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89–833 PDF 2015

THE STATUS OF THE FISH AND 

WILDLIFE SERVICE’S RESPONSES 

TO COMMITTEE SUBPOENAS AND 

THE CONTINUED LACK OF TRANSPARENCY ABOUT ITS IMPLEMENTATION AND ENFORCEMENT OF 

AMERICAN WILDLIFE LAWS, AND 

OVERSIGHT OF THE DEPARTMENT 

OF THE INTERIOR’S SOLICITOR’S 

OFFICE 

OVERSIGHT HEARING 

BEFORE THE

COMMITTEE ON NATURAL RESOURCES 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

Wednesday, September 10, 2014 

Serial No. 113–87 

Printed for the use of the Committee on Natural Resources 

( 

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

or 

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

(II) 

COMMITTEE ON NATURAL RESOURCES 

DOC HASTINGS, WA, Chairman 

PETER A. DEFAZIO, OR, Ranking Democratic Member 

Don Young, AK 

Louie Gohmert, TX 

Rob Bishop, UT 

Doug Lamborn, CO 

Robert J. Wittman, VA 

Paul C. Broun, GA 

John Fleming, LA 

Tom McClintock, CA 

Glenn Thompson, PA 

Cynthia M. Lummis, WY 

Dan Benishek, MI 

Jeff Duncan, SC 

Scott R. Tipton, CO 

Paul A. Gosar, AZ 

Rau ́l R. Labrador, ID 

Steve Southerland, II, FL 

Bill Flores, TX 

Jon Runyan, NJ 

Markwayne Mullin, OK 

Steve Daines, MT 

Kevin Cramer, ND 

Doug LaMalfa, CA 

Jason T. Smith, MO 

Vance M. McAllister, LA 

Bradley Byrne, AL 

Eni F. H. Faleomavaega, AS 

Frank Pallone, Jr., NJ 

Grace F. Napolitano, CA 

Rush Holt, NJ 

Rau ́l M. Grijalva, AZ 

Madeleine Z. Bordallo, GU 

Jim Costa, CA 

Gregorio Kilili Camacho Sablan, CNMI 

Niki Tsongas, MA 

Pedro R. Pierluisi, PR 

Colleen W. Hanabusa, HI 

Tony Ca ́ rdenas, CA 

Jared Huffman, CA 

Raul Ruiz, CA 

Carol Shea-Porter, NH 

Alan S. Lowenthal, CA 

Joe Garcia, FL 

Matt Cartwright, PA 

Katherine M. Clark, MA 

Vacancy 

Todd Young, Chief of Staff 

Lisa Pittman, Chief Legislative Counsel 

Penny Dodge, Democratic Staff Director 

David Watkins, Democratic Chief Counsel 

(III) 

CONTENTS 

Page 

Hearing held on Wednesday, September 10, 2014 ................................................ 1 

Statement of Members: 

DeFazio, Hon. Peter, a Representative in Congress from the State of 

Oregon ............................................................................................................ 7 

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

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

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

Prepared statement of ............................................................................... 3 

Statement of Witnesses: 

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

of the Interior ................................................................................................ 10 

Prepared statement of ............................................................................... 11 

Tompkins, Hon. Hilary, Solicitor, Office of the Solicitor, U.S. Department 

of the Interior ................................................................................................ 14 

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

(1) 

OVERSIGHT HEARING ON THE STATUS OF 

THE FISH AND WILDLIFE SERVICE’S RESPONSES TO COMMITTEE SUBPOENAS AND 

THE CONTINUED LACK OF TRANSPARENCY 

ABOUT ITS IMPLEMENTATION AND ENFORCEMENT OF AMERICAN WILDLIFE 

LAWS, AND OVERSIGHT OF THE DEPARTMENT OF THE INTERIOR’S SOLICITOR’S 

OFFICE 

Wednesday, September 10, 2014 

U.S. House of Representatives 

Committee on Natural Resources 

Washington, DC 

The committee met, pursuant to notice, at 10:00 a.m., in room 

1324, Longworth House Office Building, Hon. Doc Hastings [Chairman of the Committee] presiding. 

Present: Representatives Hastings, Bishop, Lamborn, Broun, 

Fleming, Tipton, Gosar, Flores, Cramer, LaMalfa; DeFazio, Costa, 

Ca ́ rdenas, Huffman, Shea-Porter, Garcia, and Cartwright. 

The CHAIRMAN. The committee will come to order, and the Chairman, again, notes the presence of a quorum. We have far exceeded 

that. I appreciate that very much from the Members. 

The Committee on Natural Resources is meeting today to hear 

testimony on an oversight hearing entitled, ‘‘The Status of the Fish 

and Wildlife Service’s Response to Committee Subpoenas and the 

Continued Lack of Transparency about its Implementation and 

Enforcement of American Wildlife Laws and Oversight of the 

Department of the Interior’s Solicitor’s Office.’’ 

Under Committee Rule 4(f), opening statements are limited to 

the Chairman and the Ranking Member. However, I ask unanimous consent to include any other Members’ opening statements in 

the record, if it is submitted to the clerk by the end of business 

today. 

[No response.] 

The CHAIRMAN. Without objection, so ordered. 

I will now recognize myself for 5 minutes for my opening 

statement. 

STATEMENT OF THE HON. DOC HASTINGS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WASHINGTON 

The CHAIRMAN. In regards to oversight, it is not only Congress’ 

right, but our responsibility to hold the executive branch accountable for its actions and decisions. In turn, we expect the administration to be honest and transparent. In my view, the reality is just 

the opposite. 

2 

The Obama administration has consistently engaged in a deliberate pattern of slow-rolling its responses, and purposely 

withholding information from Congress. Today’s hearing will specifically examine examples of this from the U.S. Fish and Wildlife 

Service. 

The Service has failed to comply with two subpoenas for documents, one related to the White Bluffs bladderpod, and the second 

on the administration’s approach for enforcing wildlife laws, including the Migratory Bird Treaty Act, and the Bald and Golden Eagle 

Protection Act. Despite the issuance of subpoenas, the Department 

continues to withhold and redact documents. Even worse, the 

Department is going out of its way to provide even less information 

to Congress than it does to others. 

Now, I want to give three distinct examples. On December 13, 

the Service provided the committee copies of about 1,000 pages of 

documents. These were the exact duplicates of what the Service 

had already provided to the Associated Press under the Freedom 

of Information Act, or FOIA. Some of these documents were redacted, while others were released in full to both the AP and the 

committee. 

One of the FOIA documents was this January 2013 email that 

is Exhibit 1, and it is in your packages. In March of this year, the 

committee issued a subpoena seeking 55 specific unredacted documents, and categories of other documents. In response, the Service 

issued another large document production. It included the same 

January 2013 email—put up Exhibit 2—except this time it was redacted in several places, even though an unredacted version had already been provided to the news media and to this committee 

almost 6 months earlier. 

In this second example, Exhibit 4, on the left is a document provided to the AP and the committee under FOIA. It contains partial 

redactions. We issued a subpoena for the unredacted document, 

and received the document on the right, which was more redacted 

than the one we had received previously. 

Now, either the administration is incompetent, or it is going out 

of its way to spend time and money to withhold information from 

Congress. In this third example, Exhibit 5, the document on the 

left was released to a bird conservation group under FOIA. Only 

the bottom part was redacted. When the Service provided the same 

document to the committee in June, almost the entire document 

was redacted. 

In addition, the Service has released documents to this same bird 

group last year under FOIA that has never been provided to this 

committee, even though it was specifically covered in the parameters of the subpoena. 

So, I would like to hear, obviously, today from Director Ashe how 

he can justify some actions. Is this what he means when he talks 

about being responsive and cooperating with congressional 

oversight? 

The Interior Department has dragged its feet on every oversight 

issue this committee has pursued. It has purposely sought ways to 

increase the burdens, costs, and delays for responding to the committee’s legitimate requests. 

3 

Some claim that our requests are costly and burdensome. However, it is now evident that the administration is wasting time and 

taxpayer dollars by going out of its way to redact documents that 

have already been released. Most of their time and resources, it appears, are spent figuring out which documents to purposely 

withhold. 

Furthermore, oversight and transparency to the American 

taxpayers should not be a burden at all. 

We will hear today from the Department of the Interior Solicitor, 

Hilary Tompkins. The Solicitor’s Office is the legal advisor for the 

Department, and decides which documents get released or withheld 

from Congress. I hope this hearing clarifies the Solicitor’s involvement in redacting these documents. 

There are other issues pertaining to the Solicitor’s Office that I 

would like to address. Yesterday the committee released a report 

on the Department’s ethics program, identifying significant weaknesses. Also, ahead of tomorrow’s hearing with Deputy Inspector 

General Mary Kendall, I would like to hear again from the Solicitor 

to discuss the relationship and interaction with the Department’s 

Office of Inspector General. 

The administration’s response to the committee oversight efforts, 

in my view, have been shameful. Their actions show disrespect to 

the transparency that they promised the American people. 

[The prepared statement of Mr. Hastings follows:] 

PREPARED STATEMENT OF THE HON. DOC HASTINGS, CHAIRMAN, COMMITTEE ON

NATURAL RESOURCES

In regards to oversight, it’s not only Congress’ right but our responsibility to hold 

the executive branch accountable for its actions and decisions. In turn, we expect 

the administration to be honest and transparent. The reality is just the opposite. 

The Obama administration has consistently engaged in a deliberate pattern of slowrolling its responses and purposely withholding information from Congress. 

Today’s hearing will specifically examine examples of this stonewalling from the 

U.S. Fish and Wildlife Service. 

The Service has failed to comply with two subpoenas for documents. One related 

to the Whitebluffs Bladderpod, the second on the administration’s approach for enforcing wildlife laws, including the Migratory Bird Treaty Act and the Bald and 

Golden Eagle Protection Act. 

Despite the issuance of subpoenas, the Department continues to withhold and redact documents. Even worse, the Department is going out of its way to provide even 

less information to Congress than it is to others. 

Here are three distinct examples: 

In December 2013, the Service provided the committee copies of about 1,000 pages 

of documents. These were exact duplicates of what the Service had already provided 

to the Associated Press under the Freedom of Information Act. Some of these documents were redacted while others were released in full to both the AP and the 

committee. 

One of those FOIA documents was this January 2013 email. Exhibit 1 in your 

packets. 

4 

In March of this year, the committee issued a subpoena seeking 55 specific 

unredacted documents and categories of other documents. In response, the Service 

issued another large document production. It included the same January 2013 email 

(Exhibit 2). Except this time it was redacted in several places, even though an 

unredacted version had already been provided to the news media and the committee 

almost 6 months earlier. 


89833.001.eps
5 


89833.002.eps
6 

In this second example (Exhibit 4) on the left is a document provided to the AP 

and the committee under FOIA. It contains partial redactions. We issued a 

subpoena for the unredacted document, and received the document on the right— 

even more redacted than the first. 

Either the administration is incompetent or it is going out of its way to expend 

time and money to withhold information from Congress. 

In this third example (Exhibit 5), the document on the left was released to a bird 

conservation group under FOIA. Only the bottom part was redacted. When the 

Service provided the same document to the committee in June—almost the entire 

document was redacted. 

In addition, the Service has released documents to this same bird group last year 

under FOIA that have NEVER been provided to the committee—even though it was 

specifically covered in the parameters of the subpoena. 

I would like to hear from Director Ashe today how he justifies such a blatant disregard for transparency and disrespect of Congress. Is this what he means when 

he talks about being responsive and cooperating with congressional oversight? 

The Interior Department has dragged its feet on every oversight issue this committee has pursued. It has purposefully sought ways to increase the burden, costs, 

and delays for responding to the committee’s legitimate requests. 

Some claim that our requests are costly and burdensome. However, it’s now evident that the administration is wasting time and taxpayer dollars by going out of 

its way to redact documents that have already been released. Most of their time and 

resources are spent figuring out which documents to purposely withhold. FurtherVerDate Mar 15 2010 08:59 Jul 06, 2015 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6621 J:\00 FULL COMMITTEE\00SE10 2ND SESS. PRINTING\89833.TXT DARLEN

89833.003.eps 89833.004.eps
7 

more, oversight and transparency to the American taxpayers should not be considered a burden. 

We’ll also hear from the Department of the Interior Solicitor Hilary Tompkins. 

The Solicitor’s Office is the legal advisor for the Department and decides which documents gets released or withheld from Congress. I intend to find out more today 

about the Solicitor’s involvement in redacting these documents. 

There are other issues pertaining to the Solicitor’s Office that I would like to address. Yesterday, the committee released a report on the Department’s ethics program—identifying significant weaknesses. Also, ahead of tomorrow’s hearing with 

Deputy Inspector General Mary Kendall, I would like to hear the Solicitor discuss 

the relationship and interaction with the Department’s Office of Inspector General. 

The administration’s response to the committee’s oversight efforts has been downright shameful. Their actions are unjustifiable and show blatant disrespect to the 

transparency they promised the American people. 

The CHAIRMAN. And, with that, I will recognize the Ranking 

Member. 

STATEMENT OF THE HON. PETER DEFAZIO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OREGON 

Mr. DEFAZIO. Thanks, Mr. Chairman. I believe this is at least 

the second hearing with Director Ashe on this topic. And, you 

know, I would reflect, as I did yesterday, here we are again, chasing imaginary scandals. 

I would say, when you look at some of these redacted documents, 

yes, it doesn’t make sense. But one person redacts documents per 

one request, and then they don’t have the identical person, when 

someone else makes a request, redact the same documents. So you 

have, yes, inconsistency. Not unusual. 

There is, particularly in the case, which we spent some considerable time on, of the rule regarding mountaintop removal, blatant 

incompetence. And then, of course, bureaucracy. 

The bottom line is we have 11 subpoenas over 2 Congresses, 37 

letters, 16 distinct topics, 34,000 hours of staff time diverted from 

things that are much more essential to the American public, $2 

million, 60,000 pages of documents, and I don’t know who on the 

committee staff here was demanding this, has reviewed each and 

every of those 60,000 pages. And, if they have, they sure haven’t 

found much. 

You know, I understand that you have some very distinct policy 

differences with this administration, as do I, from time to time. 

And you know, we can pursue those things through a course of legislation and others. But seriously, you know, there is no scandal. 

One of the main premises is that somehow they are favoring the 

wind industry and discriminating against the oil and gas industry. 

Well, there are 48,000 wind turbines in the United States, and 

there are 876,000 oil and gas wells. As we had testimony the last 

time, they are pursuing at this point 17 bird-take cases against the 

48,000 wind turbines—haven’t worked out the percentages—21 

cases against the 876,000 oil and gas wells. So, on a percentage 

basis, we should actually be holding a hearing on why they are 

being so discriminatory and unbelievably aggressive toward the 

wind industry, and giving a pass to the oil and gas industry, if 

that’s the premise of why we’re here today, if you look at the 

statistics. 

8 

You know, we had testimony last time that when they go on, and 

they can do fly-overs and see someone hasn’t netted their spoils, 

the effluent from the oil and gas well. They will then visit them 

and say, ‘‘Hey, put up netting, as required by law.’’ And most everybody does it, and most everybody then would comply. They come 

back 6 months later, and if they haven’t put up netting, then they 

go to the Justice Department. 

That seems to me to be not particularly aggressive enforcement. 

In fact, I think maybe we should hold a hearing on why they aren’t 

more aggressive. It seems like a year to get someone under prosecution who are blatantly and knowingly violating the law is discriminatory in favor of the oil and gas industry. So again, it seems 

like we are really searching for a conspiracy where one doesn’t 

exist. 

Talked about the surface mining stream protection. We went into 

that in great detail. And, as I pointed out at the time, it was incompetence. It wasn’t an attempt to—and the end result actually 

favored mountaintop removal and the industry, so I’m not sure, 

again, what scandal we are trying to uncover. 

And, maybe we could simplify things here and go back to a much 

older method, since this is, in fact, a witch hunt, and that is we 

should replace the witness table with a big tank of water, and we 

will bring in the Director and we will put him in there, and if he 

floats, then he’s guilty, and if he sinks, he wasn’t. You know, that’s 

the way they used to do things back in the olden days. And maybe 

we should go back to older practices, and maybe we would get some 

more significant results. 

With that, Mr. Chairman, I yield back the balance of my time. 

[The prepared statement of Mr. DeFazio follows:] 

PREPARED STATEMENT OF THE HON. PETER DEFAZIO, RANKING MEMBER, COMMITTEE

ON NATURAL RESOURCES

Thank you, Mr. Chairman. 

Yet another hearing that wastes time. Yesterday, it was the 9th, 15th, 27th or 

whatever hearing on legislation that undermines the ESA and will go nowhere in 

the Senate. Today, we have a retrospective of all the outrageous, inane, costly document demands and subpoenas issued by the Majority. I guess it makes sense, we 

are about to break for the election so why not trod out the tin-foil hats and pretend 

to hold the Obama administration accountable for its so-called scandals. 

Well, let’s take a look at what these conspiracy-driven witch hunts have produced. 

The Committee Majority this Congress has sent the Interior Department 37 

letters spanning 16 distinct topics requesting documents and information. 

At Interior alone, these document demands have cost taxpayers at least $2 million 

and diverted 34,000 hours of staff time from serving the American people. In response, the Department has produced over 60,000 documents. 

The Committee Majority also has issued unnecessary subpoenas to the Department of Agriculture and the Office of Management and Budget, and threatened the 

Justice Department with a subpoena in the course of demanding still more 

documents. 

I understand the Majority has policy differences with the administration, and our 

committee should be debating those differences. But the Majority seems to believe 

that nefarious influence lies at the heart of every disagreement; when the documents don’t reveal the nefarious influence, it must be because the administration 

is hiding something, which means new document demands and subpoenas. 

But the majority refuses to accept reality—a reality supported by all the 

thousands of pages of documents provided to the committee. 

9 

Consider a few of the examples before us today: 

• In the United States, there are about 48,000 wind turbines compared to 

876,000 oil and gas wells, which ‘‘take’’ an estimated one to two million birds 

a year. As of March, the Fish and Wildlife Service was investigating 17 ‘‘bird 

take’’ cases involving the wind industry and 21 cases involving the much 

larger oil and gas industry. 

The Service reported this data—which answers the Majority’s central oversight question—before the Chairman even issued his subpoena. The Forest 

Service has now provided more than 11,000 pages of documents to the committee. And guess what, no scandals. 

• The Interior Department also has provided the committee with roughly 

14,000 pages of documents over the last two Congresses related to the Office 

of Surface Mining’s Stream Protection rulemaking. These documents refute 

Republican accusations, as the Committee’s Democratic staff documented in 

a report issued more than 2 years ago. 

The Interior Department’s Office of Inspector General investigated as well. 

And guess what, no scandals produced. 

So here we are, wasting yet more time so the Majority can argue that the lack 

of scandal is an indication that the Service has hidden the damning documents from 

view. How the Majority is so certain of these scandals, I have no clue. Maybe they 

are listening to their own intuition, maybe the tea leaves point to scandal, or their 

Magic 8-ball urged them on. 

Well, here’s another way the Majority can find out if their accusations are defensible. This test won’t waste millions of taxpayer dollars—as they have done with the 

dozens of requests. This test will not consume thousands of staff hours and distract 

them from their actual jobs. All they need to do is bring in a dunk tank full of 

water. And if Service officials float, the majority will know their political witch hunt 

was justified. That’s all this is—a witch hunt. 

The CHAIRMAN. I would just say you, my friend, the Ranking 

Member, has been here longer than I; did they do that before I got 

here? And, if so, did it work? 

Mr. DEFAZIO. That is what we did when we were in charge. 

The CHAIRMAN. Let the record show that the Ranking Member 

answered in the affirmative. 

Well, we are pleased today that we have two witnesses that have 

come in. Yes, Director Ashe has been here, and I have had private 

conversations with him, and this is, obviously, an ongoing issue. 

And, yes, there are differences. I will be the first to acknowledge 

that. But for the American people to have an understanding of 

what is going on and why it is going on, obviously, we have to have 

documents. 

Director Ashe has told me privately and publicly that he is certainly willing to be available, and he is here, and I am glad that 

he is. I am also glad that the Solicitor is here, also, Hilary 

Tompkins. Now, we had a conversation during the break, and we 

tried to be accommodating. And I know that we originally scheduled you for tomorrow, but to accommodate you we worked out the 

schedule today. So I appreciate your being here. 

I know you both know the rules, but I will say it anyway, your 

full written statement that you submitted will be part of the 

record, and we would like to keep your oral arguments within the 

5-minute parameter. That timer in front of you has a green, yellow, 

and red light, and the green light means that you are doing very 

well up to 4 minutes. Then, when the yellow light comes on, it 

means that there is a minute to go, and then, when the red light 

10 

comes on, it is a very similar situation when you are driving 

through a yellow light: you speed up. 

So, I appreciate your being here. And so, Director Ashe, we will 

start with you, and you are recognized for 5 minutes. 

STATEMENT OF THE HON. DAN ASHE, DIRECTOR, FISH AND 

WILDLIFE SERVICE, U.S. DEPARTMENT OF THE INTERIOR 

Mr. ASHE. Thank you and good morning, Mr. Chairman, and 

members of the committee. As I stated when I testified on this subject about 5 or 6 months ago, I am here today at your request to 

answer your questions to the very best of my ability. And as I said 

then, I have, without exception, made myself and the senior employees and officers of my Bureau available to the committee and 

its members without exception. 

Since the March hearing we have provided additional responsive 

materials as an attempt to accommodate the needs of the committee. We have offered the committee staff opportunity for incamera review of all of our closed law enforcement case files. We 

provided additional staff briefings and interviews, and I have met 

with you, Mr. Chairman, as you acknowledged, in your office, and 

we have spoken on the telephone on several occasions. 

But, based on the title you have chosen for this hearing, I accept 

that you remain unsatisfied with our responsiveness, and I will 

just say that disappoints me, as I believe we are making exceptional efforts to be responsive. 

And as an example I will say that, currently, one of our highest 

priorities is dealing with the ongoing slaughter of African elephants and syndicated trafficking of elephant ivory. And one success in that effort has been Operation Scratch-Off, an undercover 

operation that resulted in numerous convictions of poachers and 

traffickers, and the seizure of more than 1 ton of elephant ivory. 

The thousands of hours that our law enforcement agents have had 

to put in to respond to the committee’s demands for documents is 

equivalent to the time that we invested in Operation Scratch-Off. 

So, instead of producing documents, these really best-in-theworld law enforcement professionals should be putting poachers 

and traffickers in jail, and further helping the global effort to stop 

the slaughter of these majestic creatures. So I guess I agree with 

you, Mr. Chairman, that this effort is wasting time and attention 

and effort at a very crucial time for our organization. 

There is a perception among some, I think, that the U.S. Fish 

and Wildlife Service is preferentially applying laws like the 

Migratory Bird Treaty Act and the Bald and Golden Eagle 

Protection Act, and that that preferential application is politically 

motivated. Just let me say unequivocally that both are completely 

false. And the committee’s investigation has produced not a shred 

of evidence to support the accusation that we are applying these 

laws preferentially. 

The U.S. Fish and Wildlife Service is an organization of outstanding professionals and public servants. Nowhere is that more 

true than in our law enforcement ranks. We follow the facts where 

they lead us, period. There have been no attempts to politically direct or influence the enforcement of these laws. And if it were atVerDate Mar 15 2010 08:59 Jul 06, 2015 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6602 J:\00 FULL COMMITTEE\00SE10 2ND SESS. PRINTING\89833.TXT DARLEN
11 

tempted, the effort would meet unrelenting opposition from within 

the organization. 

Mr. Chairman, I am here today, as I always have been, at your 

request, and ever hopeful that I can do a better job at getting you 

the information that you need to fulfill this committee’s oversight 

responsibilities. I believe I have done, and can and will do what is 

reasonable to accommodate the committee. But I cannot do that if 

it is going to require me to sacrifice critical mission function in the 

process. 

Thank you very much. 

[The prepared statement of Mr. Ashe follows:] 

PREPARED STATEMENT OF DAN ASHE, DIRECTOR, U.S. FISH AND WILDLIFE SERVICE, 

DEPARTMENT OF THE INTERIOR

Good morning Chairman Hastings, Ranking Member DeFazio, and members of 

the committee. I am Dan Ashe, Director of the U.S. Fish and Wildlife Service 

(Service). Thank you for the opportunity to discuss the Service’s extensive efforts to 

respond to the committee’s multiple requests for documents related to various topics. Since I last testified before this committee, the Chairman and I have had the 

opportunity to speak on several occasions regarding various issues. I appreciate the 

opportunity to have had those conversations and I welcome a continued dialog with 

the committee and its members. 

The committee plays a key oversight role in ensuring that the Service fulfills its 

conservation and public service mission, the foundation of which rests in the numerous wildlife and natural resources conservation laws enacted by the Congress. The 

Service and the Department of the Interior (Department) recognize and respect the 

committee’s oversight role of the Federal agencies within its jurisdiction. I hope 

that, through our conversations, we can continue to accommodate the committee’s 

legitimate oversight interests while protecting Department and Service employees’ 

ability to carry out their important work. 

COMMITTEE OVERSIGHT AND DOCUMENT REQUESTS

Since the beginning of the 113th Congress, the Department and its bureaus have 

received 37 letters from the House Natural Resources Committee related to document requests on 16 distinct topics. The Department oversees the process used to 

respond to such requests by each of the individual bureaus, including the Service. 

To date, during this Congress, the Department has provided the committee with 

more than 60,000 pages of documents and a number of related briefings. The 

Department has dedicated nearly 34,000 staff hours and more than $2 million in 

resources toward responding to congressional document requests, most of which 

were from this committee. 

For the Service, there have been four separate issues subject to seven document 

requests and subpoenas between March 7, 2013 and May 30, 2014. Those issues include: a document request and subpoena regarding enforcement of Migratory Bird 

Treaty Act (MBTA) and the Eagle Act, a document request and subpoena regarding 

the listing of the White Bluffs Bladderpod under the Endangered Species Act (ESA), 

a document request regarding the determination whether to list the sage-grouse 

under the ESA, and a document request regarding the scientific integrity policy. 

The following information provides the current status of the Department’s 

responses to these requests. 

Document Request and Subpoena regarding Enforcement of MBTA and the Eagle Act 

On May 16, 2013, the committee requested documents from the Service pertaining 

to the enforcement of the MBTA and the Eagle Act against energy companies, including: (1) copies of documents related to Service investigations, as well as referrals 

to the Department of Justice, created between January 2009 and the present; (2) 

copies of communications between the Service and representatives from wind energy 

companies; (3) copies of policies, legal analysis, and emails related to enforcement 

discretion under the MBTA and Eagle Act; (4) communications between the Service 

and the American Wind Wildlife Institute; and (5) documents related to meetings 

concerning proposed revisions to the eagle take regulations. 

Since receiving the Chairman’s original letter of request for MBTA and Eagle Act 

enforcement documents on May 16, 2013, and its subpoena issued on March 11, 

2014, the Department has provided over 11,000 pages of documents to the comVerDate Mar 15 2010 08:59 Jul 06, 2015 Jkt 000000 PO 00000 Frm 00015 Fmt 6633 Sfmt 6621 J:\00 FULL COMMITTEE\00SE10 2ND SESS. PRINTING\89833.TXT DARLEN
12 

mittee on the following dates: September 18, 2013, December 2, 2013, December 13, 

2013, February 26, 2014, March 10, 2014, March 20, 2014, March 24, 2014, April 

3, 2014, April 25, 2014, May 9, 2014, June 27, 2014, and July 11, 2014. Of the nearly 34,000 hours of staff time noted above, Service staff spent thousands of hours reviewing years of records and files to comply with this request of the committee. 

In addition to providing these document productions, the Department and the 

Service have also made senior staff and myself available to the committee. On 

December 17, 2013, committee staff met with Mr. William Woody, Chief of the 

Service’s Office of Law Enforcement, who answered questions related to enforcement 

of the MBTA and the Eagle Act. Between March 26, 2014 and April 3, 2014, I testified before this committee on this issue, spoke with Chairman Hastings over the 

phone and met with committee staff with Chief Woody. 

During the April 3, 2014, meeting, the Service sought to provide accommodations 

to improve the efficiency of getting information to the committee. In its March 11, 

2014, subpoena, the committee asked for documents related to a broad set of investigations by the Office of Law Enforcement of violations of the MBTA and/or the 

Eagle Act. Responding to this request would have required an inordinate amount 

of time from the agency’s professional law enforcement personnel, taking them away 

from critical work investigating wildlife crimes. The Service offered to instead provide case summaries in the short term and provide in-camera review of any of the 

cases the committee was interested in based on those summaries. The committee 

has not yet requested such in-camera review. 

Despite these efforts to respond to the committee’s requests for documents, on 

March 11, 2014, the committee issued a subpoena reiterating parts of the previous 

request as well as requesting additional new documents. With the Service’s July 11, 

2014, letter, the Service completed its work to respond to the May 2013 request and 

the March 2014 subpoena. Any further documents that are provided on this issue 

will be transmitted by the Office of the Secretary. 

Document Request and Subpoena regarding the Listing of the White Bluffs 

Bladderpod under the ESA 

On March 7, 2014, the committee requested documents from the Service pertaining to the listing determination and the critical habitat designation for the 

White Bluffs bladderpod, including: (1) a copy of the report entitled, ‘‘Evidence for 

Recognition of Physaria Tuplashensis (Brassicaceae)’’, explanations of how it was obtained and if it underwent peer review, and communications between the Service 

and the authors; (2) communications between the Service and the peer reviewers for 

the listing determination and critical habitat designation; (3) all documents related 

to the peer reviewer selections; (4) all documents relating to conflict of interest, financial disclosures, prior policy positions, sources of funding, or recusals from the 

peer reviewers of the listing determination and critical habitat designation; (5) all 

documents related to the charge questions and instructions given to peer reviewers; 

and (6) all communications between the Service and the Center for Biological 

Diversity related to the White Bluffs bladderpod. 

The Department and the Service continue to cooperate with the committee to provide information that is responsive to its concerns about these issues. Since receiving the Chairman’s original letter on March 7, 2014, and its subpoena issued on 

April 7, 2014, the Department has provided approximately 80 documents totaling 

more than 700 pages to the committee on April 2, 2014, and April 18, 2014. To compile this information, Service staff spent many hours reviewing records and files to 

comply with the committee’s request. The Service also responded in writing on this 

issue to additional letters from the committee on this subject on June 6, 2014, and 

July 25, 2014. 

In addition to providing the written documents, the Service has also met in person 

or held phone calls with the committee on four occasions between April 1, 2014 and 

July 1, 2014. During this period I spoke with Chairman Hastings on the telephone 

twice and met with the Chairman in person once. I also met separately with committee staff. Field Supervisor Ken Berg was interviewed by the committee staff on 

the telephone. 

We believe the Department’s responses to the committee on this subject have 

provided all documents responsive to this request. 

Document Request regarding the Determination whether to List the Sage-Grouse 

under the ESA 

On March 7, 2013, the committee requested documents from the Department pertaining to the National Technical Team Report, ‘‘A Report on National Greater 

Sage-Grouse Conservation Measures,’’ (NTT Report) including: (1) information on 

how much money the Department has spent on sage-grouse conservation measures; 

13 

(2) how many full-time employees are assigned; (3) does the NTT report adequately 

and accurately reflect scientific findings in each of the regions where a regional 

management plan is being considered; (4) a description of what additional or differing data and science were utilized to support the March 2010 finding that the 

greater sage-grouse warrants listing; (5) a list of all authorizations or permitted activities that have been submitted or proposed to BLM for approval; and (6) a list 

of dates and locations of all upcoming public meetings BLM has scheduled, and internal deadlines for required decisions by FWS (and others) relating to sage-grouse 

in 2013 and 2014. 

The committee also requested other documents as follows: (7) all documents, including internal memoranda, related to implementation and enforcement of 

Instruction Memos 2012–043 and 2012–044; (8) all documents, including internal 

memoranda and any letters sent to state agencies, officials or employees, or any 

non-governmental organizations (NGO) related to any state program being exempt 

from compliance with aforementioned memos; (9) all drafts of aforementioned 

memos, including those sent to the Office of the Solicitor, state agencies, or NGO; 

(10) all documents related to the creation, implementation, enforcement and/or rescinding of Nevada State BLM Instruction Memoranda 2012–056, 2012–057, and 

2012–058; (11) all documents related to the establishment and the authority to establish the National Technical Team; (12) all documents related to the selection and 

appointment of National Technical Team members; (13) all documents, including 

peer reviewer comments, related to implementation and enforcement of the NTT 

Report; (14) all documents related to BLM’s decision to develop alternatives included in the Sub-Regional Sage-Grouse Environmental Impact Statement; and (15) 

all documents related to the analyses of socio-economics impacts related to the sagegrouse. 

Since receiving the Chairman’s original letter on March 7, 2013, the Department 

has provided nearly 3,000 pages and more than 80 documents to the committee on 

May 8, 2013, May 14, 2013 and August 21, 2013. In addition, Department staff met 

with committee staff on July 11, 2013, and based on that conversation, provided additional information to the committee in a July 25, 2013 letter. 

Document Request regarding Scientific Integrity Policy 

On July 31, 2013, the committee requested documents from the Service pertaining 

to complaints about scientific integrity policy violations at a Service field office. The 

committee asked for documents as follows: (1) all documents related to an OIG 

Management Advisory issued July 11, 2013; (2) all documents contained in certain 

files maintained by the Service’s Human Resources Department or the Office of the 

Solicitor; (3) a description of actions taken by the Service in response to investigations; and (4) a copy of all correspondence provided to the Office of the Inspector 

General regarding this issue. 

Since receiving the Chairman’s original letter on July 31, 2013, the Department 

provided 7 documents totaling more than 70 pages to the committee on January 27, 

2014, and April 18, 2014. In addition, a briefing was provided to committee staff 

on September 13, 2013. 

CONCLUSION

The Service recognizes, respects, and values the oversight role of Congress and 

this committee. The Service has a consistent track record of making our leadership 

available to the committee to answer questions and to listen. Requests for information in writing and requests for documents are important components of the oversight process. However, the process of responding to expansive and numerous 

document production requests is a significant drain on Service resources, diverting 

staff with expertise away from their primary responsibilities to support on-theground conservation. I hope we can work together to find efficient ways to get the 

committee the information it needs to carry out its legitimate oversight role. 

Thank you again for this opportunity. I will be pleased to answer any questions 

that you may have. 

The CHAIRMAN. Thank you, Director Ashe. I appreciate your 

opening statement. 

And now I will recognize Solicitor Tompkins for her opening 

statement. 

14 

STATEMENT OF THE HON. HILARY TOMPKINS, SOLICITOR, 

OFFICE OF THE SOLICITOR, U.S. DEPARTMENT OF THE 

INTERIOR 

Ms. TOMPKINS. Thank you, Mr. Chairman, members of the 

committee. It is a pleasure to be here today. My name is Hilary 

Tompkins, and I am the Solicitor for the Department of the 

Interior. We are charged with overseeing the legal issues of a vast, 

multi-faceted agency, the Department of the Interior, and it is a 

real honor and privilege to be here today. 

This is the first personal invitation I have had to engage with 

the committee, so I am really pleased to be here. And I wanted to 

thank Chairman Hastings for accommodating my schedule, and 

also talking with me personally on the phone in advance of this 

committee hearing. I greatly appreciate it. 

If I could ask for your indulgence, I would like to just also introduce myself under my Navajo tradition. I am a member of the 

Navajo Nation. And when we appear before esteemed leadership 

and government officials, it is proper to do that according to our 

culture. So it just takes one second, and I know it is going to count 

against my time. 

[Speaking native language.] I said that I am from the Salt Clan 

on my mother’s side and Taos Pueblo on my father’s side, and I 

come from New Mexico. 

Let me start by saying that the Solicitor’s Office plays a role in 

the oversight process. We have a varied mission. We deal with a 

number of different natural resource laws, and Indian law, as well. 

And, at the outset, I want to emphasize that we do respect the 

oversight authority of this committee, and we want to help the 

Department meet the legitimate oversight needs of the committee, 

while minimizing the impact on our daily work, as Director Ashe 

alluded to. 

As Solicitor, I am responsible for providing legal advice for all 

the programs and operations and activities of the Department. I 

cannot fulfill these obligations without the tremendous hard work 

and highly specialized expertise of the attorneys in the Solicitor’s 

Office. We have an immediate office, we also have an ethics office, 

four legal divisions focusing on vast areas of law, public lands, 

water, minerals, Indian affairs, parks, wildlife, general law division, administrative division, and 16 offices throughout the 

country. 

The legal review process in the oversight context is managed by 

one of my deputies, a career manager who has many years of experience working in the civil service area of ethics and oversight. We 

also have a number of staff attorneys approaching about—a little 

less than 350 attorneys. Given that a lot of the areas of the oversight requests involve highly specialized areas of law, we have 

other staff attorneys assist in the process to provide their expertise 

in assisting us in responding to requests. 

To date, solicitor attorneys have carried out almost 700 hours of 

review of documents for 16 oversight matters in the current 

Congress. Through this work, our office has significantly contributed to an ongoing effort on behalf of the Department to accommodate the committee’s interests. We have sought to work with committee staff in order to fully understand the oversight interest to 

15 

the particular request, so that we can attempt to allocate the resources to best meet your needs. 

The accommodation process is a key tool in the interaction 

between the legislative branch and the executive branches of government, with the primary goal being that the legislative branch 

provides an appropriate check, while ensuring that such oversight 

does not inappropriately intrude upon the executive branch’s functions and authority. 

The Department’s approach to accommodation has consistently 

been to work in a way that respects our mutual constitutional interests. With each oversight request, the Solicitor’s Office supports 

the Department in this process of balancing the interests between 

the two branches. This undertaking is time-consuming, requires 

careful consideration of executive interests, general legal counseling as well, including any pending litigation or other issues, as 

well as legal review of the responsive documents, which can be a 

massive and complex undertaking. 

I come before you today in the spirit of deep respect for the constitutional process we are engaged in. While it can foster great debate and disagreement, it serves an important purpose in our 

constitutional democracy. 

Thank you again, and I am pleased to answer any questions that 

you may have. 

[The prepared statement of Ms. Tompkins follows:] 

PREPARED STATEMENT OF HILARY TOMPKINS, SOLICITOR, U.S. DEPARTMENT OF THE

INTERIOR

Good morning Chairman Hastings, Ranking Member DeFazio, and members of 

the committee. My name is Hilary Tompkins, and I am the Solicitor of the U.S. 

Department of the Interior, an agency charged with protecting America’s landscapes 

and heritage, honoring our unique responsibilities to tribal communities, and overseeing the responsible development and use of our country’s natural resources. 

Thank you for the opportunity to discuss with you the role of the Solicitor’s Office 

relating to Congressional Oversight activities. 

At the outset, I would like to thank you, Mr. Chairman, for accommodating my 

schedule with regard to your invitation to testify. I would also like to thank you for 

speaking with me regarding the committee’s oversight interests and concerns. As I 

hope that I made clear during our recent conversation, I personally, and the 

Solicitor’s Office generally, recognize the important role of the committee in ensuring that the Department accomplishes its varied and significant natural resource 

missions, as established in Federal law. We also appreciate and respect the committee’s oversight role with respect to the activities of the Department of the Interior. 

I believe that conversations such as our recent call, which allow for a better mutual 

understanding of the respective interests of the committee and the Department, can 

allow the Department to meet the legitimate oversight needs of the committee while 

minimizing the impact on the Department’s ability to carry out its missions and 

day-to-day work. 

OVERVIEW OF THE OFFICE OF THE SOLICITOR

I am the principal legal adviser to the Secretary of the Interior and the Chief Law 

Officer of the Department. I am responsible for providing legal services for all programs, operations, and activities of the Department. I meet these obligations 

through the work performed by the attorneys in the Office of the Solicitor (SOL), 

who provide advice, counsel, and legal representation to the Immediate Office of the 

Secretary, the Assistant Secretaries, and the bureaus and offices overseen by the 

Secretary. 

The scope of the legal work for which I am responsible is broad by design and 

encompasses the interpretation and application of all legal authority affecting actions proposed or taken under the Department’s programs and operations, including 

statutes, judicial decisions, and executive orders. The actions on which the 

Solicitor’s Office advises are accordingly broad as well, encompassing not only matVerDate Mar 15 2010 08:59 Jul 06, 2015 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6621 J:\00 FULL COMMITTEE\00SE10 2ND SESS. PRINTING\89833.TXT DARLEN
16 

ters in litigation but also other bureau activities, such as responses to requests for 

information under the Freedom of Information Act or other authorities and decisions 

regarding interaction with third parties. 

The Solicitor’s Office is organized into the Immediate Office of the Solicitor, the 

Ethics Office, 4 legal divisions that focus on supporting one or more of Interior’s bureaus in the areas of public lands and water, minerals, Indian affairs, and national 

parks and wildlife, a general law division, an administrative division, and 16 regional and field offices located throughout the United States. As Solicitor, my staff 

consists of 401 employees, 324 of whom are lawyers, and it includes a Principal 

Deputy Solicitor, 6 Deputy Solicitors with subject matter expertise, Senior 

Counselors, an Ethics Director, 6 Associate Solicitors who manage the Divisions, 

and 8 Regional Solicitors who oversee our field operations. The overarching mission 

of SOL is to provide top quality legal counsel and advice to the Department and 

fulfill our professional responsibilities to the Department. 

ROLE OF THE SOLICITOR’S OFFICE IN CONGRESSIONAL OVERSIGHT

As noted above, the legal work of the Solicitor’s Office encompasses advising on 

actions taken under the Department’s programs and operations. This includes providing legal advice as part of the process for determining the proper scope and manner of the bureau or office’s response to oversight requests from congressional 

committees. Accordingly, Solicitor’s Office attorneys are routinely involved in assisting with the legal review and preparation of materials to satisfy congressional requests for information. 

The work of the Solicitor’s Office on congressional oversight requests consists primarily of advising on the proper steps to follow in searching for and gathering responsive documents, reviewing documents for responsiveness to the request, and 

identifying possible executive interests in the responsive material, including matters 

that are confidential or privileged. The legal review process is managed by a senior, 

career attorney manager with the assistance of staff attorneys. Typically, given the 

highly specialized legal areas that are often intertwined with issues that are the 

focus of an oversight request, staff attorneys that possess the necessary unique expertise will assist in the legal review process. The attorneys that are assigned to 

this work perform this work in addition to their regular legal work obligations. To 

date, SOL attorneys have carried out almost 700 hours of review of documents for 

16 discrete topics in the current Congress for this committee. 

Through this work, the Solicitor’s Office has significantly contributed to an ongoing effort on behalf of the Department to accommodate the Congress’s legitimate 

oversight interests. The Department has received requests for information from 

multiple congressional committees. In each instance, the Department has sought to 

work with committee staff in order to fully understand the oversight interests related to the particular request, the priorities of the various committees overseeing 

the Department, and the specific issues of concern, so that the Department can attempt to allocate resources to best meet congressional needs in priority order. 

This is important but labor-intensive work. It is labor-intensive work because, as 

the courts have recognized for decades, there are legitimate differences between the 

executive and legislative branches regarding their respective roles and interests. 

Pursuant to the separation of powers doctrine, Congress engages in oversight of the 

executive branch’s implementation of law. Likewise, the executive branch’s role is 

to implement and execute the laws and engage in administrative decisionmaking. 

Congress’ oversight role relative to the executive’s authority is among the checks 

and balances established under the Constitution. 

The accommodation process is a key tool to ensuring that these checks and balances function properly. The Department’s approach to accommodation consistently 

has been to work in a way that respects our mutual Constitutional interests, and 

the Solicitor’s Office supports the Department in this process. This undertaking is 

time consuming and requires careful consideration of any executive interests, general legal considerations, including any pending litigation or settlements, counseling 

the affected offices and bureaus of the Department, and legal review of responsive 

documents, which can be a substantial and complex undertaking. 

THE ROLE OF THE ETHICS OFFICE

The Departmental Ethics Office implements the statutory and regulatory ethics 

requirements of the Federal Government and DOI. The Departmental Ethics Office 

is headed by a career Designated Agency Ethics Official (DAEO) who coordinates 

and manages the Department’s Ethics Process. The duties of the DAEO are to develop and interpret ethics related-regulations and policies, administer and monitor 

the financial disclosure systems, design and implement the training programs, and 

17 

provide employees with ethics counseling services, including conflict of interest analysis, and conducting internal compliance reviews. Deputy Ethics Counselors within 

each bureau oversee the day-to-day implementation of their bureau ethics program 

by administering the financial disclosure system, conducting ethics training, and 

providing ethics counseling and advice to bureau employees. Presently, the Ethics 

Office consists of the DAEO, five staff attorneys, four ethics specialists, and two 

contractors. 

Some of the current activities of the Ethics Office include compliance reviews of 

bureau ethics programs, developing and delivering extensive training including new 

entrant, annual, and post-government employment training, and day-to-day ethics 

counseling. The Ethics Office publishes a newsletter entitled ‘‘Ethics Express,’’ conducts town hall meetings and webinars around the country, and provides education 

and training to the Department’s bureau ethics counselors. The Ethics Office also 

serves as the Department’s Hatch Act compliance unit. 

In recognition of these innovative activities, Department’s Ethics Office, under the 

current DAEO’s leadership, has received multiple awards from the Office of Government Ethics. These awards include Recognition of Outstanding Achievement in 

Developing Education and Communication Products that Foster an Ethical Culture 

(2008); Recognition of Outstanding Achievement in Managing the Ethics Program 

(2010); the Excellence and Innovation Award (2011); Program Excellence and 

Innovation for an Ethics Event (2011); and recognition for Program Excellence and 

Innovation for a Product to Raise Awareness (2011). 

CONCLUSION

I come before you today in the spirit of deep respect for the Constitutional process 

in which we are engaged. While there may be points of disagreement during the 

course of this process, it serves an important purpose in our Constitutional democracy. I look forward to continuing to work with you to accommodate your legitimate 

oversight interests while also protecting the legitimate interests of the executive 

branch. 

Thank you again for this opportunity. I will be pleased to answer any questions 

that you may have. 

The CHAIRMAN. Thank you very much, Solicitor Tompkins. I was 

prepared to give you more time after your introduction, because 

Director Ashe had not used all his time. We try to level those 

out—— 

Ms. TOMPKINS. Well, thank you. 

The CHAIRMAN [continuing]. But you did very, very well. 

Director Ashe, let me start with you. Yesterday I received a letter from the Secretary, and I am sure you got a copy of that, with 

precise figures on the cost and the burden for responding to our 

oversight request. You alluded to that in your opening statement, 

and you have made that observation in other venues here, in front 

of this committee. And I think the Ranking Member also alluded 

to that. 

So, here is a dilemma that I face. How is it that you can track 

what appears to be the exact costs of responding to our oversight 

request, but when the committee asks how much, for example, the 

Department is spending on the sage-grouse listing, we get absolutely no information. Or, when we ask how much is it costing with 

this ESA settlement, mainly the mega-settlement, we don’t get any 

information. Or, how much is it costing to rewrite the stream buffer rule, which has a lot of controversy, also. And yet the Department can’t give us any figures on that. 

Now, here is the dilemma that we face. We think that those are 

very legitimate questions, because there is some controversy surrounding those. And yet we don’t know how much time and money 

you are spending. And yet you come here, and I know you budget 

18 

for oversight, I know that, within the Department of the Interior, 

there is a budget for oversight, and you tell us that that is a burden. I have a hard time reconciling that. Can you help me reconcile 

that? 

Mr. ASHE. First, Mr. Chairman, I have no budget for oversight. 

If I send my—— 

The CHAIRMAN. The Department of the Interior does, however. 

Mr. ASHE. Well, I can’t speak for the Department, but I have no 

budget for oversight. So every time I respond to a request like this, 

it is coming from my operational accounts. And I would say, as far 

as tracking the exact costs, what we have given you is an estimate 

of the direct costs to respond to the committee’s requests, because 

we can, as we are, as people are undertaking direct action to respond to these requests, they are keeping a log of their hours. 

But it is not the full cost, because it doesn’t include, for instance, 

my time. So, as I have prepared for this hearing, I have probably 

put 12 to 15 hours of personal time into preparation for this hearing. That requires probably a dozen people behind me to do preparation work. That is not included in these numbers for response. 

So—— 

The CHAIRMAN. But, Director Ashe, I mean, obviously, whether 

it is not a line item or not, you know that part of the oversight of 

any administration with any Congress is part of the job. 

Mr. ASHE. It is. 

The CHAIRMAN. OK, right. 

Mr. ASHE. And I don’t begrudge my part of the job. You asked 

about the exact cost. It is not the exact cost, I would say it is a 

conservative estimate of the costs of responding to the—— 

The CHAIRMAN. Well, then, here is the dilemma. Here is the dilemma. And maybe you are not the one to ask, and so it will be 

a rhetorical question. How is it you can give us, how is it the 

Department can give us an estimate of this cost, but can’t give us 

the cost on the sage-grouse, or even an estimate, they can’t give us 

an estimate on the stream buffer zone? 

I know that is not under your purview, but see, those are the 

things that cause us angst up here. We are trying to find information, and at least what was given to us here, your precise costs, 

and then in other areas, absolutely nothing. How can there be an 

openness when you have that sort of response? That is a rhetorical 

question, because you don’t have responsibility. 

Let me go back to the redacted copies there that I showed. I only 

gave three examples; there are many, many examples of that. Just 

give me your explanation of how that sort of stuff happens. 

Mr. ASHE. Well, I think Ranking Member DeFazio probably put 

it correctly. The FOIA process and the process of responding to a 

congressional document request are two different processes. They 

are different people. And that is added by the urgency. When you 

send me a subpoena, people are working quickly. So I guess those 

people, we are not sitting down and comparing and contrasting, so 

people are making decisions within their own realm of expertise 

and process. 

The CHAIRMAN. Well—— 

19 

Mr. ASHE. And so then, coupled with the fact of speed means 

that there will be some inconsistency, and I recognize that clearly 

is—— 

The CHAIRMAN. Well, I will tell you, my time is expired, I will 

just simply make this statement. We have discovered time and 

time again that information given under FOIA was given under 

FOIA and not to us, even under a subpoena. And if stuff was given 

to us under a subpoena, it was heavily redacted. 

Now, once again, how do you build confidence when you get that 

sort of activity? That is the dilemma that we are facing, and that 

causes a bit of angst, as I mentioned earlier. 

I recognize the Ranking Member. 

Mr. DEFAZIO. Well, then, that leads to an interesting thought. 

Then perhaps the committee should make FOIA requests. 

[Laughter.] 

Mr. DEFAZIO. Say an average voluminous FOIA request along 

the lines of some of the ones made here, how long does it take the 

Department to honor those requests? 

Mr. ASHE. Mr. DeFazio, those are also very lengthy, that is a 

very lengthy process. I can’t give you the precise—— 

Mr. DEFAZIO. I have heard groups complain that they waited 

more than a year. 

Mr. ASHE. Oh, they complain incessantly that we are 

unresponsive to their FOIA requests. 

Mr. DEFAZIO. OK. So there is a considerable difference in the 

time span here. 

Now, you have been, I don’t know your exact biographical 

history, but were you with the Department when a political 

appointee named Julie MacDonald was employed by the Bush 

administration? 

Mr. ASHE. I was a career employee with the—— 

Mr. DEFAZIO. Yes? Do you recall what happened to Ms. 

MacDonald? Wasn’t there an IG investigation, and didn’t they find 

that she was attempting to politically manipulate both listings and 

other things that related to the Department? 

Mr. ASHE. Listings and critical habitat determinations. And we 

were remanded to redo several dozen decisions that Julie 

MacDonald was involved in. 

Mr. DEFAZIO. You had to redo that work? 

Mr. ASHE. Because of the political interference. 

Mr. DEFAZIO. And I assume that took considerable cost and time, 

to redo the work straight up, using scientific as opposed to political 

science. 

Mr. ASHE. Correct. 

Mr. DEFAZIO. Science-science, political science—— 

Mr. ASHE. Substantial. 

Mr. DEFAZIO. So I guess what we are dealing with here is sort 

of the ghost of Julie MacDonald, who was a political hack in the 

Bush administration who did attempt to manipulate career employees and come up with decisions that were based in her judgment, 

and not in the judgment of the scientists. 

You have an IG. Are you aware of anything similar that has gone 

on during this administration? 

20 

Mr. ASHE. Not at all. In fact, this administration has put in place 

a process that would prevent that. So when we make endangered 

species listings and critical habitat determinations, our proposals 

do not receive political-level review. 

Mr. DEFAZIO. They don’t? 

Mr. ASHE. They do not. 

Mr. DEFAZIO. Oh, my gosh. Oh, well, that is interesting. 

I think the stream buffer rule is probably not in your shop, right? 

That is—— 

Mr. ASHE. It is not. 

Mr. DEFAZIO. Yes. Yes. My recollection is that someone should 

be fired for that, because they hired a totally incompetent contractor who totally screwed it up, and now we are nowhere on that 

rule. But I guess you can’t comment on that; if we had someone 

from the broader Department, I could get a comment on that issue. 

The other point you made about the $2.4 million that, in terms 

of the largest bust of despicable people trafficking illegally in ivory 

and causing wanton slaughter of elephants, you said that investigation, how long did that take? 

Mr. ASHE. I don’t know the length of time. Usually those types 

of investigations take 18 to 24 months, because they involve sensitive undercover operations, setting up commercial enterprise, developing contacts. So they usually take at least 18 to 24 months to 

come to fruition. And then the process of then referring to the 

Justice Department, getting prosecution, takes even longer. 

Mr. DEFAZIO. Could we infer that there may be similar ongoing 

investigations? 

Mr. ASHE. As we speak. 

Mr. DEFAZIO. As we speak. So we spent $2 million, and we did 

bust up one really bad ring. And so there are other ongoing investigations that may be of a similar magnitude. 

Mr. ASHE. There are many of a similar magnitude. 

Mr. DEFAZIO. OK. So we could perhaps spend $2.4 million more 

productively in going after bad guys, rather than chasing chimeras. 

Mr. ASHE. We are, again, as we speak, we are trying to figure 

out how to place law enforcement agents in key embassies around 

the world, so that we can more effectively network with the law enforcement community across the globe. 

Mr. DEFAZIO. That would be fabulous, because of some of what 

is going on in Africa now, with incredible slaughter of elephants. 

Not sport hunting, but slaughter, and some by terrorist groups. 

So, thank you, Director. Appreciate it. 

The CHAIRMAN. I thank the gentleman. I recognize the 

gentleman from Louisiana, Dr. Fleming. 

Dr. FLEMING. Thank you, Mr. Chairman. And listening very carefully, I find that the excuses for the reason for not being transparent, both from the other side of the aisle and from the table of 

testimony, is either a bureaucracy, we are too busy, or it costs too 

much. The only thing left, Mr. Chairman, is ‘‘The dog ate my homework.’’ But let me move forward. 

Director Ashe, I want to pick up on the Chairman’s line of questions about these redactions. And I will refer you to Exhibit 17, if 

you will. It shows just how arbitrary the Department has been in 

21 

making these redactions, and how baseless its claims are about 

why these redactions are being made. 

At the March hearing I asked you about a draft memo from you 

to the Secretary that was specifically requested in the subpoena. 

When you testified before the committee in March you were asked 

several times about who was responsible for deciding what gets redacted and what gets released to Congress. You said repeatedly 

that you were not a lawyer, that the Service was not responsible, 

and that there was an internal review process at the Department 

to make these redactions. 

You also said the Department had not claimed executive privilege for any of the documents being withheld. 

Director Ashe, this is still one of the documents the Service is refusing to provide. So, again, none of those excuses, whether they 

are reasonable or not, can be applied to this. We just simply asked 

for an unredacted document. It should take 3 minutes and no cost. 

Why has this memo still not been turned over to the committee? 

And has executive privilege been claimed? 

Mr. ASHE. I think I will defer to Solicitor Tompkins for a more 

detailed response. 

I guess what I would say, Mr. Fleming, in response to this is the 

accommodation process that we would go through, if the committee 

has specific concerns about this document, then those are the kind 

of questions that you could ask specifically during the accommodation process. 

Dr. FLEMING. So—— 

Mr. ASHE. And we—it is possible that we could—— 

Dr. FLEMING. So the problem is we are not asking in the correct 

manner. We should do a better job asking for the one document 

that we keep asking for over and over. 

Mr. ASHE. That is—— 

Dr. FLEMING. That is your answer? 

Mr. ASHE. The accommodation process is to work with the committee to try to figure out, OK, of the documents that we provided, 

if there are redactions, that for some reason, seem—— 

Dr. FLEMING. I am running out of time, but basically, you are 

saying, as a fifth excuse here, is that Congress doesn’t know how 

to ask for documents. 

Well, then, let me go to you, Ms. Tompkins. As Director Ashe has 

said, he is not a lawyer and he is not the one deciding what gets 

directed. You are a lawyer, in fact, and you are the Department’s 

top lawyer. So, are you the one in charge of this process, reviewing 

documents and making these redactions? 

Ms. TOMPKINS. Let me say that the lawyers in my office do review the documents for whether there are executive interests that 

implicate confidentiality. 

Dr. FLEMING. But you are the head lawyer, so you are in charge 

of the—— 

Ms. TOMPKINS. I oversee the—— 

Dr. FLEMING [continuing]. Underling lawyers. OK. 

Ms. TOMPKINS [continuing]. Those lawyers doing that—— 

Dr. FLEMING. So let me move on, because I am going to run out 

of time here. 

22 

Ms. Tompkins, can you also confirm that the President has not 

asserted executive privilege over any of these documents? 

Ms. TOMPKINS. That privilege has not been asserted, but there 

is the deliberative process privilege, and a Federal District Court 

has confirmed that that is a valid privilege to assert in the face of 

a subpoena. 

Dr. FLEMING. But it has not been asserted. So what is the 

process—— 

Ms. TOMPKINS. The process has been asserted. 

Dr. FLEMING. What is the process you would go through to have 

the President make a claim of executive privilege? 

Ms. TOMPKINS. Well, that resides with the President and his 

communications. But that is not applicable here, and we are asserting a valid privilege, that the courts have recognized—— 

Dr. FLEMING. OK. Have you made a request to the Department 

of Justice to do that, have executive privilege? 

Ms. TOMPKINS. We have not asserted executive privilege, so we 

have not done that. 

Dr. FLEMING. And you have not requested it from the Department of Justice? 

Ms. TOMPKINS. We are only asserting deliberative process privilege, which is a recognized privilege by the courts to assert—— 

Dr. FLEMING. OK. Has a determination been made that these 

documents would not qualify for protection under a claim of executive privilege? 

Ms. TOMPKINS. We have not asserted executive privilege. 

Dr. FLEMING. But has there been a determination made? Yes or 

no, that is all I am asking. 

Ms. TOMPKINS. I am not sure I understand the question, but 

we—— 

Dr. FLEMING. Has a determination been made that these 

documents would not qualify? 

Ms. TOMPKINS. They are not the type of document and memo to 

the Secretary—or from Director Ashe to the Secretary is not a 

privilege that would fall in the realm of executive privilege, so we 

have been focusing on deliberative process—— 

Dr. FLEMING. So the answer would be no, a determination has 

not been made. Is that correct? 

Ms. TOMPKINS. I guess. We never even did a determination, 

because it is not applicable here. 

Dr. FLEMING. Well, then, there would not be a determination, if 

one hadn’t been made. 

We really ask simple questions around here, we just ask for 

simple answers. 

Ms. TOMPKINS. Mm-hmm. 

Dr. FLEMING. I yield back. 

The CHAIRMAN. The time of the gentleman has expired. The 

Chair recognizes the gentleman from California, Mr. Costa. 

Mr. COSTA. Thank you very much, Mr. Chairman and the 

Ranking Member, for holding this hearing. 

Clearly, I think we all agree that our government was developed 

on the principles of co-equal branches of government, and we have 

different roles, and one of the roles for Congress is oversight on the 

executive branch to fulfill part of our duties. I tend to have a mixed 

23 

feeling on how well we, as Congress, provide that role over the time 

that I have been here. I think it is very serious, and I think it is 

something that we should do better and do more of. 

But frankly, increasingly and disturbingly, I think politics too 

often gets in the way of this oversight role. And I would say that 

on both sides. 

The Department of the Interior and I have a number of differences on a host of issues. But on the matter of whether or not 

you comply on information requests, I think you do so. I think you 

make your best efforts, given the demands placed upon you by this 

committee and by other committees. To be sure, I still have sharp 

differences with some of the decisionmaking that takes place within the Department of the Interior on a host of issues, but I think 

it is clear that these requests also have the unintended consequences of draining time of agency staff that could be used for 

better purposes, at least on the issues I am concerned about. 

I am going to, therefore, switch to another topic that my constituents are far more interested in than this redacting issue that 

maybe is of importance to some of my colleagues. 

Dr. Ashe, you know that the people in the San Joaquin Valley 

are suffering as a result of the drought management decisions 

made by your agency over the last 3 years. And while the smelt 

biological opinion may not have contributed to the water losses this 

year, because we had so little water after 3 years, it did, I think, 

have a major factor in contributing to the loss of waters last year, 

as much as 800,000 acre-feet. And that water could have been 

placed into storage that would have helped alleviate the impacts 

this year on drought-related communities throughout California, as 

far north as my colleague’s district, Jared Huffman, as far south 

as southern California. 

And we are looking at a situation in which, if we have an average year, if we have an average of most of the Valley, we will still 

have a zero allocation, based upon the impacts related to the implementation of the operation of the projects. 

So, I would like to ask you, as a matter of good public policy, do 

you think that, after spending millions of dollars for the restoration 

of species recovery, which I support, but, as I said yesterday, sadly 

has not been very successful, that when you look at sampling of 

populations of various species, is it good public policy that environmental managers, who you oversee, should be held to the same 

standards of management of other managers that, in demonstrating wise and effective use of their resource? Is the answer 

yes or no, Director Ashe? 

Mr. ASHE. Yes. 

Mr. COSTA. OK. So, what is your agency doing to demonstrate 

the benefit from the investment of the money and the water that 

has been spent over, pick any time, last 10 years, last 20 years, it 

is in the billions of dollars of restoration fees and funds for the investment of that money and the water that has been used to try 

to, in fact, restore those species, and the unintended consequences, 

which has caused such harm to other parts of California, obviously, 

a lot of constituents that I represent? 

Mr. ASHE. I appreciate that question, Congressman. I think that, 

I guess I would say our people have very well invested that time 

24 

and resource. We certainly have a biological opinion, as you know, 

the implementation of which is controversial. But it has supported 

the—— 

Mr. COSTA. Well, it is controversial, but I mean we are not going 

to resolve the differences here today. 

Let me move on to another issue that I just think points out the 

contradictions, it seems to me, anyway. Two weeks ago, the Bureau 

of Reclamation reversed an earlier decision and released 25,000 

acre-feet of water in the Trinity system to benefit fall run salmon 

over the Lower Klamath. It was purportedly done to prevent an 

outbreak of a disease, I understand that. Unfortunately, the release 

caused the death of a number of Kokanu salmon in the Lewiston 

Reservoir. 

It seems in that instance a value judgment was made by your 

agency personnel to an intrinsic value of one species over another. 

How do you wage that, you make those judgments? Thousands of 

fish were lost. 

Mr. ASHE. Well, the judgment in question was made by the 

Bureau of Reclamation to release water. Our people have been providing technical advice to the Bureau of Reclamation. And, as you 

point out, it is a very difficult decision, because we have fish coming up the Klamath, and scientific information that those fish are 

under severe stress and showing the signs of disease and—— 

Mr. COSTA. And the case of one species over another? 

Mr. ASHE. Well, it is. It is a complicated management scenario. 

Obviously, people that are on the ground, dealing with the situation day to day have to be able to make those decisions, and they 

are difficult and challenging decisions to make. 

Mr. COSTA. My time has expired, Mr. Chairman, but I would 

also, as a follow-up, like to incorporate how water supply impacts 

your consideration of this valuation. 

The CHAIRMAN. The time of the gentleman has expired. The 

Chair recognizes the gentleman from Arizona, Mr. Gosar. 

Dr. GOSAR. Thank you, Mr. Chairman, and thank you, Director 

Ashe, and Solicitor Tompkins, for talking about the rule of law, and 

how it applies. 

So, I am going to deviate, just like my colleague on the other side 

did. So, Mr. Ashe, how many species has the Fish and Wildlife 

Service proposed to list as endangered during the tenure of 

President Barack Obama? 

Mr. ASHE. I don’t have that information with me—— 

Dr. GOSAR. Let me set this straight, since we are limited on time, 

107 different species, particularly 23 in Arizona. 

So let’s go to the second question. How many species does the 

Fish and Wildlife Service propose to list as endangered by 2016? 

Mr. ASHE. Again, I don’t have—— 

Dr. GOSAR. Well, let me answer the question for you again. You 

have the mega-settlement of 779 species designated in critical habitat in 50 states and Puerto Rico. Most of those will be, probably 

not all. 

Mr. ASHE. But that is not a proposal. That is not a proposal. 

Dr. GOSAR. It is a mega-settlement, so—— 

Mr. ASHE. But it is not a proposal. 

25 

Dr. GOSAR. No, the thing about it is we have seen the tendency. 

So pretty much most of those will go through. 

Does the Fish and Wildlife Service always perform an economic 

impact analysis before designating critical habitat in a listing of 

endangered species? 

Mr. ASHE. Yes. 

Dr. GOSAR. Really? Wow. So then why did you tell Chairman 

Hastings and Subcommittee Chairman Bishop in a meeting 21⁄2

months ago that the Fish and Wildlife Service does their listing decisions based on science, not economic impact? 

Mr. ASHE. A listing decision is based on science, and we cannot 

consider economic or other effects—critical habitat, which was your 

question. We do consider economic and other factors associated 

with that decision. 

Dr. GOSAR. I am just going to fast-forward then, because this 

gets fun. 

So what is the total economic impact, and how many jobs will be 

killed as a result of the 107 different species that have been proposed since 2011? 

Mr. ASHE. Again, when we make listing determinations we do 

not and cannot, under the law, look at economic effects. 

Dr. GOSAR. But you also have to look at it as in the designation, 

do you not? You are required by, let me repeat, for Section 4(b)2, 

the Endangered Species Act, you are required to. 

Mr. ASHE. [No response.] 

Dr. GOSAR. Yes, you are. So—— 

Mr. ASHE. No, I mean, again—— 

Dr. GOSAR. I guess you are not an attorney, but she is, and that 

is probably the law. I am not an attorney, either. 

Mr. ASHE. When we designate—— 

Dr. GOSAR. I am really fascinated by this aspect. I am getting to 

a point here that is very specific to my area. 

So why did the Service fail to hold a public comment period, 

consult with states and other local stakeholders, or do an economic 

impact statement prior to releasing the Strategic Hatchery and 

Workforce Planning Report last November? 

Mr. ASHE. The Strategic Hatchery Workforce planning process 

was an—— 

Dr. GOSAR. Planning Report last November. 

Mr. ASHE [continuing]. Was an internal process to consider how 

we would react. 

Dr. GOSAR. But, you know what? It fundamentally changed, the 

National Fish Hatchery System, did it not? 

Mr. ASHE. It did not, because we have not had to implement—— 

Dr. GOSAR. Oh, it didn’t? OK, so let’s go back to that. You said 

it didn’t. 

So, last October the Fish and Wildlife Service ceased production 

of Rainbow Trout at the Willow Beach National Fish Hatchery citing water line failures. At the time, the Agency stated they didn’t 

have the $1.5 to $8.5 million to repair the broken water supply 

line. Recent engineering reports indicate that these estimates were 

a gross exaggeration, and the broken water line could be fixed for 

as little as $100,000. Seventeen hundred jobs and a $75 million 

26 

economic output associated with Willow Beach are at stake in 

Mojave County, Arizona. 

Does the Agency plan to appropriate money to fix the water 

supply line? 

Mr. ASHE. Our people have been meeting with the state and—— 

Dr. GOSAR. Yes or no? It is an easy question. Yes or no? 

Mr. ASHE. It is not an easy question. 

Dr. GOSAR. It is a very easy question. 

Mr. ASHE. It is not an easy question. 

Dr. GOSAR. OK. Then explain to me. Did the agency consider the 

jobs and associated impact before terminating this program? 

Mr. ASHE. We did not terminate—— 

Dr. GOSAR. Yes, you did. 

Mr. ASHE. Congressman, we had a catastrophic failure in the 

water supply for the hatchery. We did not—— 

Dr. GOSAR. Oh, wait a minute. Catastrophic? It is $100,000, and 

these are engineers that have sat down and showed your engineers 

exactly what goes on in regards to this water—— 

Mr. ASHE. That $100,000 estimate is completely false. It cannot 

be—— 

Dr. GOSAR. Sir, I want to remind you, think about what you are 

saying here. 

Mr. ASHE. I am. 

Dr. GOSAR. It has nothing to do with the $100,000. It has every- thing to do with the $100,000. Your estimate was pathetic. The engineers that looked at this over and over again said that you are 

looking at this in a whole different light. 

Mr. ASHE. Mr. Labrador [sic], let me get this back—— 

Dr. GOSAR. It is Dr. Gosar, by the way. 

Mr. ASHE. We are working with the community to see how we 

can address the operations at that fish hatchery. And if we can do 

it, and if we can make the engineering work, and if we have the 

resources, then we will open the facility. But it is also the possibility that we may not be able to, and we are also working with 

the state and the community to find out how we can produce those 

fish, because it is the fish—— 

Dr. GOSAR. So you are going to—let me ask you because my time 

is limited. So we will go back to Rainbow Trout in that fish 

hatchery? 

Mr. ASHE. We are doing everything we can do—— 

Dr. GOSAR. Yes or no? 

Mr. ASHE [continuing]. To try to get to that place. 

Dr. GOSAR. Yes or no, Rainbow Trout in the—— 

Mr. ASHE. We are trying to get to that place. 

Dr. GOSAR. Thank you. 

The CHAIRMAN. The time of the gentleman has expired. The 

Chair recognizes the gentleman from California, Mr. Huffman. 

Mr. HUFFMAN. Thank you, Mr. Chairman. Director Ashe and Ms. 

Tompkins, thank you for being here. Let me say something that no 

one has said so far. Thank you for your service, and thank you for 

your patience in sitting through a rather surreal hearing, where 

you are accused, where every time you start to answer a question 

you are interrupted, spoken over. It is really embarrassing, frankly, 

what passes for oversight sometimes around here. 

27 

And it does seem to me that this committee sometimes would 

rather have the issue than the information. A perfect example of 

that is the fact that you have produced summaries of a broad set 

of investigations involving these migratory bird protection violations. You have offered to provide in-camera reviews and even full 

case files if the committee had any interest in really going deep 

and understanding these summaries. And so far, the Majority has 

not expressed any interest in any of that. 

So, again, they would rather have the issue than the actual information. This is, indeed, about optics and fighting about things, 

rather than getting to the bottom of them, and I apologize for that. 

It seems that we have found our way to revealing at least one 

scandal, though. It doesn’t involve you, it involves this committee. 

It involves the information that the Democratic staff has produced: 

11 subpoenas so far, 37 letters, 16 distinct topics covered, 125 Fish 

and Wildlife Service employees working full-time responding to a 

March subpoena, 34,000 hours, 60,000 pages of documents produced, $2 million spent by the Interior Department, all responding 

to these fire drills that this committee puts you through. And, at 

the end of the day, zero scandals uncovered. So the scandal is, in 

fact, the search for scandals. 

I want to pick up where my colleague, Mr. Costa, left off, because 

we have been politicizing your efforts to do your job and protect 

fisheries, you know, the Trinity River, and elsewhere, and it was 

mentioned that some Kokanu salmon in Lewiston Lake actually 

turned up dead in conjunction, at least, around the same time that 

flows were released into the Trinity River. Let me just ask you 

about those Kokanu. 

Is that a native fish that has either tribal trust or ESA 

protections? 

Mr. ASHE. Not to my knowledge. 

Mr. HUFFMAN. You are correct, it is not. It is a put-and-take 

fishery. It is a hatchery production fish that is put in there to 

catch. We don’t like fish kills in any situation. But when faced with 

a choice of saving ESA-protected and tribal trust-protected and 

commercially valuable salmon in the Lower Klamath, in the Trinity 

River, it is really no choice at all, you did the right thing, and there 

is nothing at all controversial about the release of those flows. 

I want to change subjects and ask Solicitor Tompkins about 

something. Solicitor, as you know, the drought in California is putting a lot of stress on water managers and everyone who relies on 

healthy rivers. I have made several inquiries to the Bureau of 

Reclamation about the Trinity River Division Act, a 1955 law that 

directs the Secretary of the Interior to release 50,000 acre-feet 

annually from Trinity Reservoir to make available for Humboldt 

County and downstream users. 

In an April 14 letter to me, the Bureau reported that the 

Solicitor’s Office had given legal advice on the matter, but they asserted the attorney-client privilege. Now, based on my reading of 

the law, and my understanding of this situation, I have reason to 

believe that that legal advice actually says what I think it should 

say, that the 50,000 acre-feet must be made available to Humboldt 

County and downstream users. But it has been held secret and 

won’t be released. 

28 

So, I would like to know why this opinion can’t be released to me, 

to other Members of Congress who have asked for it, to Humboldt 

County, or to the Hoopa Valley Tribe. And I want to also, in my 

remaining time, ask you about the litigation that has broken out 

for a second year in a row, involving releases in the Trinity. I believe it was very important to develop the Department’s and the 

Bureau’s line of authority to manage that water and release that 

water, and that the 50,000 acre-feet belonging to Humboldt County 

and downstream users is critical to defending that litigation. It 

may not be popular with the Westlands Water District, but we 

need to know what is in that legal opinion, and I want to ask you 

to speak to that. 

Ms. TOMPKINS. Thank you, Congressman. I am happy to—— 

The CHAIRMAN. Turn on your microphone. 

Ms. TOMPKINS. Move the microphone? There, OK. Thank you for 

that question. 

As you know all too well, the situation in California is very dire, 

and there are a lot of difficult choices the Department has to make, 

with few options. It is true that my office provides legal advice to 

the Bureau of Reclamation on the Trinity Act that you refer to. In 

terms of the scope of the Bureau’s authority, it is discretion whether the law sets forth mandatory requirements for Bureau of 

Reclamation or if there is some flexibility in the law. And my office 

has provided advice to the Bureau, that is correct, there is legal advice in a written format. 

But at this time, as I sit here today, I do not have the authority 

to waive the attorney-client privilege to provide that memo. But 

what I can say is the Bureau of Reclamation, along with the Fish 

and Wildlife Service, is looking carefully at these issues about future planning, and how we approach these decisions in situations 

of drought or otherwise. And as they develop decisions, to the extent any legal advice informs those decisions, they will be made 

part of the Record of Decision, and a rationale will have to be 

given. 

So, to the extent they are relying on that advice, it will be something that comes to the fore through that process—excuse me. 

The CHAIRMAN. I would ask the gentlelady—yes. 

Ms. TOMPKINS. Sorry. 

Mr. HUFFMAN. Thank you, Mr. Chairman. 

The CHAIRMAN. Yes. I think maybe Mr. Huffman has uncovered 

another scandal here that we weren’t aware of. 

Ms. TOMPKINS. Sorry. And sorry, sir, I didn’t hear your gavel. 

The CHAIRMAN. Well, I try—— 

Ms. TOMPKINS. Feel free to hit it harder. 

The CHAIRMAN. I try to give some flexibility when you are—— 

Ms. TOMPKINS. Yes. 

The CHAIRMAN [continuing]. When you are in there. But I—since 

Mr.—— 

Ms. TOMPKINS. No problem. 

The CHAIRMAN [continuing]. Huffman uncovered another scandal, 

I wanted to hear more about it. 

Ms. TOMPKINS. OK. Well, fair enough. But thank you. 

The CHAIRMAN. The Chair recognizes the gentleman from North 

Dakota, Mr. Cramer. 

29 

Mr. CRAMER. Thank you, Mr. Chairman, and thank both of you 

for being with us today, and for your testimony. 

Mr. Ashe, just out of curiosity, do you think that the area of inquiry about the costs of the sage-grouse rule, some of the others 

that may not be under your jurisdiction, are legitimate areas of inquiry by the committee? Are these reasonable questions asked? 

Mr. ASHE. It is a reasonable question to ask. And if you asked 

me how much the U.S. Fish and Wildlife Service is spending on its 

process of listing the sage-grouse I could give you an estimate, and 

I could do that in pretty short order. So, if that is what the committee is interested in, I can get the committee that information. 

I would say the problem, the issue we have right now, is the 

committee is making a very broad request that is draining my time 

and capacity to be responsive. 

Mr. CRAMER. Well, one of the things that you said earlier that 

intrigued me was that the responses to subpoenas require a sense 

of urgency, or a quick response, as opposed to a FOIA response, 

which you have a little more time, and you can provide a more 

thorough response to. 

But it is intriguing to me that more work goes into redacting a 

document than it does to just simply photocopying it and have an 

intern run it over. So I am a little confused by the timeline comparisons here. Wouldn’t it be quicker to be transparent, rather 

than the other way around? 

Mr. ASHE. Actually, the majority of the time is involved in collection of the documents, and that is what drains my field resources, 

because to get these documents I have to go to my field biologists, 

my law enforcement officers. They are the ones who have to 

produce the information. Then it is a process here in Washington, 

DC, where we go through the process of considering redaction. 

And so, the expense for me, in compliance, is the operational 

field expense. 

Mr. CRAMER. Again, though, we are talking about documents 

that have already been provided to somebody else unredacted, and 

you had to go through the work of redacting it later. So it seems 

to me that the work is in not being transparent. The work is more 

in not being transparent than being transparent. 

But I want to get to one other area of inquiry because I am intrigued about the priorities set here. And I suppose this is going 

to seem very politically incorrect, but no one has accused me of political correctness, and there are, believe me, no people love the elephant more than the people on this side of the room. But what is 

it about the African elephant and our role as the international police force to protect the African elephant that trumps issues back 

here, if we are, in fact, in constrained budgetary times? 

In other words, you have used this illustration a couple of times, 

and I know it is a big deal, I don’t want to diminish the African 

elephant. But, we have limited resources, perhaps domestic issues. 

At least to a landowner in western North Dakota, settling the sagegrouse thing is a little more important. So, could you help me understand your prioritization? 

Mr. ASHE. I would say sage-grouse is definitely a priority for the 

U.S. Fish and Wildlife Service. And I would say several months ago 

in Harney County, Oregon, we signed candidate conservation 

30 

agreements covering nearly 300,000 acres with private lands, and 

we had a rancher in Harney County, Oregon stand up and say 

what is good for the bird is good for the herd. 

I use the elephant as an example. That is a responsibility of the 

U.S. Fish and Wildlife Service which we cannot and should not 

shirk. But, you know, sage-grouse is a substantial priority for us. 

And right now, one of the limiting factors in working with private 

landowners is the inability to put enough people in the field to duplicate what we are doing in Harney County. And those are the 

same people. If I have a biologist in my Lacey field office who is 

spending their time producing documents, they are not out in the 

field, working with ranchers to develop candidate conservation 

agreements. 

And so, I use the elephant as an example. Sage-grouse is an 

equally relevant example. 

Mr. CRAMER. I have nothing further. I would yield back. 

The CHAIRMAN. The gentleman yields back his time. The Chair 

recognizes the gentleman from Pennsylvania, Mr. Cartwright. 

Mr. CARTWRIGHT. Thank you, Mr. Chairman, and thank you, 

Director Ashe, and Solicitor Tompkins, for being here. 

Prior to coming here to Congress I served as a courtroom trial 

attorney for 26 years. I understand the importance of thorough responses to subpoenas, and I also believe in the transparency of 

government. I think it is an essential part of our democracy. This 

committee is responsible for ensuring that the legislation that we 

enact is properly enacted and implemented by the administration 

over the past year-and-a-half. 

The Chairman has requested information of and subpoenaed the 

Department of Fish and Wildlife on numerous occasions. It is my 

understanding the Department has gone to extraordinary lengths 

to comply with these requests, providing this committee with over 

5,500 documents, totaling more than 60,000 pages, at a cost of over 

$2 million to the American taxpayer. 

I do applaud the Department’s attempt to comply with the Chairman’s requests to the utmost of your abilities. Timely and thorough 

responses to information requests are essential to Congress’s ability to conduct our oversight responsibilities. But I am concerned 

with the cost of all of this, costs of compliance, given the agencies 

have already severely constrained budgets and we have to carefully 

weigh the costs and benefits of these investigations and make sure 

that we are not wasting taxpayer money. 

I do agree wholeheartedly with my colleague, Mr. Huffman, when 

he says this is all about optics. You know, Americans are sick and 

tired of the inaction in the U.S. House of Representatives. And a 

big part of what we are doing that leads to this inaction is the 

drumming up of phony scandals. And it is only fitting that we have 

the Director of the Fish and Wildlife Service here, because the fishing expeditions are what we are talking about here today. 

And I do have some questions. Ms. Tompkins, for you, first. Our 

Ranking Member has listed at 34,000 as the number of hours spent 

by Department of the Interior personnel responding to the Majority’s document demands, 34,000 hours by Federal employees. Is 

that more or less correct? 

31 

Ms. TOMPKINS. It is an estimate, but it is our best estimate of 

the time that is spent, that we have had to devote to this undertaking, yes. 

And, if I may add, it doesn’t include a lot of the other hours for 

interviews and meetings up here with members of the committee, 

briefings that we have provided, as well, and hearing preparation. 

Mr. CARTWRIGHT. And you, Director Ashe, you have produced 

more than 11,000 pages of documents to this committee on the 

Service’s enforcement of migratory bird and eagle protections. Have 

you made every effort to comply with the Chairman’s subpoena? 

Mr. ASHE. We have made extraordinary effort, and we continue 

to work with the committee, and we have offered our continuing cooperation to try to better refine the committee’s need for information and see if we can be more responsive. 

Mr. CARTWRIGHT. Good. And you have provided summaries of 

case files for migratory bird and eagle investigations instead of the 

entire contents of some of the files. Did you do this because you are 

trying to hide something? 

Mr. ASHE. No, we did that to, again, try to give the committee 

a kind of sense for what the substance of a file would be so that, 

again, they could further refine questions, and we could provide 

more specific information upon—— 

Mr. CARTWRIGHT. And I understand you are willing to provide incamera review of full case files, if the committee expresses an interest in that. Has the Committee Majority asked for an in-camera 

review of any of the full case files? 

Mr. ASHE. To my knowledge, they have not. 

Mr. CARTWRIGHT. But if they did, you would be willing to work 

with them? 

Mr. ASHE. We have offered complete access to all closed law 

enforcement files. 

Mr. CARTWRIGHT. Now, you have also provided data on enforcement actions involving migratory bird and eagle protections. The 

Majority here has alleged that you are engaging in preferential enforcement in favor of the wind industry. But the data would indicate that, proportionately, you are actually pursuing more cases 

against the wind industry. Has that data been doctored in some 

way? Am I missing something? 

Mr. ASHE. No, sir, you are not missing anything. I did the quick 

math last night when I was sitting there. We are currently investigating 21 cases against the oil and gas industry. Based on the 

number of oil and gas wells and the number of wind turbines, if 

we were taking a proportionate approach, we would be investigating a little more than one case for the wind industry. We are 

actually investigating 17 cases, and so that is not preferential. 

I mean the wind industry is a newly emerging industry on the 

landscape, and so it is appropriate for us to be working with the 

industry to try to find out how they are complying, and, when they 

are not complying, work with them. And so, this is not any kind 

of preferential enforcement, but our people do follow the facts, and 

we are working cooperatively with the wind industry. We have, actually, a very good relationship with the wind industry. We have 

developed voluntary guidelines with the wind industry. And so I 

32 

think we are doing exactly what the Congress and the law would 

ask us to do. 

Mr. CARTWRIGHT. Well, I thank—— 

The CHAIRMAN. The time of the gentleman has—— 

Mr. CARTWRIGHT [continuing]. Director Ashe, and I yield back. 

The CHAIRMAN. The time of the gentleman has expired. 

Just for the record, as the Chairman of this Committee, I have 

never said or implied that the reason we are looking for this is to 

find a bias one way or the other; we are just trying to simply find 

the facts on this issue. 

The Chair recognizes the gentleman from Georgia, Dr. Broun. 

Dr. BROUN. Thank you, Mr. Chairman. Director Ashe, just first 

a comment. Mr. Cramer was asking you some questions about the 

sage-grouse, and in your answer it was apparent to me that you 

have already made the determination that you are going to list the 

sage-grouse before you go through that process. And this bias really concerns me. 

You were in my office not long ago, and we talked about two 

issues. One is your determination to close hunting for the elephant 

in Zimbabwe, as well as Tanzania, as well as we talked about the 

polar bear listing that the Secretary, in a stroke of a pen, listed the 

polar bear as being endangered, and you closed hunting, as well as 

even closed importation of trophies that were obtained with legal 

permits at that time. And I asked you to provide information to me. 

Your staff, in fact, I have a copy of the email here that was sent 

to my office following that, and it was from Angela Gustafson to 

my office. Basically, you just reiterated some of the information 

that we already had. And I asked you to provide further information to me. In her email she just reiterated some information that 

you had already provided about Zimbabwe, but you have never provided anything about Tanzania, you never provided anything about 

the polar bear. 

Again, to reiterate some of the things I said in that conversation 

during your visit to my office, and thank you for coming; I really 

appreciate your time and effort to come to my office to talk about 

these things. I told you about some of the wildlife management 

projects that I personally was involved in to try to set up some 

management programs for wild sheep in Pakistan and China. The 

Department of Fish and Wildlife closed those down when, actually, 

those hunting programs would have protected the wild sheep and 

markhor in Pakistan, the wild sheep in China. 

We talked about elephants, and how the program in Namibia actually gave value to the elephants, to the local population, and how 

the Fish and Wildlife Service has taken what seems to me an attitude that hunting is bad, that hunting is not to be considered as 

part of a wildlife management program. In fact, I have a bill that 

will require hunting to be part of all management programs on 

Federal properties, except for DoD properties. 

The question I have of you is what value is the elephant to the 

native population in Zimbabwe and Tanzania, if we don’t continue 

hunting? 

Mr. ASHE. I think that, first of all, the Fish and Wildlife Service 

supports the hunting tradition, and we support it domestically, and 

we support it internationally. We have—— 

33 

Dr. BROUN. Well, that is what you have told me before, and I 

apologize, because I have just a very limited time here, and I have 

just a ton of questions. 

But again, if we don’t have hunting, what is the value of these 

animals, whether it is elephants in Zimbabwe, or whether it is wild 

sheep in Pakistan or China, what is the value of those animals, 

and why should the native population protect them, if they don’t 

have some economic value to the people? 

Mr. ASHE. I would say there certainly is value to animals beyond 

hunting. And we, in the United States, value wildlife, and we value 

wildlife that is hunted, and we value wildlife that is not hunted. 

And I think that is true in Zimbabwe and Tanzania, as it is true 

in the United States. I believe that hunting does provide an important incentive to conservation of elephant and rhino in Zimbabwe 

and Tanzania and throughout Africa, as hunting of mule deer provides an incentive for conservation of mule deer in the United 

States. 

But my obligation is to ensure that trophies that come in from 

Tanzania and Zimbabwe can meet the enhancement requirement 

under the Endangered Species Act, because they are listed species, 

and we cannot do that because we have issues of corruption in 

Tanzania. We have issues related to the devastation of elephant 

populations in Tanzania. We have issues with the availability to 

acquire information from Zimbabwe, and we are trying to rectify 

those. 

And you and I had a good conversation about that. We are working with the Safari Club International and others to try to get the 

information that we need, and I am hopeful that we can get that 

information, and will resume a trophy importation. 

You mentioned Namibia, and I am a big supporter of Namibia. 

And, you know, we have allowed the importation of a black rhino 

trophy from Namibia, and I have taken great personal criticism for 

doing that. But I believe that it is our obligation to stand up for 

countries like Namibia, who have very good, very responsible conservation programs. 

So, I think you and I are of one mind on the general issue. But 

I believe I have an obligation that right now I can’t meet with regard to Tanzania and Zimbabwe, but we are trying, we are working 

with those governments, and with conservation organizations to try 

to see if we can rectify that situation. And I am happy to talk to 

you more about—— 

Dr. BROUN. Please provide that information about polar bear, as 

well as the other—Mr. Chairman, thank you so much. 

The CHAIRMAN. The time of the gentleman has—— 

Dr. BROUN. And I hope we are of one mind. 

Mr. ASHE. Thank you. 

Dr. BROUN. And I am eager to work with you on that. 

The CHAIRMAN. The Chair recognizes the gentleman from 

California, Mr. LaMalfa. 

Mr. LAMALFA. Thank you, Mr. Chairman. We heard a lot in the 

committee earlier about optics and different rhetoric of our job with 

oversight, that we are supposed to be doing as Members of 

Congress here, and that it can get expensive. Well, if we were getting perhaps straighter answers out of various levels of governVerDate Mar 15 2010 08:59 Jul 06, 2015 Jkt 000000 PO 00000 Frm 00037 Fmt 6633 Sfmt 6602 J:\00 FULL COMMITTEE\00SE10 2ND SESS. PRINTING\89833.TXT DARLEN
34 

ment, we wouldn’t have to spend as much time on that. And so it 

is amazing to me to watch people apologize for the IRS or other bureaucracies that don’t provide answers. 

So, that said, the optics for our constituents aren’t very good 

when we go back to the issue of the White Bluffs bladderpod, the 

flowering plant we are talking about found in Washington—that 

information about that study conducted shows it is a 100 percent 

genetic match for bladderpods found in abundance throughout the 

region. Yet that information isn’t allowed to be used when making 

a decision on a listing, or whether it has to be protected, or anything, because of, I guess, stonewalling by the agency to do so. Why 

is that not allowed? 

Then we come back to some other issues we talk about closer to 

my home here, with, once again, the valley elderberry longhorn 

beetle in northern California, which the delisting of that has been 

pending, a recommendation, since 2005. And we have spoken about 

this, Director Ashe. So, I would like you to follow up on that a little 

bit and make me current on that. 

But that has been waiting since 2005 from Fish and Wildlife’s 

own recommendation to delist the beetle. And when legal action finally forced it to the front in 2011, now, after more years of inaction, we see that the population data, the surveys being done, are 

too dated, they can’t be used any more, which looks like a selffulfilling prophecy, when the data gets too old and has to be 

redone. 

But some other problems with this delisting, as well, is that one 

of the peer reviewers, who are supposed to be independent and unbiased, is actually a former board member of the Xerces Society, 

which is an extreme environmental group that recently joined the 

Center for Biological Diversity in demanding that the beetle stay 

listed. 

So, it is a great amount of frustration that this process, the optics of this process, to people that need things done, whether we 

are talking about the Columbia River in Washington, we are talking about the river areas in my part of the State of California that 

need to have important key flood control levee work done that are 

thwarted. 

You know, we wonder about what things cost, complaints about 

$2 million worth of investigating. Well, these listings, or lack of 

delisting, costs tens of millions of dollars, or hundreds of millions 

of dollars in additional work, permitting, lawsuits, and other nonsense that keeps important flood control projects that protect communities from happening, from having the kind of flood control 

that they need, as well as water supply and water storage we need 

for California. So the optics aren’t good for the people that have to 

pay for all this stuff that are living in these zones. 

So, Director Ashe, could you please update me on what the plans 

are for, I guess, a need for an updated study on the elderberry beetle, since the self-fulfilling prophecy of the other data being too old, 

or the sample not being quite right, as well as people who are on 

the peer review board that are part of the same environmental 

groups demanding that they not be delisted? 

Mr. ASHE. In terms of status, as you and I have spoken about 

before, I think, you know, we did propose to delist the valley elderVerDate Mar 15 2010 08:59 Jul 06, 2015 Jkt 000000 PO 00000 Frm 00038 Fmt 6633 Sfmt 6602 J:\00 FULL COMMITTEE\00SE10 2ND SESS. PRINTING\89833.TXT DARLEN
35 

berry longhorn beetle, and we, as we do with all of our listing proposals, put that out for peer review. We received critical comment 

from the peer review panel, not from one individual, but from the 

peer review panel. And that is the purpose of scientific peer review. 

As I, you know, talked with—— 

Mr. LAMALFA. Sir, who picks the peers, though? 

Mr. ASHE. Sometimes we do peer review internally, and sometimes we contract out the peer review. I don’t know, in the case of 

the beetle. I will find that out for you. But sometimes we do that 

internally—— 

Mr. LAMALFA. We spoke about who the contracted people are 

here, and in this case here, as I mentioned, it looks like one of 

them, part of the Xerces Society, is also buddying up with the 

Center for Biological Diversity to have a—go ahead, sir, we are 

running short of time. 

Mr. ASHE. I mean when peer reviewers are picked, I mean, we 

don’t look at their affiliation. So I wouldn’t discriminate against 

somebody because they were affiliated with the Safari Club or affiliated with any other organization. We look for their—— 

Mr. LAMALFA. Sir, the optics of that look like it is people that 

have the self-fulfilling goal of not having something delisted. We 

have been waiting since 2005 for it. We have important levee and 

flood control projects that affect communities negatively. If we ever 

got any rain again, they would be in big trouble. So don’t you think 

there would be need for taking a look at who is on that, and are 

they truly unbiased? 

And I will yield back, but I would like to follow up with you on 

that, sir. 

Mr. ASHE. Thank you. 

Mr. LAMALFA. Thank you. 

The CHAIRMAN. The time of the gentleman has expired. The 

Chair recognizes the gentleman from Colorado, Mr. Lamborn. 

Mr. LAMBORN. Thank you, Mr. Chairman. I would like to have 

Exhibit 3 put up on the screen, please. And both of you have this 

in your packet in front of you. 

[Slide] 

Mr. LAMBORN. OK. On the left we see an unredacted document 

that you gave to the AP in response to a FOIA request. On the 

right is what you provided to this committee in response to a subpoena. Do you think it is your obligation to give less to Congress 

than you give to the public? 

Mr. ASHE. [No response.] 

Mr. LAMBORN. Then why did this happen? 

Mr. ASHE. We were discussing this previously. I think that there 

is a FOIA process, which is a separate process that is managed by 

different people and according to FOIA standards, and there is a 

process of responding to congressional documents. And so I would 

say there is definitely an inconsistency here, and I will attribute 

it to two different processes and speed and urgency on one hand. 

So people aren’t comparing notes when we provide these documents, so—— 

Ms. TOMPKINS. And I would add that there might be different reviewers on different requests. I don’t know this particular issue 

specifically, but the FOIA request might have been of a different 

36 

scope for asking for different information than the congressional request, so that could account for some of the differences between the 

two. 

Mr. LAMBORN. Well, I am hearing your answer, but I am not accepting it, because you say that you spend millions of dollars doing 

review of our subpoenas, and you have so many thousands of manhours in doing this, and yet we have these glaring inconsistencies. 

Ms. TOMPKINS. I think when you are reviewing 60,000 pages, 

there can be some inadvertent inconsistencies. And, again, I am not 

sure the scope of the FOIA here matches the scope of the congressional request. So that could also account for some differences. 

Mr. LAMBORN. Well, I would have to think that the subpoena 

from your congressional overseers, and we are the people’s representatives, we are elected here and sent here by the American 

public, is broader than a statutory remedy that the press has to get 

documents. We are talking about the Constitution here. 

Ms. TOMPKINS. Yes, I would actually like to address that. FOIA 

has very clear statutory provisions and exemptions and things that 

can be invoked. The accommodation process, actually, is different, 

where, as I said in my opening remarks, it is a negotiation, a discussion, a balancing of our respective interests. So that is a different format. So that also could account for different—— 

Mr. LAMBORN. OK, let’s look at Exhibit 4. And, once again, you 

have these documents in your packet, and you can also see them 

up on the screen. The one on the left is a partially redacted document that you gave to the AP under FOIA. And on the right is 

what you gave this committee in response to our subpoena. Basically zero information on the right, and some kind of stab at giving 

information to the AP on the left. 

I don’t see isolated issues here, I see a pattern. You are giving 

less to Congress than you are giving to everyone else. And, if anything, it should be the other way around, or you should be as open 

with everyone, as transparent with everyone, but not less transparent with your—— 

Ms. TOMPKINS. I—— 

Mr. LAMBORN [continuing]. The overseers in Congress. 

Ms. TOMPKINS. Our goal is to be as responsive as we can to the 

committee and your requests. I think we have highlighted some of 

the issues that could be at play here. 

In addition to that, I think you will find us open to addressing, 

if there is an inconsistency, point it out to us, and we will get you 

the information that you are entitled to under your oversight authority. So I want to be clear we are open and available to address 

these—— 

Mr. LAMBORN. Well, in that spirit, I am told by staff that there 

are documents we have requested—and what is the issue, again? 

On the Migratory Bird Act that you have given disclosure of the 

documents we have asked for, and have not been given by you, that 

you have given to a group out there in the public, and that I believe they have posted on the Internet. 

Ms. TOMPKINS. Again, as I said, if that is correct, we would like 

to have an open channel of communication with the committee to 

ask specifically what you are looking for, what you want to know. 

The requests that we get are very broad. It ends up in us pulling 

37 

thousands of documents together, reviewing those documents for 

thousands of hours, and retaining documents we think, under the 

accommodation process, we have an interest to retain and hold in 

our possession. 

But, again, if there are specific things that you want to know 

about, or that you feel that we have missed, let’s talk about it, and 

see if we can’t address it. 

Mr. LAMBORN. Well, I am talking about it, and I want those 

documents. 

Ms. TOMPKINS. Very good, I understand. 

Mr. LAMBORN. This committee has issued a subpoena. We want 

those documents. We can’t fulfill our constitutional duty of oversight without those. That is why we have asked for them. 

Ms. TOMPKINS. I—— 

Mr. LAMBORN. And it is unacceptable that you are giving the 

press or outside groups more than you are giving us. And, at a 

minimum, I think someone should be fired over this. 

Thank you, Mr. Chairman. I yield back. 

The CHAIRMAN. The time of the gentleman has expired. The 

Chair recognizes the gentleman from Utah, Mr. Bishop. 

Mr. BISHOP. Thank you, Mr. Chairman. I am sorry Mr. Huffman 

isn’t still here. I was going to try and take a page from his approach, but apparently that doesn’t get information any faster than 

the other approach. Perhaps in the future we should be subpoenaing AP; they seem to have more information available than 

we actually have here. 

Mr. Ashe, Chairman Hastings and I met with you back in June. 

And at that time you stated that the Fish and Wildlife Service 

must base its listing decisions on science, and not economic impact. 

And, therefore, the Service would not have done any economic analysis on the sage-grouse. In fact, you were adamant that the Service 

was prohibited from considering economic impacts, and you told us 

to go to the BLM for such documents. 

The Endangered Species Act does require listings to be made 

solely on the basis of best science and commercial data available, 

but it also requires that economic impact be taken into account 

when designating an area as critical habitat. In fact, the Service 

has completed a draft entitled, ‘‘Economic Analysis of Critical 

Habitat Designated for the Bi-State Distinct Population Segment of 

the Greater Sage-Grouse,’’ and you did it on May 28—that is 2 

days before the committee sent up its follow-up specifically requesting all documents related to the analysis of economic impacts for 

the sage-grouse. 

So, given that the Service has, in fact, released an economic analysis, I wonder if you still stand behind the statement you made in 

our meeting in June that the Service would not have any documents about economic impact. Were you aware that the Service 

had issued an analysis of what you said they weren’t going to do 

when you met with us in June? 

Mr. ASHE. We do not and cannot consider economic or other 

issues in the context of a listing determination. We do economic 

analysis and consider economic and other issues in the context of 

determining critical habitat. 

38 

Mr. BISHOP. That is what the law has. But my question was, did 

you know you had the analysis when you met with us and claimed 

you weren’t going to do the analysis? 

Mr. ASHE. I believe the committee’s request for the Fish and 

Wildlife Service for information was on the greater sage-grouse. 

The bi-state sage-grouse is a distinct population segment, and it is 

a whole different listing proposal. 

And so, if the committee had asked for information on the bistate, we would have given you information on the bi-state. 

Mr. BISHOP. When you met with us—I will try this one more 

time—and you said you weren’t going to have an economic analysis, you already had one. Were you aware that you had one when 

you told us you weren’t going to do it? 

Mr. ASHE. We were talking about the greater sage-grouse, not 

the bi-state. If you had asked me about—yes, I was aware. And if 

you had asked me about the bi-state, I would have given you information on the bi-state. You asked me about greater sage-grouse. 

Mr. BISHOP. Well, this is the bi-state population of the greater 

sage-grouse, but it is still about the sage-grouse, and it is still 

something that we requested, and you didn’t say you had it. 

Mr. ASHE. We have gunnison sage-grouse, we have bi-state—— 

Mr. BISHOP. And you are playing around with all of them; I am 

very grateful for you doing that. 

Can you explain why the Service has not provided any documents related to the development of this economic analysis when 

it clearly would have been responsive to the committee’s original 

request and follow-up request? 

Mr. ASHE. I don’t believe it is responsive to the committee’s original request. The committee asked about our listing documentation 

related to the greater sage-grouse. Now, again—— 

Mr. BISHOP. All right. Will you commit, then, to provide these 

documents? Because it is essential to it, and it is relevant to it. 

Will you now commit to provide these documents and related studies, and any other being developed by the Service on the economic 

impacts of sage-grouse? Will you commit to doing that? 

Mr. ASHE. I am happy to provide you with our draft economic 

analysis on the bi-state population of the greater sage-grouse, yes. 

Mr. BISHOP. Well, AP has that, and your web service does it. Are 

there any other documents that are related to it that you will commit to actually providing for us? 

Mr. ASHE. Mr. Bishop, again, my desire is to provide the committee with information that it requires to conduct its oversight responsibilities, so yes. But again, it becomes piling on at some point. 

I am trying my best to—— 

Mr. BISHOP. Mr. Ashe, if you do it the first time, and do what 

we ask the first time, it wouldn’t be piling on. But I appreciate 

your commitment to doing that. I look forward to receiving the 

analysis. I look forward to receiving all the documents that go with 

that analysis, especially because it was there. And I feel very frustrated that I don’t think it was necessarily totally forthcoming 

when we met with you in June to find that this document was actually out there at that time. 

But I appreciate you doing that. I look forward to something 

coming back here. My time has expired. 

39 

The CHAIRMAN. The time has expired. I have a few more questions, so we are going to do another round. If other Members have 

questions, we will follow up with that. 

Solicitor Tompkins, what position does the Solicitor play in 

redactions? 

Ms. TOMPKINS. Thank you, Chairman, for the question. We provide review, legal review, of the documents that have been compiled as responsive to your request. So we conduct legal review of 

those documents and identify if there are any materials within 

those documents to be redacted based on confidentiality—— 

The CHAIRMAN. So could I infer from that that if Director Ashe 

were to say this is what he ascertains that Congress is asking, and 

he sends it to you for legal review, and he thinks it is OK, and a 

redaction happens, it comes from your office? 

Ms. TOMPKINS. We do a legal assessment if there is any basis to 

redact, but we do coordinate with the bureaus and offices, as well, 

in terms of understanding what the information is, so that we understand what we are redacting. 

The CHAIRMAN. OK. I just, to follow up with what Mr. Lamborn 

said, I mean, what you just said does not answer the question that 

Mr. Lamborn was asking you when you had two documents side by 

side. I am sorry, I am with Mr. Lamborn on that. 

Director Ashe, Mr. LaMalfa brought up the bladderpod. I have, 

as you know, I have an interest in that, and we had a conversation 

in my office regarding that. We wanted to talk to some people 

lower level, you said you didn’t want to make them available, but 

you would make available a Mr. Berg, who was involved in all of 

that. So our staff did talk to him. And, of course, the issue of DNA 

came up. 

Now, what disturbed my staff when that decision came, or when 

that issue came up is that Mr. Berg told the committee staff that 

the DNA study was—and I will take a quote from what they heard 

from him—‘‘dead on arrival,’’ and that he was looking for peer reviewers to confirm that view. So, it raises two issues. 

First issue, DNA, at least in courts, I am not a lawyer, seems to 

be a pretty strong piece of evidence. Just last week, for example, 

two inmates on death row, I think in North Carolina, were exonerated because of DNA. 

And then the second issue it brings up again, what Mr. LaMalfa 

brought up, is the selection of peer reviewers. 

But my question to you is this. Does the Service have a bias 

against DNA? Or is this the view of just the one employer, Mr. 

Berg? 

Mr. ASHE. Two things. First of all, I have spoken to Ken. Your 

letter quotes Ken as saying, ‘‘dead in the water,’’ and then you ascribe to him a motivation to prove that point. That was an 

untranscripted conversation, and—— 

The CHAIRMAN. Yes, it was. Now, let me—— 

Mr. ASHE [continuing]. He denies—— 

The CHAIRMAN. Now—— 

Mr. ASHE. He denies saying that, and denies the motivation that 

you ascribed to him. 

The CHAIRMAN. This gets back to the point that I, that we wanted to make. One of the reasons this came up is we wanted to find 

40 

out how the decision was made on ignoring the DNA that was 

funded, as you know, privately by somebody else that was concerned about this. 

Now, one way we could do this, of course, would have been to 

have brought him back here to sit where you are and ask that 

question. Now, I agree that it wasn’t transcripted, and I agree that 

my staff heard that. Frankly, it doesn’t surprise me that he would 

say he didn’t say that. 

But here is the underlying question, getting back to the whole 

issue of DNA. Wouldn’t there be at least some curiosity, some curiosity, within Fish and Wildlife that, goodness, here is a study that 

says DNA, regardless of what a peer reviewer says, a study says 

that this plant is, in fact, common. Wouldn’t it be a curiosity in the 

Fish and Wildlife Service to say, goodness’ sakes, DNA seems to be 

something that is pretty black and white in other areas? Wouldn’t 

we look at it much more closely? 

To my knowledge, you, the Fish and Wildlife, have not done that 

at all with the study that was funded by those local farmers in 

Franklin County. 

Mr. ASHE. We have done that, sir, and we—— 

The CHAIRMAN. When was it—— 

Mr. ASHE. We do—— 

The CHAIRMAN. And that is the information that we are asking 

about in our subpoenas. Why haven’t we received it? 

Mr. ASHE. Again, I think I am not sure what the information is 

you are referring to. We have provided all documents and all communications to the committee with regard to the bladderpod. 

We—— 

The CHAIRMAN. Director Ashe, all due respect, we are asking for 

information surrounding the decision why DNA was not acceptable. 

You said you did a study. We have not received that information. 

If we could get that information, maybe we could have another conversation. But, lacking that information, I come to the conclusion 

that there must be a bias of Fish and Wildlife against DNA 

evidence. 

Mr. ASHE. Again, we have provided all documents and communications related to the bladderpod. 

The CHAIRMAN. Will you go back and look and see if there is 

something on DNA, then, that you can provide us? Because we 

have asked that. 

Mr. ASHE. I will go back and ask the question, but we have provided the committee with all the responsive documents on the 

bladderpod. 

And the question of whether we consider DNA, we use DNA evidence all the time. The evidence, the study that you are referring 

to, was considered, was subjected to peer review, and was subject 

to very critical comment by the peer reviewers. Not by one peer reviewer, not by two peer reviewers, by all of the peer reviewers. 

The CHAIRMAN. And we have not received, of course, that 

information. See, that is the frustration that we—— 

Mr. ASHE. That is part of our record. That information is all part 

of our decision record on the bladderpod. It has been—— 

The CHAIRMAN. So perhaps we should have the peer reviewer 

appear to tell us that, I guess. 

41 

I know my time is way over, and I am one that is probably more 

strict on that than anything else. The Chair recognizes the gentleman from California, Mr. Ca ́ rdenas. 

Mr. CA ́ RDENAS. Well, thank you, Mr. Chairman, but—— 

The CHAIRMAN. Let me take it back. I apologize. This is the second round and you came in after, so I will recognize the Ranking 

Member. I am sorry. 

Mr. DEFAZIO. Thank you, Mr. Chairman. Just back to that, you 

said that I am not an expert on this decision on the bladderpod, 

and the Chairman keeps bringing it up, but you are saying that the 

criticisms of the five peer reviewers of whatever this DNA sample 

was, are published? 

Mr. ASHE. They are. They are part of our decision record, the—— 

Mr. DEFAZIO. OK. Did the committee subpoena the decision 

record? Or I guess they could just get that off the Internet, right? 

Mr. ASHE. Right. We provided all those—— 

Mr. DEFAZIO. Maybe that is why they haven’t read it, because 

they didn’t subpoena it, and they haven’t looked on the Internet. 

Mr. ASHE. That would be correct. 

Mr. DEFAZIO. OK. Just in terms of, I am just kind of still puzzled 

why we are here. And we had an assertion that we are not here 

because of any allegation of bias. But it says here, this is from a 

press release, this one here? OK. Serious concerns—Obama administration implementing these laws in an arbitrary fashion, based on 

an undefined definition of cooperation—affected parties. The administration has repeatedly chosen to only prosecute select violations of these strict liability acts, and our goal is to get a better 

understanding of how and why these enforcement decisions are 

made, and what defines cooperation. 

Can you tell me, are you choosing to only prosecute select 

violations? 

Mr. ASHE. MBTA is a strict liability law, so we use enforcement 

discretion in bringing action under the Migratory Bird Treaty Act. 

So at one level, yes, that is selective. But we have established criteria for doing so. 

As you mentioned previously, Mr. DeFazio, if we see a violation, 

we first speak to the violator. We ask them to correct the violation. 

We then go back. If they haven’t corrected the violation, we issue 

a ticket. Then we go back a third time. If they still haven’t corrected the violation, then we would refer it for prosecution. So we 

have a standard, a process in practice for making those decisions 

about enforcement discretion. 

Mr. DEFAZIO. So if they comply after the first visit, no further 

action. If they comply after they get a ticket, no further action. But 

if they just blow you off, then you prosecute them. 

Mr. ASHE. That is right. 

Mr. DEFAZIO. OK. To the document that the gentleman from 

Colorado and others have discussed at great length, I would just 

like to read into the record what was redacted: ‘‘This seems like a 

lot of convoluted maneuvering to do much of what the ECPG advocates outside of permit. I’ve got to wonder if things would be different if we moved the ECPG document a year ago,’’ and then 

another redaction is, ‘‘I am concerned,’’ and another redaction is 

blah blah. 

42 

So, what is the ECPG? And is this a horribly important part of 

the investigation? 

Mr. ASHE. It is the Eagle Conservation Planning Guidance, and 

it is an important document. And I think what was being expressed 

there was frustration that the document was a long time in coming, 

and people are expressing frustration about the fact that we 

haven’t been able to get it done in a timely fashion. And I think 

that is true in just about any endeavor that we undertake. You 

would see those kinds of similar frustrations in a kind of major endeavor like that. 

Mr. DEFAZIO. But is that somehow material to selective and 

biased enforcement? I mean you just—— 

Mr. ASHE. No. 

Mr. DEFAZIO [continuing]. Took a long time to produce this 

document. 

Mr. ASHE. Not at all, sir. 

Mr. DEFAZIO. And then I would ask the Solicitor. I mean it is 

puzzling. So why would that phrase or whatever, that email that 

is of no significance, have been redacted? Any idea? 

Ms. TOMPKINS. I haven’t looked at these documents closely, so I 

can’t say, exactly, the basis of the redaction. But often it is to protect the internal deliberations of Agency employees, so they—— 

Mr. DEFAZIO. Yes, but this isn’t—— 

Ms. TOMPKINS. Yes. 

Mr. DEFAZIO [continuing]. The deliberation, it is just blather. 

Ms. TOMPKINS. Yes. 

Mr. DEFAZIO. It is somebody sending an email saying, ‘‘Yes, we 

didn’t get this done,’’ and someone says, ‘‘Yes, whatever,’’ and blah, 

blah. I mean it is like—— 

Ms. TOMPKINS. Right. 

Mr. DEFAZIO [continuing]. What is—you know—— 

Mr. ASHE. And if I could add, I think on that issue, Exhibit number 4, what we are talking about, I think that is a good point of 

why this process doesn’t serve any of us very well, because I think 

what you see here is, on the left side, a response to a FOIA request, on the right side, a response to a congressional request. And 

I am looking at the request. The request is for documents that concern enforcement of the Desert Renewable Energy Conservation 

Plan. There is no enforcement of the Desert Renewable Energy 

Conservation Plan, because that plan is in development. It has 

never been enforced. 

So, I think that redaction probably was because the people that 

were reviewing it said it is not responsive, because the committee 

asked for documents related to enforcement of the DRECP. There 

has been no enforcement of the DRECP. So what you are seeing 

there is a product of, again, how the committee asked us a question, and how people are trying to respond to the question that the 

committee asked. 

The CHAIRMAN. The time of the gentleman has expired. The 

Chair recognizes the gentleman from Arizona, Mr. Gosar. 

Dr. GOSAR. Mr. Ashe, are you an engineer? 

Mr. ASHE. No, sir. 

Dr. GOSAR. I am kind of one of those micro-engineers, so things 

have to make sense to me. You made the comment that the 

43 

$100,000 was kind of, per se, hogwash. So I need to deliver you six 

options that actually detail the pipe fixture down in the Willow 

Beach fish hatchery. The maximum there was $1.1 to $1.3 million, 

not even close to the $8.5 million. This guy has an engineer’s 

stamp. They have actually worked full-heartedly. I dislike people 

coming back at me stating something other than fact. 

Number two is you claim the rainbow trout stocking program at 

Willow Beach was not terminated. Yet I am pulling up the Fish 

and Wildlife Service’s own Web site, and it says—and I quote—‘‘As 

of 2014, the hatchery will no longer be raising rainbow trout, and 

will focus on the work of the endangered bonytail chub and razorback suckers, in partnership with the Bureau of Reclamation.’’ Seventeen hundred jobs, $75 million are at stake, as a result of 

the termination of the rainbow trout stocking program at Willow 

Beach. The sole reason, let’s go back through this, the sole reason 

for the hatchery was established in 1959 to offset the loss in native 

fisheries resulting from the construction of the Hoover Dam. 

So, your Web site says nothing about a catastrophic event. Again, 

it says, as of 2014, the hatchery will no longer be raising rainbow 

trout. At the July 25 hearing your Deputy Director says, ‘‘If the 

pipeline is fixed, the rainbow trout program will be reinstated.’’ 

Will you honor his pledge? 

Mr. ASHE. If the pipeline is fixed, we will reinstate the rainbow 

trout production. 

Dr. GOSAR. Thank you very, very much. 

OK, number two. On August 11 the Fish and Wildlife Service 

held a public comment hearing in Arizona on the draft Environmental Impact Statement of the Mexican gray wolf. My District 

Director attending this hearing on my behalf. After 2 minutes she 

was cut off by officials within your agency that apparently didn’t 

like the comments I had prepared to read. This is shameful. 

Is it common practice for your agency to prevent or restrict public input that disagrees with the proposed listings and regulations? 

Mr. ASHE. It is not practice at all, but when we are—— 

Dr. GOSAR. Well, it did happen. I mean there were plenty of 

people there. It was a packed auditorium, sir. 

Mr. ASHE. It is a packed auditorium. And when we conduct a 

public hearing people are limited to the time available, because we 

have to provide time for all of the people who want to speak to 

speak. So there is always a time limit—— 

Dr. GOSAR. I am glad that you just keep doing this—— 

Mr. ASHE. People are told in advance—— 

Dr. GOSAR [continuing]. Because you—all the—fairness. It is inexcusable that the Arizona cooperative alternative was not one of 

the options included in the release of the draft Environmental 

Impact Statement for the Mexican gray wolf. This alternative was 

developed by 28 different cooperating agencies and stakeholder 

groups. 

Now, while I don’t support everything included in the Arizona cooperative alternative, I was encouraged the proposal was developed 

based on actual science and from local stakeholders. Why did your 

agency prevent this alternative from being considered and receiving public comment? You have five other options, why couldn’t you 

include a sixth option? It seems common sense. 

44 

Mr. ASHE. The Arizona cooperative proposal has been conceived 

and developed subsequent to the publication of our proposal, and 

we are—— 

Dr. GOSAR. No, it wasn’t. 

Mr. ASHE. We are working with the State of Arizona. I have met 

with Larry Voyles 2 weeks ago, I am meeting with Larry Voyles 

again—— 

Dr. GOSAR. I just talked to Larry Voyles on Saturday. 

Mr. ASHE. I saw Larry Voyles this morning, and—— 

Dr. GOSAR. I saw Larry Voyles on a plane right before he came 

here. So my comment is this was included here. And to say otherwise is disrespectful, to have that sixth option on the table—— 

Mr. ASHE. It is not disrespectful at all. 

Dr. GOSAR. It absolutely is. 

Mr. ASHE. We are working hand-in-glove with the State of 

Arizona, and we are considering the Arizona cooperative proposal. 

We are, sir, yes. 

Dr. GOSAR. So we have your commitment that we are going to 

actually have an open debate with the sixth option on the table? 

Mr. ASHE. We are. Literally, like I said, I saw Larry this morning 

at the Wildlife Hunting Heritage and Conservation Council meeting. I am seeing Larry the week after next in St. Louis, and we are 

going to sit down and talk about the Mexican wolf, and we are 

working with the State of Arizona hand-in-glove, it doesn’t mean 

we always agree. 

Dr. GOSAR. I agree. 

Mr. ASHE. But we are working with them, and very cooperatively. 

Dr. GOSAR. So I want to make sure I get this in writing one more 

time. So you fix the intake at Willow Beach, we are going to have 

rainbow trout. And I am giving you six different options that don’t 

even come close to $8.5 million. I mean they are working hard 

here. 

Mr. ASHE. If we can fix the pipe. You and I are seeming to be 

in an argument here. And we are working toward the same objective on the hatchery, we really are. 

Dr. GOSAR. Well, time is of essence. Time is of essence. 

Mr. ASHE. Thank you. 

The CHAIRMAN. Time of the—— 

Dr. GOSAR. Thank you. 

The CHAIRMAN. Time of the gentleman has expired. Chair recognizes the gentleman from California, Mr. LaMalfa, if he has any 

questions. 

Mr. LAMALFA. Thank you, Mr. Chairman. Once again, coming 

back to the previous thoughts on elderberry beetle in California, 

and the need for the delisting that has been put forward in 2005 

and required legal action to enforce it in 2011, where do we stand, 

what are the next steps in the delisting process? And what would 

be the cost involved for having to do a new survey, since the peer 

group seemed to find issue with the way the surveys were done last 

time? 

Mr. ASHE. I am going to have to get back to you on the timing 

and the cost, Mr. LaMalfa. I don’t have that information in front 

45 

of me now. But we are committed to go back and get the information required. 

And I guess, maybe by example, a couple of years ago we proposed to delist the grizzly bear, a very complex, controversial issue. 

We were sued, on four or five different counts. We won on four of 

the five counts, but on one we lost, which was the relationship of 

the effect of climate change on a key food supply for the grizzly 

bear. So we had to go back and do some more homework. And right 

now we are in the process of reproposing the grizzly bear for 

delisting, and we are on track to do that in the fall of this year. 

Mr. LAMALFA. You had to take into account the effect of somebody’s idea of climate change on a food supply source for the grizzly 

bear—— 

Mr. ASHE. Correct. 

Mr. LAMALFA [continuing]. To—— 

Mr. ASHE. Right. 

Mr. LAMALFA [continuing]. Delist it? 

Mr. ASHE. To delist it. And so we have gone back and redone 

that, and now we are working again on a proposal to delist the 

grizzly bear. So—— 

Mr. LAMALFA. Have you disproven the climate change effect on 

the—— 

Mr. ASHE. We believe—— 

Mr. LAMALFA [continuing]. Food supply? 

Mr. ASHE. We do not believe that that food supply is a key, so 

climate change actually will affect that food supply, but we believe 

the grizzly bear is resilient, and will utilize other available food 

supplies, and the science actually shows that that is the case. 

And I think, with elderberry beetle, hopefully we will go back 

and we will do our homework, and we will be able to bring in—— 

Mr. LAMALFA. Can you recall for us here on what was wrong 

with the original survey on the elderberry beetle, discounting a 

timeline of it maybe being old data—— 

Mr. ASHE. I have a vague recollection, so I would rather not—— 

Mr. LAMALFA. When we talked about this, I think it was something to do with they were counting the bore holes—— 

Mr. ASHE. Right, the way the holes were counted, and—yes, it 

is a—— 

Mr. LAMALFA. And there was an objection by one of the four— 

I think on a particular bore, to the way the bore holes, it might 

not be an elderberry beetle, it might be other beetles. 

Mr. ASHE. Right, and they argued that we could not adequately 

prove that, by counting the bore holes in that way, that we were 

not counting other types of beetles than just the longhorn beetle. 

So I think—— 

Mr. LAMALFA. You see what the optics look like for people out 

there waiting for levee work to protect their cities and their towns 

and areas? 

I will jump from that. Let’s talk about the yellow-billed cuckoo, 

which is being proposed as threatened in northern California, as 

well, 540,000 acres, part of which is to be designated in what is 

called the Sutter Bypass. This was a man-made project years ago 

to move flood water away from the precious Sacramento River 

area, where water is supposed to run. 

46 

Mr. ASHE. I have seen it, right. 

Mr. LAMALFA. This is a set-back put in on Ag. land so that water 

could be moved during high flows. And since you can’t do anything 

within the banks of the river, as far as dredging, or what have you, 

so this was done years ago to have a place to move that water. 

And now, with this listing, we see that the Service is designating 

this flood control structure as critical habitat, where there was 

nothing growing in it before, when it was Ag. land. I guess if the 

farmer doesn’t go down and cut everything down as it grows, then 

it can all of a sudden become this. 

But this possible designation of the yellow-billed cuckoo in these 

areas, again, affects population centers, and will require a buildup 

of vegetation in a bypass. Does the Service really intend to go 

through—because this will have great effect on agriculture, the stabilization of the levees, as well as reconstruction of levees and 

maintenance, road and bridge maintenance, livestock, wood cutting, recreation. These all could be threats to the species, as designated in this proposal. 

And then, on the other hand, when we look at the yellow-billed 

cuckoo, is that there is no real distinction between the western one 

and the eastern one. So this kind of comes back into the DNA test 

that the Chairman and I had mentioned earlier on the bladderpod 

found on the Columbia River. 

So, again, we are coming down to the optics of just regular people 

out there saying, well, a cuckoo looks like a cuckoo, especially—and 

a bladderpod a bladderpod. And even, you know, earlier, too, with 

the debate over—anyway, I don’t have much time already once 

again, but do you intend to go forward with this yellow-billed cuckoo listing, based on it being in a flood control area that has been 

man-made in this critical—and thereby having it curtail these activities I mentioned with agriculture and others? And you have to 

answer quickly, thank you. 

The CHAIRMAN. Yes, quickly, Director Ashe. 

Mr. ASHE. We are considering the designation of critical habitat 

for the yellow-billed cuckoo. And sometimes that can include manmade or man-altered structures that are providing habitat. 

But I would say that is not a restriction on development. Critical 

habitat is not a protected area or reserved area. And we, on a regular basis, work with Federal agencies to allow projects to move 

forward in critical habitat. We did that with the endangered desert 

tortoise, and we put the world’s largest solar facility in the middle 

of critical habitat for the desert tortoise outside of Las Vegas, 

Nevada. So we can and do authorize projects within critical habitat. We work with Federal agencies and local project sponsors. We 

are doing that all throughout California. 

Mr. LAMALFA. Yes, we see the complaints from the folks on the 

other side about $2 million worth of oversight, but we don’t take 

into account tens of millions of dollars that it costs to put in solar 

panels or any of that. 

Mr. Chairman, I yield back, thank you—— 

The CHAIRMAN. The time of the gentleman has expired. I have 

been generous today. 

The Chair recognizes the gentleman from Utah, Mr. Bishop. 

47 

Mr. BISHOP. Thank you. I appreciate the Ranking Member reading into the record some redacted material, because now I see why 

the Department spent so much time and effort to keep that information from Congress. I get it. 

Solicitor Tompkins, I would like to ask you a couple of questions 

about the ethics program. What was your role in developing the 

recusal of Steve Black? 

Ms. TOMPKINS. Thank you for the question. In my office the way 

I have organized the management of the ethics office is that I have 

a deputy solicitor who is a career civil servant who manages the 

ethics office. And then we obviously have the director of the ethics 

office. And so they were engaged in handling the review of the 

Steve Black issues. I did not make any substantive decisions in 

that regard. 

Mr. BISHOP. But you were responsible for that, obviously, for 

those under you, I am assuming. 

Ms. TOMPKINS. They were charged—— 

Mr. BISHOP. Well, let me just put it this way. 

Ms. TOMPKINS [continuing]. With following the rule of law under 

ethics to assess his situation, and they carried out their duties in 

that regard. 

Mr. BISHOP. OK, which is not the same thing that I asked, but 

I appreciate that information. 

The ethics officials informed you in late September of 2011 about 

the relationship here. Is that the first time you personally heard 

about the relationship and the possibility that Mr. Black might 

need to recuse himself? 

Ms. TOMPKINS. It was a while ago, but that is the best of my 

recollection, that is the first that I became aware of the issue, yes. 

Mr. BISHOP. And what was your reaction at that time? 

Ms. TOMPKINS. I directed them to look into the matter and apply 

the ethics rules accordingly, and to work with Mr. Black to assess 

whether there were any ethical issues there. 

Mr. BISHOP. So, did you or your subordinates that were tasked 

with this, did you discuss this with anyone outside the Solicitor’s 

Office? 

Ms. TOMPKINS. Outside of the Solicitor’s Office on this matter? 

Mr. BISHOP. Mm-hmm. 

Ms. TOMPKINS. No, I did not. 

Mr. BISHOP. All right, because there were several months that 

passed before the ethics office followed up with Mr. Black. And, according to the staff report, Mr. Black and the ethics office said the 

ethics office told him in February, which is after that, that he did 

not need to recuse himself. So are you aware of anyone on your 

staff that actually gave him that advice? 

Ms. TOMPKINS. Gave him the advice that—— 

Mr. BISHOP. That he did not need to recuse himself. And this 

would have been in February of 2012. 

Ms. TOMPKINS. Are you asking am I aware that that occurred, 

that that advice was given, or was I aware at the time the advice 

was given? I am not clear on your question. 

Mr. BISHOP. Are you—OK. He was told he did not need to recuse 

himself in February. Are you aware if anyone on your staff gave 

48 

him that advice, if you or anyone on your staff gave him that 

advice? 

Ms. TOMPKINS. OK, sorry. I believe the ethics director gave that 

advice, and it could have been in conjunction with the senior career 

manager. One of my deputy solicitors also gave that advice at that 

time. So, to answer your question, I did not give that advice. 

Mr. BISHOP. Did you have any concern that Mr. Black would be 

involved in these matters during this time? 

Ms. TOMPKINS. I had charged it with the two individuals in my 

office. They have extensive ethics experience to handle the issue. 

So I deferred to them, and was confident that they would have 

flagged any issues if there was any problem in that regard. 

Mr. BISHOP. So then in March they changed their opinion and 

told him he needed to recuse himself. During that period of time, 

were you involved in those discussions? Were you involved with 

him? Did you have any concerns about what was going on? Or did 

you turn it over to your subordinates, totally? 

Ms. TOMPKINS. My team continued to advise him. And, actually, 

I want to be clear. I believe, factually, the analysis changed over 

time as the facts evolved. And that affected the advice that was 

given, based on the particular facts at a given time. So it did 

evolve, and the advice did evolve because the facts were changing. 

But I didn’t have any personal involvement in making that determination. 

Mr. BISHOP. Can you elaborate on what you heard and what you 

told the ethics officials? 

Ms. TOMPKINS. I was not briefed on the details of those facts and 

the analysis, so I only know that, ultimately, he was told to recuse 

because of the appearance of impropriety standard, which is not related to the more classic conflict of interest standard which deals 

with covered relationships, and of that nature. 

So, there were some differences in the advice, based on changes 

in the facts, but I don’t have particulars. 

Mr. BISHOP. All right, Mr. Speaker, I am over by 10 seconds. I 

have one last question, and then I will be out of your hair forever. 

Secretary Salazar issued a memo in 2009 that said, ‘‘Mere compliance with ethics requirements is not enough to fully meet our 

obligation to uphold the deep and abiding trust of the public places 

and all its servants.’’ So I ask two last questions. 

Do you think the handling of this, of Mr. Black’s recusal, was 

handled appropriately, given the outline of expectations in 

Secretary Salazar’s memo? And the philosophical one is why did 

your office wait until you started receiving actual questions about 

the impartiality to determine he should be recused? Isn’t the standard a reasonable person test, not when a person actually starts 

raising questions? 

Ms. TOMPKINS. So, overall, I take our ethical mission very seriously. And I believe that we have set a very high bar in the 

Department. I have made it a top priority, support of the ethics office elevated, and empowered that office to perform their duties. 

And I think that each case that comes before them has its own 

unique facts. And I believe that they apply the law carefully, analyze those issues carefully, and counsel our employees to ensure 

that there is compliance. 

49 

And I believe that they also engage in extensive training with 

our employees—— 

Mr. BISHOP. I am abusing—— 

Ms. TOMPKINS. They take it very seriously—— 

Mr. BISHOP. I am abusing everyone’s time. So this can be a 

simple yes or no. 

Ms. TOMPKINS. Yes. 

Mr. BISHOP. Did you appropriately handle it? And was that the 

appropriate timing, after the questions were raised? Do you believe 

you did this appropriately? Yes or no. 

Ms. TOMPKINS. My team, who I charged with undertaking this 

endeavor, I believe they applied the law correctly, and they monitored the situation. And, as things evolved and changed, they appropriately counseled Mr. Black. 

Mr. BISHOP. That was a yes, then? 

Ms. TOMPKINS. You interpret it however you would like to interpret it. Thank you. 

The CHAIRMAN. The time of the gentleman—— 

Mr. BISHOP. She gets paid by the word, and I do that, yes. 

The CHAIRMAN. The Chair recognizes the gentleman from 

Colorado, Mr. Tipton. 

Mr. TIPTON. Thank you, Mr. Chairman. Mr. Ashe, I believe you 

joined Secretary Jewell out in Craig, Colorado to be able to see 

some of the species recovery efforts that are being made at the 

local state level in regards to the greater sage-grouse. But we still 

have a lot of concern, particularly in the State of Colorado, in 

terms of helping to be able to truly achieve the goal. 

Your Department, your efforts, the goal is to recover the sagegrouse, right? 

Mr. ASHE. Correct. 

Mr. TIPTON. What is the number? What is recovery for Colorado? 

And I understand we could have maybe different numbers, different regions, different types of environment that they have to 

have. Do you have numbers? 

Mr. ASHE. We don’t have population numbers. We are looking at 

the threats to the species, and how we can address the threats to 

the species, the primary one being disturbance. And so we are 

working with the states, and we have all 11 states engaged in an 

effort with us, and a conversation about how we can do that. 

Mr. TIPTON. Can you understand the frustration when you say, 

‘‘We don’t have recovery numbers’’ ? How do we know when we 

win? 

Mr. ASHE. Well, so, first of all, with the sage-grouse, it is not a 

listed species. So we would have never—— 

Mr. TIPTON. It is anticipated, there is obviously a move to move 

this to a listing. 

Mr. ASHE. Right, so we don’t have a recovery objective, in terms 

of a population goal. And so, what we are trying to do is, really, 

a first of its kind with the Endangered Species Act, is really work 

with the states to try to, which we did, to try to define the bar. And 

we developed—— 

Mr. TIPTON. Will this prevent listing? 

Mr. ASHE. It can prevent a listing. 

Mr. TIPTON. It can prevent a listing. 

50 

Mr. ASHE. Right. 

Mr. TIPTON. On that. Now, when we are talking about working 

with the states, you have coupled Colorado in with 10 other states. 

Mr. ASHE. Right. 

Mr. TIPTON. An 11-state program. 

Mr. ASHE. Right. 

Mr. TIPTON. For full recovery. You just made a statement that 

we don’t know what recovery really is, because we haven’t had targeted numbers, in terms of what we need to be able to fill in. But 

if we had numbers, and knew that we had recovery—let’s take the 

scenario we have recovery in the State of Colorado, but not in the 

other 10 states. In the event of a listing, would Colorado still have 

to comply with the listing? 

Mr. ASHE. Well, in the event of a listing, and let’s say Colorado, 

we could determine that Colorado had an adequate plan for conservation of the sage-grouse, then we could recognize that with 

what we call a special rule under Section 4(d) of the Endangered 

Species Act, like we recently did with the lesser prairie chicken. We 

could say, ‘‘All right, well, Colorado has an adequate plan for conservation, so as long as you are complying with Colorado’s plan, 

then no need to come to the Federal Government for approval.’’ 

So that is a possibility for us if we got to a situation where the 

total picture was such that we had to list the bird, but we had a 

state like Colorado or Wyoming or Idaho that had good, effective 

conservation plans in place. 

Mr. TIPTON. And I understand, you and I both do, we are dealing 

a little bit in hypotheticals—— 

Mr. ASHE. Right. 

Mr. TIPTON [continuing]. Because in our communities there is a 

real concern about the potential listing on it. 

Mr. ASHE. Sure. 

Mr. TIPTON. What did you learn when you went to Colorado? 

Because I think it is always important, not only to listen, but to 

actually hear, and to be able to see some of the positive results that 

were going on there. Would you concur that the efforts in Colorado 

that are being made are repopulating this species? 

Mr. ASHE. Yes, we saw great people, landowners, they are great 

stewards of the land, and are working cooperatively with our people on the ground, and with great support from the USDA, Natural 

Resources Conservation Service and the State of Colorado, so I 

saw, really, the kind of partnership and cooperative approach that 

it takes to conserve a bird like the sage-grouse, which is why I can 

be optimistic that we have the chance to get a not-warranted 

determination on the sage-grouse, because we have the Bureau of 

Land Management, the U.S. Forest Service, the USDA, all 11 

states working collaboratively on that effort. So it really is an unprecedented level of effort that is going on. 

Mr. TIPTON. To be able to prevent it. Do you have some concern? 

Because we continue to see litigation driving the issue. This is part 

of the court mandate that we are seeing coming down right now. 

You are spending a lot of resources right now, in terms of litigation 

coming from extreme environmental groups coming in, when we 

have a common attainable goal that, as you just noted, is being 

achieved, actually, by the states right now. 

51 

If you had those same resources to actually help recover a 

species, wouldn’t that be a far better use of your dollars? 

Mr. ASHE. Certainly that litigation is a source of frustration for 

us. And it is not so much that people are taking us to court, it is 

the fact that, oftentimes, the result of that is less conservation, or 

kind of a misdirection of our effort toward defending ourselves, 

versus doing more conservation. 

So, I guess I would say, certainly as the Director of the U.S. Fish 

and Wildlife Service, I can be frustrated when people take me to 

court, but I will also say it is not just coming from the environmental community. I get sued by the real estate development industry, by hunting groups, by states, by local governments, by 

tribes. So there is a delicate balance there, between people’s right 

to challenge the work and the decisions of a Federal agency like 

the U.S. Fish and Wildlife Service, and the kind of orderly conduct 

of business. 

So, there certainly is a friction there. And I am not sure we are 

at the right place, and that certainly is something that would be 

ripe for consideration as we think about improvements to the 

Endangered Species Act, and any of the laws that we implement. 

The CHAIRMAN. The time of the gentleman has expired. And I 

was somewhat generous on the time, but I think it was important 

to hear the total response. 

Director Ashe and Solicitor Tompkins, thank you very much for 

being here today. I know sometimes the line of discussion is tense. 

I will just simply say that is the essence of self-government; it is 

supposed to be that way. 

Solicitor Tompkins, one last observation. You sent us a letter yesterday regarding recusals and ethics saying I could ask, there are 

several names, dozens of names that were left out, I could ask you 

when you were going to give them, and I know you would say as 

soon as possible, so I will just simply say this. We expect to get the 

recusal documents on Ms. Water, Mr. Bean, and Mr. Bromwich, we 

expect to get those. 

Finally, just an observation. We have heard in the past consistent defense of why the subpoenas that we have sent have not 

been complied with. However, today we have heard a new defense, 

both that our requests are too broad and costing money; and, at the 

same time, that they are too narrow, so that the Department is 

now redacting the information to do us a favor. It just seems to me 

that this is a lot of effort being put into not being transparent. 

So, if there is no further business to come before the committee, 

the committee stands adjourned. 

[Whereupon, at 12:10 p.m., the committee was adjourned.] 

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