements to the ESA? 

Ms. BUDD-FALEN. I think one great improvement would be using 

incentives to protect landowners and ranch owners to give them a 

benefit to having endangered species on their property rather than 

having endangered species on their private property seen as a detriment simply because they will be regulated to death. 

Mr. FLORES. OK. Anything else? 

Ms. BUDD-FALEN. I would like to see changes in the way the 

timeframes are issued or in limiting the number of petitions. When 

you have the Center for Biological Diversity boasting that it is 

going to present 1,000 listing petitions in a year, there is no way 

the Fish and Wildlife Service can deal with those in 90 days or a 

year. 

Mr. FLORES. OK. Could I request you to submit your recommendations in writing following this hearing? 

73 

Ms. BUDD-FALEN. Absolutely. 

Mr. FLORES. OK, so we can look at those. 

One of the other subjects that has come up is the Equal Access 

to Justice Act. What improvements can we make to that law? I am 

pretty sure we don’t have jurisdiction over that, but I would like 

to know what those are so that we can look at this too. 

Ms. BUDD-FALEN. Actually the discussion today has not been exactly correct on attorneys’ fees litigating under the ESA. Most of 

the attorneys’ fees we are talking about for citizen suit provisions, 

whether it is a listing challenge or a critical habitat challenge, 

come from the judgment fund. The judgment fund only requires 

‘‘prevailing parties’’. It doesn’t have anything to do with whether 

the government was substantially justified. It doesn’t have any of 

the other protections in the Equal Access to Justice Act. The judgment fund is a permanently continuing appropriation from the 

Congress and money checks are just written from it. 

Mr. FLORES. Could I ask you to submit your recommendations on 

how that ought to be administered as well? 

Ms. BUDD-FALEN. Yes, I would be happy to. 

Mr. FLORES. OK. All right. That would be great. 

And then, Mr. Middleton, any comments that you may have in 

terms of improvements to ESA or the use of government funds for 

litigation? 

Mr. MIDDLETON. Well, I would agree with the comments that 

have just been submitted. One other way that Congress may wish 

to address this issue is through making it more difficult to bring 

lawsuits in the first place. The Endangered Species Act, as has 

been recognized by Justice Scalia, ‘‘Its citizens supervision is an authorization of remarkable breadth when compared with the language Congress ordinarily uses.’’ 

So, if you look at statutes like the Clean Water Act, the Surface 

Mining and Control and Reclamation Act, those statutes and provisions make it more difficult I think to bring lawsuits, and that may 

be one way to do that. 

Mr. FLORES. OK. Thank you all for your time today. I yield back. 

The CHAIRMAN. The time of the gentleman has expired. The gentleman from California, Mr. Costa. 

Mr. COSTA. Thank you very much, Mr. Chairman. 

I know that we covered a number of the issues while I was gone 

on the situation involving the Sacramento-San Joaquin Delta area 

and the biological opinions. I guess Mr., is it Middleton, who else 

considers themselves to have some expertise in that area? OK, Mr. 

Suckling. 

After the two recent court decisions this year do you agree 

whether or not the—as some of us have suggested—that the two 

biological opinions on salmonid and smelt should be combined as 

they go back and attempt to address the rulings of the court? Mr. 

Middleton? 

Mr. MIDDLETON. I think that is one way of possibly looking at 

that, yes. I mean, in terms of combining the biological opinions, I 

do know that there have been ongoing discussions in terms of that, 

but it would be I think a more efficient way in terms of addressing 

species concerns rather than spending much time on each particular biological opinion. 

74 

Mr. COSTA. Especially when a lot of the conclusions seem to be 

in conflict from various outside scientific panels, whether it be the 

National Academy of Sciences or other workshops that have taken 

place at the California Water Institute at Fresno State. 

Mr. Suckling, what is your view on that? 

Mr. SUCKLING. Yes, I am not sure if in the future we do them 

separately or bring them together. I am not sure what changes 

there are. 

Mr. COSTA. All right, you are not sure. OK. 

Who here is familiar with the—the Chairman indicated the issue 

with regard to the Columbia River and the challenges they have 

had on the biological opinion. Who is the expert here on the panel 

on that? Mr. Suckling again. 

How many years has it taken to reset the various biological opinions on the Columbia River? 

Mr. SUCKLING. They have been continually sent back over a period of 10 years. 

Mr. COSTA. That is what I understand. I also have been told, I 

do not know if you would concur with this, that over $2 billion has 

been spent in attempting to reset these biological opinions. 

Mr. SUCKLING. I don’t have the exact number. It would not surprise me if it was that much. They keep getting it wrong and it 

costs money to go back and try to get it right the next time. 

The CHAIRMAN. Will the gentleman yield? 

Mr. COSTA. Yes, I will yield. 

The CHAIRMAN. It is in excess of billions of dollars when you put 

it all together. 

Mr. COSTA. Yes, and in the Columbia case they have a lot of 

water comparatively to the Sacramento-San Joaquin system, and 

they have money, i.e., WAPA, to fund these continuation to try to 

get it right, which I think one of the thing that frustrates me to 

no end is the lack of a comparative analogy between different efforts on different water systems in the west. It seems like every 

time we are trying to reinvent the wheel, and for most of the scientists I listen to it just does not make a lot of sense, especially 

when you take into account, as Mr. McClintock suggested, the outside factors that also impact the fisheries in these instances, and 

they seem to be left on the sideline as we are attempting to deal 

with this. 

Mr. Suckling, your organization filed what some say is the mother of all Endangered Species Act lawsuits against the EPA with regard to pesticides, not just for one species but over 200, is that correct? 

Mr. SUCKLING. Yes, sir. 

Mr. COSTA. Over 400 active ingredients, more than 27,000 pesticide combinations for consultations. What was the strategy or the 

agenda on this lawsuit as it relates to harm of any species or active 

ingredients? 

Mr. SUCKLING. Pesticide applications particularly as it is directly 

into waterways or working its way into the waterways. 

Mr. COSTA. And how much do you think it will cost the taxpayers 

to perform all of these consultations? How long do you think it will 

take? 

75 

Mr. SUCKLING. I don’t think it will be much expense to the taxpayer at all in the consultation. I think that if certain of these pesticides are either limited in their use or taken off the market there 

could be some cost to the pesticide manufacturers. 

Mr. COSTA. Do you believe in a notion of no risk? On risk assessment, risk management, is your goal zero risk? 

Mr. SUCKLING. No, sir. You can never get to zero risk. 

Mr. COSTA. So it has been extended, my understanding, the lawsuit, to 2012. When do you expect the case to be settled? 

Mr. SUCKLING. I don’t know if it will settle at all. We are in ongoing discussions. 

Mr. COSTA. Are you seeking buffer zones? 

Mr. SUCKLING. Excuse me? 

Mr. COSTA. Are you seeking buffer zones on restriction of affected 

use? 

Mr. SUCKLING. Well, if I were able to say how I think this should 

resolve ultimately, I think for some pesticides buffer zones should 

work. I think for other pesticides such as Atrazine—— 

Mr. COSTA. Are you seeking a ban or a restriction on restricted 

materials? 

Mr. SUCKLING. Some as a buffer, some should be banned. 

Mr. COSTA. And do you have any idea of the consequences or the 

cost to America’s food supply or food security? 

Mr. SUCKLING. I don’t believe it would jeopardize America’s food 

security at all, sir. 

The CHAIRMAN. The time of the gentleman has expired except 

under that logical extension there will be less farmers growing food 

it would seem to me. 

Mr. COSTA. Well, obviously the witness and I disagree on the impacts. 

The CHAIRMAN. Yes. 

Mr. COSTA. Because I think it would have an effect. 

The CHAIRMAN. I think it would too. 

Mr. COSTA. And I think we need to look at this carefully. Mr. 

Chairman, I thank you for taking the time to do this and look forward to working with you on this effort. 

The CHAIRMAN. The time of the gentleman has expired. The 

Chair recognizes the gentleman from Colorado, Mr. Lamborn. 

Mr. LAMBORN. Thank you, Mr. Chairman, and thank you for having this hearing. 

Mr. Suckling, I have a couple questions for you. Your annual report for 2010 states, ‘‘Where humans multiply extinction follows. 

The fact is as human numbers approach the 7 billion mark in 2011 

the planet cannot continue to sustain both an exponentially growing human population and the healthy abundance of other species. 

We need to keep our world livable for decades. Until the Center 

stepped into the discussion the environmental community has retreated from what it perceives to be the touchy politics of the overpopulation problem.’’ 

Mr. SUCKLING. Yes. 

Mr. LAMBORN. And you also put out a newsletter supporting policies that limit human population. Do you believe human zero population growth or even a reduction in the number of human beings 

76 

would be an effective way of protecting thousands of species that 

you are working on behalf of? 

Mr. SUCKLING. I do think that as we are eating up more and 

more land with development for more and more humans there is 

less and less space. So I do think, yes, human overpopulation is a 

significant environmental problem. 

Mr. LAMBORN. OK. Changing the subject, what do you think 

about efforts by states such as Colorado to breed endangered species under controlled conditions and then releasing them into the 

wild? 

Mr. SUCKLING. Captive breeding programs have been a very important and long-term part of an industry’s conservation, so they 

are generally good, sir. 

Mr. LAMBORN. So you don’t have any problem with that? 

Mr. SUCKLING. Well, it depends what the program is, but it is a 

well-known common tool that is used all the time to helpful purposes, yes. 

Mr. LAMBORN. OK. Well, I am glad to hear that. Does anyone 

else here have a problem with that type of program? 

Mr. SUCKLING. If you want, I could address the genetic fish issue, 

which is different. 

Mr. LAMBORN. No. If I had more than five minutes, I would. 

OK. And then would you agree with me—changing subjects entirely—that sometimes the classification of a species as a distinct 

species as opposed to a subspecies is a political decision rather 

than a scientific decision? 

Mr. SUCKLING. No, sir, I do not. 

Mr. LAMBORN. Are you familiar with the Preble’s Meadow jumping mouse—— 

Mr. SUCKLING. Yes, I am. 

Mr. LAMBORN.—versus the Bear Meadow jumping mouse, Bear 

Lodge? 

Mr. SUCKLING. I am, sir. 

Mr. LAMBORN. And the irony is that Wyoming fought the decision 

more vociferously than Colorado, so as you go north in Colorado 

you hit the Wyoming state line, and all of a sudden that species 

is no longer threatened. It is threatened one foot south of the state 

line, one mile south, but one mile north it is not threatened. To me, 

that is a political decision. 

Mr. SUCKLING. That is a political decision and it is one I believe 

that will soon be erased. 

Mr. LAMBORN. Oh, can you elaborate on that? 

Mr. SUCKLING. Yes. First I should say that decision was not 

based on a difference of the species. It was based on a policy that 

said we can choose to protect a species in one place, Colorado, but 

not another, Wyoming, so it really wasn’t really a taxonomic issue, 

that policy. 

Mr. LAMBORN. What is this controversy over the taxonomy of 

that? 

Mr. SUCKLING. It was studied by scientists broadly and they 

broadly agreed with the taxonomy of it. 

Mr. LAMBORN. No, no, the science was divided on that. There was 

no consensus. 

77 

Mr. SUCKLING. There was a single scientist who opposed it whose 

results were studied by the National Academy of Sciences and 

found to be lacking, so I think the science is clear on that. 

Mr. LAMBORN. I would disagree on that, but please continue with 

what you were saying. 

Mr. SUCKLING. Yes. So the point there is there was a policy decision that said we can choose to protect in some area, not other 

areas. That is what you are looking at with the difference between 

Wyoming and Colorado. That policy has been withdrawn by the 

U.S. Fish and Wildlife Service. It is no longer being used. And I 

think with that happening I suspect that the Preble’s Meadow 

mouse will be reviewed without that policy and will likely be listed 

throughout its range. That is my personal opinion. Fish and Wildlife Service will have to make its decision. 

Mr. LAMBORN. As opposed to being delisted throughout its range. 

Mr. SUCKLING. Oh, absolutely. It is a very imperiled species. I 

see no threat of it being delisted. 

Mr. LAMBORN. What if it is actually just a subspecies of the Bear 

Lodge Meadow jumping mouse? 

Mr. SUCKLING. It is not, sir. It has been well studied. 

Mr. LAMBORN. I totally disagree with you on that. 

Mr. SUCKLING. I understand, sir. 

Mr. LAMBORN. Do you see any irony in the fact that sometimes 

a species is threatened inside the United States, we talked about 

states having these arbitrary borders, what I consider arbitrary, 

but international borders can be the same way. The polar bear, the 

spotted lynx, they are thriving in Canada but not in the U.S. In 

fact, maybe sometimes these are marginal populations. I am thinking the farther south you go the less established they ever were no 

matter how far back you go, but to reintroduce them in the marginal areas is the goal of some people or shutting down development in those areas may be the goal of some people, and yet the 

farther north you go, especially when you cross into Canada, these 

same species are thriving. Do you see any inconsistency there? 

Mr. SUCKLING. Most of the declining populations of polar bears 

are in Canada. Polar bears are really not thriving in Canada, so 

I don’t see a problem there. 

Mr. LAMBORN. Or the spotted lynx? 

Mr. SUCKLING. However, let us assume an example of a species 

that is somewhere out, let us take that example. I think that we 

Americans want the responsibility to protect wildlife in our nation, 

and I think that we would be greatly harming to generations if we 

said we are going to drive the wolf extinct in America because it 

is doing well in Canada. 

Mr. LAMBORN. But isn’t the purpose—— 

Mr. SUCKLING. That would not be looked well upon. 

The CHAIRMAN. The time of the gentleman has expired. 

Mr. LAMBORN. Can I follow up with written questions for the 

record? 

The CHAIRMAN. Absolutely. I was going to make that announcement afterwards because I have several questions here that have 

come up that I want to follow up on. I know the time constraints. 

We want to give everyone an opportunity. 

Mr. LAMBORN. Thank you. 

78 

The CHAIRMAN. The Chair recognizes the gentleman from Texas, 

Mr. Gohmert. 

Mr. GOHMERT. Thank you, Mr. Chairman, and appreciate the 

witnesses all being here today. It looks like most of the witnesses 

haven’t been talking all that much, but there was an article published in High Country News yesterday by Ted Williams, and I 

think it bears consideration. This is Ted Williams, ‘‘It has taken me 

decades to be recognized as an environmental extremist. My attack 

on Alaska Republican Representative Don Young and National 

Rifle Association board member in Sierra Magazine fomented a 

mass exodus from Outdoor Riders Association of America, including 

79 members and 22 supporting organizations. I serve on two foundations that award major grants to groups defending wildland from 

developers and I ride a muckraking column for Audubon called Insight. Actually I am an extremist only as defined by people who 

perceive fish and wildlife as basically in the way. For those folks 

all environmentalists are extremists. But radical green groups do 

exist, and they are engaged in an industry whose waste products 

are fish and wildlife. You and I are a major source of revenue for 

that industry. The Interior Department must respond within 90 

days to petitions to list species under the Endangered Species Act. 

Otherwise petitioners like the Center for Biological Diversity get to 

sue and collect attorneys’ fees from the Justice Department. The 

Center also shakes down taxpayers directly from Interior Department funds under the Equal Access to Justice Act and from missed 

deadlines when the agency can’t keep up with the broad side of 

Freedom of Information Act requests. The Center for Biological Diversity has two imitators: WildEarth Guardians and Western Watersheds Projects. Kieran Suckling, who directs and helped found 

the Tucson, Arizona, based center, boasts that he engages in psychological warfare by causing stress to already stressed public servants. ’They feel like their careers are being mocked and destroyed 

and they are’, he told High Country News, ’so they become much 

more willing to play by our rules.’ 

‘‘Those rules include bending the truth like pretzel dough. For 

example, after the Center posted photos on its website depicting 

what it claimed was Arizona Rancher Jim Chilton’s cow denuded 

grazing allotment Chilton sued. When Chilton produced evidence 

the photos showed a campsite and a parking lot the court awarded 

him $600,000 in damages. Apparently this was the first successful 

libel suit against an environmental group, yet the case went virtually ignored by the media. ’Ranching should end’, proclaimed 

Suckling, ’good riddance’, but the only problem with ranching is 

that it is not always done right, and even when it is done wrong 

it saves land from development. 

‘‘Amos Eno runs the hugely successful Yarmouth, Maine, based 

Resources First Foundation, an outfit that among other things assists ranchers who want to restore native ecosystems. Earlier he 

worked at the Interior’s endangered species office crafting amendments to strengthen the law, then went on to direct the National 

Fish and Wildlife Foundation. Eno figures the feds could ’recover 

and delist three dozen species’ with the resources they spend responding to the Center for Biological Diversity’s litigation. A senior 

Obama official had this to say: ’CBD has probably sued Interior 

79 

more than all other groups combined. They have divested that 

agency of any control over Endangered Species Act priorities and 

caused a huge drain on any resources.’‘ 

Then the article goes on. It is very telling. Anyway, ‘‘Eno apparently said, ’The amount of money CBD makes suing is just obscene. 

They are one of the reasons the Endangered Species Act has become so dysfunctional.’’’ 

And I know in my first term here we were going to reform the 

Endangered Species Act because we had saved so few species, and 

so we worked so hard, and we had hearings like this, and we heard 

not just from one person on a panel but all kinds of sources, how 

can we save more species? And it appeared one of the things to end 

this unwritten policy that landowners, many of them have, of 

shoot, shovel and shut up was to stop taking their land and saying 

you can never use it again but pay them if the Federal government 

found a species that was endangered so they would have incentives 

to report them instead of killing them, and I couldn’t believe the 

onslaught that we took for trying to do that. 

So, by the end of it, the thing I wanted to get in the record, Mr. 

Chairman, it became clear that the assault on that effort to pay 

landowners for land we had taken away was not about saving species, it was an assault on private property rights, and I see my 

time has expired, so I yield. 

The CHAIRMAN. Well, I thank the gentleman for getting that on 

the record. There was some discussion on that issue with some of 

the other witnesses. 

The Chair recognizes the gentleman from Florida, Mr. Rivera. 

Mr. RIVERA. I yield back my time. 

The CHAIRMAN. Would you yield to me? 

Mr. RIVERA. Certainly. 

The CHAIRMAN. All right. I have just a couple of observations 

since I have some time. Mr. Miller, you responded to Mr. Flores’ 

I think inquiry about the number of jobs that would be lost with 

this project. Pacific County and Grays Harbor County are right in 

the middle of timber country. How many jobs were lost with the 

spotted owl in your county? Do you know right off the top of your 

head? 

Mr. MILLER. I do not have that information, although I believe 

in our general area the spotted owl was not as big an issue as in 

other parts of the State of Washington. 

The CHAIRMAN. But you did have mills though. 

Mr. MILLER. Yes, we did. 

The CHAIRMAN. And how many mills have been closed which 

would have—well, if you don’t have that right off the top of your 

head, that would be good to know. 

Mr. MILLER. Yes, sorry, I do not have that information. 

The CHAIRMAN. OK. Mr. Suckling, you mentioned I think to an 

inquiry by Mrs. Bordallo what your win percentage is and you said 

93 percent, is that correct? 

Mr. SUCKLING. Correct, sir. 

The CHAIRMAN. Is that 93 percent in court? 

Mr. SUCKLING. Yes, sir. 

The CHAIRMAN. So 93 percent, not settlements, only in court? 

Mr. SUCKLING. Well, no, including settlements and court cases. 

80 

The CHAIRMAN. Well, there is a distinction there. There is a huge 

distinction it seems to me. What is the win percentage in court as 

opposed to settlements? 

Mr. SUCKLING. If you just look at court orders, it is probably on 

the order of 80 percent, something like that. 

The CHAIRMAN. Eighty percent on settlements? 

Mr. SUCKLING. No, in court orders you just asked. I am sorry, sir. 

The CHAIRMAN. Court orders? 

Mr. SUCKLING. Yes. 

The CHAIRMAN. All right. We want to pursue that a little bit 

more closely and I will have some followup questions in that regard. 

To follow up on the line of questioning Mr. Amodei had about the 

recovery plans and whether they get revisited. Revisiting, is that 

subject to litigation? 

Mr. SUCKLING. Very rarely, sir. 

The CHAIRMAN. Is it subject to litigation? 

Mr. SUCKLING. It is an area that very few rules apply. There 

have been in the whole 30-year history of the ESA I am guessing 

10 or 12 lawsuits total. 

The CHAIRMAN. But it is subject to litigation then? Whether it 

has been exercised or not is a different issue. The question is, is 

it subject to litigation? 

Mr. SUCKLING. Anything in the Act is subject to anyone making 

a claim. Whether they can win or not is up to them. 

The CHAIRMAN. OK. All right. Well, with that, I want to thank 

very much the panel for being here for the length of time that you 

took, and clearly there is a great deal of interest on this issue. As 

I said at the outset, this is the first of a series of hearings we are 

going to have. 

As normally applies, and I alluded to this, and Mr. Lamborn alluded to this also, there are always followup inquiries that we 

would like to have of all of you. For example, Ms. Budd-Falen, Mr. 

Flores asked you to respond to him. If you would respond to the 

full Committee, I would appreciate that. We will see that Mr. Flores gets that information. 

But what I would really like to ask all of you, and that is, if 

there is an inquiry that comes from us, we would like to have a 

very, very timely response. Can you all assure me that—when I say 

timely I am looking at roughly 30 days. I know there may be some 

complexities, but can you assure me that any inquiry that comes 

from any of us you try to respond within a 30-day time period? 

Anybody that can’t? 

[No response.] 

The CHAIRMAN. OK, I will assume that as all affirmative. With 

that—I gladly yield to the gentleman. 

Mr. SABLAN. Thank you very much, Mr. Chairman. Mr. Suckling 

had a response to the article that Dr. Gohmert quoted. That was 

also published in the High Country News? 

Mr. SUCKLING. Correct, sir. 

Mr. SABLAN. I would also ask that this response be included in 

the record. 

The CHAIRMAN. That would be fine. Without objection. 

Mr. SABLAN. Thank you, Mr. Chairman. Thank you very much. 

81 

[The article submitted for the record by Mr. Suckling follows:] 

High Country News 

Suckling responds: Cashing in? Nope, just saving species every day 

by Kieran Suckling 

July 25, 2011 

Note: This is a response to a Writers on the Range column by Ted Williams, headlined ‘‘Extreme Green.’’ 

Industry-funded zealots are angling to prevent nonprofits from protecting veterans, children, workers and the environment. With the absurd argument that nonprofits are getting rich by making the government follow its own laws, they want 

to ensure that only the truly rich are able to take the government to court. 

Even those who should know better are drinking the Kool-Aid on this one, including outdoor writer Ted Williams, whose recent essay in High Country News’ Writers 

on the Range accused the Center for Biological Diversity of ‘‘shaking down taxpayers.’’ Cribbing from the Internet like a Fox News intern, Williams serves up industry propaganda with a side of his own trademark use of ‘‘anonymous’’ sources 

and dubious quotations. 

Laws to make working conditions safe, ensure our water is clean, and protect the 

rights of veterans and children only work when they are enforced. But often they 

are not because of industry pressure. Witness the complete dominance of the U.S. 

Department of Interior’s Minerals Management Service by the oil industry in the 

run-up to BP’s catastrophic oil spill in the Gulf of Mexico. 

American democracy guards against corruption by allowing citizens to sue the 

government. Now, taking on the government isn’t cheap. You have to go up against 

the entire Department of Justice. That’s easy for the oil industry, Wal-Mart and developers who have money to burn. Not so easy for the rest of us. 

To level the playing field, the federal government pays the legal fees of individuals, small businesses and nonprofit groups—but only if they win. If they lose, they 

pay their own way. 

In its campaign to revoke this essential equalizer, industry has launched a public 

relations war hinged on the big lie that nonprofits—especially environmental 

groups—are getting rich by ensuring that environmental laws are followed. 

The current darling of the propaganda machine is Ted Williams, who accuses the 

Center for Biological Diversity of filing petitions to protect hundreds of endangered 

species and then suing the government when it inevitably fails to rule on the petitions within 90 days. In Williams’ tightly scripted anti-environmental message, it’s 

a racket producing ‘‘a major source of revenue’’ for the Center. 

Nonsense. Between 2008 and 2011, the Center received legal fee reimbursements 

for an average of one case per year challenging the government’s failure to process 

endangered species protection petitions within 90 days. The average yearly total 

was $3,867; much less than the Center spent bringing the cases. Not exactly a getrich quick scheme. 

Rush to court? Every one of these suits was filed after the government missed its 

90-day protection deadline by months, and in some cases by over a year. I would 

submit that spending $3,867 of the federal government’s money to save the Mexican 

gray wolf, walrus and right whale from extinction is a bargain and a half. 

Williams dives completely into the propaganda sewer when he quotes an ‘‘anonymous’’ government official complaining of a Center petition to protect 404 rare 

southeastern plants and animals. The alleged ‘‘anonymous’’ source is allegedly outraged that the Center will file a slam-dunk nuisance lawsuit because the government can’t possibly study all 404 species in 90 days. 

In fact, the Center didn’t sue, even after the government missed its deadline by 

420 days. Instead we developed a plan with the U.S. Fish and Wildlife Service to 

ensure all these rare species get reviewed for protection in a reasonable amount of 

time. 

The 1,145-page petition, by the way, was written by three Center ecologists with 

contributions by a dozen academic scientists and scientific societies specializing in 

aquatic ecology. The $75,000 research project took a year of hard work and set the 

standard for state-of-the-art regional biodiversity assessments. Far from a nuisance, 

it is a massive contribution of critical scientific information to be used by state and 

federal wildlife agencies. 

Without providing any supporting data—not even an ‘‘anonymous’’ source this 

time—Williams goes on to charge that the Center is raking in the cash by suing 

‘‘for missed deadlines when the agency can’t keep up with the broadside of Freedom 

of Information Act requests.’’ 

82 

Hmm. In the past four years, the Center received legal reimbursements for exactly one Freedom of Information Act deadline suit and the amount we received 

($3,031) was far less than we spent forcing the Department of the Interior to come 

clean with the public over its offshore oil leasing program in the wake of the Gulf 

of Mexico disaster. 

The Center for Biological Diversity will keep expending vastly more resources ensuring the government follows its own wildlife protection laws than we’ll ever recoup. That’s fine with us, because making sure bald eagles, wolves, wolverines and 

owls have a place to live and grow is more important than money. 

It’s why we do what we do. 

Kieran Suckling is executive director of the Center for Biological Diversity, a national 

environmental group based in Tucson, Ariz., advocating for endangered species 

and the wild places they live. 

© High Country News 

The CHAIRMAN. With that, I would like to dismiss this panel and 

thank you very, very much for your patience and for your testimony. We look forward perhaps in the future to having all or some 

of you back on other issues. With that the panel is dismissed. And 

while I am dismissing the panel I would like the second panel to 

come forward: Mr. Dan Ashe, Director of U.S. Fish and Wildlife, 

and Mr. Eric Schwaab, the Assistant Administrator for Fisheries 

for NOAA. 

[Pause.] 

The CHAIRMAN. The Committee will come back to order and I 

want to welcome the second panel to this hearing. I want to thank 

Mr. Dan Ashe, who is the Director of U.S. Fish and Wildlife Service, for being here, and Mr. Eric Schwaab, who is Assistant Administrator for Fisheries for NOAA, for being here. 

You heard before your full testimony will appear in the record, 

and when the green light is on you are doing very, very well. When 

the yellow light comes on it means you have a minute left, and 

when the red light comes on it means that your time has expired 

and I would like you to summarize. So, with that, I am pleased to 

recognize Mr. Dan Ashe for five minutes. You are recognized, sir. 

STATEMENT OF THE HON. DAN ASHE, DIRECTOR, 

U.S. FISH AND WILDLIFE SERVICE, WASHINGTON, D.C. 

Mr. ASHE. Thank you, Mr. Chairman, and good afternoon now I 

guess it is. The Committee has my official statement, so I will use 

my time to make two general points today. 

First, regarding litigation, I think as you heard before, in the 

panel before, the U.S. Fish and Wildlife Service is an equal opportunity target. We are challenged frequently by industry, environmental and conservation organizations, states, tribes, local governments and individual citizens, obviously including several of the 

witnesses that have been testifying here today. 

For somebody in my position it is a source of frustration for sure. 

It can cause us to be too timid in embracing innovations. It can 

cause delay. But let me say with clarity that litigation is not our 

principal challenge in effectively implementing this important law. 

In fact, it is not even close. Our principal challenge is the escalating loss and conversion of habitat that is driven by growing 

human occupation of the planet. It is the expansion of exotic species invasions driven by globalizing trade and a paucity of resources to monitor its impact. It is the warming of the atmosphere 

83 

and the ocean that is changing the planet’s climate system and 

driving large-scale ecological disruption. 

We are challenged in accessing and applying state-of-the-art scientific information, and this is why we have requested funding to 

build a network of partner-managed landscape conservation cooperatives, and I am grateful for the support that we have received 

in this effort from both the Administration and the Congress. 

We are challenged by the escalation of political rhetoric around 

the Endangered Species Act. Certainly we can and we will improve 

this law’s implementation, but allegations that the law is broken 

and characterizations of good men and women who carry it out as 

zealots or worse is neither correct nor helpful in this endeavor. 

I believe that Congress enacted the law’s citizens suit provisions 

to ensure that we are held to the highest possible standard in its 

implementation, and they have generally served that purpose well. 

I would take one exception. The torrent of deadline-related cases 

over the past decade has had the unfortunate effect of distorting 

and delaying our biological priorities. However, I believe that we 

have addressed this in the recent multidistrict litigation settlement 

and with our requests to the Congress for a cap, an appropriations 

subcap on petition findings. 

My second point pertains to allegations that the Endangered 

Species Act and its attendant regulations result in job losses. Of 

course, by its very nature, the business of fish and wildlife conservation is about restraint and a desire to save some of what we 

have for the benefit of future generations. If we do great harm to 

the environment in pursuing our ambitions for wealth today, then 

we run the risk of impoverishing our children and grandchildren 

tomorrow. So, in its wisdom, Congress enacted laws like the Endangered Species Act which ask us to consult, to contemplate consequences and consider restraint. It asks us to make choices which 

are often very difficult but which in balance have proven healthy 

for the Nation and its economy. 

Today in the Mojave Desert construction is proceeding on the 

Ivanpah Project, the world’s largest solar facility. During construction an average of 650 Americans will be employed annually. When 

complete, 392 megawatts of American made clean, reliable, renewable energy will be produced. It is located within some of the highest quality habitat for the threatened desert tortoise. As the parent 

company raced to meet very hard financing deadlines for that 

project, our biologists stepped up. They worked nonstop, weekend 

upon weekend until the job was done. 

They are considering currently to list the dune sagebrush lizard 

as endangered, raising much concern in the Permian Basin oil 

fields of Texas and New Mexico which produce 17 percent of our 

domestic oil. Once again our employees are rolling up their sleeves 

in partnership with the states, the oil industry, the Bureau of Land 

Management and private landowners. They are developing candidate conservation agreements and candidate conservation agreements with assurances, and today we are approaching 2 million 

acres signed up in these voluntary conservation agreements, helping assure a healthy ecology for the lizard and healthy economy for 

west Texas, eastern New Mexico and the nation. 

84 

Mr. Chairman, these women and men are not job-killers. They 

are good Americans and exceptional public servants who bring a 

sense of patriotism, duty and professionalism to everything they do. 

They represent the very best in public service, and their examples 

are not anomalies. They reflect the dedication of all U.S. Fish and 

Wildlife Service employees who do outstanding jobs in carrying out 

important laws like the Endangered Species Act. 

Thank you for the opportunity to testify today, and I look forward to answering your questions. 

[The prepared statement of Mr. Ashe follows:] 

Statement of Dan Ashe, Director, 

U.S. Fish and Wildlife Service, U.S. Department of the Interior 

Good morning Chairman Hastings, Ranking Member Markey and members of the 

Committee. I am Dan Ashe, Director of 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 the Endangered Species Act (ESA), the challenges associated 

with carrying out those duties, and the benefits associated with the Service’s conservation mission. Our procedures, some prescribed by statute and others by agency 

regulations or policies, are all focused upon ensuring that our decisions are objective 

and based on the best available science. In addition, our listing and recovery plan 

decisions are made in the open with peer review and public participation throughout. 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 and complex 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 unprecedented challenge of climate change and its broad, complex impacts on species 

and habitat make it even more imperative to have an effective, collaborative approach to conserving imperiled species. 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 these factors, we 

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

Benefits of Conservation 

The health of threatened and endangered species is strongly linked to our own 

well-being. Millions of Americans depend on habitat that sustains these species— 

for clean air and water, recreational opportunities and for their livelihoods. By taking action to protect imperiled native fish, wildlife and plants, we can ensure a 

healthy future for our community. Our Nation’s history is deeply rooted in the conservation of our landscapes, and their value to the American people and our economy is clear. For example, the 2006 National Survey of Fishing, Hunting, and Wildlife-Associated Recreation, a Department of the Interior and Department of Commerce document, found that 87.5 million U.S. residents participated in wildlife-related recreation. During the survey’s period of review, 30 million people fished, 12.5 

million hunted, and 71.1 million participated in at least one type of wildlife-watching activity such as wildlife observation and photography in the United States. 

These 87.5 million people spent $122.3 billion on their activities. Of that, $37.4 billion was trip-related, $64.1 billion was spent on equipment, and $20.7 billion was 

spent on other items such as licenses and land leasing and ownership. Maintaining 

biological diversity, by protecting our nation’s threatened and endangered species, 

provides ecological, scientific, aesthetic, recreational, commercial, subsistence, social, 

cultural, and economic benefits to society. 

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. 

85 

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

coneflower. This was 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 law 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 stream fish 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 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 richness and promise. The ESA represents a firm commitment to safeguard our 

natural heritage for future generations 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. 

ESA Consultation and Habitat Conservation Planning 

Science is the foundation of our consultation and recovery activities under the 

ESA. 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 

their critical habitat. 

Habitat Conservation Plans (HCPs) under section 10(a)(1)(B) of the ESA provide 

for partnerships with non-Federal parties to conserve the ecosystems upon which 

listed species depend, ultimately contributing to their recovery. HCPs are planning 

documents required as part of an application for an incidental take permit. HCPs 

provide the conservation benefits of proactive landscape planning, combining private 

land development planning with species ecosystem conservation planning. Working 

in partnership is foundational for the Endangered Species program, because the conservation of the Nation’s biological heritage cannot be achieved by any single agency 

or organization. Essential partners include other Federal agencies, States, Tribes, 

non-governmental organizations, industry, academia, private landowners, and other 

Service programs and partners. Our collaboration with these partners foster solutions providing a balance between wildlife, energy, and other economic development. 

In recent years we have worked closely with energy developers to site pipelines, 

solar projects, and wind projects that will reduce our reliance on foreign energy 

sources and create jobs, while avoiding or minimizing impacts to threatened and endangered species. For example the NiSource pipeline HCP in the eastern U.S. is a 

partnership with 17 States and other stakeholders to develop a landscape level, 

multi-species HCP to avoid and minimize impacts to endangered and threatened 

species associated with construction, operation, and maintenance of its natural gas 

transmission lines and ancillary facilities running from Louisiana to Indiana, and 

Ohio throughout the northeast to Maine. This 15,500-mile planning area and associated one-mile corridor covers 6.4 million acres of land and has the potential to affect 

74 federally listed species. 

Another example is the Ruby Pipeline Natural Gas Project in Wyoming, Utah, Nevada, and Oregon. In the case of the Ruby Pipeline Project, the Service worked with 

the project proponent (Ruby Pipeline LLC), the Bureau of Land Management, the 

Forest Service, and State wildlife agencies to develop an ESA Conservation Action 

Plan, a Migratory Bird Conservation Plan, and various State mitigation plans to 

avoid, minimize, and mitigate adverse project impacts to listed and candidate species, species of concern, migratory birds, and other State species and habitats of concern. Ruby Pipeline LLC has committed about $1.7M, $2.8M, and $17M, respectively, to implement these plans. About $11M of that funding commitment is intended to address the conservation needs of the greater sage grouse to ensure the 

project does not contribute to the need to list this candidate species. 

Using the ESA consultation process, we also worked with the Bureau of Land 

Management on 12 approved high-priority renewable energy projects (solar and 

86 

wind) in 2010, and we have assisted in the approval of 11 high-priority renewable 

energy projects to date in 2011 (4 others are close to being approved). The Service 

is also implementing an action plan for supporting ESA compliance for renewable 

energy projects on private lands. This plan takes a 3-pronged approach to developing additional staff capacity so that the Service can provide support to private developers for renewable energy projects with HCP permit decisions completed in a 

timely manner. 

An integral component of this partnership is the increases in base-funding in FY 

2010 and FY 2011 that we obtained and the President’s 2012 budget requested an 

additional $2 million to support renewable energy projects. These resources provided 

the Service with much needed capacity to help guide energy projects through the 

permitting process, clearly showing that wildlife conservation, economic development, and job creation can occur simultaneously. For example, the California Habitat Conservation Planning Coalition estimated that regional HCPs in California 

alone will conserve almost 1.5 million acres of land, while permitting projects with 

a cumulative value of $1.6 trillion. 

Multi-District Litigation Settlements for the Listing Program 

The nature of ESA work often results in challenges to our decisions through the 

administrative, judicial, and political process. Overall, we believe the Service does 

an excellent job of making decisions that are scientifically sound, legally correct, 

transparent, and capable of withstanding challenge. Recently, questions have been 

raised about the costs of litigation. 

In an effort to reduce litigation and shift litigation-related resources to improving 

implementation of the ESA, the Service recently developed a 6-year work plan for 

the Listing Program through mediated settlement agreements of cases in Multi-District Litigation (MDL) with two of the Service’s most frequent plaintiffs, the Center 

for Biological Diversity and WildEarth Guardians. These cases are discussed in further detail below. As a result of those settlements, we now expect to be able to address the backlog of species awaiting final determinations for protection under the 

Act, and 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 6 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 higher priority listing actions. The Service 

will make listing determinations for each species, carefully reviewing scientific information and public comments before determining 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, Tribal 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 

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. In five of the states represented on this committee, Florida, Georgia, 

Louisiana, South Carolina, and Texas, roughly 240 private landowners have enrolled nearly 2.5 million acres of private forest lands in Safe Harbor agreements to 

aid the recovery of the endangered red-cockaded woodpecker. 

Litigation Costs 

We fully agree with the concern that our resources are better spent on implementing the ESA than on litigation. This was our intent in settling the Multi-District Litigation. With the work plan in place, WildEarth Guardians and the Center 

for Biological Diversity agreed to dismiss their pending lawsuits and agreed to provisions that should have the effect of limiting the number of new petitions and/or 

deadline lawsuits they would file during the same time period. The work plan allows 

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 the species most in need of ESA protection. 

87 

The two settlement agreements resolved 13 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 

fee award at this time. If the parties are unable to agree on the amount of fee 

awards, the court will determine the appropriate amount. 

Nationwide, in FY 2011, the Service spent approximately $1.24 million to manage, 

coordinate, track, and support ESA litigation. This does not include staff time and 

resources to prepare administrative records and other administrative expenses, nor 

does it include salaries and expenses related to litigation for the Department of the 

Interior’s Office of the Solicitor. Although we do not generally track this information, we identified approximately $134,156 paid out of Service funds for attorneys’ 

fees in FY 2010 and $15,833 in FY 2011. Our FY 2011 resource management allocation for listing and critical habitat was $20.9 million, of which we spent at least 

$15.8 million taking substantive actions required by court orders or settlement 

agreements resulting from litigation. For recovery and habitat conservation, which 

includes section 7 consultation, our resource management allocation was 

$143.1 million. 

Improving Implementation of the ESA 

We are committed to continually improving the ESA’s implementation in close collaboration with our partners. In addition to the 6-year work plan for the Listing 

Program, the Service and the NOAA Fisheries are working to improve implementation of the ESA by considering appropriate changes to our practices, guidance, policies, or regulations to enhance conservation of listed species. Our priority is to make 

implementation of the ESA less complex, less contentious and more effective by ensuring that key operational aspects of the ESA are current, transparent, and results 

oriented. 

We seek to accelerate recovery of threatened and endangered species across the 

nation while making it easier for people to coexist with these species. To improve 

the efficiency and effectiveness of the ESA in conserving endangered and threatened 

species, the Service and NOAA Fisheries have begun a renewed effort to identify 

areas where changes in ESA implementing regulations and policies may reduce burdens, redundancy, and conflict, and at the same time promote predictability, certainty, and innovation. This effort is guided by the following objectives, which conform with the principles espoused in President Obama’s Executive Order 13563, 

‘‘Improving Regulation and Regulatory Review’’ and the Service’s vision for the Endangered and Threatened Species Program: 

• Improving the effectiveness of the ESA to conserve imperiled species; 

• Making administrative procedures as efficient as possible; 

• Improving the clarity and consistency of our regulations through, among 

other things, the use of plain language and by providing more precise definitions of many of our key terms; 

• Encouraging more effective conservation partnerships with other Federal 

agencies, the States, Tribes, conservation organizations, and private landowners; 

• Encouraging innovation and cooperation in the implementation of the ESA; 

and 

• Reducing the frequency and intensity of conflicts when possible. 

The Service and NOAA Fisheries seek to be open and transparent in our efforts 

to improve ESA implementation through ESA regulatory reform and meet the goals 

of promoting public participation, promoting innovation, increasing flexibility where 

possible, ensuring scientific integrity, and continuing our analysis of existing rules 

as set forth in Executive Order 13563. 

Conclusion 

In closing, Mr. Chairman, America’s fish, wildlife, and plant resources belong to 

all of us, and ensuring the health of imperiled species is a shared responsibility. We 

are working to actively engage conservation partners and the public in the search 

for improved and innovative ways to conserve and recover imperiled species. 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 meaningfully 

participate. 

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. 

Thank you for your interest in endangered species conservation and ESA implementation, and for the opportunity to testify. 

88 

The CHAIRMAN. Thank you, Director Ashe. 

And I recognize Mr. Schwaab from NOAA. You are recognized for 

five minutes. 

STATEMENT OF ERIC SCHWAAB, ASSISTANT ADMINISTRATOR 

FOR FISHERIES, NATIONAL OCEANIC AND ATMOSPHERIC 

ADMINISTRATION, WASHINGTON, D.C. 

Mr. SCHWAAB. Chairman Hastings, Ranking Member Sablan, 

and Members of the Committee, thank you for the opportunity to 

testify today. I am Eric Schwaab and I serve as the Assistant Administrator for Fisheries at NOAA. 

The ESA requires the listing and protection of species that are 

determined to be endangered or threatened. Protecting and recovering ESA-listed species such as salmon and sea turtles are crucial 

to ensuring functioning marine ecosystems and providing recreational and economic opportunities for the public. At the same 

time, effectively executing mandates under the ESA through listing 

decisions, critical habitat designations, recovery planning and consultation is critical to the conduct of important business enterprises 

around the country. 

The National Marine Fisheries Service shares jurisdiction over 

the ESA with the U.S. Fish and Wildlife Service. We manage most 

marine species, including anadromous species such as salmon, and 

we currently manage 82 listed species and have proposed an additional 12 species for listing. 

Listings, delistings and changes in status to listed species may 

be initiated by our agency or by petition from any interested person. We make listing decisions solely on the basis of the best available scientific and commercial data available. We are also bound to 

follow, as you know, strict statutory timelines. 

Once a species is listed we are required to designate critical habitat for that species, promulgate protective regulations for threatened species and develop recovery plans that identify conservation 

measures to recover listed species. We work closely with other Federal agencies, state and local governments, territories, tribes and 

private entities to develop and implement conservation measures. 

The ESA also requires that Federal agencies proposing actions 

that may affect listed species consult with the National Marine 

Fisheries Service or the Fish and Wildlife Service to ensure their 

proposed actions are not likely to jeopardize the continued existence of the species or adversely modify critical habitat. This consultation process often concludes when we issue a biological opinion, which presents our best assessment of how the proposed actions would affect listed species and offers measures to minimize, 

take reasonable and prudent alternatives to avoid species jeopardy 

or adverse modification of critical habitat. 

The ESA does permit citizen suits, allowing any person to begin 

a civil suit on his or her own behalf. Much of the ESA litigation 

against NMFS to date has been focused on listings and listing-related decisions, the designation of critical habitat and on Section 7 

interagency consultations. Since 2008, there have been approximately 61 cases filed challenging listings, critical habitat actions 

and Section 7 consultations. Cases have been filed by nonprofit environmental organizations, state and local jurisdictions, industry 

89 

groups, tribes and private citizens. While litigation poses many 

challenges, it can also serve as a useful tool in surfacing concerns 

and bringing parties together. 

The ESA has been instrumental in preventing species from going 

extinct and facilitating steps toward conservation and recovery of 

listed species. Two examples I would highlight in our jurisdiction 

are the Kemp’s Ridley sea turtle and Pacific salmonids. 

Listed under the ESA since the law’s inception, the endangered 

Kemp’s Ridley has gone from fewer than 300 nesting females in 

1985 to more than 6,000 nesting females, and it is close to meeting 

one of the major recovery criteria for downlisting. Cooperative efforts with U.S. commercial fishermen through the development of 

turtle excluded devices has been instrumental in addressing major 

threats to the species. 

Currently 28 populations of Pacific salmon and steelhead are listed as threatened or endangered. Long-term habitat restoration and 

protection activities have begun to pay off, and now, with the exception of Puget Sound Steelhead and Central California Coast 

Coho, all populations with 10 or more years of abundance data are 

currently stable or increasing. 

Although we have made significant progress in recovering some 

species, we recognize the need to make ESA implementation more 

effective and efficient. We have been working closely in cooperation 

with the Fish and Wildlife Service to improve the clarity, consistency and transparency of various components of our regulations 

such as those pertaining to incidental take statements and critical 

habitat. We have placed particular emphasis on making the process 

for designating critical habitat more efficient and developing additional incentives for voluntary conservation actions. 

Additionally, in recognition of the special and unique relationships states play in protecting and managing listed species, we 

have created a joint Federal/state task force which has been working to address a number of policy issues. 

Mr. Chairman, I want to again acknowledge appreciation for the 

opportunity to be with you today. I would be happy to answer any 

questions you might have. 

[The prepared statement of Mr. Schwaab follows:] 

Statement of Eric Schwaab, Assistant Administrator for Fisheries, National 

Marine Fisheries Service, National Oceanic and Atmospheric Administration, U.S. Department of Commerce 

Chairman Hastings, Ranking Member Markey, and Members of the Committee, 

thank you for the opportunity to testify before you today on the Endangered Species 

Act (ESA). My name is Eric Schwaab and I am the Assistant Administrator for 

Fisheries, within the National Oceanic and Atmospheric Administration (NOAA) of 

the Department of Commerce. NOAA’s National Marine Fisheries Service (NMFS) 

is dedicated to the stewardship of living marine resources and the promotion of 

healthy ecosystems, through science-based conservation and management. As a 

steward, NMFS conserves, protects, and manages living marine resources, including 

those that are listed under the ESA, to ensure functioning marine ecosystems and 

recreational and economic opportunities for the American public. 

NMFS’s Role in Implementing the ESA 

The ESA (16 U.S.C. 1531–1543; P.L. 93–205, as amended) requires NMFS and 

the U.S. Fish and Wildlife Service (FWS) to list species that are determined to be 

endangered or threatened, and to subsequently protect those species and their habitats. Pursuant to a 1974 Memorandum of Understanding between the two agencies, 

FWS has management authority for terrestrial and freshwater species, while NMFS 

90 

manages most marine species, including anadromous species that spend most of 

their life cycles in the ocean. NMFS currently manages 82 listed species. We have 

proposed an additional 12 species to be listed and are evaluating the status of 94 

candidate species for potential listing under the ESA, including 82 species of coral. 

Section 4(a) requires NMFS to determine whether a species should be placed on, 

or removed from, the federal list of endangered or threatened species. Listings, delistings, and changes in status to listed species may be initiated by NMFS or by 

petition from any interested person. Once a petition is received, NMFS must, to the 

maximum extent practicable, determine within ninety days whether the petition 

presents substantial information that the petitioned action may be warranted. If 

NMFS determines the petition presents such information, we initiate a review of the 

species’ status and must determine whether to list the species within one year of 

receiving the petition. Should NMFS formally propose listing a species, we must 

make a final listing determination within one year of the proposal. Listing determinations are based on a rigorous status review. At the end of the status review, 

NMFS determines whether the species meets the threshold for listing. Listing decisions must be made solely on the basis of the best available scientific and commercial data available and follow a strict statutory timeline. 

Once a species is listed, we are required to designate critical habitat for that species, promulgate protective regulations for threatened species, and develop recovery 

plans that identify conservation measures to recover listed species. NMFS works 

with other federal agencies, state and local governments, tribes, and private entities 

to develop and implement measures in these plans. These plans allow NMFS to prepare better informed analyses, inform other federal agencies on how to use their authorities, and guide cooperation with states and other interested parties. 

The ESA also requires, through Section 7, that federal agencies proposing actions 

that may affect listed species consult with NMFS or FWS to ensure their proposed 

actions are not likely to jeopardize the continued existence of the species or adversely modify its critical habitat. This consultation process often concludes when 

NMFS issues a biological opinion, which presents NMFS’s assessment of how the 

proposed actions would affect listed species and offers measures to minimize take 

or reasonable alternatives that will not jeopardize the continued existence of the 

species or result in adverse modification to critical habitat. 

The ESA also permits ‘‘citizen suits,’’ allowing any person to begin a civil suit on 

his own behalf: 

(A) to enjoin any person, including the United States and any governmental entity or agency of the United States who is alleged to be violating any provision of the ESA or regulations issued pursuant to the ESA; 

(B) to compel the Secretary of Commerce or the Interior (the Secretary) to 

apply take prohibitions with respect to the taking of any resident endangered or threatened species within any State; or 

(C) against the Secretary where there is alleged a failure of the Secretary to 

perform any act or duty under Section 4 which is not discretionary. 

Much of the ESA litigation has been focused on: listing and listing-related decisions such as findings on petitions to list; whether and how to list a species; the 

designation of critical habitat; and Section 7 interagency consultations, including 

whether a consultation is required and the outcome of consultation. 

Since 2008, there have been approximately 61 cases filed challenging NMFS’s Section 4 listing and critical habitat actions and Section 7 consultations. The majority 

of the cases have been filed by non-profit environmental organizations, while others 

have been brought by state and local jurisdictions, industry groups, tribes, and private citizens. For those cases in which a final decision has been issued and the timeframe for appeal has expired, NMFS has prevailed fully in the majority of its Section 7 cases (8 wins, 1 loss, and 6 settlements). Likewise, NMFS has prevailed fully 

in most of its Section 4 cases (3 wins and 1 loss) and has also settled 5 cases involving a failure to meet the ESA’s statutory deadlines. The remaining cases are still 

pending in federal court. 

While litigation poses inherent challenges, in some circumstances it has served as 

a useful tool in bringing diverse interests to the table. Ultimately, in moving beyond 

litigation and bringing parties together toward implementation of recovery objectives, NMFS has seen great potential for species recovery. 

Improving the Prospects for Recovery of Species 

The ESA has been instrumental in preventing species from going extinct and facilitating progress in recovering listed species. Recovery plans, a requirement for all 

ESA-listed species, provide a roadmap for actions and funding priorities needed to 

remove the species from the list and ESA protections. While we still face a number 

91 

1https://scholarsbank.uoregon.edu/xmlui/bitstream/handle/1794/10791/bp13.pdf?sequence=1. 

of challenges, we have begun to see the benefits of sustained conservation efforts 

for some of our species. 

Kemp’s Ridley Sea Turtles 

Once described as the most imperiled of all marine turtles, by the 1960’s the 

Kemp’s ridley sea turtle had plunged to less than one percent of its historical population. Intense exploitation of turtle eggs and drowning of adult turtles in shrimp 

trawls were primarily responsible for the decline. Mexico established conservation 

programs in the 1960s to protect nesting females and their nests. In the United 

States, the Kemp’s ridley has been listed and protected as an endangered species 

since the inception of the ESA. NMFS and FWS have worked cooperatively with 

Mexico, and with U.S. commercial fishermen through the development of turtle excluder devices, to address the threats that caused the decline of Kemp’s Ridley sea 

turtles. The joint United States and Mexico recovery planning and conservation efforts have yielded benefits for the species. In recent years, we have observed an approximate 15 percent increase in Kemp’s ridley nests per year at the species’ main 

nesting beaches along the northeast coast of Mexico. In 1985, there were fewer than 

300 females nesting each year. Today there are more than 6,000 nesting females. 

Currently, the Kemp’s ridley is close to meeting one of the major recovery criteria 

for downlisting to threatened. 

Pacific Salmon 

Pacific salmonid populations are described as Evolutionarily Significant Units 

(ESU) for salmon and Distinct Population Segments (DPS) for steelhead. Seventeen 

ESUs and 11 DPSs of Pacific salmon and steelhead are currently listed as threatened or endangered under the ESA. While populations may vary from year-to-year, 

the long-term habitat restoration and protection activities of NMFS’s conservation 

and recovery efforts have assisted in sustaining the species through changing conditions by addressing major limiting factors for each ESU and DPS. With the exception of Puget Sound steelhead and Central California Coast coho, all ESUs and 

DPSs with ten or more years of abundance data are currently stable or increasing. 

NMFS has placed great emphasis on the recovery of Pacific salmon and recognizes 

the cultural, ecological, and economic significance that salmon play throughout the 

west coast. In the past several years, threats to Pacific salmon resulted in a consecutive three-year closure (2008–2010) of the once-thriving Pacific salmon fishery 

off the state of California. While this was a Magnuson-Stevens Conservation and 

Management Act closure, former Governor Arnold Schwarzenegger’s Administration 

estimated that the closure of the salmon fishery in California in 2008 and 2009 resulted in the loss of more than $500 million and cost nearly 5000 jobs, demonstrating the value of healthy salmon fisheries. 

NMFS has achieved substantial recovery benefits for Pacific salmon through grant 

expenditures made under the Pacific Coastal Salmon Recovery Fund (PCSRF), established by Congress in fiscal year 2000 to protect, restore, and conserve Pacific 

salmonids and their habitats, and to address the impacts of the Pacific Salmon 

Treaty Agreement between the United States and Canada. Under PCSRF, NMFS 

provides funding to states and tribes of the Pacific Coast region (California, Nevada, 

Oregon, Washington, Idaho, and Alaska) to implement habitat restoration and conservation projects focused on improving the status of salmonid populations. Over the 

past decade, the PCSRF has had a positive impact on both salmon recovery and 

local economies. A 2009 study by the Ecosystem Workforce Program of the University of Oregon, entitled ‘‘A Preliminary Estimate of Economic Impact and Job Creation from the Oregon Watershed Enhancement Board’s Restoration Investments’’ 

assessed the potential economic and employment impacts for watershed restoration 

activities proposed by the Oregon Watershed Enhancement Board. That study found 

that its proposed $40 million investment in watershed restoration projects would 

create or retain nearly 600 jobs and generate over $72 million in total economic activity in Oregon and leveraging additional funding could create or retain an additional 570 to 885 jobs and $71 to $110 million in additional total economic activity.1

An extrapolation of these figures indicates that every $1million invested in watershed restoration results in the creation of 29–37 jobs and a total economic impact 

of $3.6–4.5 million. 

Key accomplishments for PCSRF funded activities include: 

• PCSRF projects have restored, protected, and made accessible nearly 870,000 

acres of habitat. Degraded habitat is considered a major limiting factor in all 

areas where salmonid populations are listed along the Pacific Coast. 

92 

• Over 5,300 miles of stream have been opened by PCSRF projects since FY 

2000. 

• Nearly 240,000,000 fish have been marked supporting efforts to gather data 

for improved stock identification, more accurate fish abundance estimates, 

and more effective management of selective fisheries on hatchery fish. These 

markings improve harvest opportunities and provide economic benefits to 

communities throughout the region. 

Next Steps: Improving the Implementation of the ESA 

Regulatory Improvements. Although we have made significant progress in recovering some species, NMFS and FWS recognize that we can make implementation 

of the ESA more effective and efficient. In that regard, NMFS and FWS have been 

working cooperatively to improve the implementation of the ESA. In 2009, the 

NMFS and FWS sought public comment on potential changes to the Section 7 interagency consultation joint regulations. In response to these comments, to reflect lessons learned since these regulations were last updated in 1986, and as part of the 

Department of the Interior and the Department of Commerce’s implementation of 

Executive Order 13563, ‘‘Improving Regulation and Regulatory Review,’’ NMFS and 

FWS are developing joint regulations to update the ESA Section 7 implementing 

regulations. Specifically, we are working to define ‘‘destruction or adverse modification of critical habitat,’’ which is used to evaluate whether and how federal activities 

can occur in critical habitat, and clarify the scope and content of the incidental take 

statements that are developed following a formal Section 7 consultation. These regulatory changes would make the Section 7 consultation process more consistent. In 

addition, clarifying the scope and content of the incidental take statement, particularly with regard to programmatic actions or other actions where direct measurement is difficult, will provide greater flexibility in the quantification of anticipated 

incidental taking. Ultimately, this could reduce the burden of developing and implementing biological opinions without any loss of conservation benefits. 

The regulatory component of this initiative also includes updating the regulations 

governing the process for designating critical habitat for listed species to design a 

more efficient, defensible, and consistent process and developing additional incentives for voluntary conservation actions under the ESA. 

Increased Cooperation with the States. Section 6 of the ESA recognizes the unique 

role States play in wildlife conservation. In recognition of the special and unique relationship among the States, FWS, and NMFS in protecting and managing fish, 

wildlife and plants, the NMFS and FWS have created a Joint Federal/State Task 

Force on Endangered Species Act Policy. The Task Force serves as a forum to cooperatively identify and address issues of national significance and to jointly develop 

recommendations concerning those issues in implementing the ESA. As part of this 

Task Force’s activities, the NMFS and FWS have reaffirmed the statement of joint 

policy, ‘‘Endangered and Threatened Wildlife and Plants: Notice of Interagency Cooperative Policy Regarding the Role of State Agencies in Endangered Species Act 

Activities’’ (Federal Register, July 1, 1994, vol. 59, page 34275), which outlines the 

process for cooperating with, and seeking the input of the States in prelisting conservation activities, listing decisions, interagency consultations, and habitat conservation planning. 

Increased Public Involvement. NMFS also recognizes that some species recovery 

activities are particularly controversial to the public and has taken steps in these 

circumstances to increase outreach to affected communities to explain our underlying conclusions about activities’ impacts on protected species. Additionally, while 

all our decisions are guided by the best available science, we understand that the 

science related to many of our decisions evolves rapidly and as such have engaged 

external scientists in review of some of our broader-reaching consultations or decisions. In short, we understand that, by engaging affected communities/industries in 

our decision-making, we can achieve enduring species recovery success. 

Conclusion 

In conclusion, it is important to note that the ESA should not be evaluated solely 

by the number of species that have fully recovered and been removed from the list 

of threatened and endangered species. The ESA has been successful in stabilizing 

endangered and threatened species by addressing threats that caused their decline 

and promoting conservation programs that are designed for their recovery. By 

strengthening partnerships with states and others and maintaining our research 

and management efforts, we are best suited to promote the ecological, cultural, and 

economic benefits inherent in many of our listed species. 

Thank you again for the opportunity to testify today. I would be happy to answer 

any questions. 

93 

The CHAIRMAN. Thank you, and I particularly thank your last 

sentence there, and the reason I say that, I stated at the outset 

this is going to be the first of a number of hearings, and I just want 

to tell you that in all likelihood you will have another opportunity 

in the future, and I look forward to that as much as, Mr. Schwaab, 

you said you look forward to it very cheerfully. 

I have a question for both of you, and the issue as you know of 

this hearing was the litigation aspect of it. We will pursue other 

areas in the future. But the WildEarth Guardians’ 2010 annual report lists the U.S. Fish and Wildlife Service and the U.S. Forest 

Service and the EPA and sources of grants that they use for their 

programs. Other organizations, including Trout Unlimited, have received funding directly or indirectly from NOAA. 

Can each of you describe the amount of grants that your agency 

distributes each year to entities that ultimately file ESA-related 

lawsuits against the Federal government? And if you do not have 

that right now, give me a general idea and pursue that. Mr. Ashe. 

Mr. ASHE. Mr. Chairman, we can get that information for you for 

the record. I cannot even put an estimate on it, but I would say 

that people that sue us include environmental organizations, it includes states, and we give over a billion dollars a year in grants 

to our state partners and they too are among the people who take 

us to court on occasion. And so, as I said, that would reach just 

about the entire breadth and depth of our partners in conservation 

if we looked at litigation as a potential consideration in our grantmaking. 

The CHAIRMAN. Mr. Schwaab? 

Mr. SCHWAAB. Mr. Chairman, I am in exactly the same position 

as Mr. Ashe, and we would have to provide you some information 

for the record. 

The CHAIRMAN. Well, let me make an editorial. I am not asking 

you, because this is a policy question, but it strikes me, recognizing 

that tax dollars that go to grantees is fungible, and so on the one 

hand, in many respects, you could argue, and I think very logically, 

that grant money is used to bite the hand that feeds it so to speak, 

and I just think if you were to walk out into any main street in 

America and say do you think it is right to give grants to entities 

that turn around and sue the Federal government regardless of 

what that percentage is, do you think that is correct, and I think 

that probably in most cases you would not get an affirmative answer that that is the correct thing to do, yet that is where we are. 

So that information that you give us would be very, very helpful 

I think in that regard regarding the way that I see this and probably most Americans see it. 

One issue, we heard about the gray wolf and of course we 

amended the Endangered Species Act as it relates to the gray wolf, 

and when that recovery act was put in place all of Washington and 

Oregon were listed together. Now Washington, well, I know Washington, I can’t specifically say Oregon, but I know Washington now 

that area is separated by a highway. Now, if it is so hard to make 

a delisting in a larger area, how is it going to be easier to make 

a delisting now when we are separating those areas by highways? 

Mr. ASHE. Mr. Chairman, we made a delisting determination 

based upon the distinct population segment that we had listed, and 

94 

so when we delisted the wolf we delisted those portions of Oregon 

and Washington that were within that distinct population segment, 

and so that leaves, as you know, the western two-thirds of the state 

wolves potentially in a listed status. 

We are currently doing a status review for that area and so what 

we would do is again look at the question of whether that constitutes a separate and distinct population unto itself, and if not, 

whether we should consider delisting the wolf in that portion of the 

state. The State of Washington has just developed a very strong 

wolf management plan for the wolves in Washington, so we are 

very much encouraged by the professionalism of the state. 

The CHAIRMAN. Would that action that you just described be subject to litigation? 

Mr. ASHE. It would be. 

The CHAIRMAN. It would be subject to litigation. 

Just to follow up, and I will make an editorial comment, and this 

follows the line of questioning of Mr. Lamborn in the last panel. 

The gray wolf, as you know, is thriving in two other states, and 

presumably it is of the same species. You talked about subspecies. 

I might have a philosophical argument with that. But again, if you 

walk down the street of anybody in America and say the gray wolf, 

which resides in the Pacific Northwest, is that part of a larger 

same species, I think you would probably in more cases than not 

get an affirmative answer that it is. 

So my time has expired. I recognize the gentleman from the 

Northern Marianas, Mr. Sablan. 

Mr. SABLAN. Thank you very much, Mr. Chairman, and good 

afternoon, gentlemen. 

I have a question for you and I will go directly to Mr. Schwaab 

actually, and thank you what you do, sir. I met with your deputy 

regional director yesterday. I met one of your staff from Oregon, 

yes, from Fish and Wildlife, and I asked him for something. I 

would appreciate a response to that eventually. 

But Mr. Middleton, one of our earlier witnesses who is a lawyer, 

said earlier that hatchery and wild salmon should be counted together. So, if the salmon population, for example, were composed 

completely of hatchery fish, wouldn’t it be more vulnerable to collapse, causing these devastating impacts to fishermen and to the 

coastal communities? 

Mr. SCHWAAB. Thank you, Mr. Sablan. If I could just expand a 

little bit on some of what was discussed. I mean, the short answer 

to your question is yes, hatchery fish without the genetic diversity 

that naturally occurs could lead to increased vulnerability and risk, 

particularly given the kinds of natural variability and oscillations 

that occur over periods of time that we heard referenced earlier. 

I would say that we do in many cases and have over the years 

worked very closely with hatchery operations to improve the 

rearing methods with respect to the kinds of genetic diversity that 

you seek that would allow and does allow in many cases hatchery 

fish to be counted in some of these listing and recovery decisions. 

So the situation is not quite as cut and dried as hatchery fish don’t 

count. Appropriately reared and appropriately diverse genetically 

fish do count in many cases for the kind of work that we are talking about here today. 

95 

Mr. SABLAN. All right, thank you. 

Let me ask you, Mr. Schwaab and then Mr. Ashe, the same question. Is there a direct relationship between your budgets and your 

ability to protect species? If you were provided with more funding, 

for example, would you be able to do more to recover species and 

work with the states and the territories and stakeholders to implement the goals of ESA? 

Mr. SCHWAAB. Yes, sir. In addition to of course the listing and 

recovery planning discussions that have been much in front of the 

Committee here today, we work extensively both directly and with 

partner organizations, including states, tribes and territories too, to 

foster habitat recovery, habitat restoration and protection that is 

sort of the underlying foundation on which all of these species protection and recovery efforts depend. We have worked very hard and 

frankly struggled to provide the kind of funding necessary, particularly to support partners in some of those habitat restoration 

efforts. 

Mr. SABLAN. Thank you. Mr. Ashe? 

Mr. ASHE. I would agree, and I would point you to the President’s proposed 2012 budget, and I think in the President’s budget 

we proposed increases across the fabric of our programs that would 

support endangered and threatened species recovery both within 

our endangered and threatened species program but also in areas 

like the state and tribal wildlife grants. The President proposed 

$95 million for the state and tribal wildlife grants so that it would 

help continue to support and expand capacity within our state and 

territorial partners and also full funding for the land and water 

conservation fund so we would have the ability to go into great 

landscapes like the Rocky Mountain Front in Montana and work 

with the ranching community there to put easements on top of 

their property so they can continue a way of life, but we can also 

work with them in the conservation of species like the grizzly bear 

and the bull trout. 

Mr. SABLAN. Yes. My time is running out, so let me, Mr. Ashe, 

let me continue with you. Mr. Miller earlier, who was seated in the 

chair right next to you, with the Public Utility District No. 2, Pacific County in Washington State, he earlier said that hoping to 

avoid repeating what happened with the Radar Ridge Energy 

Project, is the Radar Ridge the exception or the rule, and do you 

have any examples of how consultation processes on renewable 

energy projects went smoothly? 

Mr. ASHE. I do believe Radar Ridge is quite the exception. I think 

we had a situation there where we had a project proponent who 

proposed a project in absolutely the worst location they could propose it in from the standpoint of marbled murrelets and then presented us with a timeframe with which we simply could not work 

within and asked us to do a categorical exclusion under the National Environmental Policy Act which we could not support administratively. And so I think that does represent the exception. 

In my testimony we make reference to the Ruby Pipeline, which 

will employ more than 5,000, is employing more than 5,000 Americans now in the construction of that project. That is an example of 

where an applicant came to us early, worked with us diligently and 

got the approvals that were necessary to put that project on the 

96 

ground. In my oral statement, I mentioned the Ivanpah Project, 

solar project, which was another example of a very difficult project 

but which we were able to get across the finish line because we had 

an applicant who was willing to work with us and do what was 

necessary. 

The CHAIRMAN. The time of the gentleman has expired. Maybe 

we ought to throw the Keystone Pipeline in there since we are talking about pipelines. The gentleman from Nevada, Mr. Amodei. 

Mr. AMODEI. Thank you, Mr. Chairman. 

Mr. Schwaab, coming from a state without a coastline, you can 

go ahead and relax for the next five minutes, OK? 

Mr. Ashe, thank you for coming today. I was reviewing your 

statement and I want to thank you for including the benefits of 

conservation, talking about some economic data in there, and you 

had some stuff talking about folks who fished, folks who hunted, 

that sort of thing, but I didn’t see any tie in there to Federal lands. 

Was that just generic data for the U.S. or was there a tie to Federal lands in there? 

And let me tell you why I ask the question, and it is not going 

to come as a surprise to you, but as a district that is 85 percent 

owned by the Federal government, many of your partners on the 

Federal side, I just wanted to see if there had been a look at what 

the impact was, especially in a jurisdiction like that district which 

is so pervasively under Federal ownership. 

Mr. ASHE. The data that was referenced is the survey, five-year 

survey on fishing and hunting, and that is all lands across the 

country. 

Mr. AMODEI. OK. Thank you. And I want to thank you for mentioning that what us old folks in Nevada call the sage hen, but I 

believe back here it is known as the sage grouse, for your continuing work on that and look forward to continuing that with you. 

There was some discussion earlier about conservation plans, and 

these are my words, nobody else’s, but how living of a piece of your 

management tools they are, and I will do my own homework, won’t 

take this time, but how much of what you do in conservation plans 

is a result of existing statute in terms of the ESA, or is that pretty 

much handled by regulation or local policy, or what is the basis for 

when you revisit, if there are triggers for revisitation, just how that 

process works. 

Mr. ASHE. You mean if we delist a species? 

Mr. AMODEI. I am just talking about modifying the plan because 

we had a lot of discussion earlier about listing. It is a 150-year 

timeframe, and that is what it is. We didn’t get there overnight 

and that sort of stuff. So if somebody was interested in saying, hey, 

congratulations, and by the way I was gratified to see that at least 

for the examples it is like those were meeting mission if you will, 

whether there is any sort of automatic trigger or what the appropriate mechanism is, if it exists in statute, for saying, hey, Mr. Director, can we take a look at the XYZ species based on the information we believe is available at the moment. 

Mr. ASHE. Well, with regard to species, we do five-year status assessments, so we look at the status of a species every five years. 

With regard to conservation agreements, so when we are working 

with private landowners or companies and we put together a canVerDate Nov 24 2008 14:08 Feb 19, 2013 Jkt 000000 PO 00000 Frm 00100 Fmt 6633 Sfmt 6602 L:\DOCS\71642.TXT Hresour1 PsN: KATHY
97 

didate conservation agreement with assurances the important part 

is the ‘‘with assurances’’ part, and that is that if that species is listed, so say sage grouse, if we were to list the sage grouse and we 

had a candidate conservation agreement with assurances with a 

landowner, then they have assurance that what they are doing in 

the context of their agreement is good for the duration. We don’t 

come back to them at a later point in time and do a reassessment 

and ask them to do more. 

Mr. AMODEI. OK. And finally you had mentioned in your earlier 

testimony how important it is the timing of somebody showing up 

to you with a potential project in terms of working from the inception. Is that something that just happens to be folks who are 

plugged in appropriately that show up early in your offices out 

there, or is there anything, or would it be helpful I guess to have 

a tool that requires a preapplication, whatever the right nomenclature meaning is, to get on the radar screen if you will early as 

opposed to you want it bad, you get it bad? 

Mr. ASHE. Right. It is always better to have better information, 

and I think the tragedy in the Radar Ridge case is we had that information, so it was clear that that project was being proposed in 

an area that had been identified in the state’s habitat conservation 

plan as an area of high importance for the marbled murrelet. But 

where we have that information, that is the most important thing. 

If we can get a project sited properly at the get-go, we are much 

more successful at getting the project across the finish line. 

I mentioned landscape conservation cooperatives. That is one of 

the tools that we have proposed to pull together states or data, 

working with our state and other partners so that we will have better capacity in the future to do just that and start, as Bob Abbey 

in the BLM says, be smart from the start. 

Mr. AMODEI. Thank you. 

The CHAIRMAN. Will the gentleman yield the final minutes? 

Mr. AMODEI. Yes. 

The CHAIRMAN. Director Ashe, you said that that was a badly 

placed project here, and as a condition of Energy Northwest siting 

that project, they had to do extensive review with the Washington 

State Department of Natural Resources specifically on how it 

would interact with ESA and the marbled murrelet, and the results 

of that environmental assessment that was peer-reviewed I might 

add, peer-reviewed, the studies concluded that the project was not 

likely, not likely to have a significant adverse impact on the marbled murrelets or other sensitive species, and that was a peer-reviewed study. 

So I just want to make that part of the record because your testimony suggested exactly the opposite, and this was a condition by 

which Energy Northwest had to proceed forward on the siting of 

this project. 

The Chair recognizes the gentlelady from Hawaii, Ms. Hanabusa. 

Ms. HANABUSA. Thank you, Mr. Chair. Thank you both for being 

here. 

In Administrator Schwaab’s position statement, he says that the 

NMFS and the U.S. Fish and Wildlife Services are to list species 

and to determine them to be endangered or threatened and to subVerDate Nov 24 2008 14:08 Feb 19, 2013 Jkt 000000 PO 00000 Frm 00101 Fmt 6633 Sfmt 6602 L:\DOCS\71642.TXT Hresour1 PsN: KATHY
98 

sequently protect those species and their habitats, and that is a 

mandate for both of your departments. 

Now, in that light, when I reviewed Director Ashe’s statement, 

Director Ashe, you talk about habitat conservation plans under the 

ESA, and then you also mention ESA conservation action plans 

with the Bureau of Land Management and various other parts of 

the Department. I am just curious as to whether these are specific 

terms of art and they refer to different kinds of conservation plans. 

Mr. ASHE. A habitat conservation plan is a statutory term of art, 

so in Section 10 of the law where we are authorized to issue permits for incidental take associated with otherwise lawful activities, 

so if you are a private party and were undertaking an activity that 

was otherwise lawful and would take endangered species, we can 

authorize you to do that if you develop a habitat conservation plan 

to minimize the effects of that take. 

And a candidate conservation agreement is an administratively 

created instrument that allows us to work with a Federal agency 

or another party to promote conservation of a candidate species before it gets on the list, so it is a way that we try to get ahead of 

the curve and try to deal with species conservation issues early. 

Ms. HANABUSA. So when we hear the words ‘‘endangered habitat 

area’’, is that different from the habitat conservation plan when it 

is designated endangered habitat in other words? 

Mr. ASHE. Critical habitat. 

Ms. HANABUSA. Critical habitat, right. 

Mr. ASHE. Critical habitat is another function of the law. When 

we list a species the law asks us to identify the critical habitat for 

that species, and generally the law commands us to do that. There 

are some cases in which we can decline to if we determine it is not 

prudent to determine critical habitat, but in general the law asks 

us to define critical habitat. 

Critical habitat is not a protected area. It doesn’t set up a refuge 

or a reserve of any kind. It simply is an indication of what are the 

physical attributes of habitat that are important for the survival 

and recovery of the species, and there are restrictions against Federal agencies for adversely modifying or destroying critical habitat, 

so it doesn’t apply to private landowners unless they are applying 

to the Federal government for some form of assistance or authorization. 

Ms. HANABUSA. So, in Administrator Schwaab’s statement, he 

talks about the ESA and 16 U.S.C. § 1531 through 1543 that requires the list and then their habitat. So that is what you are talking about now, the endangered habitat. I mean the critical habitat. 

So now we have critical habitats which are just a designation, and 

then we have habitat conservation plans, and there is this ESA 

conservation action plan that you also referenced. So out of all of 

those, which is the most restrictive plan that one could be subjected to? 

Mr. ASHE. I don’t think it is—I mean, they are all actually—habitat conservation plan is a permissive plan, so when you develop a 

habitat conservation plan, it allows you to take, to do something 

that is otherwise unlawful to take an endangered species, so it is 

not a restrictive plan, it is a permissive plan. 

99 

A critical habitat is not a plan at all. It is simply a factual identification of habitat that is critical to the survival and recovery of the 

species, so it is not a plan, it is an identification. 

A candidate conservation agreement I would say again is not a 

plan. It is an agreement between two parties, the U.S. Fish and 

Wildlife Service and the Bureau of Land Management or the U.S. 

Fish and Wildlife Service and a private landowner, and so those 

are voluntary agreements. 

Ms. HANABUSA. Thank you. Mr. Chairman, my time is up, but 

could I request that they sort of give us a chart that I can easily 

follow? 

The CHAIRMAN. Absolutely. I think that would be very, very helpful and I would ask you to provide that again for the full Committee, and we will certainly see that you all get it. That is a good 

suggestion. 

Ms. HANABUSA. Thank you very much. 

The CHAIRMAN. The gentleman from California, Mr. McClintock. 

Mr. MCCLINTOCK. Thank you, Mr. Chairman. 

Mr. Schwaab, I am sorry I wasn’t here for your testimony, but 

I understand you are one of those folks who believes that fish 

hatcheries are a really bad idea because of the effect on natural selection. Would you elaborate on that? 

Mr. SCHWAAB. Thank you, Congressman. Actually what I said a 

few minutes ago is that contrary to some of the earlier testimony 

there are a number of circumstances under which hatchery-reared 

fish can be and are included in listing and recovery decisions. 

Mr. MCCLINTOCK. Well, that is certainly not true in my neck of 

the woods. Everything from the Klamath to the Sacramento Delta 

has been severely impacted by regulatory restrictions that could 

easily be met if we simply in the case of the Klamath, simply recognize the 5 million salmon smelts that are being produced every 

year at the Iron Gate Fish Hatchery, 17,000 of which are returning 

as fully grown adults to spawn, presumably after years of the laws 

of natural selection working on them, provides a much larger genetic pool for those forces to work upon, which is the very essence 

of natural selection. 

Mr. SCHWAAB. So we have worked very closely with hatchery operators to improve the use of hatchery operation in a way that—— 

Mr. MCCLINTOCK. You are trying to tear down the Iron Gate 

Fish Hatchery in the name of declining salmon populations. That 

is what will cause the catastrophic decline in the salmon population. 

Let me ask you this. What is the genetic difference between a 

hatchery fish and a fish born in the wild? 

Mr. SCHWAAB. So you mentioned earlier, sir, some of the Pacific 

oscillations and the decadal cycles that we see at play, and I think 

one of the important things to recognize is that salmon species, in 

particular across the West Coast, have evolved over thousands and 

thousands of years under those kinds of oscillations and have developed genetic mechanisms and the kind of genetic diversity that 

allows them to rebound and recover as those changes occur. 

Mr. MCCLINTOCK. Which are repeated in the genetic composition 

of the hatchery fish. I will put the question to you again. Is there 

100 

any genetic difference between a hatchery fish and a fish born in 

the wild? 

Mr. SCHWAAB. There absolutely can be. It depends upon the parentage. 

Mr. MCCLINTOCK. And then depends upon the laws of natural selection working on those genetic differences to improve the species. 

I mean, that is the whole essence of evolution. 

Mr. SCHWAAB. But if you constrain that population down to 

where it largely emerges from a small set of parents, then you have 

naturally eliminated a lot of that genetic—that has evolved. 

Mr. MCCLINTOCK. Would you then recommend that we destroy a 

fish hatchery such as I have just described in favor of improving 

the lot of salmon populations on the Klamath? 

Mr. SCHWAAB. So I would recommend that where we are using 

hatchery-based fish to enhance natural populations that we do that 

in a genetically appropriate and responsible manner, and where we 

are using hatchery fish solely to enhance commercial fishing opportunity or recreational fishing opportunity that we recognize the 

limitations that those fish face in dealing with the kind of longterm declines that you referenced. 

Mr. MCCLINTOCK. Well, there is no commercial attractiveness of 

the Delta smelt, and yet meeting ESA requirements in the Sacramento Delta have absolutely decimated Central Valley agriculture. I am sure you are aware of that. Instead of imposing all 

of these extraordinarily expensive restrictions, which have by the 

way had little or no effect on the Delta smelt population, simply 

providing the fish hatcheries necessary to enhance that population 

would assure an abundance of this species with the genetic diversity necessary for the laws of natural selection to apply. 

Mr. SCHWAAB. I think you have the potential in the use of hatcheries for restoration if you are attentive to those genetic diversity 

challenges. 

Mr. MCCLINTOCK. I think here is the nub of the problem. There 

is a certain lack of reasonableness, a certain lack of flexibility and 

absolutism to the point of political extremism with which these 

laws are being applied that are devastating our economy and doing 

little, if anything, to improve the populations which we have within 

our power to improve simply by doing what we did to bring back 

the buffalo population, the California condors, African elephants. 

You can go through a long, long litany I suppose dating back to the 

earlier testimony involving Noah’s ark. Noah did bring those animals into his care, brought them into captivity. I don’t recall anything specifically in the text about it, but I have to assume since 

there was two of everything there was some breeding going on in 

that state of captivity, and it worked out just fine. 

Mr. SCHWAAB. I must say, sir, that is a different Noah. 

The CHAIRMAN. The time of the gentleman has expired. The gentleman from Florida. 

Mr. RIVERA. Thank you, Mr. Chairman. I recognize as well the 

importance of preserving wildlife for future generations of Americans. However, I also believe there are some areas in the Endangered Species Act that need to be enhanced and perhaps improved 

upon, so I thank the Chairman for holding this important hearing. 

My statement and my questions will be directed to Director Ashe. 

101 

I am honored to represent Everglades National Park along with 

Big Cypress National Preserve in my congressional district. The 

concern I have heard from some in my district and particularly 

conservationists is that the U.S. Fish and Wildlife Service is more 

focused on individual species management as opposed to multispecies management and that the Service has been practicing what I 

have heard referred to as defensive management out of fear of litigation, which often occurs, and let me provide you just an example 

of that. 

Behind me we have the Everglades snail kite on the left and the 

Cape Sable Seaside sparrow on the right. Both are endangered species which live within the Everglades. The kite eats snails obviously and requires high water flows for its food source to flourish. 

However, the sparrow needs low water flows during its nesting season. The management of the habitat for these two endangered species is very complicated because the species have competing needs. 

Efforts to assist the sparrow have dramatically reduced the snail 

kite’s primary food source in its critical habitat, the Florida apple 

snail. As a result, I have been informed that the population of the 

snail kite has reduced from 3,400, approximately in 1999, to approximately 660 now, but the sparrow is currently not in its traditional grounds, which no longer exists, having moved into areas 

near the kite. Conflicting lawsuits have resulted, slowing down 

progress in Everglades restoration projects that will assist other 

endangered plants and wildlife. 

So I support preserving the sparrow, but we shouldn’t be creating a false habitat when it imperils other endangered species and 

the overall ecosystem of the Everglades. The priorities should be 

trying to restore balance to the native environment through multispecies management and where possible restore the habitat and 

numbers of the sparrow. 

So I want to ask, first of all, are there other instances among terrestrial or marine listed species with similar conflicts, and if so, 

how has the Service resolved these conflicts? 

Mr. ASHE. We do deal, Mr. Rivera, and I know you meet a lot 

of people, but I remember meeting you out on the Tamiami Trail 

with Senator Salazar, and in the Everglades in particular, we have 

dozens of listed species, and so what we are trying to do is restore 

a system that has been greatly modified by human activities, and 

so the restoration of that ecosystem is made difficult by the fact 

that we have many listed species, some of whom can compete for 

the same habitat. 

So I agree with your objective that what we need to do is we 

need to restore an Everglades ecosystem that has balance and 

wherein we can do the best job that we can do to ensure the survival and recovery of a diversity of species, including the two that 

you mentioned. It is a difficult task, as you know. 

We have a similar situation, I know Chairman Hastings is familiar with it, with the spotted owl. You mentioned the barred owl. 

They are not two listed species, but we have a listed species which 

is declining and a species that is moving into its territory and competing with it for the available habitat, and so increasingly we are 

seeing these kind of what we would call intraspecific competitions 

102 

between species. They make our job more difficult, but the task remains. 

Mr. RIVERA. One other difficult issue that we have in the Everglades is also regarding the Burmese python, a snake that you will 

see behind me measured 17 feet long, and an analysis performed 

on the stomach contents of this nonnative snake found the remains 

of various endangered birds and mammals native to the Everglades. How does the Service handle the preservation of the native 

system when these invasive species are present? 

Mr. ASHE. Thank you. I think the Burmese python is indicative 

of the great challenges. The Service of course has proposed a rule 

to list the Burmese python as an injurious species under the Lacey 

Act, which would prevent its further importation into the United 

States. We are working in partnership with the State of Florida to 

control the existing populations of Burmese python. It is a great 

challenge, but your question has underscored two of the great challenges that I mentioned before in endangered species conservation, 

which is the habitat and managing and restoring the habitat and 

controlling exotic species invasions. Those are two of the greatest 

challenges that are facing us today, and the Burmese python is indicative of that. 

Mr. RIVERA. Thank you very much. And, Mr. Chairman, just finally I would like to let you know that several of my Florida colleagues and I recently wrote to the Administration requesting that 

they finalize their listing of nine species of large constrictor snakes 

as prohibited injurious species under the Lacey Act, and I would 

like to ask unanimous consent to allow that letter to be submitted 

for the record. 

The CHAIRMAN. Without objection, it will be part of the record. 

[The letter submitted for the record by Mr. Rivera follows:] 

103 


71642.004.eps

THOMAS J. ROONEY 

16THDtsrRJCT.~ 

DEf'UTYWHIP 

lS29~"HHoustDfFoa:e~ 

W_lilUfi,OC2flS15 

Q.lUUYfl!lJlJ uf il1t JUlien ~tate.s 

iljOI1!lC of ~Pttl!~lltu1illtl! 

lIIIaaf!ingwl1,Il<!l2J151!HJ!l16 November 22, 2011 

The Honorable Barack Obama 

President of the United States 

The White House 

1600 Pennsylvania Ave, N.W. 

Washiogton, DC 20515 

Dear Mr. President, 

COMMITlEE ON AGRICULTURE 

~ .. -Sl;IICOMM'"U~ 

lNEStOcK, OAIF!V »Ie P'oIJnnv 

COMMITTEE ON ARMEO SERVICES 

SELECTCOMM1TIEE ON INlEtUGENCE 

We respectfully request that you direct the Office of Management and Budget (OMB) to release 

a long-standing proposal by the U.S. Fish and Wildlife Service to list nine species oflarge 

constrictor snakes as prohibited "injurious species" under 18 USC § 42 better known as the 

Lacey Act The nine snakes W<: lITe seeking to have listed are the Burmese python, northern 

African python, sonthern African python, reticulated python, green anaconda, yellow anaconda, 

Beni or Bolivian python, DeSchauensee's anaconda, and boa constrictor. Time is of the essence 

and this rule needs to be finalized immediately. 

South Florida has been invaded by non-native wildlife, which disturbs our fragile ecosystem and 

preys on native species. The Burmese Python is one of the most dangerous examples of a nounative predator that has established a thriving breeding population in Florida. It preys on native 

wildlife, many ofv.hlch are threatened or endangered. In addition to the safety threats and havoc 

the snakes are inflicting, there is a very real economic impact of their invasion. We are spending 

billions of dollars to restore the Everglades and if additional invasive snakes are allowed to 

establish themselves, the native wildlife will be decimated. Our local water management district, 

the State of Florida, the U.S. Fish and Wildlife Service and the Everglades National Pad< have' 

already dedicated time and resources to eradicating these invasive snakes. Their funding and 

ability to continue eradication programs, while still performing their core missions, would be 

unsustainable. 

Unfortunately, the threat these snakes pose goes beyond our environment and wildlife. There 

have been numerous preventable human deaths and injuries caused by large constrictor snakes 

that are kepi in captivity. These are dangerous predators that are not domesticated pets; they can 

grow to over 20 feet in length and weigh over one 'hoodred pooods. They are aggressive hooters 

and unfortunately we have all seen the news of preventable deaths of both children and adults 

caused by these snakes. 
104 

The CHAIRMAN. I thank the gentleman. The time of the gentleman has expired, and the Chair recognizes the gentleman from 

New Jersey, Mr. Runyan. 

Mr. RUNYAN. Thank you, Mr. Chairman. Gentlemen, thank you 

for your testimony. 

In Fiscal Year 2011, the Fish and Wildlife Service indicated that 

it spent 75 percent of its budget for resource management allocation for critical habitat in listing on, and I quote, ‘‘substantive actions required by court-ordered or settlement agreements resulting 

from litigation.’’ Mr. Schwaab, can you identify what percentage of 

the NMFS’s budget was spent on the same actions related to courtordered settlements and litigation? 


71642.005.eps
105 

Mr. SCHWAAB. Thank you, Mr. Runyan. I can give you some data. 

Most of our listing activity has been not driven by court-ordered action. However, they have originated from external petitions. I can 

tell you that in Fiscal Year 2011 we expended about $8.8 million 

on listing activities, $34 million on interagency consultations and 

$37 million on recovery planning and implementation. Many of 

those expenditures had some relationship to ongoing court challenges, but what I can’t do is parse them out very explicitly in relation to particular challenges or in any more detail than that. 

Mr. RUNYAN. So you are saying it is not possible to extract those 

numbers? 

Mr. SCHWAAB. Well, so, for example, when we are involved in an 

interagency—there are many interagency consultations that we are 

engaged in that are either driven by or affected by some kind of 

litigation activity, and the challenge would be in trying to sort of— 

most of that activity would occur in some fashion anyway. There 

may be additional activities that are required as a result of court 

action or there is activities that might be directed in a certain way, 

but to parse them out in that way would be hard. 

Mr. RUNYAN. Well, how about just directly from a court-ordered 

litigation? 

Mr. SCHWAAB. Mr. Runyan, we could go back and try to see if 

there were a way to parse that out, but I don’t think as I sit here 

today I could give you a correct answer. 

Mr. RUNYAN. I would appreciate it if you would try and submit 

that to the Committee because, that being said, obviously at the 

bottom of all this is if you have a true stock assessment it is really 

hard to argue anything, and I think that is kind of what is going 

on here today is we are putting a lot of money and paying out litigations and not having the solid science to really fend off a lot of 

that stuff, and I think this Committee has dealt with that a lot 

throughout this year. 

Mr. SCHWAAB. So just to clarify, you know, most of the court-related listing activity is really about schedule and adhering to timeframes. Most of the recovery planning activity and more explicitly 

some of the consultations that relate to other agency actions ultimately become the focal point of some court action, but only to 

drive one outcome versus another, and it involves particularly that 

sort of negotiation if you will and interagency discussion around 

reasonable and prudent alternatives, which does take into account 

a lot of socioeconomic factors. 

Mr. RUNYAN. And I understand that, but I think in a way I am 

kind of saying it is kind of a diversion of funds if you kind of catch 

where I am coming from, but I also had another question dealing 

with the Atlantic sturgeon along the entire East Coast. You have 

never truly, and I know you will rebut, you have never truly conducted a fishery stock assessment, and I know you did a survey in 

2007, but there were no true stock data inputs, and I just want to 

see your justification for proposing the sturgeon to be on there even 

though you didn’t bother to check this since the last time you decided not to list it in 1998. 

Mr. SCHWAAB. Thank you, Mr. Runyan. So I am not suggesting 

that we have done a complete stock assessment on Atlantic sturgeon. When we receive a listing petition we undertake that evaluaVerDate Nov 24 2008 14:08 Feb 19, 2013 Jkt 000000 PO 00000 Frm 00109 Fmt 6633 Sfmt 6602 L:\DOCS\71642.TXT Hresour1 PsN: KATHY
106 

tion based upon the best scientific and commercial information 

available. We did find there was reasonable merit in going through 

a full listing evaluation. That listing evaluation then entails putting together a team of interagency scientists to look at the best 

available information. They did use the two available population 

estimates, one for the Hudson River population from 1998 from the 

New York Department of Environmental Conservation and one 

from the Altamaha River from 2006 by scientists at the University 

of Georgia. They ultimately formed the primary pieces of information that were used in proposing a listing decision, which was put 

out for public comment and is still under review pending final action within the Agency. 

Mr. RUNYAN. Thank you for that. 

The CHAIRMAN. The time of the gentleman has expired. 

I just want to say I think the line of questioning that Mr. Runyan is pursuing is very, very important to the decision we are making because the title or the purpose of this hearing was to look at 

litigation and the costs associated with that as it relates to the Endangered Species Act. Congress obviously sets the policy and the 

Executive Branch carries it out, and part of our oversight is to see 

how well that is being done. 

So I think the line of questioning that Mr. Runyan is suggesting 

is very important and, Mr. Schwaab, you respectfully said you 

would try to do that. I would ask you to do that, and if you cannot, 

be open and transparent with us where the problems are and we 

will try to work with you to get those answers because I think that 

is very important. 

This will conclude the first in a series that we will take a long 

and hard and fair look at the Endangered Species Act because we 

want to see how well it is working, where it is failing and where 

it is falling short. 

I want to emphasize this point. It has been over two decades or 

nearly two decades since we last reauthorized the Endangered Species Act, and to use an analogy I used earlier, if you walked out 

to any main street in America and said that there is an Act on the 

books that has not been reauthorized for 20 years, should that Act 

still be in place, and I bet you would get well over 95 percent of 

the people say, for goodness sakes, if it is not reauthorized, why is 

it on the books? 

Now the obvious answer to that is the process by which we have 

done every year and kicked the issue ahead. I totally recognize 

that. But this is a common sense issue and common sense I think 

answers that the American people want when we look at these acts 

that have a lot of controversy in certain parts of the country, and 

that is what we are endeavoring to look at when we have these 

hearings here. 

So, with that, I want to thank the witnesses, and Mr. Schwaab, 

again, in your opening statement, your last line was an open invitation. Believe me, you will have that invitation in the future, and 

I appreciate your volunteering for service again, and, Director 

Ashe, you may be in that same thing. 

So, with no further business to come before the Committee, the 

Committee stands adjourned. 

[Whereupon, at 1:35 p.m., the Committee was adjourned.] 

107 

[Additional material submitted for the record follows:] 

Statement of The Honorable John Fleming, a Representative in Congress 

from the State of Louisiana 

Mr. Chairman, I want to thank you for starting this thoughtful conversation 

about the positive and negative features of the Endangered Species Act. It is particularly appropriate that today we will be discussing the impact that litigation has 

had on what many consider the most powerful environmental law in this nation. 

It has been more than 18 years since the authorization for the Endangered Species Act expired. During the past two Congresses, there wasn’t a hearing on how 

to improve this Act. 

Based on this lack of attention, you would expect that the Act was working perfectly and the U. S. Fish and Wildlife Service and the National Marine Fisheries 

Service were making great strides in meeting the fundamental goal of this law 

which is to recover listed species. 

While there are a number of non-governmental organizations who love the Endangered Species Act because they are able to receive millions of dollars by filing hundreds of lawsuits against the Federal government, it has been a failure for the species they have petitioned to list. 

Let’s examine the record. There are now 1,383 species in the United States that 

have been listed as threatened or endangered. Of that total 21—let me repeat—only 

21 species have been declared recovered and removed from protection under the Act. 

That is a recovery rate of 1 percent. By any objective standard, the Endangered Species Act is failing to meet its statutory obligations and a modernization of this Act 

is long overdue. 

Before coming to Congress, I had a family medical practice in Minden, Louisiana. 

If after more than 30 years of practice, only 1 percent of my patients had recovered 

from their illnesses or injuries, then I would have lost my medical license long ago. 

Yet, we continue to spend millions of tax dollars year after year, ignoring the problems and ignoring the fact that federal courts have been running the Endangered 

Species Act Program for nearly twenty years. 

I want to compliment Chairman Doc Hastings for his leadership and for his commitment to carefully examine this program in the coming months. Even Secretary 

of the Interior Ken Salazar has stated as recently as July 6th that: ‘‘We need to 

have an endangered species program that does in fact work. There are changes and 

improvements that can be made to how we deal with endangered species.’’ 

I am prepared to work with my colleagues on both sides of the aisle to closely 

examine the Endangered Species Act and make common sense improvements. 

What I am not prepared to do is continue to ignore the problems and defend the 

indefensible. The Endangered Species Act was designed to do more than just list 

species—its fundamental goal is to recover species so they can thrive in the future 

and coexist with humankind.. 

Statement of Felice Pace, Coordinator, Access for All 

On Tuesday December 6th the Resources Committee of the US House of Representatives held the first in a series of hearings on the Endangered Species Act. 

While this hearing was intended to focus on ESA litigation, testimony, questions 

and answers included a wide range of issues related to—and even some extraneous 

too—the announced subject matter. The hearing record remains open until December 16th. This testimony is submitted for the hearing record. 

Because I am a university trained economist (BA, Yale University, 1969) and because Chairman Hastings said in his opening statement that he ‘‘wants to hear 

more about how the ESA is impacting. . .job creation and economic development,’’ 

I will focus these comments on the question of economic impacts of the ESA. 

The question of the ESA’s economic impacts came up during the hearing in three 

key statements: 

In his opening remarks, Chairman Hastings said: 

The litigation mindset that is consuming the Endangered Species Act has 

had significant job and economic impacts throughout the West—unnecessarily pitting people against species. During these challenging economic 

times, America cannot afford runaway regulations and endless lawsuits. 

In the Pacific Northwest, the ESA-related litigation touches nearly everyone—be it through federal judges determining the fate of irrigated agriculture and clean renewable hydropower dams, the impact of the listed 

spotted owl on timber communities and jobs, the fear of litigation that has 

108 

blocked renewable wind projects, or uncertainty of whether predatory 

wolves are endangered on one side of a highway but not the other. 

During the question and answer period Chairman Hastings spoke about the economic impact of the ESA. He reached back to the 1990s and the Northern Spotted 

Owl conflicts. Chairman Hastings claimed that the Northern Spotted Owl ESA listing had devastated Northwest economies and led to the ‘‘destruction’’ of the timber 

industry in the region. 

The third major reference to the ESA’s economic impact came from the testimony 

of Attorney Karen Budd-Fallen. Ms Falen’s statement included this: 

Contrary to some belief, the implementation of the ESA has real impacts 

on real landowners, ranchers, farmers, businesses, employers and others 

who are a vital part of America’s present and future. Rather than saving 

species and conserving their habitats, the ESA is used as a sword to tear 

down the American economy, drive up food, energy and housing costs and 

wear down and take out rural communities and counties. 

In the testimony below I examine each of the three claims: 

1. ‘‘The ESA has had significant job and economic impacts throughout the 

West’’ 

I have examined the economic literature on the subject of the economic impacts 

of the ESA. The overwhelming preponderance of extant studies has found either no 

significant impact or a positive relationship between ESA listings and standard 

measures of economic development. 

One of the most on point studies is one conducted by MIT professor Timothy 

Meyer in 1995. Meyer examined ‘‘The Economic Impact of the ESA on the Agricultural Sector’’ and concluded: 

The key observation from the tests is that all three time periods suggest 

a positive relationship between endangered species listings and state economic performance in the agricultural sector. Each additional listing of species is associated with an increase in agricultural gross state product during the period of roughly 0.05% to 0.09%. Even if it were real this effect 

is so small that it is of no policy interest. Moreover, the statistics suggest 

we would be wise to assume that no systematic relationship exists at all 

(i.e., the results are statistically insignificant). Nevertheless, this is strong 

evidence that the functional relationship between endangered species listings and agricultural performance cannot be negative as the opponents of 

the Endangered Species Act claim. 

In 2006 Tim Kroeger and Frank Casey published ‘‘Economic Impacts of Designating Critical Habitat under the U.S. Endangered Species Act: Case Study of the 

Canada Lynx (Lynx Canadensis)’’ and concluded: 

The agencies implementing the ESA generally do not quantify the benefits 

of designation in their economic analyses, arguing that uncertainties associated with monetary quantification of benefits are too large. We examined 

that argument in a case study of critical habitat designation for the Canada 

lynx. We found that well-established valuation methodologies allow quantification of many of the benefits of designation. We further found that expected benefits of designation surpass expected costs in seven of our eight 

scenarios. This underscores the importance of including benefits in economic analyses of critical habitat designation. Otherwise, conservation decisions tend to be dominated by cost considerations, which may result in suboptimal choices for society. 

The inescapable conclusion from examination of the economic literature is that— 

at the level of states, regions and the nation as a whole—rather than being the jobkiller which opponents claim, the Endangered Species Act has either had no significant economic impact or has had a positive impact. Based on the empirical studies 

in the literature, many of this nation’s independent economists have concluded that 

the ESA is a job creator. 

2. The Northern Spotted Owl’s ESA listing ‘‘devastated’’ the Pacific 

Northwest and ‘‘destroyed’’ the timber industry in the region. 

The claim that the ESA ‘‘destroyed’’ the timber industry in the Pacific Northwest 

is, of course, hyperbola. The timber industry remains a major industrial sector in 

the Northwest and Northern California. But the general claim of negative impacts 

to the economy is also not backed up by economic data. While jobs were lost in the 

timber industry, the region’s economy diversified and is now more resilient to 

changes in the broader economy. 

I’ve lived, worked and raised a family in Northwest California within the range 

of the Northern Spotted Owl since 1975 and I have studied the region’s economy 

109 

in depth. In the twenty years before restrictions on federal land in response to the 

Owl’s listing, unemployment in rural Northwest California counties was consistently 

double the rate for California as a whole. Employment was erratic as timber dependent economies weathered boom and bust housing markets. Since protection for 

the Owl reduced logging on the region’s national forests, however, rural county unemployment rates have averaged only 50% above the state rate. . .not the 100% 

that was experienced previously. This indicates that these economies are better off 

now relative to the state as a whole and also that rural Northwest California communities are now much less impacted by boom and bust changes in housing markets. 

From an economic perspective, the Northern Spotted Owl was a catalyst for economic diversification and increased economic resiliency, i.e. for positive economic developments within Northwest and Northern California communities. 

Of course, the fact that the Northern Spotted Owl was a catalyst for positive economic developments—i.e. for the diversification of economies which were over dependent on a single, unsustainable, boom-bust industry—does not mean that there 

were no negative economic impacts. Indeed there were negative impacts. I’ve had 

friends and neighbors who are loggers and who have had a harder time finding 

work since federal timber sale levels were reduced. And I know mills and mill owners who went out of business because they were over-dependent on federal timber 

or could not afford to retool their plants for the second growth economy. 

That said, the negative economic effects attributed to the Northern Spotted Owl 

ESA listing were not what the Timber Industry and many politicians claimed and 

still claim they were. Furthermore, these changes were going to come anyway once 

the Old Growth was liquidated. Finally, negative impacts were and are dwarfed by 

the durable positive economic impacts that resulted. 

Unfortunately, positive economic news does not really matter much if yours is the 

job that was lost or if yours was the mill which closed. It remains a fact of life, however, that the closing of one Simplot potato processing plant in Idaho—not to mention the decision of a timber corporation to ship logs to China—causes more economic dislocation and more job losses than the Northern Spotted Owl caused on balance. 

3. Budd-Falen claims 

In her testimony and in her regular memos and guest opinions attacking the ESA 

Karen Budd-Falen repeats time and again that the ESA is devastating rural America. When, as in her testimony, Ms. Budd-Falen says that ‘‘the ESA has real impacts 

on real landowners, ranchers, farmers, businesses, employers and others who are a 

vital part of America’s present and future’’ I can agree with her. 

If the ESA is being implemented properly, those who own or control land which 

contains critical habitat for an ESA-listed species could have to change some of their 

practices to accommodate the species. I would argue that if we are going to have 

a healthy environment capable of sustaining economic well being maintaining and 

restoring the habitat on which biodiversity depends is a basic landowner responsibility. It is up to Congress, however, whether or not to provide compensation to 

those who shoulder this responsibility. 

I do, however, reject the assertion that the ESA is putting a significant number 

of folks out of business and I challenge Ms. Budd-Falen to present the actual cases 

where her clients have been put out of business as a result of the ESA. Where is 

the data; where even are the case histories? Nowhere in her testimony—and nowhere in the hearing or in the hearing records that I’ve seen—is there one shred 

of evidence to back up Ms. Budd-Falen’s claims of economic devastation. 

What is true is that—in the rural West where Ms. Budd-Falen and I live—there 

is great fear of the ESA. This fear has been nurtured and encouraged by the Farm 

Bureau Federation, Ms. Budd Falen and others—including many of the West’s rural 

legislators—for the past 30 years or so. The shrill claims of devastating economic 

impacts repeated over and over for so many years have had an impact. 

Yes, many rural westerners do believe that the ESA is a job-killer and many fear 

the ESA coming to bear on them, their jobs and their property. But the fear is not 

reality-based. Furthermore, I think it is clear that those who would demonize the 

ESA for political or economic gain are responsible for ESA fear. If these folks really 

care about rural westerners they should not be cynically creating and manipulating 

these folk’s fear. 

I would like to also address the testimony submitted by Doug Miller, General 

Manager, Public Utility District No. 2, Pacific County. Mr. Miller described his district’s experience with the ESA. I do not doubt or question his experience. I would 

ask, however, what was his expectation going in and was that realistic? 

110 

The agencies responsible for implementing the ESA have sufficient management 

tools in the ESA toolbox and they have additional tools which can be used to protect 

habitat and preclude the necessity for listings. But the existence of tools is no guarantee. Indeed tools can be used well or poorly with predictable results. Two key factors usually define the difference between effective and unsuccessful use of ESA 

planning and management tools: 

• A conservation management plan is likely to fail if you try to use it to get 

around the law. It is ESA law—as passed by Congress and in accord with regulations adopted to implement the law—which remains the yardstick. If you 

don’t meet the letter and spirit of the law, it is the obligation of the agencies 

to reject your plan and it is the mission of some other citizens to challenge 

that plan. 

• If you don’t have the right people in the room, you are asking for trouble. Attempts to get around the ESA law and the citizen groups which are dedicated 

to enforcing it have a high probability of failure; adopt such strategies at your 

own risk. If you want success in managing ESA species for which you have 

responsibility as a company or landowner, work with the organizations which 

are dedicated to preserving those species. Most of those organizations are 

ready and willing to work with you IF you are in good faith and intend to 

meet your legal obligations. 

In conclusion, I would like to take note of the response of FWS Director Don Ash 

to a question from a member of the committee. When asked about his biggest challenge in implementing the ESA, Director Ash told the committee that habitat loss 

to development—not litigation—is the single greatest challenge facing the Service. 

Mr. Ash also defended the citizen suit provisions of the ESA stating that citizen enforcement holds government to the ‘‘highest standards.’’ 

We—the American People—and you—our elected representatives—have a choice. 

We can continue the ‘‘War for the West’’—including creating, encouraging and whipping up folks fears with wild and unsubstantiated claims of ‘‘devastation’’ at the 

hands of the ESA or ‘‘immanent extinction’’ for species. That would be the easy path 

we have come to know so well. Or we can choose to work together, using all the 

tools in the toolbox in good faith, to allay fears and work out solutions on the 

ground. 

The ESA is a good law and it can work tolerably well for everyone if we—and 

by ‘‘we’’ I mean those both inside and outside of Congress—are willing to get out 

of the way and let it work. 

On behalf of the Access for All network, I thank the Committee for the opportunity to submit testimony. 

The following documents submitted for the record have been 

retained in the Committee’s official files: 

1. Budd-Falen, Karen, Owner/Partner, Budd-Falen Law Offices, L.L.C., Attachment, U.S. District Court ‘‘Stipulated 

Settlement Agreement.’’ (25 pages) 

2. Sucking, Kieran, Executive Director, Center for Biological 

Diversity, PowerPoint presentation (14 pages) 

3. Tutchton, Jay, General Counsel, WildEarth Guardians, 

Santa Fe, New Mexico, Eight documents submitted for the 

record (44 pages) 

111 

Statement submitted for the record by Alliance for Justice; 

Center for Justice & Democracy at New York Law School; 

Center for Law and Social Policy; Consumer Action; Consumer Watchdog; and Sargent Shriver National Center on 

Poverty Law 

During the House Committee on Natural Resources’ recent hearing, ‘‘The Endangered Species Act: How Litigation is Costing Jobs 

and Impeding True Recovery Efforts,’’ some members voiced concern over the awarding of attorneys’ fees under the Equal Access 

to Justice Act (EAJA). EAJA, which was signed into law by President Carter and permanently funded by President Reagan, awards 

limited attorneys’ fees and costs of litigation when a citizen, nonprofit organization, or small business wins a case involving the federal government and can show that the federal government’s position was not ‘‘substantially justified.’’ We write to emphasize the 

importance of awarding attorneys’ fees in ensuring that all litigants have access to justice. Without the ability to recoup such 

fees, parties who otherwise lack the means to challenge government abuse might not assert their rights, potentially leading to 

specific harms like senior citizens not receiving their Social Security benefits, veterans not receiving their disability benefits, more 

dangerous highways, and dirtier air and water. We urge Committee members to defend EAJA and protect everyone’s right to access justice. 

Sincerely, 

Alliance for Justice 

Center for Justice & Democracy at New York Law School 

Center for Law and Social Policy 

Consumer Action 

Consumer Watchdog 

Sargent Shriver National Center on Poverty Law 

112 

[A letter submitted for the record by the Natural Resources 

Defense Council and The Wilderness Society follows:] 


71642.006.eps
113 


71642.007.eps

The Act is one of several landmark environmental laws that, if used correctly, can yield a 

roadmap to the best places to site utility-scale projects. Early assessment of sensitive resources 

saves the government money by identifying resource conflicts early, which not only leads to 

fully informed decisions but also enhances the likelihood that the proj ects with the greatest 

viability will receive the bulk of the government's resources. Central to this notion of permitting 

projects 'smart from the start' is a commitment to a) taking stock in the early stages of a 

proposed action of the pros and cons of alternatives on sensitive species; b) proceeding with 

projects likely to emerge successfully from permitting; and c) settling on a final project design 

that gets to the best result with the least conflict and controversy. That is what Congress 

recognized when it passed statutes like the Act and the National Environmental Policy Act 

(NEPA), and that is the role they are serving and should continue to serve. 

Efforts are underway to develop conservation plans that specifically allow for renewable energy 

development in the right places, while protecting sensitive habitat. For example, almost two 

years ago, the State of California initiated work on the Desert Renewable Energy Conservation 

Plan which aims to identify public and private lands for renewable development - solar, wind 

and geothermal- in the Mojave and Colorado Deserts ofthe state, public and private lands that 

need to be protected from such development and a comprehensive mitigation strategy for both 

kinds of lands. This plan, which is being developed through a multi-stakeholder process under 

the joint auspices of both the state and federal governments, will function as a habitat 

conservation plan (HCP) under the Act and a natural communities conservation plan under 

California law and will allow "take" of covered species in accordance with its terms. Similarly, d 

group of 19 wind energy companies is putting together a proposed Great Plains HCP under the 

Act in coordination with the FWS to address the potential impacts of wind energy development 

on several threatened and endangered species in the central US. 

Those who suggest we must choose between protecting our public trust resources or building 

renewable energy quickly are putting forward a false choice. More specifically, the charge has 

been made that environmental requirements are restricting the pace and advancement of 

renewable energy projects. We know that this is not true; of the nine solar energy projects 

permitted in 2010, the average time for environmental review was 527 days, or 1.4 years, even 

though neither the regulators, the developers nor the public had experience with the construction 

or operation of the technologies and scale involved. In fact, the Department of the Interior has 

stood up wind and solar development on public lands in a way that no administration has done 

before, and we applaud these efforts. Now is the time to find ways to support progress already 

made so that these burgeoning industries can work within a consistent regulatory framework and 

grow. 

We believe that Congressional involvement to promote renewable energy development would be 

best directed toward removing real roadblocks by ensuring that federal financing tools will be 

predictably available. Time and again, energy companies have testified that financing is their 

major hurdle, including in testimony before this committee. If we are to reach our common goal 

of successfully and efficiently meeting our country's energy needs with clean renewable energy, 

we must focus our attention on the true barriers to renewable energy deployment, such as 

financing and technology. Our conservation organizations understand these critical needs, and to 

that end we have aggressively supported financial and tax incentives that would secure a 

Page 2 of3 
114 


71642.008.eps

predictable growth path for renewables. Programs such as the 1603 Treasury Grant Program and 

the Production Tax Credit for wind need continued support to remain consistent drivers in 

creating a strong renewable energy industry. Significant, targeted investments in this industry 

will leverage private equity, produce new megawatts of power, put Americans to work, and 

strengthen our competitiveness in the global marketplace for renewable energy technologies. 

Far from putting up roadblocks, bedrock environmental statutes like the Act continue to serve as 

roadmaps. More can be done to improve the efficiency and effectiveness of implementation by 

establishing a predictable approach to avoiding and managing impacts to sensitive species. Our 

organizations remain fully committed to working with you to make our national environmental 

laws like the Endangered Species Act, facilitate smarter permitti •. " of renewable energy projects. 

Thank you for your consideration of this statement. 

Respectfully submitted, 

~rtOJ~ 

Johanna Wald 

Director, Western Renewables 

Natural Resources Defense Council 

Chase Huntley 

Director, Renewable Energy Policy 

The Wilderness Society 
115 

[A letter submitted for the record by Mark N. Salvo, Acting Wildlife Program Director, WildEarth Guardians, follows:] 

Æ 


71642.009.eps 71642.010.eps

rW~DEAan( 

~~ 

December 20, 20 II 

Honorable Doc Hastings 

Chairman, Committee on Natural Resources 

U.S. House of Representatives 

1324 Longworth House Office Building 

Washington. D.C. 20515 

GUARDIANS 

A fORet frnt 'NAIUJU: 

Honorable Edward 1. Markey 

Ranking Member, Committee on Natural Resources 

L.S. House of Representatives 

1329 Longworth House Office Building 

Washington, D.C. 20515 

RE: Committee on Natural Resources Hearing on the Endangered Species Act: Response to 

Representative Lamborn 

Dear Chairman Hastings and Ranking Member Markey: 

I am writing on behalf of WildEarth Guardians to respond to comments that Representative 

Lamborn made during the Committee on Natural Resources hearing, "The Endangered Species 

How Litigation is Costing Jobs and Impending True Recovery Efforts," on December 6, 2011. Please 

include this letter and attachment in the record for the hearing. 

At the hearing, Representative Lamborn contended that the U.S. Fish and Wildlife Service erred in 

listing the Preble's meadow jumping mouse (Zapus hudsoniu" preblei) as "threatened" under the 

Endangered Species Act because it is not a distinct subspecies from the Bearlodge meadow jumping 

mouse (Zapu", hudsunius campestris). Although there were many conflicting reports in the news media 

about the differences between the Preble's and Bearlodge meadow jumping mouse-resulting in much 

confusion among the public on the issue--the science is settled that the Preble's and the Bearlodge are 

genetically distinct subspecies. 

Biodiversity Conservation Alliance, a conservation organization in Laramie, Wyoming, recoumed the 

purported controversy over the science on the Preble's meadow jumping mouse in its autumn 2011 

newsletter (attached). As their newsletter describes, the controversy ended when a scientific panel 

convened by the Fish and Wildlife Service found errors in the only study that had concluded the 

Preble's is not distinct from Bearlodge meadow jumping mouse. In fact, once the errors were removed, 

the contradictory research agreed with other studies that concluded that the Preble's meadow jumping 

mouse is a db'lincl subspecies. 

312 Montezuma Ave. Santa fe, NM 87501 505-988'9126 (pI 505·989·8623 (f) www,wildearthguardians.org 

SANTA FF DENVER PHOENIX 

I am pleased to provide references or answer any questions concerning the foregoing information. I 

may be reached at 5031757-4221 or msalvo@wildearthguardians.org. Thank you for this opportunity to 

submit comments for the record. 

Mark N. Salvo 

(Acting) Wildlife Program Director