U.S. GOVERNMENT PRINTING OFFICE

52–104 u WASHINGTON : 1998

HEARING ON THE ENDANGERED SPECIES ACT

FIELD HEARING

BEFORE THE

COMMITTEE ON RESOURCES

HOUSE OF REPRESENTATIVES

ONE HUNDRED FIFTH CONGRESS

SECOND SESSION

OCTOBER 26, 1998, CLOVIS, NEW MEXICO

Serial No. 105–118

Printed for the use of the Committee on Resources

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/house

or

Committee address: http://www.house.gov/resources
(II)

COMMITTEE ON RESOURCES

DON YOUNG, Alaska, Chairman

W.J. (BILLY) TAUZIN, Louisiana

JAMES V. HANSEN, Utah

JIM SAXTON, New Jersey

ELTON GALLEGLY, California

JOHN J. DUNCAN, JR., Tennessee

JOEL HEFLEY, Colorado

JOHN T. DOOLITTLE, California

WAYNE T. GILCHREST, Maryland

KEN CALVERT, California

RICHARD W. POMBO, California

BARBARA CUBIN, Wyoming

HELEN CHENOWETH, Idaho

LINDA SMITH, Washington

GEORGE P. RADANOVICH, California

WALTER B. JONES, JR., North Carolina

WILLIAM M. (MAC) THORNBERRY, Texas

JOHN SHADEGG, Arizona

JOHN E. ENSIGN, Nevada

ROBERT F. SMITH, Oregon

CHRIS CANNON, Utah

KEVIN BRADY, Texas

JOHN PETERSON, Pennsylvania

RICK HILL, Montana

BOB SCHAFFER, Colorado

JIM GIBBONS, Nevada

MICHAEL D. CRAPO, Idaho

GEORGE MILLER, California

EDWARD J. MARKEY, Massachusetts

NICK J. RAHALL II, West Virginia

BRUCE F. VENTO, Minnesota

DALE E. KILDEE, Michigan

PETER A. DEFAZIO, Oregon

ENI F.H. FALEOMAVAEGA, American

Samoa

NEIL ABERCROMBIE, Hawaii

SOLOMON P. ORTIZ, Texas

OWEN B. PICKETT, Virginia

FRANK PALLONE, JR., New Jersey

CALVIN M. DOOLEY, California

CARLOS A. ROMERO-BARCELO ́ , Puerto

Rico

MAURICE D. HINCHEY, New York

ROBERT A. UNDERWOOD, Guam

SAM FARR, California

PATRICK J. KENNEDY, Rhode Island

ADAM SMITH, Washington

WILLIAM D. DELAHUNT, Massachusetts

CHRIS JOHN, Louisiana

DONNA CHRISTIAN-GREEN, Virgin Islands

RON KIND, Wisconsin

LLOYD DOGGETT, Texas

LLOYD A. JONES, Chief of Staff

ELIZABETH MEGGINSON, Chief Counsel

CHRISTINE KENNEDY, Chief Clerk/Administrator

JOHN LAWRENCE, Democratic Staff Director
(III)

C O N T E N T S

Page

Hearing held October 26, 1998 ............................................................................... 1

Statement of Witnesses:

Bradley, Hon. Walter, Lieutenant Governor, State of New Mexico, Santa

Fe, New Mexico, as read by Mr. Dennis Roche .......................................... 4

Prepared statement of ............................................................................... 43

Budd-Falen, Ms. Karen, Counsel, New Mexico Cattle Growers Association, Cheyenne, Wyoming ............................................................................. 9

Prepared statement of ............................................................................... 44

Cowan, Caren, New Mexico Cattle Growers .................................................. 33

Crook, Anna Marie, State Representative ...................................................... 39

Derrick, Lewis ................................................................................................... 34

Eppers, Bud, Chairman, New Mexico Public Lands Council, Roswell,

New Mexico ................................................................................................... 18

Prepared statement of ............................................................................... 52

Fowler, Dr. John, Professor of Agricultural Economics, New Mexico State

University, Las Cruces, New Mexico ........................................................... 16

Prepared statement of ............................................................................... 68

Frost, Bob, President, New Mexico Cattle Growers Association .................. 37

Hahn, Carl ........................................................................................................ 36

Ingle, Hon. Stuart, New Mexico State Senator, Portales, New Mexico ....... 6

Lombardi, Sharon, Executive Director of Dairy Producers of New Mexico . 34

Mallory, Bobbie, State Representative ........................................................... 38

Mitchell, Karen ................................................................................................. 36

Moore, Bill, New Mexico Department of Agriculture, Las Cruces, New

Mexico ............................................................................................................ 21

Prepared statement of ............................................................................... 57

Pacheco, Manuel, Northern New Mexico Stockmen’s Association, Taos,

New Mexico ................................................................................................... 20

Prepared statement of ............................................................................... 55

Pattison, Mr. Hoyt, New Mexico Interstate Stream Commission, Clovis,

New Mexico ................................................................................................... 7

Prepared statement of ............................................................................... 63

Payne, Tom ....................................................................................................... 37

Williams, John C., General Manager, Canadian River Municipal Water

Authority ....................................................................................................... 35
(1)

HEARING ON THE ENDANGERED SPECIES

ACT

MONDAY, OCTOBER 26, 1998

HOUSE OF REPRESENTATIVES,

COMMITTEE ON RESOURCES,

Clovis, New Mexico.

The Committee met, pursuant to notice, at 9 a.m. in the Clovis

Room, Holiday Inn, 2700 East Mabry Drive, Clovis, New Mexico,

Hon. Richard Pombo presiding.

Mr. REDMOND. [presiding] I would like to begin by thanking all

of the folks here on the east side of the state for coming out and

some folks up from the south for the endangered species hearing

today, and I want to welcome all of you to Clovis, if you’re not

originally from the Clovis area.

And I want to recognize folks that are in the audience with us

today. We have State Representative Anna Crook of the 64th District. And we also have State Rep Bobbie Mallory in District 67.

And am I overlooking anyone? Do we have any mayors or county

commissioners?

Mr. SCHULER. I’m John Schuler, Clovis City Commissioner.

Mr. REDMOND. John, good to have you with us. And any other

elected officials?

Well, I want to thank the elected officials for coming because the

Endangered Species Act has an impact, not only on the farms and

ranches and businesses, but it also has an impact on—on where

you are as an elected official and how you exercise—you execute

your responsibilities as elected officials, so I want to thank you all

for—for coming.

And we also have Brian Thomas. Brian works for Congressman

Mac Thornberry.

And—but, anyway, without—without any further delays, I’m

going to welcome Congressman Richard Pombo, my colleague from

California, who has held almost 30 hearings across the—across the

country.

It’s inevitable that there will be changes coming with the Endangered Species Act. There—You know, basically, people across the

country are finding problems with it, the way that it’s implemented

on a regulatory basis. And I think it’s always important, for those

of us that represent you in Washington, that we come out to the

field and we hear what you want us to say and do and write in

our bills in Washington, DC. That’s what representative government is all about; and, so, we’re here listening to the people of the

east side.
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We received some criticism about having the hearing over here

and—from some folks in Santa Fe. And, you know, my response

was, ‘‘What is wrong with hearing from the people from the east

side? They have a voice, and they’re American citizens, and they’re

taxpayers and have every right to be heard.’’

So, I’ll turn it over to Congressman Pombo.

Mr. POMBO. The Committee on Resources will come to order. The

Committee is meeting today to hear testimony on the Endangered

Species Act. We will limit the opening statements of the members

of the Committee so that we can get to the testimony from our witnesses here today.

I would like to thank Congressman Redmond and those of you

here for the opportunity to bring the House Resources Committee

to the State of New Mexico. I look forward to listening and learning

more from you about how the Endangered Species Act is being implemented and in force in the southwestern region of the United

States.

The chairman of the Committee, Congressman Don Young, the

Congressman from the State of Alaska, sends his best regards and

his regrets that he could not be here today. He asked me to chair

this field hearing for him.

In 1995, when a new majority claimed Congress, I, along with

some of you in this room, had great expectations that we would be

able to amend the Endangered Species Act and implement common

sense approaches to species protection similar to those that the

1973 Act envisioned when they originally adopted the law.

Congress believed that this law would be used to prevent the extinction of species. It never dreamed that it would be turned into

a tool used by a small minority of people to impose Federal land

and water use controls on rural America. Congress could never

have foreseen the resulting widespread rural economic and social

dislocations caused by such manipulation of the 1973 law.

Some of the individuals that claim to be guardians of our environment turned down this Committee’s offer to testify today. The

staffs of this Committee and Congressman Redmond worked hard

to get witnesses from the conservation community for the hearing.

Written invitations and followup phone conversations were sent to

the Forest Guardians, the Southwest Center for Biological Diversity, The National Audubon Society, and The Earth Justice Legal

Defense Fund. Curiously, none of these groups has provided witnesses for today’s hearing.

Nevertheless, I fully expect harsh criticism by some for not having a balanced hearing. Let the record state that this Committee

made every attempt to provide all possible interested parties with

the opportunity of coming before it today.

But this lack of response is not a total surprise. For the last 4

years, those of us on this Committee have worked to draft legislation in a common sense approach that would protect species and

the rights of our citizens. Unfortunately, instead of sitting down

with Congress to discuss the future of protecting the nation’s species, the Clinton Administration has chosen to stand in the way of

genuine efforts that would have brought about change.

The ESA has been law since 1973. Currently, there are over

1,100 domestic species protected under the law. The time is long
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overdue for the administration to work cooperatively with Congress

to fix the ESA. It is outdated and many people believe broken. It

is broken for the people, and it is broken for wildlife. It only succeeds at punishing those who do the most to provide habitat for

wildlife—rural America.

We are here this morning to listen to your ideas on what we can

do to improve the current Endangered Species Act. I strongly believe that as this country begins to enter the 21st century, we must

find a more balanced way to accomplish the goals of this outdated

species protection act. Surely we can reduce the regulatory burdens

of average Americans, small businesses, and state and local governments while still protecting our natural resources.

I expect today’s hearing to assist in this endeavor. As Congressman Redmond mentioned, I have had close to 30 hearings on the

Endangered Species Act over the past 4 years. About half of those

have been field hearings. The effort that we have made is to bring

Congress to the people and to listen to those who normally don’t

have an opportunity to testify before Congress.

When we are back in Washington, DC, we listen to the folks that

have professional lobbyists, to the folks that have staff attorneys.

They have access to us, they have access to the Committees, and

they testify on a consistent basis. The folks that don’t have that opportunity are the people who live out here and work for a living

and don’t have the opportunity to run to Washington and testify

before a hearing every chance. So we have made a very real effort

to reach out to rural America and to the folks that have not had

an opportunity to testify in the past.

As well, there has been some criticism on this particular hearing

about the—the lack of scientists and—and others that are testifying here today. I can tell you that this Committee has heard from

over 50 scientists, biologists, professors, folks that are self-proclaimed experts on the Endangered Species Act. Some have testified to status quo. Others have testified that they would like to see

changes. But there has been no lack of input from the scientific

community into the problems that currently exist with the Endangered Species Act and possible changes that they would like to see

made in that.

With that, I would like to offer Congressman Redmond a chance

to say any additional comments he has at this point. I would like

to call up our first panel to testify. The Honorable Walter Bradley,

who I believe his designee is going to testify, Honorable Stuart

Ingle, Mr. Hoyt Pattison, and Mrs. Karen—Karen Budd-Falen, if

you would join us up here at the witness table.

I would like to thank you for joining us today. Committee rules

allow you 5 minutes for an oral presentation each. The oral presentation is basically the part that you summarize from your full testimony. Your full testimony will be included in the record. But if you

could try to limit it to 5 minutes, we would appreciate that.

If you’re not familiar with the lights that are in front of you,

green means go, yellow means hurry up, and red means stop, similar to your traffic lights.

So, if you would like to begin, identify yourself for the record,

and you may proceed.
4

STATEMENT OF HON. WALTER BRADLEY, LIEUTENANT GOVERNOR, STATE OF NEW MEXICO, SANTA FE, NEW MEXICO, AS

READ BY MR. DENNIS ROCHE

Mr. ROCHE. My name is Dennis Roche. I’m here presenting the

testimony of Lieutenant Governor Walter Bradley from the State

of New Mexico.

Mr. POMBO. Thank you. Welcome.

Mr. ROCHE. Good morning, Mr. Chairman and Congressman

Redmond and welcome to New Mexico. Mr. Chairman, I also thank

you for the opportunity to speak on behalf of the executive branch

of the State of New Mexico. I will keep my testimony short and

straight to the point.

I have been Lieutenant Governor of New Mexico for 3 years and

11 months. As an ombudsman for New Mexico, I have been overwhelmed with the amount of constituent concerns I’ve received pertaining to the infringement and unbalance the Endangered Species

Act has on private property rights, state sovereignty, and states’

waters.

The purpose of this testimony is to provide the concerns that the

executive branch of New Mexico has with the Endangered Species

Act. As you are all aware, New Mexico has been negatively impacted by the abuse and misuse of the ESA. For example, payment

in lieu of taxes revenues, or PILT, generated from the use of U.S.

Forest Service resources have been dramatically reduced. I don’t

have to explain to this Committee the critical need for these revenues to local governments for infrastructure purposes.

Payments to counties have been affected by decisions relating to

the spotted owl. Recently legislation was proposed to overcome this

impact and stabilize payment to the states. Mr. Chairman, rural

New Mexico is being hit hard, and hardworking families who have

been lawfully making a living off the land for generations are being

devastated. It won’t be too long before urban areas become aware

and are affected by the ESA.

As Lieutenant Governor, I have a responsibility to the taxpayers

of New Mexico. These people are concerned with what is occurring

in our state. Let me make it clear. I am not against preserving a

clean environment. I like to have clean water to drink. I enjoy the

scenery when I travel throughout the state. I want children who

are our future to enjoy what I have enjoyed.

However, I believe that there are—that there needs to be a balance in the ESA, and decisions must be based on best available scientific data, not on unquestionable data or no data, as what appears to be happening today.

As I stated earlier, private property rights, state sovereignty, and

water are major concerns to the New Mexico executive branch. As

for private property rights, the ESA allows Federal Government or

citizen litigants to take property owners to court without evidence

that these actions will cause a taking. The current ESA has no provisions for takings.

Language should be incorporated to allow property owners to

enter into agreements with the Secretary of Interior identifying activities and any potential takings. Also, property owners should be

compensated as required by the Fifth Amendment of the United

States Constitution.
5

The encroachment of state sovereignty is also a major concern.

Under the current ESA, states are often excluded from the listing

process even though within state’s borders there may be threatened

and endangered species. As for the development of recovery plans,

states have no role. States should be recognized and allowed to participate in all plans or activities such as recovery plans.

Water in western states and specifically in New Mexico is critical. Nowhere in the ESA does it acknowledge state law regulation,

rules, or any interstate compact covering the appropriation, use, or

diversion of waters.

Presently in New Mexico the Corps of Engineers and the Bureau

of Reclamation are proposing an environmental impact statement.

The purpose of this EIS is to comply with the ESA for the Upper

Rio Grande Basin and it’s rivers.

Mr. Chairman, New Mexico receives approximately 80 percent of

its water from this area. New Mexico is currently seeking a JointLead status as allowed under the National Environmental Protection Act. Because this Act, or NEPA, is being implemented, and

only because of this, an economic impact analysis is required as

well as the impacts on the human environment.

I would like the Resources Committee to know that New Mexico

fully intends to become involved in this process. By becoming involved, the state will make sure that all data being analyzed will

be sound. The question now is, what are some of the solutions to

the concerns that have been identified?

First of all, if any amendments to the ESA are going to take

place, all states must be an integral player. It is our belief that

states are more aware and knowledgeable of how to manage resources, species and habitat. The ESA should not act as a tool for

zoning and land use.

Second, state water laws, compacts, diversions and appropriations are being ignored. Language must be incorporated into the

ESA acknowledging states’ requirements and sovereignty regarding

water.

Mr. Chairman and Members of the Committee, New Mexico met

with these Federal entities on October 16th, 1998. An article was

brought to their attention that came out of the Albuquerque Journal a couple of weeks ago.

And stop here.

Mr. POMBO. No, go ahead and continue.

Mr. ROCHE. Thank you.

An article was brought to their attention that came out of the Albuquerque Journal several weeks ago. The title of the article is

‘‘Forum May Not Stop River Compact Suits.’’ In this article, Forest

Guardians’ Executive Director, John Talberth, states, ‘‘Based on

what I’ve heard today, there are certain aspects of litigation I think

we should go forward with more quickly.’’ The Federal response to

this article at the meeting was that they all had resolved—they

had resolved all issues with the Forest Guardians.

Mr. Chairman, Members of the Committee, New Mexico has been

there and has seen it. The Federal agencies meet with the environmental organization, cut deals, and then go out and do Environmental Impact Statements after the fact. As a result, the human
6

environment is significantly impacted as well as the economy at

both the state and local level.

Environmental extremists, Mr. Chairman, are actually targeting

operations of Federal dams, irrigation works, and a lot more in

western states. And as I stated earlier, only because NEPA is being

implemented will an economic impact analysis be conducted as well

as an analysis on the human environment.

The ESA should include provisions in addressing and analyzing

the human environment and economic impacts. However, another

provision should be added stating that decisions made should minimize the human environment and economy.

The ESA must acknowledge state sovereignty, responsibility and

obligation on water laws, rights and compacts. I believe that an impact analysis on the economy and human environment should be

required under the ESA. We have got to find a balance between

protecting species, habitat, our economy, and most importantly

human beings.

Thank you again, Mr. Chairman and Members of the Committee,

to allow the executive branch of New Mexico to address their concerns here this morning.

Mr. POMBO. Thank you.

[The prepared statement of Hon. Bradley may be found at end

of hearing.]

Mr. POMBO. Mr. Ingle?

STATEMENT OF HON. STUART INGLE, NEW MEXICO STATE

SENATOR, PORTALES, NEW MEXICO

Mr. INGLE. Thank you, Mr. Chairman. If you will look at—notice

my testimony here, I double-spaced it, and it’s only, just barely,

slightly over three pages because I know you get a lot to read and

so do I.

I’ll just speak off the cuff a little bit about some of the problems

I think we have, and we’ve got a lot of folks here in the audience

that are in—are in and share those problems.

You know, in New Mexico, we are a state that in many

instances——

Mr. REDMOND. Use the mike.

Mr. INGLE. Is this better?

In New Mexico, we are a state that has varying types of climates.

We have a—we have a lot of forests in New Mexico. We have a

desert region. We have some regions that are even more desert

like.

The thing about environmental laws that I have noticed, like

many laws that are written, you have a law that is written and

then the—and then the department makes regulations that are actually—actually, basically, the law itself. It’s difficult, I know, for

Congress to pass very specific laws, but I think we need to be careful, as we do in the state—in the state legislature, of trying to pass

laws where regulations can basically not just be written solely and

as something that can dictate all policies and all laws.

I think we need to look at the environmental things by region.

There are certain regions of the United States that may have certain environmental situations, but the regulation very often is used
7

and will make things a very difficult situation in a group of states

where the regulation wasn’t even meant to exist.

We’ve got people here that have farmed and ranched in New

Mexico for generations, people here from Taos, New Mexico, who

have been there for many years. They have not abused that land.

They never intend to abuse the land. The land is the only asset

they have, and they will continue to take care of this land.

And I think very often people in the environmental situation

often think that landowners are about abusing things, abusing the

land and abusing the animals and taking advantage of everything

that is wonderful in nature. Well, you can’t do that anymore, if you

ever did.

I know years ago the—all the Buffalo population of the United

States was, you know, done away with in 20 years. Well, we don’t

have that situation anymore. Nothing in the United States, I believe, faces that kind of just wholesale slaughter or things being

done away with.

We have people in the United States and generations of people

that want to look and keep things well for the next generation, for

their children, because beauty is something we all look at very

closely and very deeply now. And I don’t think it’s anything that

we’re going to do away with by carelessness.

But laws and regulations also often mean the loss of land, the

loss of any profitability the land has; and, yet, the man that has

the land and his family get nothing. Because by the time everything is decided, he has been without the use of his land so long

that it just basically has no value. It has no saveability except to

someone for a useless industry, and they often don’t have any

money for that.

Mr. Chairman, Members of the Committee, I—I think these are

things primarily that we just need to try to watch for. And I understand, Mr. Pombo, you’re in the farming and ranching industry

yourself, and you’re certainly aware that it’s not exactly a cup of

tea right now. And many people here are in that, too.

You know, in this state we’ve suffered a tremendous amount of

drought in this area. We also make so much grain in the United

States anymore that it sells for 1949 prices, and those are things

you can’t fix by law or regulation.

But when you have laws and regulations that are just put into

effect without the real knowledge and caring about the people that

are in the industry, those are the things that we need to watch for.

And as you said, those people are never in Washington to testify.

They’re out trying to make a living.

Mr. Chairman, Members of the Committee, thank you very

much.

Mr. POMBO. Thank you.

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

hearing.]

Mr. POMBO. Mr. Pattison?

STATEMENT OF MR. HOYT PATTISON, NEW MEXICO

INTERSTATE STREAM COMMISSION, CLOVIS, NEW MEXICO

Mr. PATTISON. Thank you, Mr. Chairman, Congressman Pombo

and Congressman Redmond. We’re proud to have you here today,
8

and it’s a pleasure and an opportunity to appear before you up here

as a representative for Mr. Richard Cheney, who is the chairman

of the New Mexico Interstate Stream Commission.

I am also a member of the Interstate Stream Commission. I’m a

farmer and an engineer. I live north of Clovis, right here in Curry

County. I would like to call your attention to some of the history

of the Endangered Species Act that perhaps will be of interest to

you and the other members of the Committee.

When the Endangered Species Act was passed and signed into

law in 1973, a House report observed that, quote, There are 375

species of animals imminently threatened throughout the world.

The report specifically observed, ‘‘It is beyond our capability to acquire all the habitat which is important to those species without

at the same time dismantling our own civilization.’’

Those were prophetic words. Now there are over a thousand species alone right here in the United States, as you pointed out, Mr.

Chairman, that—and these include 33 insect species. The U.S. Fish

and Wildlife Service and other Federal bureaucracies seem intent

on dismantling our civilization by way of this law.

The—as currently written, the Endangered Species Act allows

application of sloppy science to bad law, endangering state’s rights

and private property rights, flying in the face of the Constitutional

guarantees.

To be specific, right here in eastern New Mexico, we have the

Pecos River and the Pecos bluntnose shiner which is supposedly an

endangered species. The Bureau of Reclamation has threatened to

take over the operation of Sumner Dam in the Pecos river between

that and Carlsbad so that 35 cubic feet per second of water can be

released at certain times during the year to provide habitat for the

Pecos bluntnose shiner.

This, Mr. Chairman and Members of the Committee, will take

out of use, through evaporation and seepage, 3,000 acre feet. Now,

this will impact greatly the delivery of water to Texas that New

Mexico is obligated by the Pecos Compact and U.S. Supreme Court

to deliver to Texas every year. And if we fail to do so, the—a priority call must be instituted on the Pecos River and this, if carried

to its extreme extent, could impact that area of the State of New

Mexico and its economy over $200 million because of this priority

call.

If we take 3,000 acre feet out of our deliveries to the state line,

we could conceivably be in a deficit position and not have delivered

to Texas the water required by this compact.

Mr. Chairman, Members of the Committee, you have a copy of

the written testimony. The other part that I would like to touch on

has to do with the San Juan River and a similar situation there

where the State of New Mexico is going to be required to expend

$2 million out of a total of $172 million that is embodied in a bill

presently in the U.S. Senate. I don’t believe it has been passed;

and, hopefully, it won’t be. But that will require recovery of species

that were poisoned by the same people that are trying to recover

them at this present time in the 1960’s.

I would like to touch on one other item. It has been said that

here in eastern New Mexico we don’t have any endangered species

problems, only fear and apprehension and anger. Well, that’s abso-
9

lutely probably true; but, it’s not true that we don’t have any endangered species problem.

One of those has to do with the black-tailed prairie dog. We have

these in—by the thousands in this part of the state, and they have

been asked by certain environmental groups to be declared threatened. There is not any way, Mr. Chairman, Members of the Committee, that this animal is a threatened or even endangered species. They exist right now, here today, right here in the city of Clovis and probably in every municipality in the State of New Mexico.

The only reason they don’t cover the 250 million acres that was

originally their habitat, as is pointed out in the article in the Albuquerque Journal on August 1 of 1998 is that this area grows wheat

and feed and corn and livestock, and feeds are an issue. Therefore,

it is an absurdity that this is an endangered specie.

Mr. Chairman, what do we do about this? Do they just go ahead

and unfettered declare the prairie dog to be an endangered species?

What recourse do we have? The playing field needs to be balanced

if you folks choose to reauthorize an Endangered Species Act.

Thank you.

Mr. POMBO. Thank you, Mr. Pattison.

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

hearing.]

Mr. POMBO. Mrs. Budd-Falen?

STATEMENT OF MS. KAREN BUDD-FALEN, COUNSEL, NEW

MEXICO CATTLE GROWERS ASSOCIATION, CHEYENNE, WYOMING

Ms. BUDD-FALEN. Thank you. My name is Karen Budd-Falen. I

am both a fifth generation rancher and an attorney who is this—

today is representing the New Mexico Cattle Growers Association.

In the letter you sent asking the New Mexico Cattle Growers to

participate at this hearing, you asked if the Endangered Species

Act was working and what affect it had on New Mexico. In addition

to the effect that the Act has had on farmers and ranchers, it

seems like the Endangered Species Act really is the litigation tool

of choice for the environmentalists.

Let me give you one easy example. Between 1993 and 1998, 75

cases were filed in the Federal District Court for the District of Arizona solely involving the Endangered Species Act. Of those 75

cases, 67 were filed by environmental groups, mostly the Forest

Guardians and the Southwest Center for Bio Diversity.

In just 5 years, when all those cases were said and done, the

U.S. Government agreed to pay the environmental groups, either

voluntarily or through stipulated settlements, over $5,329,659.50 in

litigation fees and costs to environmental groups. This is in addition to the economic harm that it has caused New Mexico ranchers

and farmers.

So, what is happening is the Federal Government, through the

Equal Act and the Justice Act, is paying environmental groups to

sue the Federal Government to stop land use.

Certainly if the Endangered Species Act were working and were

working correctly, the Federal Government would be spending this

$5 million on species protection rather than on paying attorney fees
10

and costs to environmental groups to litigate over the Endangered

Species Act.

That amount of litigation alone should show the Committee that

the Endangered Species Act, in its current form, is not working.

Otherwise, the Act would be implemented, and the species would

be protected.

If you want to look at individual economic costs, let me give you

an example. On behalf of the New Mexico Cattle Growers, I represented 19 grazing permittees on the Arizona and New Mexico

border whose grazing allotments were being cut between 40 and 85

percent on a 1-year’s—or on a year’s reduction for the renewal of

grazing permits because of Endangered Species Act concern.

So, the Forest Service wrote several environmental impact statements reviewed by the Fish and Wildlife Service under Section

Seven of the Endangered Species Act, wherein between 40 and 85

percent of the grazing permits were cut, fences were agreed to be

built around private water rights, and livestock was moved away

from water in areas where there is not a lot of water. The—There

were three counties that were specifically affected, two in Arizona

and one in New Mexico.

In addition to the loss of the ranchers, which were not calculated

in the formulas, the county tried to determine if there was any economic loss to local governments. But the loss of those 19 ranches—

or with reduction of those 19 ranches, the county, in and of itself,

lost $10 million in economic loss the first year because of those reductions.

The county then went and looked at what happened to farmers

and ranchers when their livelihoods were reduced between 40 and

85 percent. What the county found out is that the first thing that

ranchers cut was medical costs. If you don’t have enough money,

the first thing you stop doing are going to doctors when you’re sick.

The second thing that was lost for the ranchers in terms of their

own economic livelihood was food and supplies. In this area, 60

percent of the money made by ranchers goes back into the ranch

in terms of—of operation repairs such as maintenance of fences or

hiring help or whatever. That’s where the loss came from, was that

60 percent that the money put back into maintaining the Federal

land.

A $10 million economic loss in three counties is a significant loss,

and that was because of the Forest Service’s decision to reduce

those grazing allotments. The saddest thing in all of that was when

you actually sat down and looked at the Forest Service documents

making the reduction. The Forest Service documents listed a total

of nine threatened or Endangered species that it claimed to be caring for which was the reason for the reduction.

But when you actually sat down and looked at the effects, either

the species were extirpated, which means that there weren’t any

endangered species on the allotments, which happened with the

Mexican gray wolf and with the jaguar, or the species that were

present on the allotment, including Southwest willow flycatcher,

bald eagle, peregrine falcon, Mexican spotted owl, Apache trout,

Loach minnow, razorback sucker, the Forest Service documentation

themselves either said there was no adverse effect from livestock
11

grazing on the species or that the effects occurred from something

else.

So, these ranchers suffered between a 40 and 85 percent reduction in their grazing permits and their cattle weren’t affecting the

species in the first place. That’s the kind of real life stories that

are being—that are occurring in New Mexico because of the Endangered Species Act.

Clearly, it’s an Act that is broken and needs to be fixed by Congress.

Thank you.

Mr. POMBO. Thank you.

[The prepared statement of Ms. Budd-Falen may be found at end

of hearing.]

Mr. POMBO. I thank all of you for your testimony. Mrs. Budd- Falen, in your testimony you talk about in excess of $5 million that

was paid—paid out. Was that money used for habitat recovery

or——

Ms. BUDD-FALEN. No, your Honor. That was litigation fees and

costs paid directly to environmental groups. Not a drop of that

money went to endangered species or protection of endangered species or recovery plans or anything. That was litigation money that

went to lawyers.

Mr. POMBO. So, you’re telling the Committee that all this money

went to attorneys and none of it went to recovering habitat or recovering endangered species?

Ms. BUDD-FALEN. That’s exactly what I’m telling the Committee.

Those were—the fees and costs were filed in court documents and

paid directly to the attorneys representing environmental groups.

Mr. POMBO. That is, according to your testimony, is in excess of

a million dollars a year?

Ms. BUDD-FALEN. That is correct, Your Honor.

Mr. POMBO. Not bad work if you can get it, huh?

Ms. BUDD-FALEN. I’m litigating on the wrong side.

Mr. REDMOND. No, you’re not.

Ms. BUDD-FALEN. No, you’re right. I am litigating on the right

side.

Mr. POMBO. You mentioned the Forest Service allotments and

grazing allotments, and you said that, in your testimony, that they

had to fence off water rights, that they had to fence off access to

water. I know a little bit about the cattle industry. If you don’t

have water, what is the rest of the ground worth?

Ms. BUDD-FALEN. Absolutely nothing. And the problem is, is

what they’re doing with the fencing decision, is they are fencing—

this is a very dry area. There is only a few streams and rivers that

run through the area. It’s also very steep.

And, so, in terms of drilling water or putting a pump in a water

source and pumping the water up a hill is incredibly expensive.

And the Forest Service has told the permittees that they either

build and maintain the fences, which are incredibly expensive, or

they say you don’t turn out your livestock.

And then they’ll go to the permittees and say, ‘‘Well, this benefits

you because we’re not kicking you off of your allotment. So, we’re

not eliminating your use of the allotment, but you don’t have any

water to put your cows on when your cows are in the allotment.’’
12

And, so, they really are eliminating use. It just sounds better.

Mr. POMBO. Now, the Forest Service is building the fences or—

or the cattlemen are expected to build the fences?

Ms. BUDD-FALEN. In some cases, the Forest Service is building.

In some cases, they are telling the cattlemen, ‘‘You don’t have to

build a fence; but, until the fence is built you cannot turn your

cows into the pasture.’’

Mr. POMBO. Are there any of the cattlemen that have gone ahead

and built a fence?

Ms. BUDD-FALEN. Yes.

Mr. POMBO. There are?

Ms. BUDD-FALEN. Yes.

Mr. POMBO. And that—that fact was reflected in their lower rent

then, right?

Ms. BUDD-FALEN. No.

Mr. POMBO. No?

Ms. BUDD-FALEN. No, the grazing fees that are paid by the cattle

owner are paid regardless of who builds the fence. What happens,

though, is it increases the maintenance cost, because in no case has

the Forest Service or the environmental groups or anyone else

pushing this decision agreed to do the maintenance on these fences.

And, so, the—the maintenance cost of 60 percent that the rancher pays to maintain the allotments already now increases because

they have to pay them—they have to pay those additional costs.

The Forest Service does not bear the brunt of any of these costs.

Mr. POMBO. The—All of you testified that there was questionable

science that was used in some of these cases. Can any of you give

me an example of what you would consider questionable science or

that was used in any of these endangered species cases on a listing? Mr. Pattison?

Mr. PATTISON. Thank you, Mr. Chairman.

Mr. POMBO. Speak into the mike.

Mr. PATTISON. In the case of the poisoning of the fish in the San

Juan River so that it would become a so-called blue ribbon trout

fishing area in the 1960’s, the Fish and Wildlife Service and the—

I believe the New Mexico Game and Fish Department might have

been in on it, too, they had decided at that time, through the

science available to them, that that was a necessary action.

Now the whole input of the $172 million that is trying to be used

for recovery of these same species is counter to what was thought

in 1973. And those—some of those species aren’t even native to

New Mexico. So, that is a perfect illustration of the lack of sound

science in trying to recover those species.

Up in Colorado, those—some of those same species exist and can

be further enhanced and propagated without the financial impact

on New Mexico and Arizona and California that is brought about

by this action on the San Juan.

Now, the sound science would indicate that a thorough investigation would have been made as to the total habitat of these varieties

of fishes, and that a note would be made of the areas where they

thrive now. But, because of the environmental actions of certain

groups, they pick the spot on the river where they have been

poisoned in the past and they say that, ‘‘Well, they need to be re-
13

covered.’’ So, that is a perfect illustration, I believe, of a lack of use

of sound science.

Mr. POMBO. One of the criticisms that I’ve heard on the Endangered Species Act is that it is not implemented evenly across the

country. There are some cases where it is much more aggressively

implemented or that the recovery plans that are adopted are much

more aggressive in certain parts of the country than there are in

others.

You brought up the prairie dog as possibly being listed as endangered or threatened under the Act.

Mr. PATTISON. Yes, Mr. Chairman. The black-tailed prairie dog

has been a native of North America since who knows how long.

And back before the vast prairies of the central United States were

broken up and used for farming, its habitat included all of that

area in particular spots.

And it has been said that there were 250 million acres and blacktailed—black-tailed prairie dogs inhabited almost all of this area,

and now it’s reduced to one million acres; therefore, it should be

declared a threatened species.

However, there isn’t any way that their original habitat will ever

be restored; or, if it were, the United States and a lot of the rest

of the world would starve because of lack of wheat in the production—agricultural production of those vast acres.

Mr. POMBO. I would caution you when you say there is no way.

If they implemented a recovery plan similar to what they’ve done

in California with the California spotted owl and the Northern

spotted owl, any area where you would find potential habitat for

the prairie dog, you would have to stay out of it, develop a habitat

recovery plan for that particular area.

I believe that, right now, any place in our forests which have

been harvested for hundreds of years where there is a spotted owl

nest, you can’t build within a thousand feet of that nest. And if

they had a similar recovery plan for your plains, you would not be

able to go farm anywhere near that.

It may sound somewhat odd to you looking across it, but we

thought it was very odd when they offered that to us for the recovery of the spotted owl in California, so——

Mr. PATTISON. Mr. Chairman, I believe that if that should occur

and the black-tailed prairie dog were to be declared an endangered

species, not just a threatened species, but an endangered species,

and all of the farming through this vast area would be ordered to

be shut down, that that would be probably the best thing that

would have happened as far as the Endangered Species Act was

concerned, because you would have Congress then seeing how impossible this Act is and it would be repealed. Because people would

feel it firsthand in the grocery store.

Mr. POMBO. Thank you, Mr. Pattison.

Mr. REDMOND. I have a few questions. My first question is to

Senator Ingle. As an elected official who represents a large agricultural district and is a farmer yourself, what do you hear from your

constituents about the Endangered Species Act?

Mr. INGLE. Basically, Congressman, what I hear is basically a lot

of the things we’ve heard this morning. It seems to me that

they’re—we’re concentrating—or the efforts are concentrated more
14

on litigation than they are on actually conserving any of the species.

You know, there is ways that you can—you can conserve some

species, if that’s what—if that’s indeed what the Act is designed to

do, which it is. And there are—there is some merit to some of that.

But it seems to me that the lawsuit or the litigation comes first,

and then that is an effort then to basically eliminate any use that

the—the owner had for the land, so basically that’s the way that

that Act was accomplished.

It doesn’t—doesn’t help the owner at all. It just seems—basically

where his land is of no real use. Falen here on the end spoke, I

thought, very well of what happens in the Forest Service lands.

You can use the land if you do all this work on it; but, in desert

areas and things like that, often you cannot—you—that’s why it’s

a Forest Service, because basically much of this land can’t actually

be bought by private people that can make—make the actual land

work and pay for itself. That’s why we have so darn much of it in

New Mexico, not only statewide but Federal.

But, by the same token, these folks have taken care of this land

and made some use of it and paid taxes through their income and

things from it. The Environmental Protection Act basically just

eliminates the whole source of any income off anything.

And whether the species are there is not a litigation itself to stop

the use of it, and that’s the danger that I see in so much of this.

And there is another example of the prairie dog thing. We’re certainly not short of those little guys and never will be. They are—

they are a survivor. Some animals in this—this—this state weren’t.

We’re spending a lot of money now trying to reintroduce a gray

wolf in certain areas of the state. We’re having an awful hard time.

They’ve been out of circulation for so long, that it’s a little bit tough

to get over somebody bringing your food and having to hunt it

down yourself.

And not that I’m against them being introduced, but there are

certain species that have—have come through, you know, the

growth of man, and we can’t stop the growth of man here. So, basically, I think we need to look out more—and if we’re going to preserve something, let’s try to preserve it.

Let’s not try to just let it stop and litigate everything that comes

along. And then the litigation is—as all of us know, once the suit

is filed it may be years before the—the action is actually taking

place, and perhaps your case is thrown out, perhaps it’s put off for

another hearing and you’ve got another 2 years. But it’s—I think

those are the things we need to be very careful of.

Mr. REDMOND. OK. My next question is to Mr. Pattison. Environmentalist Sam Hitt recently said the Endangered Species Act had

little impact in the Clovis area. Is this correct?

Mr. PATTISON. I believe that’s probably because of the fact that

Mr. Hitt has been here very little and doesn’t know what our problems are. And if he were land commissioner, it would mean that

he would have to be educated a great deal before he could take care

of his office.

No, it’s not correct. The prairie dog, and the reason I brought it

up, is one of the endangered species, so-called, or threatened species that they haven’t used any science at all. Not just false science
15

or sloppy science, they haven’t used any science at all in

ascertaining the—the habits and the existence and the reproduction and so forth of this prairie dog.

You can see them right now today within the city limits of Clovis, and you can do the same thing in Albuquerque and Santa Fe

and Las Cruces and almost, if not all, of the municipalities or villages in the State of New Mexico.

Mr. REDMOND. Thank you. For Ms. Budd-Falen, have you discovered any data which indicates that the livestock industry adversely

affects the populations of the endangered species? You gave us an

example of the economic impact in three counties, approximately

$10 million. But the question here is, you know, is the livestock,

are they adversely affecting the population of the endangered species?

Ms. BUDD-FALEN. That’s—to me, that’s one of the most frustrating things about it. The environmentalist community makes

this look like it’s an either/or situation type, either humans or animal species; and that—that is absolutely not the case.

The case that I talked about over on the Arizona-New Mexico

border, the Forest Service and the Fish and Wildlife Service jointly

found that grazing had no effect on the list of threatened or endangered species that they were concerned about, no effect at all. This

was grazing currently occurring on those allotments in the riparian

area, cattle walking into the streams and taking a drink.

We had a court hearing on this several months ago. They testified that actually more harm came to the species from driving up

and down the roads checking on the cattle than actually occurred

by the cattle in the streams themselves.

And, so, it’s not a question of cattle or endangered species or humans or endangered species. Species are resilient. Cattlemen can—

can work and change. They don’t have to have their livelihoods

eliminated.

The facts are that on the species that the Fish and Wildlife Service and the Forest Service were concerned about in Arizona and

New Mexico, every single determination came out not likely for it

to adversely affect the species.

Mr. REDMOND. I would like to make an assignment to each of

those that are testifying this morning on Panel I. When Congress

addresses the issue of the Endangered Species Act, it’s inevitable

that we’ll have to be very clear in our definition of ‘‘threatened’’

and ‘‘endangered.’’ It’s not just a matter of the—you know, the implementation of regulations. It’s the—you know, what definition is

being used for ‘‘threatened’’ and ‘‘endangered.’’

And I would like for each of those who testified to take a crack

at it. If you were writing the law, how would you define ‘‘threatened’’ and ‘‘endangered’’?

Thank you. That’s all I have, Mr. Chairman.

Mr. POMBO. I just had a couple more questions I wanted to ask.

There was a recent statement that there is no straight-line connection between the Endangered Species Act and the livestock industry, and I was wanting to ask Ms. Budd-Falen about that statement and if she agrees with it.

Ms. BUDD-FALEN. I absolutely disagree with that statement. One

of the straight-line impacts that I talked about was that when the
16

grazing allotments in Arizona and New Mexico were reduced between 40 and 85 percent because of endangered species, that, in

one single year, resulted in a $10 million loss to local economies

and it resulted into a loss to the ranchers themselves, and what got

cut was spending for medical, for medical supplies and for going to

doctors.

That was a direct, straight-line impact from—from an Endangered Species Act decision to the ranchers and farmers themselves.

So, I think that it is clear that there is a direct impact. I know that

Sam Hitt’s article talked about that there was no impact and that

these people weren’t affected. That’s not true.

For example, I represent some other ranchers and farmers whose

water rights, which have been declared private property in the

State of New Mexico, have been directly taken. This is water for

farms and for ranches. Most of these water rights were developed

before the Federal lands were even created, back when Mexico still

had this land and before the signing of the Guadalupe-Hidalgo

Treaty. These right have been directly taken from them because of

the Endangered Species Act.

There has been no analysis of whether this taking has occurred,

the costs, or any of that. We’ve recently filed suit to try, under the

Fifth Amendment of the Constitution, to try to force the Federal

Government to at least recognize the problem with taking—direct

taking of private property under the ESA.

Mr. POMBO. OK. Thank you. I want to thank the panel for your

testimony. If there are any further questions for this panel, they

will be presented to you in writing. And if you can answer those

in writing for the Committee, they will become part of the official

record, and I would appreciate that.

But thank you very much. You’re excused.

I would like to call up the second panel, Dr. John Fowler, Mr.

Bud Eppers, Mr. Manuel Pacheco, and Mr. Bill Moore.

Thank you very much. I think you heard the explanation of the

5-minute rule. I—if you’re almost finished, I usually let you go

ahead and finish. But if you could try to stick to that, I would appreciate it.

Dr. Fowler, if you’re ready, you can begin.

STATEMENT OF DR. JOHN FOWLER, PROFESSOR OF AGRICULTURAL ECONOMICS, NEW MEXICO STATE UNIVERSITY, LAS

CRUCES, NEW MEXICO

Dr. FOWLER. Good morning, Mr. Chairman, distinguished Committee Members. I greatly appreciate the opportunity to be here

this morning.

I am a professor of Agricultural Economics at the New Mexico

State University in the State of New Mexico, and I have responsibilities involving a team of scientists called the Range Improvement Task Force, and we have been working in this arena of resource management for many, many decades. We greatly appreciate the opportunity to share some of our experience with you and

the Committee members this morning.

I am a strong supporter of the original intent of the Endangered

Species Act. I believe that continuity of the genetic pool, bio diversity, and species richness are essential elements to long-term well
17

being of our society and our productivity. However, that’s where

the support stops.

The application and implementation of the Endangered Species

Act that we have seen in the State of New Mexico goes beyond any

semblance of reasonableness, any semblance of common sense, and

any semblance of professionalism. The hard-handedness of the

agency assigned to implement this, the U.S. Fish and Wildlife

Service, their lack of experience in the field—in 20 years I have yet

to find the U.S. Fish and Wildlife Service biologists in the field. We

have yet to have them interact with the people they are directly

impacting. This travesty needs to be corrected.

Private landowners, Mr. Chairman, are the key to the successful

implementation and change of the Endangered Species Act. They

are the individuals that understand where the species are. They

are the individuals that understand how they move, how they

interact with one another, and how coexistence can be implemented. And, yet, these people cringe at the very thought and mention of threatened and endangered species because of the way it’s

implemented on the ground. This has to be rectified, Mr. Chairman.

Another major area of the Endangered Species Act, this has become a dominant use policy. As soon as the mention of endangered

species comes up, all other types of management are thrown to the

side. All of our relevant legacy of data and information is cast

aside. And the only principle that they used is that of the endangered species. It becomes the tail wagging the dog. Our management is cast aside and oftentimes without the proper scientific

credibility.

We’ve been teaching for 20 years how sound biology, economics,

and institutional constraints need to be equal legs on the triangle

of management. Not a single spot of law, but an encompassing

three-dimensional effort for management for the short term as well

as the long term involving the people, the politics, and the physiology. This is lost with the Endangered Species Act.

The Endangered Species Act uses a principle called a precautionary principle. If there is any hint of endangered species,

then by all means, before you find out about this species, remove

and reclassify the species and change everything before you might

have any impact.

A classic example is the snail darter. Years ago, in the Tennessee

valley, Federal projects were stalled, prevented, local impacts were

implemented, and then all of a sudden, lo’ and behold, other populations were discovered, and the consequences were already done.

We have done this on 18 of the 22 species currently being nominated for a list that were presented by Secretary Babbitt. There

were mistakes in science in 18 of the 22 classifications. This is inexcusable. The damage that was done was done a priori, it was

done premature, and we have allowed this to happen.

I have presented in my testimony to you, Mr. Chairman, seven

examples of the implementation of the Endangered Species Act in

New Mexico. The analysis tries to—to show not only the direct impacts to the agricultural industries, but also the supporting infrastructure and how they are impact affected.
18

For the purpose of brevity, I would like to have this introduced

for the record.

Mr. POMBO. Without objection, it will be included.

Dr. FOWLER. Thank you, Mr. Chairman.

Even with this analysis that we did, it did not include reductions

in wealth. It did not include equity and capital losses associated

with this Act. In addition, it does not include intangible losses associated with loss of way of life, loss of hope, despair, increased suicide, increased divorce. All these are the cumulative impacts of the

Endangered Species Act that are being forced upon our citizens,

Mr. Chairman.

We need a comprehensive cumulative analysis of this Act. In addition to those—the analysis on the separate seven species, I have

also included a summary of the ideas developed by a multi-agency,

multi-disciplinary team done in 1993, nearly 6 years ago, that

speaks and addresses how do you get good science? How do you list

a species? How do you develop a recovery plan before they’re implemented?

So, procedurally, I believe these are just as germane today as

they were in 1993, and I also would like to present that to the

chairman as a matter of record. Thank you very much, Mr. Chairman.

Mr. POMBO. Thank you.

[The prepared statement of Dr. Fowler may be found at end of

hearing.]

Mr. POMBO. Mr. Eppers.

STATEMENT OF BUD EPPERS, CHAIRMAN, NEW MEXICO

PUBLIC LANDS COUNCIL, ROSWELL, NEW MEXICO

Mr. EPPERS. Thank you, Mr. Chairman, and we appreciate you

bringing the Committee on Resources, the oversight hearing to

New Mexico where you’ve already stated the people that are most

affected have an opportunity to have input into the process.

I represent over 4,500 Federal and state trust land permittees

throughout the State of New Mexico. We graze on intermingled private, state, and Federal land. Most all of our operations range from

small to large family business livestock production operation.

In preparing this testimony, this Committee necessitates review

of the effectiveness of the Endangered Species Act since it was

adopted and signed into law. Dr. Fowler already mentioned the

snail darter. The desert tortoise is another example where a gold

mining company desired to harvest the gold out of the hilly terrain

on the California-Nevada border. A requirement for getting that

permit to mine, they were forced to go and acquire private property

and set up a desert tortoise research center before they could be

given a permit to mine their gold.

In a 1,500 acre development location near Las Vegas, Nevada,

they were required to physically remove all desert tortoises from

their proposed development land, and they removed over 870 tortoises at a cost in excess of $40,000 per turtle.

The Southwestern willow fly catcher, not listed by the U.S. Fish

and Wildlife Service, but afforded protection by a Federal judge,

threatens historical water and grazing rights throughout the southwest. Cattle grazing is being eliminated by fencing in riparian
19

areas on forested land and BLM is quickly developing similar management practices.

The list goes on and on, and in every case there is not one shred

of peer reviewed, scientific documentation supporting listing and

protection.

Recently, the Fish and Wildlife Service told a staff person of Congressman Skeen that there were less than 400 pairs of the Southwestern willow flycatchers left in the entire world. This is absurd

when recent studies indicate there is at least that many or more

on the Gila River in southwestern New Mexico.

One of the things that you asked for was recommendations of

how the Endangered Species Act might be amended or changed. I

would like to offer several recommendations for consideration by

the Committee as you consider reforming the ESA.

First, the ESA is not—cannot claim victory in restoring or preventing a single species from becoming extinct, and it should be repealed in its entirety. Its purpose at this time is to eliminate consumptive uses of the land for extortion of developers and miners.

The Committee should seriously consider whether the Federal

Government should play a role in endangered species or let the

states address identification, listing, habitat requirements, or reintroduction. With the exception of just a very few species, states

have management responsibility for wildlife within their borders.

Even in migratory species, the states could do a better job in management than the Federal Government and at a lower cost.

Congress should establish a blue ribbon committee of range, timber, and wildlife professionals from land grant universities. They

should be charged with reviewing any and all available data on the

current status of each species under Federal agency management.

They should request and review all management techniques used

to protect and restore species populations, and then they should report back to Congress with a progress report on each species with

any recommendation for management changes to expedite recovery

or withdraw the species from protection.

Federal agencies should only be given management responsibility

for migratory species. Species that can walk or crawl across state

boundaries should not be managed by other than state agencies in

cooperation with the neighboring state.

Listing of a threatened or endangered species should only occur

after substantial and verifiable and peer reviewed evidence exists.

Land grant university scientists should concur unanimously.

Citizen suits should be prohibited. One of the worst travesties of

the ESA is the ability of environmental groups to bring before a favorable judge a request for a listing, critical habitat designations,

and management restrictions. The judiciary is not the proper setting for addressing the endangered species issues.

Conditions for listing should include mitigation of the impact on

rural communities, economies, historic land uses, and management

production on private, state trust, and Federal land.

And, by all means, to protect private property, Executive Order

12630 should be enacted into law with the Justice Department Implementation Guidelines serving as the regulations for compliance.

General appropriation to the Endangered Species Act should be

eliminated, and a possible funding source for federally listed spe-
20

cies could be a voluntary contribution provided for on the individual income tax forms.

I appreciate and thank the Committee on Resources for coming

to New Mexico and holding hearings on such an important issue.

And I would just like to call your attention, you’ve asked the

question about the news release by Sam Hitt. I would just like to

say that in eastern New Mexico alone there are a number of

threatened or proposed species, the Pecos pup fish, the bluntnose

shiner, the sand lizzard, Arkansas River shiner, lesser prairie

chicken, black-tailed prairie dog, and Pecos sunflower. And if

these—these species aren’t important to eastern New Mexico, Mr.

Hitt doesn’t know what he is talking about.

Thank you, Mr. Chairman.

Mr. POMBO. Thank you.

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

hearing.]

Mr. POMBO. Mr. Pacheco?

STATEMENT OF MANUEL PACHECO, NORTHERN NEW MEXICO

STOCKMEN’S ASSOCIATION, TAOS, NEW MEXICO

Mr. PACHECO. Thank you, Mr. Chairman, Mr. Redmond—Congressman Redmond.

I think that to fully understand my remarks you need to understand my roots and my background. I’m a descendant of the

Pachecos that have been here since 1598, and on my mother’s side,

from the Ortizes that have been here since 1693. Historical records

show that we’ve been in ranching since early 1700.

Besides ranching, I started working at varied businesses since I

was 16 years old. I became a public schoolteacher, a central district

school administrator. I did work for the agency for international development. I have been a consultant to some lawyers. I’ve organized many organizations, and I served my country in the U.S.

Naval Forces. I’ve also served on the National Public Lands Council under Secretary of Interior, Manuel Lujan and President George

Bush.

I am currently a board member of Northern New Mexico Stockman, also the P.A.J.E. Corporation, a New Mexico wide agricultural business related organization, and also vice president of El

Llano Ditch in Colorado.

The Endangered Species Act, although well intended, has been

a total failure. According to the National Wildlife Federation, in 25

years with billions of dollars spent, of 1,119 species listed, 6 species

were delisted as recovered and 6 have become extinct.

The Mexican wolf reintroduction has left no survivors but spent

millions. The Southwestern willow flycatcher, probably the only scientific study with qualified biologists using U.S. Fish and Wildlife

Service protocol, was done on the U-Bar Cow Ranch in the Gila

River. In July 1994, it had a high of 64 pairs. In might be noted

that in the west the only other pairs found were 38 in the Keru

River in California in a county that has no cows.

From 1994 through 1998, along the Gila, they have counted up

to 186 pairs, so they’ve been growing in numbers, all in cow country. Remember that.
21

Another difference found in this study is that the established literature that the Federal agencies have been following is contrary

to what they state. The placement of nests have been high, the

vegetation of preference different. Why then do they go and fence

thousands of miles of river without any science being done as to its

effect? What a waste of money.

The Carson National Forest spent a million dollars trying to locate Mexican spotted owls. They found one in the Jicarilla reservation. Imagine what that money could do if it was spent on resource

improvement.

It must be said that among scientists and biologists there are differences in approaches to saving species. We, the Northern New

Mexico Stockmen, believe that by saving species and improving

range, you can do it by putting your money and your effort on the

ground. Historically, our families have protected the area for over

400 years.

Those that do not subscribe to common sense take actions like

those that happened in Vail, Colorado. In Colorado, the extremists

started to burn out development. We’re afraid—and I come from an

area where there is five ski areas, and I’ve seen plans from this

new Santa Fe ring—pretty soon you’re not going to be able to go

camp, recreate, ski, or use the lands that we have used before it

was an idea of the United States, before there was a country of

Mexico, and for 150 years under our country that we have fought,

died, and served.

Why are we not equal at least to the plants and animals that

they’re trying to save? We have civil rights under the Treaty of

Guadalupe-Hidalgo, under the Constitution of New Mexico, under

the 14th and 5th Amendments of the United States Constitution.

Why are they being taken away from us by radicals that take no

risk?

Mr. POMBO. Thank you.

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

hearing.]

Mr. POMBO. Mr. Moore?

STATEMENT OF BILL MOORE, NEW MEXICO DEPARTMENT OF

AGRICULTURE, LAS CRUCES, NEW MEXICO

Mr. MOORE. Honorable Congressmen, let me begin by thanking

you for the opportunity to provide my perspective on the Endangered Species Act. I would like to draw from my professional training and experience as a wildlife biologist and discuss with you

briefly the lack of science that I am seeing personally in ESA implementation.

I would like to focus on the Southwestern willow flycatcher, a

species which has already been mentioned a couple of times here

today. In my professional opinion, the majority of the controversy

over this species’ protection and livestock grazing could be alleviated through more objective evaluation and application of the scientific information.

In addition, Federal agencies’ failure to comply with procedural

requirements of the ESA have contributed greatly to the current

crisis facing New Mexico’s livestock industry. This failure to comply

with statutory responsibilities has forced Federal agencies into a
22

reactionary mode, investing resources to address what should be

frivolous lawsuits. In an effort to quickly attain procedural compliance with the ESA and stave off unfavorable court rulings, these

agencies are implementing sweeping management actions which

would not be necessary if a more proactive approach, i.e., timely attention, to these issues had been taken.

The U.S. Fish and Wildlife Service published a final rule listing

the flycatcher as endangered in 1995. The final rule not only provides Federal protection, but it is also supposed to justify the Fish

and Wildlife Service’s decision to list the species. This justification

is supposed to be based upon the best available scientific and commercial information available.

However, in my review of the final rule and the literature cited

within it, I found errors in the way that the literature was represented. These errors are being incorporated into Federal land

management decisions and also into litigation to the unjustified

detriment of livestock producers. That’s the first point I would like

to make today.

A good example of this is the alleged relationship between livestock presence and cowbird brood parasitism. Just very quickly,

brown-headed cowbirds have been shown to affect flycatcher populations. Nobody disputes that. The cowbird lays its eggs in nests of

flycatchers and flycatchers end up raising baby cowbirds or no babies at all, essentially.

The Fish and Wildlife Service has taken the position that livestock presence is responsible for cowbird presence. In other words,

if you remove all livestock, then the cowbirds are going to go away.

And that line of reasoning is already being used in New Mexico to

remove some livestock from some Federal permits.

When I reviewed the scientific literature cited in the final rule,

I found what could best be described as a correlation. Livestock and

cowbirds both present in an area, and that’s it. But somehow the

Fish and Wildlife Service has turned that into a cause and effect

relationship, i.e., cowbirds are present because livestock are

present.

I believe this is a very fatal flaw in scientific research which

leads to unsubstantiated and sometimes grossly erroneous conclusions. To put it in some less scientific terms, one could likely find

a statistically significant relationship between increased ice cream

sales and increased crime rates. However, I don’t think anybody

looking at the issue objectively would automatically conclude that

increased ice cream sales resulted in an increase in crime rates;

but, that’s essentially what the Fish and Wildlife Service is doing

in this particular situation.

My second point is that Federal agencies need some accountability. Special interest groups are having a field day suing agencies because these agencies, by their own admission, cannot meet

the procedural requirements of the ESA. Why not?

Privately the Federal agencies blame one another. In the meantime, lawsuits continue to be filed and the only people who suffer

any repercussions are the livestock producers who are dependent

upon that Federal grazing permit to stay in business.

A good example of this is the Forest Service’s decision earlier this

year to remove livestock from a couple hundred miles of streams
23

in western New Mexico and northern New Mexico. That decision

was not made based upon recently collected field data indicating

degraded riparian conditions. The decision was made because the

Forest Service, by its own admission, was out of procedural compliance with the ESA, that is despite the fact that the Forest Service

had over 3 years to come into compliance.

The Forest Service made that decision in order to avoid the possibility of a court injunction. There was no scientific data which led

to that decision, no matter what you read in the newspapers.

Special interest groups are utilizing the ESA to create what has

been described—let me back up. Litigation has got to be removed

as the central driving force behind ESA implementation. Every

Federal agency decision made in regards to the flycatcher, every

single decision going back to the original petition to list has come

about as a direct result of a lawsuit or the threat of a lawsuit.

As a result of being produced in a crisis mode, the biological integrity of decisions is suffering. Special interest groups are utilizing

the ESA to create what has been described as a legal train wreck.

These groups have been very explicit in stating their objective is

to rid our public lands of all cattle grazing.

Unless Federal agencies somehow find a way to meet their requirements or the ESA sees some substantive changes, the present

ESA and all of its procedural requirements has and will continue

to be a very effective tool in achieving these groups’ political—and

I stress—not biological agenda.

In the meantime, the ESA will continue to be used to achieve a

political agenda, and we will continue to argue how ineffective the

Act is at recovering species.

I know I’ve covered a lot of ground here very quickly; but, everything which I discussed is outlined in greater detail in my written

testimony which I’ve already submitted to your staff. And, once

again, I thank you for this opportunity.

Mr. POMBO. Thank you for your testimony.

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

hearing.]

Mr. POMBO. Thank you for your testimony. I thank the entire

panel. I would like to start with Dr. Fowler. To open up your testimony, you talked about your wish to preserve biodiversity and to

use good science in the decisions that are being made. Do you believe that good science is being used in—in the current implementation of the Act?

Dr. FOWLER. That is explicitly accurate.

Mr. POMBO. What is driving it? Why would the agencies, which

are required to use good science, that by their own admission claim

that they are using the best available data, what—what would be

driving them to use science that is not peer reviewed, that is not

accurate, that may be biased or politicized?

Dr. FOWLER. Well, that’s a very encompassing question, Mr. Congressman. We have in the west example after example of where

moves are made before data recovery plans are completed, before

the blueprint for recovery is being finished. Example after example

of where they’ve jumped the gun either for political reasons, or as

Mr. Moore has described, they’ve been forced with these actions.
24

We are seeing a transition from consumptive use to non-consumptive use. We are seeing where the—in the west, there are

rights associated with water rights that are clouding the title of the

Federal Government and the U.S. Forest Service lands, and Bureau of Land Management lands, and we are seeing where the

easiest way, the most—quickest way to remove these clouds of title

are through a surrogate such as endangered species so they will get

in-stream water flows.

They can retain water for endangered species at all levels of the

river system, and that the Federal Government can retain these

rights. I do believe there is some very, very clandestine motives

that aren’t immediately obvious to everybody, and that we are falling directly into this mood of transferring ownership from the private sector to the Federal sector.

Mr. POMBO. I’ve often believed that with the number of the species that I’ve seen, I’ve had the opportunity to go around the country quite extensively and look at some of the endangered species

problems that they’ve had, and it appears that with a lot of the

problems, that there are—there is another agenda associated with

a particular listing.

Mr. Moore said something about removing cattle, and the other

two gentlemen, by removing cattle from the public lands as being

part of the agenda out west. We had people that have admitted

that if it wasn’t for the spotted owl, they would have had to have

created one in order to get the loggers out of our forests.

Do you believe that the Federal Government, that the Endangered Species Act, the way it’s being implemented today, is susceptible to that kind of manipulation of the Act?

Dr. FOWLER. Yes, sir, I do. Johanna Wald, Natural Resource Defense Council, I believe has testified on your Committee, if we cannot price livestock off the western range, we will policy or litigate

them off. It’s—you know, we are falling exactly into the line that

has been prepared for us. This is not an accident.

Mr. POMBO. The—getting back to your original comment about

bio diversity and the importance of maintaining bio diversity, I

would assume that is part of your training, is to—to understand

the importance of bio diversity in this country and, in fact,

throughout the world.

Having said that, do you believe that there is any way that man

can stop species from becoming extinct?

Dr. FOWLER. Yes, I do. I believe man has a direct impact on species, both negatively and positively. You know, it’s no accident that

75 percent of endangered species are located on private land. Individuals, who through generations, know how to nurture species.

They do not rape, pillage, and plunder in the short run if they’re

going to be there for generations.

It’s common knowledge that a mid-seral state type is often more

conducive to more species richness than all the way to an excellent

condition. Trying to manage for the infinity is usually moving toward a single species. Whereas, if you’ll keep in a lower seral state,

you’ll have more species richness, not only in vegetation, but also

all the interrelationships between the animals, insects, arthropods,

et cetera, that co-mingle.
25

So, attempting to go to excellent condition is the wrong move. We

are going beyond the optimality position. And management, Mr.

Chairman, is the key to success. People are the key to success.

They’re not the problem. They have the knowledge through time or

those species wouldn’t be there, and we just haven’t recognized

that.

We have to get back to the people who know how to work the

land. And we are moving as fast away from that as possible, Mr.

Chairman. And that is the wrong—absolutely the wrong direction.

Mr. POMBO. A final question that I would like to ask you, if we

changed the incentives that are currently in the Act so that instead

of the Endangered Species Act being seen as a negative by property

owners and property managers, but instead as a positive, say that

there were tax incentives for creating habitat, that there were

awards and rewards that were available if you increase the amount

of habitat and consequently the number of endangered species on

your property, do you think that would be an effective tool in managing the recovery of endangered species versus the fear that many

property owners have today?

Dr. FOWLER. I think that would be a major start forward, Mr.

Chairman. The agricultural industry, No. 1, is—is a stable industry

throughout the west. Other industries come and go, have peaks

and troughs, but agriculture, in general, through time, has been a

stable industry. And this industry responds to price. They have always and will always respond to price. That’s the very nature of

the individuals.

You give them a positive signal on a product, and they will

produce it, and that includes endangered species. We have not

given them the correct signal. As a matter of fact, we’ve given them

the reverse signal.

Mr. POMBO. Thank you. Mr. Redmond?

Mr. REDMOND. Thank you, Mr. Chair.

Dr. Fowler, a couple of questions on your—on your testimony.

You said that in—And this is—Maybe I didn’t—This is for clarification purposes. I’m not sure I understood this.

You said that in your 20 years, you’ve not seen a field worker

from Fish and Wildlife out in the field dealing with the endangered

species; is that correct?

Dr. FOWLER. That is correct.

Mr. REDMOND. Can you clarify—I mean, what—what—what do

you mean ‘‘out in the field’’? Are you talking about out in the

streams and the forests, or are you talking about at the university

or in the field office? What—what do you mean by ‘‘out in the

field’’?

Are you—are you indicating that they’re sitting somewhere behind a desk in Santa Fe or in Washington making these decisions

without coming out and physically being present in those communities? Can you describe that for me? I didn’t——

Dr. FOWLER. Yes, sir.

Mr. REDMOND. I didn’t clearly understand that.

Dr. FOWLER. Oftentimes, in my role as coordinator of the Range

Improvement Task Force, we get on the ground with individuals on

allotments in the forests, in the rangelands, in the riparian areas;
26

and, during those times there is usually an interaction between the

industry and the agency.

And the agencies that are represented there are the U.S. Forest

Service and Bureau of Land Management. And it’s their biologists

that are on the ground. Those people then feed the U.S. Fish and

Wildlife Service and because of Section Seven of the Endangered

Species Act, they have been put in the driver’s seat as the only biologists of record.

You cannot get those people out of Albuquerque.

Mr. REDMOND. So—so, what you’re saying is that we get the scientists from the university, we get the scientists from the Forest

Service; but, the scientists who are directly responsible for the implementation through the Fish and Wildlife will not and have not

historically been in the field?

Dr. FOWLER. That is correct, Mr. Congressman.

Mr. REDMOND. You spoke about data being cast aside. Can you

describe the kind of data that you’re speaking about?

Dr. FOWLER. I was referring to a case brought up earlier by the

panel, Mr. Pattison, who was speaking to the Pecos bluntnose shiner. And, here, that species was studied starting in 1991, and they

have been looking at the impacts of the current irrigation regime

on the bluntnose shiner. And it was a 5-year study that was continued for three more.

And at the end of the 5 years, an additional two, 7 years, there

was a tenfold recovery in these species itself. Rather than that

being accepted as a positive success, what we’re seeing now is a

change to a recommendation for a continuous in-stream flow of 35

cubic feet per second for this fish when the last 7 years of data

would contradict that need, as an example. After years of study,

once again this agenda, Mr. Chairman, is not being met. And the

data was cast aside.

Mr. REDMOND. Mr. Chairman, may I request that that data be

entered into the record for this hearing?

Mr. POMBO. Without objection.

[The information referred to may be found at end of hearing.]

Mr. REDMOND. Thank you. And I personally would also like to

have a copy of that, Dr. Fowler, not only for the Committee, but

also for my personal use, as well.

I just want to make one comment before—before I hand the

microphone back. And there is terminology being used that I think

that we need to very clearly delineate and understand what we’re

talking about.

One of the terms today was that there is good science and bad

science. As one who holds a master’s degree in philosophy and the

focus of my research is philosophy of science, there is no such thing

as good science or bad science. There is science.

The Latin word for science means certain knowledge, and what

we have here is, we don’t have bad science, we have ignoring

science. We have people, professionals in the field, whether they’re

with Fish and Wildlife, whether they’re with another agency, that

are ignoring the data such as what Dr. Fowler is talking about

here.

It is not scientific to discard data. That’s not science. That is not

a part of the scientific method, never has been, never will be. And
27

so what we have is, we don’t have bad science, we have people that

are ignoring science.

And I would like to—and the reason I’m stating this on the

record is that it’s very important that we collect all data that is relative to the issue and we acknowledge that as relevant data that

will bring us to the conclusion of science, the certain knowledge on

these issues.

Mr. POMBO. I wanted to—I thought of another question I wanted

to ask Dr. Fowler before I move on. In your testimony, you talked

about, I believe you said, 22 species that have been mentioned recently by the secretary for delisting. We’ve had the opportunity,

and I believe the figure is now up around 30, that depending on

which press release you read, I think if you put them all together

you’re up around 30 now that have been proposed for delisting or

down listing.

In doing an analysis of the species, I believe it was six of those

species are extinct and should never have been put on the list. The

vast majority of the species were errors and miscountings, things

that were not species that got listed as separate species. I do not

believe that there is a single species on the list that you can say

was a recovery of the Endangered Species Act or as a result of the

Endangered Species Act.

Do you have any information that would be contrary to that, because the Committee has looked into this, Committee staff has

looked into this. And if you do have that, I would—I would like to

have that.

Dr. FOWLER. I personally do not, Mr. Chairman. We do have a

Ph.D., in wildlife biology, and I will inquire of him and make the

information from him directly available to the Committee.

Mr. POMBO. Yeah, if—if you or the university or any of the—the

other scientists that you work with have any information about any

of those species that could be as a result of the Endangered Species

Act, we would like to find a recovery where the Act actually worked

so that we could use that as a model. And we have had a very difficult time finding any where they actually worked and a species

was recovered because of anything that was done under the Endangered Species Act.

[The information referred to may be found at end of hearing.]

Mr. POMBO. The—Mr. Moore, you—you seem fairly confident

that livestock grazing and the Southwestern willow flycatchers can

co-exist. Do you have any direct evidence of that, scientific evidence

of that, that you could present to the Committee?

Mr. MOORE. Yeah, you’re—you’re basically looking at two controversies whenever you’re talking about conflicts between livestock

grazing and flycatcher viability. The first is the cowbird brood parasitism issue which I discussed briefly. In addition to the scientific

data not supporting that relationship, we also have field data

showing that where livestock and flycatchers were both present,

cowbird brood parasitism rates were insignificant on the flycatcher

populations.

The second prevailing assumption that’s going through a lot of

Federal documents right now is that livestock grazing will destroy

flycatcher habitat. I would like to bring up an area that has already been brought up a couple of times; and, that’s the U-Bar
28

Ranch, which is a privately owned and privately managed ranch in

western New Mexico.

This single ranch contains—Depending upon whose numbers you

use, that ranch contains one-third to one-half of the known Southwestern willow flycatcher population in the world. In addition to

that, this ranch also grazes several hundred head of livestock.

One thing that I found kind of interesting in a report that I read

recently on this issue, a report done by Forest Service biologists

who did a study last year and they looked at two areas in riparian

habitat where flycatchers were nesting. One area, they excluded

livestock grazing; another area, they didn’t exclude livestock grazing.

There was no statistical significant—There was no statistically

significant difference between those two populations. In fact, if you

just look at the raw numbers, nesting success in the area where

livestock were not excluded was actually 10 percent higher. But,

like I say, that’s not a statistically significant difference.

Mr. POMBO. You said that, in your testimony, that the science

was gathered. Just for the record, who did this particular study?

Mr. MOORE. It would be Stoleson and Finch. I think it is Scott

Stoleson and Deborah Finch, U.S. Forest Service, Rocky Mountain

Forest and Range Experiment Station.

Mr. POMBO. So, was it federally funded?

Mr. MOORE. Yes, that was a Federal study.

Mr. POMBO. And has Fish and Wildlife used that information in

determining the proper recovery plan?

Mr. MOORE. No, that’s—that goes back to something which Dr.

Fowler mentioned, all of this—all these decisions are being made;

yet, the Fish and Wildlife Service hasn’t come out with a recovery

plan yet for this species.

All these decisions are being made, individuals are being hurt,

but nobody has sat down to take a look at the science and said,

‘‘OK. What do we need to do to recover this species?’’ That hasn’t

happened yet. The Fish and Wildlife——

Mr. POMBO. The enforcement actions aren’t taking place?

Mr. MOORE. Yes, that’s correct. The Fish and Wildlife Service

has got a policy that states very explicitly that it will develop recovery plans for species within two and a half years of listing.

Southwestern willow flycatcher recovery plan is already a year

overdue, and it’s probably going to be at least another year before

we will even see a draft.

Mr. POMBO. You made another statement that I’m curious about.

You said that on this particular ranch was one of two places of

known populations of—of this particular flycatcher. When were

they discovered on this particular ranch?

Mr. MOORE. There is is some studies going back from probably

the mid-eighties that knew that those flycatchers were out there;

but, they’ve not been intensively studied since probably about 1994

on.

Mr. POMBO. And have other scientists gone out to other ranches

to see if they had populations of flycatchers?

Mr. MOORE. No, I don’t think you’re going to see that happening.

Mr. POMBO. I’m always curious when they say that these are the

‘‘only known populations,’’ because until they found them there,
29

they didn’t know they existed there. So, how do they know they’re

not somewhere else?

But it—I see that come up often in data that we get from reports

from the Forest Service and Fish and Wildlife, that these are the

only known population and they’re the only ones left in the world

and so on. And I always wonder how they know that.

But, Mr. Eppers, in your testimony, you talk quite extensively

about the states having jurisdiction in managing wildlife within

their borders. Do you feel that the State of New Mexico is competent to handle endangered species recovery?

Mr. EPPERS. Well, I certainly do, Mr. Chairman, because they already have the mechanism in place. They have the conservation

services division set up, state listed species. They’re already involved in the management of endangered species in conjunction

with the management of other—a multitude of other wildlife species, and I think that they could handle it much better than what

the feds have demonstrated they can do up-to-date.

Mr. POMBO. The way the Act is currently being implemented

gives little or no opportunity for state involvement in the recovery

of species, let alone private individuals involved in it.

And just for my own knowledge, amongst the cattlemen, amongst

the property owners, are they typically more willing to work with

the state officials or with Federal officials in terms of trying to recover these species in property management?

I know you had some state listed species, and, you know, there

is some differences there. Amongst the general population, how is

the feeling toward the state agencies? Is it generally positive or is

it negative?

Mr. EPPERS. I think with any—anything related to endangered

species you have a certain amount of fear from the landowners that

an action can require them to lose their ability to manage their

land.

But that has not been that prevalent within the state agency.

They have been involved in working, I think to some degree, with

landowners; and, at least we find them out in the field occasionally.

As Dr. Fowler has already indicated, you don’t find the Fish and

Wildlife Service out in the field. We can communicate with the Forest Service and BLM, State Game and Fish Department personnel;

but, we don’t have the opportunity to visit with the Fish and Wildlife Service or the—any of the other Federal agencies involved with

endangered species.

Mr. POMBO. Amongst the other suggestions that—that you have

made, you seem very confident that the current implementation of

the Act has not worked and, in fact, should be repealed. Do you

think that there is a need to have an Endangered Species Act to

protect species?

Mr. EPPERS. I find it very hard to support the Endangered Species Act as it has been managed in the past and is presently being

managed. I cannot see any relevance to the improvement of any

species as a result of the Endangered Species Act. The species that

they always refer to as being recovered or propagated under the

Endangered Species Act have all occurred under other Federal

Acts, not the Endangered Species Act, the bald eagle, alligators in

Florida, et cetera, et cetera.
30

I—there again, I think that the people on the ground within the

states have the ability to recognize if the species is threatened or

endangered; and, if they do, they have the means and the availability, especially here in New Mexico with a Range Improvement

Task Force team and the scientists that sit on that team to address

and come up with a way to protect that species and enhance or recover the population.

Mr. POMBO. Thank you. I just—to finish up with this panel—You

have additional—OK.

Mr. REDMOND. Mr. Moore, earlier Dr. Fowler was mentioning the

precautionary principle. Based on the information that you have

testified here this morning to, the—this—in this hearing, that the

Southwestern willow flycatcher, based on the information that you

have, has reproduced itself more in the presence of cattle as opposed to the absence of cattle; is that correct? Do I understand that

correctly?

Mr. MOORE. Well——

Mr. REDMOND. I know you said it was a minor statistical deviation, but it’s still a statistical deviation?

Mr. MOORE. Yeah, just looking at the raw numbers, I believe it

was in the area where livestock were not excluded, nesting success

was 61 percent. In the area where livestock was excluded, nesting

success was 51 percent.

Mr. REDMOND. OK. So, what that does is, that calls into question

the precautionary principle, because the precautionary principle

says ‘‘do not intervene,’’ presupposing that if intervention should

occur, the damage would be done. When, in this case, by not intervening, causes damage.

So, it brings into question the whole policy decision regarding the

precautionary principle. Is that—would that be——

Mr. MOORE. I wouldn’t dispute that a bit. As a matter of fact,

I would agree with that 100 percent that there just—there seems

to be this over—overriding, prevailing assumption that we have to

take this better safe than sorry approach, whether or not science

is directing our actions or not.

Mr. REDMOND. Right. And in this case, you know, the idea is,

that if we touch it, it could get—it could be harmed; where, in reality, if we don’t touch it, it will be harmed.

So, I think that as we discuss, Mr. Chairman, in the future however the Endangered Species Act, when it is amended—when it is

amended that we take into consideration not only a clearly defined

definition for threatened species and endangered species, but also

the role of the precautionary principle policy, because we may be

doing species harm by not intervening, and this is one example.

Oh, I’ve got one more for Mr. Eppers. You mentioned something

about possible funding for Federal listed species could be voluntary

contributions provided for on an individual basis on the income tax

form. So, you could either vote, you know, to put the dollar in the

Presidential election, or you could vote to save the willow

flycatcher?

Mr. EPPERS. Certainly.

Mr. REDMOND. Well, I’m glad I have a choice. But I guess once

the money goes into that fund, you’re recommending something

like price supports for spotted owls; is that—No, I mean, theoreti-
31

cally, you know, I think that one—one of the main problems I believe that we’re having with the implementation and our desire to

save endangered species is that we’re taking a heavy-handed central government approach as opposed to an approach that, No. 1,

honors the right to private property; No. 2, honors the inevitable

market driving forces; and, you know, No. 3, that it is based on

sound science and not faulty procedure.

So, I have no problem with recovering a species by using a market approach as opposed to a central government approach, and, so,

you’re—you’re—you have created somewhat of a—of a hybrid here

where, yes, it’s partially market; but, yes, it’s partially Federal.

And so my question is that if we were to have this check-off on

our taxes and people who do not live on the land as you do, if

they’re so concerned about the species that you have to live with,

that they should accept some responsibility and this would be a

way that they could accept some of that responsibility.

In terms of implementation of that, we’re basically looking at

something like price supports for spotted owls; is that not correct?

Mr. EPPERS. Yes, it could be considered that, Congressman. And

I—I just feel that—that if the people that really have an interest

and a desire to protect endangered species want to participate in

the process, they could contribute some funding toward that goal.

I think the abuse of the Act as it has been, the vast expenditure

of funds that several of the panelists have already identified, really

has not helped the endangered species. And if people knew how

high the products that they are purchasing in the marketplace

today have elevated just because of the Endangered Species Act, it

would be quite frightening to them.

You look at our timber industry. It no longer hardly prevails in

this country. We’re importing our timber. We’re importing our oil

and gas. We are vast approaching importation of our food supplies.

And if we don’t change this thing around, I really fear that—that

we’re going to be dependent—totally dependent on foreign sources

for our necessary needs. And I just think that the people, that if

they’re really concerned about endangered species, they should put

some money into the process.

And it may be a price support for spotted owls, but it—it certainly would help find out just how much public support there is,

truly, out there for endangered species.

Mr. POMBO. Mr. Pacheco?

Mr. PACHECO. Gentlemen, I support by some examples. I don’t

believe in Federal supports for the endangered species, per se. I

think that people on the ground do a better job.

Let’s look at New Mexico and an example at the Gila Grande, the

Caldero location that the government is trying to buy right now,

and—and I support that. In New Mexico, at the turn of the century

there was no elk. Today we have an overpopulation because people

on the ground felt that that species needed to be in New Mexico.

Now the endangered species terrorists say that cows and others

are doing damage to the streams, endangering other species. Basically, I showed people on tour at the Gila Caldera that the only

ones that wallow in the river eating off the stream were the elk,

and we saw groups of 50 to 100 elk in the streams eating off of

the banks.
32

Where were the cows? And that’s a cow ranch with over 7,000

head there. Thousands of yards away from the stream. They only

go there to drink.

So, again, if you’re going to use science, do it like John Fowler—

and we’ve been on the ground together a lot—says, by being on the

ground. A lot of people sit on the back and make decisions without

ever going and visiting my place, and it’s become a money-making,

defrauding tool for these groups to pursue money by going after endangered species protection without no science.

Mr. POMBO. Let me ask you this then, in Mr. Eppers’ testimony,

he talks about, I believe it was in Las Vegas, a developer that paid

$40,000 per turtle to relocate turtles. How many cattlemen in this

area would give up grazing cattle for $40,000 turtles if they could

raise turtles instead?

Mr. PACHECO. Let me—Let me put it in the context of the north

central New Mexico. We’ve been harvesting a living in that area for

400 years. We’ve lived, we’ve raised families, we’ve existed and invited everybody to come, and they have and found the purest state

of beautiful God’s country. You couldn’t change our way of living.

You know, we do other things, but cattle business is in our blood.

It’s—It’s our tradition. It’s our lifestyle, and we’re going to do it till

all of us die. I have a son that’s in it. I have a grandson that’s in

it. My parents and grandparents were in it, and we’re here to stay.

And we’ve seen a lot of Santa Fe raid proponents. Sam isn’t here

because he thought that I would question his motives. Not even the

environmental community likes Sam because he is a radical.

Mr. POMBO. I say—I say about the $40,000 turtles half sarcastically. But we talked about incentives earlier, and I believe very

strongly that if there were incentives within the Act for people to

create habitat and create more endangered species on their property, that they would do it.

Mr. PACHECO. We’re doing that now, Congressman. The New

Mexico—North New Mexico Stockmen and our 2,500 members are

cooperating with the conservation fund, the extension service, and

the Forest service on top of Glorietta Mesa to improve the range

which improves a habitat, and that’s how the species will truly survive.

You know, the biggest threat to species is urbanization. If you

congregate a lot of people in an area, species will go away. They’re

not dumb. If you protect and improve that range, the way we live,

species will flourish.

You know, money isn’t everything. I like the way I raised my

children and where I raised them. And I think they’re going to like

the way they raise their children and their grandchildren. After all,

we’ve been here for 225 years under Spain, 25 years under Mexico,

and 150 years under the United States. We haven’t changed much.

But from the outside, people have tried to change us. It just didn’t

work.

Mr. POMBO. Well, I—I thank the panel very much for your testimony. It was very informative for me and for the Committee.

As we work toward making changes and trying to develop an Endangered Species Act that works for people as well as for wildlife,

the testimony we’ve received here today will be very valuable in

that effort.
33

I will excuse this panel. Thank you very much for your testimony.

Our structured panels have completed their testimony and the

questioning. At this point we will begin an open microphone session of ten witnesses who have already signed up to speak. Each

witness will be given 2 minutes to speak. A yellow light will come

on after 1 minute and a red light at 2 minutes.

I would like to now ask the first five witnesses to be ready to testify and come forward. Caren Cowan, Sharon Lombardi, Lewis Derrick, and John—John C. Williams, and Carl Hahn, if you would

come up, please.

STATEMENT OF CAREN COWAN

Ms. COWAN. Mr. Chairman, Congressman Redmond, my name is

Caren Cowan. I work for the New Mexico Cattle Growers. I’m a native of the southwest and a private landowner and very concerned

about where we’re heading with the Endangered Species Act.

You expressed some concern this morning that the environmentalists didn’t want to come to this hearing. I would submit to

you that the environmentalists are in this room. The radicals didn’t

want to come to this hearing. So, we need to look at it from that

perspective.

Those folks have an agenda which you’ve alluded here today. Mr.

Hitt’s own organization has said that cattle are exotic pests that

have no place in the State of New Mexico. So, I think that pretty

well outlines their agenda very rapidly.

And then they take that a little bit further. Yesterday morning

I heard a lady on television talking about the—all the damage that

was done in Vail, and it was referred to as eco-terrorism. And she

said, ‘‘Oh, no, that’s not terrorism. Terrorism is when you hurt people. We were just vandalizing.’’ I don’t know how any—I don’t understand that thought process.

But with that said, I stand before you on behalf of several people

on the western side of the state. I talked to you earlier this morning about coming back and perhaps doing a hearing that they can

get to. This was an awful long drive for them.

I would like to enter into the record letters that they sent over

for your consideration today, and then there is one lady who is actually not a member of Cattle Growers right now, who can’t afford

to be, who owns a BLM permit over in the Grants area, which is

in Congressman Redmond’s district.

On the top of the stack that I’m about to give you is a letter

that’s not dated that she got from the Farmington resource district

telling her that her permit has been cut in half. She can only graze

from the 10th of October till the 5th of May because of the willow

flycatcher.

This lady is single. She has got a family she is trying to raise.

She has a sick grandchild. She actually called my office the first

time from Ronald McDonald House because her grandchild was

in—was hospitalized.

She doesn’t know where she is supposed to go with her cows. She

has had this permit for 50 years, and these are the questions that

we need answered for our people.
34

Thank you so much for your time, and thank you for being here.

We look forward to seeing you again.

Mr. POMBO. Thank you. Without objection it will be included in

the record.

[The letters will be kept on file at the Committee Office in 1324

Longwoth Building, Washington, DC.]

Mr. POMBO. Sharon Lombardi?

STATEMENT OF SHARON LOMBARDI

Ms. LOMBARDI. Sharon Lombardi, Executive Director of Dairy

Producers of New Mexico. We appreciate you being here, Mr.

Chairman and Congressman. We know it’s far from Washington

and it gives us an opportunity to tell you how we feel.

Dairy Producers of New Mexico is an association of dairy producers in our state. We represent about 90 percent of all the milk

produced in the State of New Mexico, and we now are No. 10 in

the Nation in milk production.

We want to go on record to say that we are also concerned about

the Endangered Species Act. We’re concerned about how it impacts

our state, our indigenous people, our industry, and our homes.

We know that we need to have a balance; and, this, I know, is

going to be hard for Congress to come up with because I know how

it is out there with so many people giving input. But we need to

have a balance by using good, sound science or by not ignoring

science, as our Congressman said, to ensure that we do protect our

endangered species, but—but not—but not to take away our personal property rights.

As it was said earlier, it is not between livestock and endangered

species or people between the endangered species.

Thank you.

Mr. POMBO. Thank you.

Lewis Derrick?

STATEMENT OF LEWIS DERRICK

Mr. DERRICK. My name is Lewis Derrick. I own a small ranch

in southeastern New Mexico east of Dexter and also work for a

larger ranch.

I guess there is no common sense in the Endangered Species Act,

or that’s my opinion. I have the prairie chicken. I have the sagebrush lizard on my property. Well, they say they have to have the

cover for the chicken. Then you have to have the dunes—sand

dunes that blow out or open for the lizard. They’re either going to

have to take my cattle off, or they’re either going to have to let me

overgraze it where I can make the—the sand dune lizard habitat.

I think if they’re—the management of the spotted owl may be destroying 100 other species. Are you going to manage one species to

destroy 1 or 200 more?

Another common sense approach is the bluntnose shiner and the

Arkansas River shiner. Well, the Arkansas River shiner is endangered in the Canadian River. But it’s abundant in the Pecos River.

And in the Federal Register, it states that the Arkansas River

shiner takes over the habitat of the Pecos bluntnose shiner. Well,

why don’t they take the Arkansas River shiner and put it up in the
35

Canadian River and it won’t be endangered there and then the

Pecos bluntnose shiner can have its habitat?

Well, you go into the prairie dog. Well, they’re worried about the

black-tailed prairie dog, and then they introduce the black-foot ferret, another endangered species, and they predatorize on blacktailed prairie dogs. And then they want to introduce the wolf in the

same area. It don’t make any sense.

The—also, the Pecos pup fish, they habitize with other species of

fish, and I just think there needs to be some common sense out

there. And I might raise a prairie chicken for $40,000 a pair.

Thank you.

Mr. POMBO. John Williams?

STATEMENT OF JOHN C. WILLIAMS

Mr. WILLIAMS. Mr. Chairman, Congressman Redmond, it’s a

pleasure to be allowed to speak to you today. Thank you again for

coming to this region.

My name is John Williams. I’m General Manager for the Canadian River Municipal Water Authority. We operate Lake Meredith

on the Canadian River north of Amarillo as a municipal industrial

water supply for 11 cities in the Texas Pandhandle and South

Plains.

We’re definitely in the apprehension category concerning the Endangered Species Act. We’ve been waiting for the other shoe to

drop for about 4 years now with regard to the listing of the Arkansas River shiner.

And as we’ve watched this process, we’ve come to believe more

and more that the Endangered Species Act is sort of like Alice in

Wonderland. If you look at it more and more closely, it becomes

curiouser and curiouser.

First of all, the Fish and Wildlife Service, as you’ve just heard,

does not like the fact that species sometimes move from one habitat

to another. There is a species of the Arkansas River shiner or a

population of the Arkansas River shiner in the Pecos River doing

very well. But they want to eliminate or eradicate that population

of the species and then regulate the people using the Canadian

River to try and restore it somehow or other in that area.

The fact that the litigation is used as a means of managing land

and resources to suit the peculiar aims of individual groups seems

very curious, and that—that you’ve heard a lot about and is definitely one of the problems with the Act.

You’ve heard—heard about the fact that the Service uses—I forget the term that was used before, but I’ll call it prospective harm

as a means of trying to regulate the species. You have to prove that

you’re not going to do harm to the species, instead of the service

having to prove that you are. It’s like dealing with the Internal

Revenue Service.

We wanted to take the salt out of the Canadian River in some

areas, but they said, ‘‘Well, that might harm the Arkansas River

shiner.’’ And they made us prove that it wouldn’t harm the Arkansas River shiner. So, you’re guilty until proven innocent.

So, I certainly hope that you can overhaul the Endangered Species Act. I know there is very little likelihood of being able to repeal

it; but, I certainly hope that it can be instilled with some degree
36

of common sense and some functionality that will actually help endangered species instead of harming people.

Thank you.

Mr. POMBO. Thank you.

Carl Hahn.

STATEMENT OF CARL HAHN

Mr. HAHN. Mr. Chairman, my name is Carl Hahn. I’m involved

in banking here in Curry County and I also run cattle.

One thing I would like to start out with is, I can verify Mr. Pattison’s observation that the prairie dog is alive and well in Clovis

and Curry County. Just last week I was walking into Wal-Mart,

and there was one roosting out there on the porch in front of me,

so I do know that they are in this area less than a mile away.

I’m not going to sit here and tell you that I’m qualified to talk

about all the endangered species, but the one species that I am

qualified to talk about that is in danger is the American farmer

and rancher. These folks are going through a real tough time. The

drought that we’ve had in various parts of this state this year, low

cattle prices and crop prices definitely have an effect and an economic impact on this area.

It’s pretty tough when you’re trying to sell 58 cent fat cattle and $2 corn and make things work and compete in the market buying

$30,000 pickups and other items.

One thing I would like to say is, I would appreciate it if you

would listen to these folks. They’re involved in this every day. They

know what is going on out there, and they—anything that’s done

as far as passing legislation and laws will have an impact on them,

thus having an economic impact on them and on our community,

as well. So, I would appreciate it if you would look diligently at this

and take any consideration into fact that these folks are out making their living and it affects them.

Thank you.

Mr. POMBO. Thank you.

The next five that we have are Karen Mitchell, Bob Frost, Tom

Payne, Bobbie Mallory, and Anna Marie Crook.

Carol—Karen, go ahead.

STATEMENT OF KAREN MITCHELL

Ms. MITCHELL. Good morning. My name is Karen Mitchell, and

I appreciate the opportunity to visit with you this morning, and I

thank you both for being here.

My family has a cow-calf and stocker ranch in northeastern New

Mexico which has been in our family in excess of 100 years. The

ranch is almost exclusively private property. I appreciate the opportunity to share with you just one way that we have already

been impacted by the Endangered Species Act.

Historically, we have attempted to have an open-door policy concerning having individuals, governmental agencies, and state agencies on our property to perform research and just enjoy the open

spaces. Since the Endangered Species Act, we are far more cautious

about allowing any individuals on our property.

According to current practices for species listing, even the identification of potential habitat can create adverse effects on our oper-
37

ation. One example is the mandatory fencing of a riparian area. A

very real fear under the Endangered Species Act is the ability that

our private property rights will be violated; consequently, we close

our borders.

We’ll be the first to admit that we make mistakes; however, we

resent the fact and the ability under the Endangered Species Act

for those individuals who are not on the land, have no risk of livelihood, and no risk of lifestyle to mandate our management practices.

Our desire is to preserve our way of life and the environment

which we have been entrusted with for generations to come. Our

concern is that with the Endangered Species Act, our ability to do

this is in grave jeopardy.

Thank you.

Mr. POMBO. Thank you.

Bob Frost.

STATEMENT OF BOB FROST

Mr. FROST. Mr. Chairman, Congressman Redmond, I am Bob

Frost. I’m the current President of the New Mexico Cattle Growers

Association; but, today I am here as a private landowner here on

the east side.

Currently, I am the caretaker and owner of a four-generation

ranch where we all work together. Stewardship of this land is very

important to me, and—and I am going to pass this on to the following generations.

The land and its natural inhabitants work together well. The Endangered Species Act, when implemented without sound scientific

information, has cost ranchers and counties a lot of money. Ranchers and farmers have a tough time already.

Something like the Endangered Species Act, in its present form,

cost—could cost us our land. If we have to move cattle off the land,

where does the county get its property tax as well as its cattle inventory?

The Endangered Species Act, in some cases, has created takings,

and the Constitution says if things are taken, you should be compensated. If you cannot use your land because of the Endangered

Species Act, it has been taken. We would rather use our land.

Mr. POMBO. Tom Payne.

STATEMENT OF TOM PAYNE

Mr. PAYNE. Mr. Chairman, Mr. Redmond, thank you so much for

the opportunity to speak. My name is Tom Payne. I’m a private

lands rancher in central northern New Mexico. Mr. Carl Hahn was

just up here a few minutes ago. He is my banker, and he is right,

there are some of us out there who are—may well become endangered species.

You know, we produce the food and fiber that feeds and clothes

a dynamic, growing nation, and we would appreciate the opportunity to continue to do that. A number of years ago my wife and

I acquired a ranch that had not had any livestock on it for a period

of 7 years. The land, the vegetation had climaxed within 5 years

of becoming a degenerative state. But the upshot of the whole situation was, there was no water on the land because it was mostly
38

fed by pipelines with sprinklers on those pipelines. There was no

wildlife. There was no birds. It was kind of spooky. There were no

deer. There were no antelope.

After we acquired the ranch, we put cattle back on it. We put

water back in our pipelines. We developed more watering systems.

The wildlife has come back. We have a good population of antelope

now. We have a good population of deer. We’ve reintroduced quail,

and we have a nice population of tortoises.

Mr. POMBO. And they’re for sale, right?

Mr. PAYNE. We can work out a deal on those tortoises.

I said all this to say the rancher is the true steward of the land.

We’re on the land. We’re not going to—We’re not going to destroy

our only means of making a livelihood.

As Ms. Mitchell also pointed out, we don’t let a government official come on our land now. A member of the Soil and Water Conversation District recently made the comment to me that he was

required to watch for endangered species anytime he was on the

property. Consequently, any improvements that my wife and I do

to our property, we will do on our own without any help from anyone.

Thank you. And I wish you both great success in your upcoming

election.

Mr. POMBO. Thank you.

Bobbie Mallory?

STATEMENT OF BOBBIE MALLORY, STATE REPRESENTATIVE

Ms. MALLORY. Thank you. Thank you for hosting this meeting,

Mr. Chairman and Congressman Redmond.

I’m Bobbie Mallory, the State Representative for six counties on

the eastern and northeastern part of the state, and agriculture is

the life blood of my district. If agriculture is doing bad, my towns

are doing bad.

I’m deeply concerned about the potential effect the Endangered

Species—excuse me, Species Act has on the farmers and ranchers

in my district and across the State of New Mexico. The threat of

the prairie dog and lesser prairie chicken being declared scares me

to death.

While visiting Lake Sumner this summer, we had, gosh, the hottest summer I ever remember. We were going through a heavy

drought. As a matter of fact, all six of my counties were declared

a disaster because of the drought.

And at that particular time, there was the water being drained

because of the minnow; and, by the time this water got to Roswell

from Lake Sumner, half of it was lost due to the evaporation and

seepage. And it really upset me because our farmers and ranchers

need that water. We’re the third driest state in the nation.

I ask that you all review the Endangered Species Act and make

some revisions to it. Thank you very much.

Mr. POMBO. Ann Marie—Anna Marie Crook.
39

STATEMENT OF ANNA MARIE CROOK, STATE

REPRESENTATIVE

Ms. CROOK. Thank you, Mr. Chairman and Congressman

Redmond. I really appreciate you coming and hearing from my constituents, from the people around the State of New Mexico.

I’m state representative for the 64th District, which is primarily

right here in Curry County. My brothers and I are from a family

of third-generation farmers and ranchers, and I think these people,

as exemplified, that have testified before you today, are the greatest lovers of our land. They love their land, and they want to protect their land.

I serve on the Water Committee, and as Mr. Pattison stated

today, you’ve heard some of the issues that we have heard and listened to in the water area. I truly appreciate the people that have

given their testimony today. I think it’s from the heart, and I think

it’s for the sake of their livelihood that they have told you their

problems.

I come from a family, like I said, and we came up in hard times,

and they worked hard to protect their land. As you can tell from

the looks of me, I have dealt with the prairie dogs on our land for

as many years as I am old. We had prairie dog towns when I was

a child; and, as those of you that are in the audience, you know

what the prairie dog does. You know how much of the land they

take to the detriment of the grazing.

I—as again I said, I serve on the Water Committee. We heard

the other day from testimony the many issues that we have in regard to water. One of the gentlemen testified that he was in Santa

Fe and he saw a map, and it didn’t have Tatum, it didn’t have

some of our eastern cities; and, we’re concerned that with the

water and the issues that the environment has with them, that

this may become a reality.

I do appreciate the time you’ve taken to come and hear from the

people in our area, and I wish you would look at this article up

close.

Thank you again for your time.

Mr. POMBO. I thank all of you for your testimony. I would like

to recognize Congressman Redmond for any closing comments he

may have.

Mr. REDMOND. First, I would like to thank Congressman Richard

Pombo from California to be here to represent the House Committee on Resources and for receiving the testimony today. Richard,

we appreciate it.

I think representative government works best when representatives are out with the people as opposed to back in the beltway.

Both you and I agree we would rather be out here than in the beltway.

A couple—couple closing comments. No. 1 is, I think one of the

things we need to realize about the environmental situation challenge that we have before us as Americans, there are some scenarios where we are in crisis, there are other scenarios where we’re

not yet in crisis but could be, and then there are other scenarios

that we just need to maintain what we have and we’ll never be in

crisis. And we do not have to respond to each of those levels with

the same amount of intensity.
40

When we move toward trying to clean our air, clean our water,

and protect the environment in terms of endangered species—and,

of course, this is pretty much—this hearing is focused on the Endangered Species Act—is that we need to recognize that there

needs to be flexibility to protect the endangered species.

For instance, one person mentioned the minnows in the Rio

Grande and how the water was let out of the reservoir in order to

protect the minnow; but, yet, by the time the water got there, it

was evaporated, for the most part.

Well, to me it makes sense that the water is diverted for agricultural purposes and we use one of the seven fish hatcheries in the

State of New Mexico to reproduce the minnow so that if it does die

out in that area, we can restock it.

That is going to be different from, you know, the reintroduction

of the wolf or, you know, addressing the issue of the flycatcher.

Every critter and addressing the need for every critter is going to

be different. So, a cookie cutter, one-size-fits-all approach, which is

overprotective, is not the way to do it, and so we need to be looking

at flexibility and meeting the needs of each one of those—one of

those species including the American farmer on the east side of the

State of New Mexico. So, No. 1, we need to be looking at flexibility.

The—the next thing that I would like to do is, I gave one of the

panels an assignment, and I forgot to mention for the last panel,

I would like for, you know, the last panel also, you know, Dr.

Fowler, Mr. Eppers, of course, Bud, you were the most in terms of

making recommendations, Mr. Pacheco, and Mr. Moore, I would

like to hear, not only for myself, but also if you could communicate

to the Committee, you know, when we go in and we get ready to

overhaul the Endangered Species Act, and we want it to be fair for

everyone, as well as the species, that—that you participate.

I mean, this is America and this is where we have a representative, participatory, you know, form of government. And if you don’t

participate, if you don’t help write the law, somebody else is going

to do it for you or to you. And that’s why I want everybody that’s

on both of the Committees to get in writing to my office, how

should we define endangered? How should we define ‘‘threatened’’?

Because those are going to be critical in the implementation of

any new policy that we have. And if you don’t define them, somebody else is going to define them. So, I ask you to—you know, to,

you know, bring those—those forward.

I think it’s very important that as we move forward in recovery—

towards recovery with endangered species, since it was said, you

know, many of the extreme environmentalists are right here in this

room, there is nobody here that wants to see a species become extinct. There is nobody here that wants to poison the water. There

is nobody here that wants our air to be dirty.

But we just don’t like the way that the government at this particular time is addressing the problem. Because this is America, we

can come in and we can change the way that the—that the challenge before us is addressed.

And, so, you’re now part of the solution as opposed to part of the

problem. And, so, what I would like for you to do is, as you continue to think about this issue, there is three things that I want

you to keep in mind, and I think all of them were stated here. If
41

you have a pencil and piece of paper, you want to write these

things down.

That as we move toward saving the endangered species, No. 1,

that the policies absolutely must be science based. There is no substitute for accurate, certain knowledge concerning the species.

No. 2, whatever policy is written, it must—and underline ‘‘must,’’

capital letters, italics, exclamation mark—it must honor the right

to private property.

And, No. 3, that we need to have built into the saving of the endangered species an incentive to save the endangered species as opposed to have an incentive to be against the endangered species.

So, as you draft your proposals and your suggestions for me as

we go hopefully into the next Congress and we’re going to—I would

like to see—you know, of course, the chairman would know more

than I do in terms of scheduling; but, you know, we need to address this as soon as possible, better sooner than later. But those

three principles needs to be deeply ingrained.

We need to have a policy that honors New Mexico culture. Mr.

Pacheco very eloquently, you know, described that, that, you know,

the cattle raising is in our blood for 400 years; and, we are just not

going to put that aside.

We’ve co-existed before the willow flycatcher. We want to continually co-exist in the future with the willow flycatcher. We just want

to know how we’re going to be able to do that.

The—the last thing I want to say is that you’re here today—and

some of the people I’ve seen in other hearings and other meetings—

don’t give up. I want you to be continually proactive. You need to

be proactive in this, in your proposals. Again, because if you’re not

proactive, then you’re going to be reactive.

So, in terms of being proactive, help us to define the parameters

of the world and the policy in which you want to live, a policy environment that is good not only for the species but also good for the

people who live on the land.

So, again, Mr. Chairman, thank you very much for coming to

New Mexico; and, according to House rules, you’ve got to close.

Mr. POMBO. Well, I thank you very much. I can tell you that

Congressman Redmond was very persistent in his requests that we

do hold this hearing here. He originally mentioned to me several

months ago the desire to hold a hearing on the Endangered Species

Act in his district. He let me know some of the problems that had

happened out here, some of the things that people had sent to him,

letters and such about some of the problems that they had. And we

tried extremely hard to accommodate that and to bring the Resources Committee out to the people.

Many times there is—there is criticism when we do field hearings, and folks will say that we can do this in Washington. And I

would argue that we could not receive this testimony in Washington, DC. Obviously, the majority of folks here could not afford

to or probably don’t have the desire to go to Washington, even if

they could afford it.

But it is extremely valuable to the Committee and I think to the

process to have real people relating to their representatives what

some of the real problems that they have are.
42

There was a final paragraph in Mr. Pacheco’s testimony that I

would like to read because he didn’t get to it.

‘‘Perhaps it was best said by one of my elders in—in Cuba, New

Mexico. ‘Pacheco, what are we to do? I have only 30 acres, a good

house I built myself. My wife and I raised three children, sent

them all through college. I always paid my taxes, owe no money to

anyone. I have 30 cows, worked at the saw mill in summers, cut

and sold dead wood in the winter. Now what? What does my country want me to do, become homeless, go to Albuquerque and be a

burden on everyone else?’ You have taken his culture and his

pride.’’

I think it was because of that testimony right there that it is—

that we point out why it’s so important that we come out here, because this testimony cannot be delivered by a lobbyist in Washington or a lawyer in Washington. This has to be delivered by a

real person out in the real world, and I appreciate all of you being

here and—and the input that you’ve had into this.

I thank the witnesses for their valuable testimony and the members for their questions. The members of the Committee may have

some additional questions for the witnesses, and we will ask you

to respond to those in writing. The hearing record will be held open

for 10 days in case anyone would like to provide additional material for the record.

You may send additional material to the Committee on Resources, U.S. House of Representatives, 1324 Longworth House Office Building, Washington, DC 20515.

If there is no further business, the chairman again thanks the

members of the Committee and/or witnesses, and this hearing is

adjourned.

Thank you very much.

[Whereupon, the committee was adjourned.]

[Additional material submitted for the record follows.]
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STATEMENT OF HON. WALTER BRADLEY, LIEUTENANT GOVERNOR, NEW MEXICO

Good morning Mr. Chairman and Congressman Redmond and welcome to New

Mexico Mr. Chair. I also thank you for the opportunity to speak on behalf of the

Executive Branch of the State of New Mexico.

I will keep my testimony short and straight to the point.

I have been Lt. Governor for New Mexico for three years and eleven months. As

an ombudsman for New Mexico, I have been overwhelmed with the amount of constituent concerns I’ve received pertaining to the infringement and unbalance the Endangered Species Act has on private property rights, state sovereignty and

states’ waters.

The purpose of this testimony is to provide the concerns the Executive Branch of

New Mexico has with the Endangered Species Act. As you all are aware, New Mexico has been negatively impacted by the abuse and misuse of the ESA. For example,

PILT revenues generated from the use of U.S. Forest Service resources have been

dramatically reduced. I don’t have to explain to this Committee the critical need for

these revenues to local governments for infrastructure. Payments to counties have

been affected by decisions related to the spotted owl. Recently, legislation was proposed to overcome this impact and stabilize payment to states. Mr. Chairman, rural

New Mexico is being hit hard and hard working families who have lawfully been

making a living off the land for generations are being devastated. It won’t be too

long before urban areas become aware and are affected by the ESA.

As Lt. Governor, I have a responsibility to the taxpayers of New Mexico. These

people are concerned with what is occurring in our state. Let me make it clear, I

am not against preserving a clean environment. I like to have clean water to drink.

I enjoy the scenery when I travel throughout the state. I want children who are our

future to enjoy what I have enjoyed. However, I believe that there needs to be a

balance in the ESA, and decisions must be based on ‘‘best available’’ scientific data,

and not on questionable data, or no data as what appears to be happening today.

As I stated earlier, private property rights, state sovereignty and water are major

concerns to the New Mexico Executive Branch.

As for private property rights, the ESA allows Federal Government or citizen litigants to take property owners to court without evidence that these actions will

cause a ‘‘taking.’’

The current ESA has no provisions for takings. Language should be incorporated

to allow property owners to enter into agreements with the Secretary of Interior

identifying activities and any potential takings. Also, property owners should be

compensated as required by the Fifth Amendment of the United States Constitution.

The encroachment of state sovereignty is also a major concern. Under the current

ESA, states are often excluded from the listing process even though within state’s

borders there may be T & E species. As for the development of recovery plans,

states have no role. States should be recognized and allowed to participate in all

plans or activities such as recovery plans.

Water in western states and specifically in New Mexico is critical. Nowhere in the

ESA does it acknowledge state law, regulation, rules, or any interstate compact covering the appropriation, use or diversion of waters. Presently in New Mexico, the

Corps of Engineers and the Bureau of Reclamation are proposing an Environmental

Impact Statement. The purpose of the EIS is to comply with the ESA for the Upper

Rio Grande Basin and rivers. Mr. Chairman, New Mexico receives approximately 80

percent of its water from this area. New Mexico is currently seeking a ‘‘Joint-Lead’’

status as allowed under the National Environmental Policy Act. Because NEPA is

being implemented and only because of this, an economic impact analysis is required as well as the impacts on the human environment. I would like the Resources Committee to know that New Mexico fully intends to become involved in

this process. By becoming involved, the State will make sure that all data being

analyzed will be sound.

The question now is, what are some of the solutions to the concerns that have

been identified?

First of all, if any amendments to the ESA are going to take place, all states must

be an integral player. It is our belief that states are more aware and knowledgeable

of how to manage resources, species and habitat. The ESA should not act as a tool

for zoning and land use.

Second, state water laws, compacts, diversions and appropriations are being ignored. Language must be incorporated into the ESA acknowledging states requirements and sovereignty regarding water.

Mr. Chair, members of the Committee, New Mexico met with these Federal entities on October 16, 1998. An article was brought to their attention that came out

on the Albuquerque Journal a couple of weeks ago. The title of the article is ‘‘Forum
44

May Not Stop River—Compact Suits.’’ In the article, Forest Guardians Executive Director John Talberth states, ‘‘based on what I’ve heard today, there are certain aspects of litigation I think we should go forward with more quickly.’’ The Federal response to this article at the meeting was that they had resolved all issues with the

Forest Guardians.

Mr. Chairman, members of the Committee, New Mexico has been there and seen

it. The Federal agencies meet with the environmental organization, cut deals and

then go out and do Environmental Impact Statements. As a result, the human environment is significantly impacted as well as the economy at the state and local

level.

Environmental extremists, Mr. Chairman, are actually targeting operations of

Federal dams, irrigation works and a lot more in western states. And as I stated

earlier, only because NEPA is being implemented will an economic impact analysis

be conducted as well as an analysis on the human environment. The ESA should

include provisions in addressing and analyzing the human environment and economic impacts. However, another provision should be added stating that decisions

made should minimize the human environment and economy.

The ESA must acknowledge states sovereignty, responsibility and obligation on

water laws, rights, and compacts. I believe that an impact analysis on the economy

and human environment should be required under the ESA. We have got to find

a balance between protecting species, habitat, our economy and most importantly

human beings.

Thank you again Mr. Chairman, members of the Committee to allow the Executive Branch of New Mexico address their concerns.

STATEMENT OF KAREN BUDD FALEN, ESQ., CHEYENNE, WYOMING

My name is Karen Budd Falen. I am both a rancher and an attorney who represents private property owners, ranchers and local governments. Today, I am testifying on behalf of the New Mexico Cattle Growers Association.

The New Mexico Cattle Growers Association (‘‘NMCGA’’) is a nonprofit association

with approximately 1700 members, including those who either own their ranch in

fee simple and those who graze livestock on federally managed (Bureau of Land

Management [‘‘BLM’’] or United States Forest Service) lands. The vast majority of

ranchers who graze their livestock on the BLM or National Forest lands are physically and economically dependent upon the use of those Federal lands for their livelihoods. In many cases, these ranches consist of a small amount of deeded property

surrounded by vast tracts of BLM or National Forest lands. Those federally managed lands are often encumbered with private water rights, private improvements

and county roads and access rights. These small amounts of private property, the

private rights on the Federal lands and the Federal land grazing allotments themselves constitute the ranch. The deeded property of the typical ranch is insufficient

to support the ranchers’ herds for an extended period of time. Thus, if a rancher

cannot access his BLM or National Forest grazing allotment or his private rights

located on that allotment, he must either lease other pasture (if any is even available), purchase alternate forage such as hay (which is extremely expensive), or sell

his herd. Any of these options, even for a single grazing season, can force a ranch

into bankruptcy. The longer access to allotments and private property within those

allotments is denied, the more severe the consequences to each individual rancher

and to the rural community dependent upon the multiple use and sustained yield

of the National Forest and BLM managed lands.

In specific response to your question, the Endangered Species Act (‘‘ESA’’) has had

a dramatic and detrimental affect on rural communities and industries in New Mexico. The ESA seems to be the ligation tool of choice for environmentalists. For example, between 1993 and 1998, 75 separate cases were filed in the Federal District

Court for the District of Arizona alone. Of those 75 cases, 67 were filed by environmental groups. All of those cases specifically concerned ‘‘alleged violations’’ of the

Endangered Species Act. As a result of that litigation the United States Government

often voluntarily through stipulated settlements paid approximately $5,329,659.60

in attorneys fees and costs to the environmental groups.

In response to this litigation, rural ranchers, counties and private property owners

have to fight back with litigation and Congressional action of their own. However,

in the same time frame described above, representatives of the rural and ranching

community have only filed five cases; only one of those cases ended with the payment of approximately $7,000 to the rural and ranching representatives.

As a result of this litigation, one of the biggest costs to the ranchers and rural

communities is their costs of participation in the litigation filed by the environ-
45

mental groups. In most cases, the Federal Government will not, and in fact cannot,

adequately represent the property rights and interests of the rural communities and

private property owners when sued by the environmentalists. This is particularly

true when environmental groups request the removal of livestock through a preliminary or permanent injunction. For example, in the ‘‘Tucson settlement,’’ (the settlement agreement among the Southwest Center for Biological Diversity, Forest

Guardians and the Forest Service in the case entitled Southwest Center for Biological Diversity and Forest Guardians v. Forest Service, civ. Nos. 97-666 and 97-2562),

the livestock industry intervened. Even though a settlement agreement was

reached, despite the Court’s refusal to sign a stipulated settlement based upon the

objections of the NMCGA and Arizona Cattle Growers Association, the livestock industry was allowed to participate. Although at least in the Tucson case, the industries’ intervention may not have altered the initial outcome, attempted intervention

is better than watching the disruption and destruction of an industry, culture, local

economy and way of life.

Although it is my position that the ESA needs reform, frankly the biggest problem

with the ESA is the Federal Government’s refusal to follow the mandates of the Act.

Let me give you some examples:

1. Gila and Apache Sitgreaves National Forests Permittees

One of the biggest problems facing ranchers on Federal lands is the Forest Service’s and BLM’s refusal to involve grazing permitters and lessees as applicants in

the Section 7 consultation process under the ESA. In many cases, it is clear that

the BLM and Forest Service would rather ‘‘cut a deal’’ with the Fish and Wildlife

Service (‘‘FWS’’) to ensure a no jeopardy opinion, than include the grazing permittees in the consultation process. My assumption is that by excluding the permittees,

the FWS and the consulting Federal agency believe that they can insulate both

agencies from having to justify their decisions ‘‘on the record’’ with good data.

The failure to provide the grazing permittees with applicant status is a particular

problem in the Gila National Forest in New Mexico and the Apache Sitgreaves National Forests in Arizona. Prior to 1995, the Forest Service held the position that

the reissuance of regularly-expiring livestock grazing ten year term permits did not

require analysis pursuant to the National Environmental Policy Act (NEPA). 42

U.S.C. §§ 4321, et seq. However, without the benefit of rulemaking or other formal

decision making process, in 1995, the Forest Service changed its policy to one that

mandates that term grazing permit reissuance be allowed only upon the completion

of NEPA analysis.

In 1995, the ten year term livestock grazing permits for six permittees on the Gila

and 13 permittees covering 20 grazing allotments on the Apache-Sitgreaves (A-S)

National Forests were set to expire. Pursuant to the new agency policy, the Forest

Service completed its alleged NEPA and section 7 consultation process and reissued

the permits. The problem is that none of the new permits were reissued with the

same terms and conditions as the expiring permits; rather every permit which was

evaluated received a direct reduction in livestock grazing of between 40 percent and

85 percent as well as an indirect reduction in livestock grazing mandated by a new

terms and conditions with which the permittees will never be able to comply. These

severe reductions in permitted grazing numbers and seasons of use, and the host

of new terms and conditions will severely impact the economic viability of the permittees’ ranches in Arizona and New Mexico. The majority of these reductions were

based upon the DRAFT Mexican spotted owl and goshawk utilization guidelines

issued by the Forest Service following consultation with the FWS. The permittees

were not involved in the implementation of these draft guidelines on their individual grazing permits. Although many of the permittees wrote to the Forest Service

requesting ‘‘applicant’’ status and specific involvement in the ESA section 7 consultation process, the Forest Service declined that request, stating that the permittees could only comment on the biological evaluation to the FWS. The permittees

were NOT involved in any of the informal discussions or preparation of the biological evaluation or biological opinion. The permittees were simply told that they were

bound by the outcome of the process.

Under the ESA, when a Federal agency proposes actions that might impact wildlife, fish, or plant species listed as threatened or endangered under the ESA, the

agency must consult with the FWS. The agency proposing the action (the action

agency) must consult with the FWS to ensure that the action does not jeopardize

the continued existence of threatened or endangered species, or result in the adverse

modification of critical habitat. When a proposed Federal action involves a third

party who is an applicant for a permit or the holder of a permit issued by the action

agency, the action agency must cooperate with and assist the third party in the ESA
46

consultation process. 16 U.S.C. § 1536(a)(3) and 50 C.F.R. Part 402. By administrative law judge decision, this includes Federal land grazing permittees or lessees.

Under the regulations, to facilitate the ESA consultation process, the action agency and the third party applicant are to prepare a ‘‘biological assessment’’ or ‘‘biological evaluation’’ (hereinafter referred to generally as a ‘‘biological assessment’’) that

identifies the proposed action and any threatened or endangered species in the

project area. 16 U.S.C. § 1536(c)(1). Based upon the biological assessment, the action

agency and the applicant determine whether the proposed action is likely to adversely affect a listed species or its designated critical habitat. 50 C.F.R. § 402. The

action agency and applicant then submit the biological evaluation to the FWS. The

FWS reviews the biological evaluation and issues one of two documents: (1) a ‘‘concurrence statement’’ whereby the FWS concurs with the action agency’s finding that

the proposed action is not likely to adversely affect listed species or their critical

habitat (known as a No-Jeopardy Opinion), or (2) a formal Biological Opinion whereby the FWS fully analyzes the proposed action and its possible impact on listed species or their critical habitat.

During the NEPA grazing analyses, the Gila and Apache-Sitgreaves National Forests engaged in the ESA Section 7 consultation process with the FWS. The FWS

and Forest Service reviewed the proposed grazing reductions, and the FWS issued

‘‘No Jeopardy’’ Biological Opinions concurring with the Forest Service’s findings that

proposed actions would not likely adversely affect listed species and/or their critical

habitat. However, the FWS ‘‘No Jeopardy’’ opinions or concurrent statements were

conditioned on compliance with particular mitigation conditions. These mitigation

conditions included requirements such as fence construction, exclusion of livestock

from certain parts of allotments, restrictions on placement of mineral supplements,

and forage utilization standards. The burden to comply with and undertake these

mitigation measures falls directly upon the ranching industry. Despite their obvious

role in the Forest Service’s proposed grazing actions and the burden imposed by the

mitigation measures, the affected permitters (applicants) were not informed of the

ESA consultation process, nor did the Federal Government involve or seek the participation of the ranchers in the consultation process. By failing to involve the Plaintiffs in the consultation process, the Defendants and Gila and Apache-Sitgreaves

National Forests violated the ESA and agency regulations.

In addition to the affects that these reductions have on the individual ranchers,

local governments and communities are also adversely effected by these grazing reductions. At a hearing in Las Cruces, New Mexico earlier this year, Cathy Cosgrove,

an economist and range scientist, testified that the specific reductions proposed by

the Forest Service in this case had ‘‘significant impacts’’ on the local economy. In

fact, her office conducted a study and found that 60 percent of the money that local

ranchers spent went toward the cost of maintaining their operations, such as the

cost of labor, the cost of fencing, the cost of water troughs, etc. Increasing those

costs by forcing ranchers to complete additional fence maintenance or forcing them

to develop additional water sources because their livestock can no longer access

stream banks substantially cuts into an already slim profit margin. Additionally,

the study determined that for the three county economic area, the reductions in the

case resulted in a $10 million economic loss. That loss included a loss of local jobs,

as well as a direct loss to the local economy in terms of the available funds local

ranchers have to spend for medical care, food and supplies. Again, this is a direct

impact because of a reduction in grazing between 40 percent and 85 percent for 19

ranchers on the Arizona and New Mexico border because of alleged ESA concerns.

Although environmentalists may argue that these losses are acceptable to protect

endangered species, the record in this case shows that livestock grazing these allotments has not had an adverse effect on any threatened or endangered species in

this area. In fact the environmental assessments which propose these reductions affirmatively state that livestock grazing has not had an adverse impact on any

threatened or endangered species or their habitats. Thus, these ranchers and their

local communities are suffering economic and lifestyle losses without any corresponding benefits to species allegedly protected under the ESA. See Exhibit 1.

2. The ‘‘Tucson Settlement’’ and Subsequent Litigation

In addition to the loss of grazing permits, the ESA can also result in the loss of

private property, private property rights and access to private property. This Committee has already held hearings discussing the Forest Service, Forest Guardians

and Southwest Center for Biological Diversity settlement agreement in the case of

Forest Guardians and Southwest Center for Biological Diversity v. Forest Service,

civil numbers 97-666/97-2562.

As a result of that settlement, the Forest Service has issued decisions eliminating

livestock use in riparian areas and water sources in 13 separate allotments in Ari-
47

zona and New Mexico. The grazing permitters, either individually or through counsel, appealed each of those decisions through the Forest Service administrative appeals process. Although in each case, the permittees requested a stay of the implementation of those decisions pending a decision on the merits of the permittees’ appeals, the Forest Service refused to stay any of the decisions. As a result of those

decisions, access to private property has been denied, access to private stock water

rights which are recognized as private property has been denied and the use of

county roads has been denied to the affected ranchers. As a result of this direct taking of private property, some of the individual permittees have filed suit in the Federal District Court for the District of New Mexico requesting that the decisions be

set aside.

3. Recommendations for Reform of the ESA

A. Listing Decisions Must Be Based Upon Scientific Data

Under present court interpretations of the ESA, species can be listed as threatened or endangered without any current scientific study or data. In its present

state, all the ESA requires is a ‘‘literature search’’ to determine if there were greater

numbers of a species in the past than are presently known. The FWS does not even

have to have current population data to list a species. Thus, species can be listed

based on estimates and a literature search, no science is involved.

Additionally concerning is that species can also be listed based upon an opinion

that the habitat for the species is shrinking, regardless of whether the population

numbers are in decline. Thus, a literature search can produce an opinion that the

estimated habitat size is smaller now than ‘‘in the past,’’ and a species can be listed,

again no science is involved. Although the ranching and rural community does not

oppose the protection of truly threatened or endangered species, it is imperative

that listing decisions be based upon actual science and monitoring data. If the ‘‘best

scientific and commercial data available’’ is none, the FWS must gather the necessary data to list, rather than listing species based upon estimates and guesses.

B. Constitutional Principles Must Be Followed

The Fifth Amendment to the U.S. Constitution provides that private property

shall not be taken for public use without due process and just compensation. Note

that the Founding Fathers did not say that the public or the Federal Government

could not take private property, just that private property could not be taken without due process and just compensation. The implementation of the ESA has not followed these mandates. For example, although the Tucson settlement and the decisions implementing it deny private property owners the right to use and access private property (let alone Federal grazing permits), not a single private property

owner has been compensated and no hearings or other due process procedures have

been conducted. The courts have held that protection of threatened or endangered

species is an important public purpose. Thus, the Fifth Amendment mandates that

those private property owners bearing this public cost must be compensated.

C. Applicant Status Must be Strengthened

As stated in the section on the section 7 consultation process, private property

owners, as well as Federal land grazing permittees and lessees have the right to

participate in the decision process. As described by one court, if the action agency

will not act as an advocate for the applicant in the consultation process, the agency

should ‘‘get out of the way’’ and allow direct consultation between the affected individual and the FWS. While this mandate sounds strong, it is rarely followed by either the Forest Service or the BLM. For example, in the Gila and Apache-Sitgreaves

permittees case, the Forest Service biological evaluation proposed fencing, grazing

reductions and utilization standards, without ever contacting the affected permittees. Thus, the proposed action itself resulted with the 40 percent to 85 percent reductions in livestock use, even before the FWS prepared its biological opinion. The

permittees were never given any chance to review or oppose these reductions before

they were presented to the FWS. As a consequence, the FWS issued no jeopardy

opinions, accepting the proposed actions of the Forest Service. The Forest Service

then issued final decisions to the permittees which, by law, had to be in compliance

with the FWS biological opinions. Therefore, even though the process allowed for

full permittee participation, in reality, the grazing permittees were never consulted

nor included in the process. Certainly those directly affected by the section 7 consultation should be allowed to participate in that process. Any ESA revisions must

strengthen that right of participation.

On behalf of the NMCGA, I sincerely appreciate the opportunity to present this

evidence to you. Should you have any questions, please do not hesitate to contact

me.
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52

STATEMENT OF BUD EPPERS, PRESIDENT, NEW MEXICO PUBLIC LANDS COUNCIL

The New Mexico Public Lands Council respectively appreciates the Committee on

Resources holding a Hearing in the West, in New Mexico and providing an opportunity for directly impacted individuals and communities the opportunity to testify.

We represent more than 4,500 Federal public lands and New Mexico State Trust

land permittee’s and leasee’s who have livestock production operations throughout

New Mexico.

We graze year long on intermingled Private, State and Federal land. Over 90 percent of all range improvements which includes fencing of exterior boundaries, interior pasture fences which serve our management needs for livestock water development, storage and distribution systems for proper utilization of forage. Nearly all

of our members range from extremely small to large family owned and managed operations. They have been and remain the pillars to numerous small rural communities, school systems and support business.

Preparing this testimony before this Committee necessitates review of the effectiveness of the Endangered Species Act (ESA) since it was adopted and signed into

law in 1972. The endangered ‘‘Snail Darter’’ delayed and tremendously increased

construction costs for the Teleco Dam and ultimate electricity and water consumers.

Endangered and threatened wildlife species more than doubled the costs of the

Transalaska Pipeline. The Spotted Owl virtually halted timber harvesting in the

Northwestern part of the United States while the Mexican Spotted Owl did the

same for the Southwest.

The Desert Tortoise significantly increased the cost of gold mining and livestock

grazing in California, Nevada, Utah and Arizona. One situation I am personally familiar with was the request for a mining permit to extract gold from the hilly terrain along the Nevada and California border. As a condition for the granting of the

permit by the Bureau of Land Management, Home stake Mine Company was required to purchase private land and fund a Desert Tortoise Research Center before

their permit was approved.

Another situation was that home developers adjacent to Las Vegas were required

to fund a project to seek and physically remove Tortoises from a 1,500 acre site.

During this exercise approximately 870 turtles were removed at a cost in excess of

$40,000 per turtle. Many of these were transported to the New Research Center.

Historical livestock grazing use has been modified or curtailed to the extent that

many ranchers can no longer afford to stay in business.

The Southwester Willow Fly Catcher, not listed by the U.S. Fish and Wildlife

Service, but afforded protection by a Federal Judge, threatens historical water and

grazing rights throughout the Southwest. Cattle grazing is being eliminated by fencing in riparian areas on Forest lands. BLM is quickly developing similar management practices on the public lands. Riparian lands are critical to breeding livestock

because they begin growing early in the season and stay green late into the summer. These areas are vital to conditioning cattle for breeding and early reproduction

cycles. They are also necessary during extended periods of drought.

The list goes on and on and in every case there is not one shred of peer reviewed

scientific documentation supporting a listing and protection. In the case of the

Southwestern Willow Fly Catcher (SWFC) a documented study funded by the Phelps

Dodge Corporation found that the largest population, in possibly the United States,

exists in an area where intensive cattle grazing occurs on private irrigated farm

land.

Research in this area has been ongoing for several years and each year increasing

numbers are identified. The Fish and Wildlife Service (F&WL) recently told a staff

person of Congressman Joe Skeen’s that there were only 400 pairs of SWFC left in

the entire world and 200 of these were in the Gila River area. How in the world

can F&WL back up a statement like this? Have they traveled the world to listen

for a SWFC? Cattle are falsely blamed for SWFC population problems, where to my

knowledge, not any peer reviewed scientific documentation exists.

It is my understanding the only way you can identify a SWFC is to listen to its

voice, as it is very difficul to see them. I am told the experts can tell the difference

in the male and female but how do you count them by listening to the voice? There

is a lizard in my area of New Mexico that is supposed to be endangered. The only

way you can count them is to plant a bucket in the sand hoping they will fall in.

When you retrieve the lizard, out of the bucket, you have to count the strips on its

belly to tell if this is the endangered one. To count the fish, that are supposed to

be endangered, the people that are experts either wade into the river or go by boat,

go to a pool and pick the fish up by a net. It is my understanding many fish die

by this method. How do they know that there are not hundreds of the endangered

fish in the mud or down or up the river in the many pools.
53

At this time the F&WL Service is asking the Bureau of Reclamation to let out

more water on the Pecos river to save two endangered fish. Downstream the farmers will suffer because of the fish and the Pecos River Compact to Texas, as so much

water belongs to Texas. Because of this there will not be any irrigation water when

the farmer needs it. The fish were protected but the small communities are not.

There will not be the crops to sell in the fall. The farmer does not have any money

to buy goods therefore the business’s will suffer, just as the Owl closed many communities in the Northwest this will happen in New Mexico or other States.

A frog will only come out if there is a large rain. Where do they live in the

drought years? In the mud, and if you have ever heard a frog ‘‘sing’’ after a rain

you will know they are not endangered. Neither are many of the animals that are

listed. There is no proof, yet every day something else is on the list to study. Is this

a way to keep an agency funded? The plant, loco weed, will live in the ground for

100 years and only if the conditions are right will blossom and grow. This is scientifically documented. These two examples are not listed as endangered or threatened

but I wanted to show how nature protects an animal or plant. How many listed endangered or threatened species are the same.

There are numerous other species that are or have caused extremely serious consequences on land uses or development opportunities. As new species are identified

and listed the growing problems will surely increase and prevent all economic activity from continuing to support our rural communities and school systems. Catron

Courty New Mexico is a prime example of the effects of endangered species management. They are one of the largest Counties in New Mexico but with the smallest

population. Due to their vast area, 4,414,720 acres, rural communities are heavily

dependent upon the economic activity generated by timber, mining, livestock production and recreation. Timber harvesting has for the most part ceased in this

County. The mills have closed and labor associated with this industry has had to

retrain or move to other locations.

Catron County had 3 schools for the education of their children but today only

one continues and it is faced with growing difficulties and declining attendance. If

this school is forced to close it is a great distance to have to transport children to

other locations.

I would like to offer several recommendation for consideration by the Committee

as your consider reforming the ESA. First, since the ESA can not claim victory in

restoring or preventing a single species from becoming extinct it should be repealed

in its entirety.

The Committee should seriously consider whether the Federal Government should

play a role in endangered species or let the States address identification, listing,

habitat requirements or reintroduction. With the exception of just a very few species, States have management responsibilities for wildlife within their borders. Even

in migratory species the States could do a better job in management than the Federal Government and at a much lower costs.

1. Congress should establish a blue ribbon Committee of range, timber and wildlife professionals from Land Grant Universities. They should be charged with reviewing any and all available data on the current status of each species under Federal agency management. They should request and review all management techniques used to protect and restore species populations. They should report back to

Congress with a progress report on each species with any recommendations for management changes to expedite recovery or withdraw the species from protection.

2. Federal agencies should only be given management responsibilities for migratory species. Species that can walk or crawl across State boundaries should not be

managed by other that State agencies in cooperation with the neighboring State.

3. Listing of a threatened or endangered species should only occur after substantial verifiable and peer reviewed evidence exists. Land Grant University Scientist

should concur unanimously.

4. Citizen suits should be prohibited. One of the worst travesties of the ESA is

the ability of the environmental groups to bring before a favorable Judge request

for a listing, critical habitat designations and management restrictions. The Judiciary is not the proper setting for addressing the endangered species issue.

5. Conditions for listing should include mitigation of the impacts on rural, communities, economies, historic land uses and managed production on Private, State

Trust and Federal lands. Executive Order 12630 should be enacted into law with

the Justice Department Implementation Guideline serving as the Regulations for

compliance.

6. A possible funding source for Federal listed species could be a voluntary contribution provided for on the individual income tax forms.
54

I appreciate and thank the Committee on Resources for coming to New Mexico

to hold hearings on such an important issue. This completes my statement and I

would be happy to stand for question.

ADDENDUM TO THE STATEMENT BY BUD EPPERS

Once again I thank Representatives Richard Pombo, Bill Redmond and Committee Chairman Don Young for holding a hearing in areas affected by the Endangered Species Act (ESA). Most of the testimony presented and statements vocally

given were by individuals who could not afford to travel to Washington, D.C.

Representative Pombo asked me if I believed that there should not be an ESA?

My prepared testimony indicated that I did not believe the Federal Government

should be managing or involved with any other than migratory species. The States

should have the responsibility to protect and manage threatened or endangered species within their borders. The Federal Government, in my opinion, has usurped the

authority of the States and violated the Constitution of the United States.

The Federal agencies have a dismal record of success in managing endangered

species. The only thing that they can take credit for is severely reducing or completely eliminating responsible management of our renewable and non-renewable resources. Also, creating shortages of oil, gas, timber, metals and a rapidly reducing

livestock grazing industry.

Their actions have drastically increased the costs of production to the point that

we can import oil, metals, lumber, beef, lamb and wool cheaper than we produce

it here. This is a situation this nation will suffer from as we become subservient

to other governments for our material needs.

No, I do not believe the Federal Agencies should be in the endangered species

business. They have failed miserably in demonstrating their ability to do so.

Congressman Redmond raised the issue and Dr. John Fowler addressed it some

in his testimony on an incentive based recovery, production or habitat management

program. I firmly believe that the Congress should seriously consider this possibility. When one evaluates the hundreds of millions of dollars that has been spent

to date with little to no effect, new innovative ideas should be explored. In the case

of the $40,000 plus costs per Desert Tortoise, I would wager that private landowners

could restore the population to historical high numbers and if on a bid bases it could

be done for much less. Why not try it, nothing else seems to be working.

Defining ‘‘threatened’’ or ‘‘endangered’’ warrants familiarizing ones self with

threatened or endangered from what? I have lived on the same land as my family

has since 1926. I have had the opportunity to witness numerous changes during my

tenure for the past 60 years. It is my strong opinion that weather, disease and predators have had more detrimental impacts on all species than has mankind.

We have witnessed on several different periods in time the increase and decrease

in jack rabbits, cotton tails, skunks, coyotes, fox, antelope, deer, quail, dove, hawks,

bobcats, snakes, catfish, perch, rats, and mice populations. Jack rabbits, cotton tails

and skunks have been impacted more by disease that either drought or predators.

Bubonic plague and rabies are the most common diseases responsible. Keep in mind

that we have had a predator management program on our ranches all of my life.

Quail, dove and hawks are very susceptible to long periods of inclement weather.

Several days of 25 to 35 degree temperatures and persistent drizzle will kill all bird

species in this area. During this past winter after up to 3 feet of snow covered the

land for nearly 3 weeks we found hundreds of dead birds. Previous population numbers have not returned yet, but they will with time.

Deer and antelope have been mostly affected by extended periods of drought but

stomach worms have caused large numbers to weaken and die during excellent

range conditions. Predators such as coyotes and mountain lions play a large roll in

reducing numbers of both antelope and deer. However, losses are held to a minimum when continuous predator management is conducted.

Changing weather patterns have and are effecting varieties of fish. Livestock

ponds and tanks for many years contained several fish species but due to nearly

20 years of less intense rainfall, runoff seldom occurs and consequently these ponds

and tanks have dried up and no longer provide habitat for fish. If it were not for

water stored above dams and slowly released throughout the year fewer fish would

be alive such as the Blunt Nose Shiner, Pecos Pupfish, Pecos Gambusia and others.

Species populations vary greatly over time. When I have witnessed very, very low

numbers of some species, over time they continue to regenerate into thriving populations. Based on my personal observations over time any species identified and considered for listing as either threatened or endangered should not be listed until:
55

1. Data has been collected over a minimum of 15 years by monitoring annually

species populations, habitat conditions, climatic conditions, disease problems

and predation.

2. Monitoring should be on the same location with all measurements being documented to the extent that can be repeated.

3. Data collected is distributed to qualified professional within the Land Grant

Universities for peer review.

4. Any assumptions or recommendations should be distributed to the same

qualified professionals for peer review.

Based on the monitoring data and documentation the following is my suggestion

for a definition for threatened or endangered species.

Threatened species are species whose population continuously declines over the

monitoring period to a level at least 50 percent below the population count at

the beginning of the monitoring period.

Endangered Species are species whose populations continuously declines over

the monitoring period to a level at least 80 percent below the populations count

at the beginning of the monitoring period.

Thank you for allowing me to include this addendum before the record is closed.

If I can answer any questions or provide additional explanation please contact me.

STATEMENT OF MANUEL PACHECO, NORTHERN NEW MEXICO STOCKMEN’S

ASSOCIATION, TAOS, NEW MEXICO

Good morning I am Manuel R. ‘‘Rudy’’ Pacheco, a rancher and resident of Taos

in the North Central part of New Mexico. My wife, Angelica Maria Martinez de

Pacheco and I raised five children, two girls and three boys, all higher education

graduates and now professional people. We have seven grandchildren.

To fully understand my remarks, I must explain my roots and part of my background.

We are descendants on my fathers side from the Pacheco’s who mapped and surveyed most of northern Spanish America. Entry into New Spain, Territory of New

Mexico by the Pachecos was in 1598. Best historically known was Bernardo de

Miera y Pacheco who traveled with Father Escalante. On my mother’s side direct

descendants of Nicolas Ortiz I, Nino Ladron de Guevara, who came to Santa Fe with

Diego De Vargas in 1693. Both families were members of several land grants. My

wife is a direct descendant of Antonio Martinez the original grantee of the Antonio

Martinez y Lucero de Godoi, land grant in Taos county. Historical records show that

our families were ranching in New Mexico in the early 1700’s. We still run a small

operations, one in Taos, the other in Ortiz, Colorado.

Besides ranching I have worked in several varied businesses since the age of 16.

After attending college, I became a public high school teacher and later a central

office district administrator. After 33 years of service I retired in 1987, but then did

consulting work for the New Mexico Department of Education. AID, through departments of UNM and LSU universities. I did some organizing work and consulting

for some organizations and attorneys. I have been a taxpayer for over 50 years. I

served my country in the U.S. Naval Forces as a medical corpsman in my youth.

I’ve belonged to many civic and social organizations. Service included the National

Public Lands Council under Secretary of Interior, Manuel Lujan Jr. and President

George Bush. I currently serve as a board member of the Northern New Mexico

Stockman. P.A.J.E. corporation a New Mexico wide agricultural business related organization. I am Vice-President of El Llano Ditch company in the county of Conejos

Colorado.

The Endangered Species Act, although well intended, to save species, has been

a total failure. According to the National Wildlife Federation, in 25 years with billions of dollars spent, one thousand one hundred and nineteen (1,119) species listed

as endangered or threatened; six species were delisted and six have become extinct.

The Mexican Wolf reintroduction in the Arizona, New Mexico border, has left no

survivors, but spent millions. The Southwestern Willow Flycatcher, probably the

only scientific study with qualified biologists using established U.S. Fish and Wildlife Service protocol was done on the U Bar cow Ranch in southwestern New Mexico

along the Gila River, as reported in the September issue of the Coalition Quivira,

a survey of the bird inhabiting the U Bar Ranch was undertaken in May through

July 1994, showing a high population of 64 pairs. It should be noted that the second

largest population in 1997 was located on the Keru River in California with 38

pairs. Since 1994 surveys conducted yearly at U-Bar Ranch showed that there was

107 pairs in 1995, 138 pairs in 1996, 174 pairs in 1997 and 186 pairs in 1998, all

in cow country. The next highest population is 38 pairs where there is no livestock.
56

Another significantly different from what some established literature has been suggesting, the placement of nests are high and some exceed 70 feet above ground, and

the vegetation of preference significantly different. Why then fence thousands of

miles of river and insist that a birds habitat is, when no science has been done to

substantiate the claims? In the Carson National Forest, a million dollars was spent

trying to locate Mexican Spotted Owls, according to staff. They found one in the furthest boundary of the Jicarilla reservation. What a waste of money. Imagine what

could be accomplished if that money was spent in resource improvement.

It must be said that among scientists and biologists there is differences as to approaches on saving species. We can say that by improving habitats, we, the Northern New Mexico Stockman are saving species and improving range. Historically, in

our four centuries of living in these lands we protected the environment we did that

because that is how we survived.

The Northern New Mexico Stockman, the conservation Fund, the Forest Service

and the Extension Service are working together on the Valle Grande Grass Bank

atop Glorieta Mesa. The Quivera Coalition is demonstrating that there are benefits

in reasonable people working together for a common good. Preserve open space, improve habitat and species survive.

There are those that do not subscribe to common sense solutions, but will take

radical actions like those that happened in Vail, Colorado recently. Others take to

the courts actions that are easy to initiate and do not need scientific validation to

set in motion. Federal Agencies, either because they are spending most of their time

and energy responding to lawsuits, have become non-productive and roll-over on settlements with extremist groups. The new Santa Fe Ring, the Guardians of the Forests, have found there is easy money, and time spent intimidating Federal agencies

with no science in their lawsuits. The fact is, phony environmentalism is a money

making enterprise. What a sweet deal, government grants, tax exempt status, private grants from tax exempt organizations, government paying their court costs and

legal fees, they don’t pay when they lose a lawsuit. I asked the regional forester why

is it you don’t collect from groups that lose when you win a lawsuit. The answer,

the justice department does not wish to do so. We the dumb taxpayers pay for everything, the justice department attorneys and staff, our attomey’s, the court costs, and

the radicals legal costs.

The affects of the misuse of the Endangered Species Act and now also happening

in the Clean Water Act is deep and very harmful. In counties where unemployment

range from 10 through 20 percent, some of the poorest in the Nation, there has not

been one member in our 2500 plus organization that has not been affected. Our

businesses are labor intensive, there are low markets, and profit making is almost

impossible. We risk everything! What do the radicals risk, nothing! Its not right. We

have for 225 years under Spain, 25 years under Mexico, and now 150 years under

the United States have been productive and proud people. The Act has become a

tool to deny private property and water rights. Never in our history has there been

such an assault on our rights. We have a right to make a living, but without scientific evidence owls, birds, minnows, salamanders, other animals and plants are

being used to prohibit us to live off our lands. Just think, before the idea of a country of the United States and long before a nation of Mexico, we were here harvesting

a living.

Since 1848 when the Treaty of Guadalupe Hidalgo was signed, which was confirmed by Congress of the United States, affirmed in the Keary Code, and became

part of the Constitution of New Mexico in section 5 of Article 2. We have been taken

by fraud, denied some rights, this happening in the country where we were born,

raised, educated and have made a living and some have died for. The United States

Constitution with the adoption of the Fifth and Fourteenth Amendments, made the

use of land and water our civil rights. Why then can a few radicals prevent us from

using lands we have for 400 years. They have been here 25 years, remnants of the

drop-out generation. Why are we being subordinated to plants and animals. We

need at least equal treatment. I ask you, who knows and has taken care of the land

and water better? Traditional livelihoods are the fiber of our culture. Grazing, harvesting woods, vigas, latias, and using water for crops is what maintains us and

made us endure the hardships of our area.

Perhaps it was best said by one of my elders in Cuba, New Mexico. ‘‘Pacheco,

what are we to do! I have only 30 acres, a good house I built myself. My wife and

I raised three children, sent them all through college. I always paid my taxes, owe

no one any money. I have 30 cows, worked at the sawmill in the summers, cut and

sold dead wood in the winter. Now what? What does my country want me to do.

Become homeless go to Albuquerque and be a burden on everyone else.’’ You have

taken his culture and his pride.
57

1 U.S. Fish and Wildlife Service, N.M. Ecological Services Office. 3/18/97. Memorandum (and

attachment) to Bureau of Reclamation, Albuquerque, NM. 4pp.

STATEMENT OF WILLIAM J. MOORE, WILDLIFE SPECIALIST, NEW MEXICO DEPARTMENT

OF AGRICULTURE

The Endangered Species Act requires decisions be based on the ‘‘. . . best scientific

and commercial data available. . . .’’ My purpose in writing this testimony is to outline deficiencies, which I believe exist in the review and application of the best scientific information available.

My comments focus on the southwestern willow flycatcher (Empidonax traillii

extimus) and the effect this species is having on the livestock industry in New Mexico. In my professional option, the majority of the current controversy over this species’ protection and livestock grazing could be ameliorated through a more objective

evaluation and application of the scientific information. In addition, Federal agencies failure to comply with the procedural requirements of the ESA have contributed

greatly to the current crisis facing New Mexico’s livestock industry. This failure to

comply with statutory responsibilities has forced them into a reactionary mode investing resources to address what should be frivolous lawsuits. In an effort to quickly attain procedural compliance with the ESA and stave off unfavorable court rulings these agencies are implementing sweeping management actions which would

not be necessary if a more proactive approach (i.e. timely attention) to these issues

had been undertaken.

The southwestern willow flycatcher (flycatcher) was federally listed in 1995

through the publication of the Endangered and Threatened Species: Southwestern

Willow Flycatcher; Final Rule (final rule) (FWS 1995). At that time the U.S. Fish

and Wildlife Service (FWS) estimated the flycatcher’s population in the range of 300

to 500 pairs. New Mexico was believed to contain the majority of the population.

Biologists believe this population range is still an accurate reflection of the

flycatcher’s population size (Sogge et al. 1997). However, other statements within

the final rule and subsequent management direction are not supported by recent

field studies or the scientific literature to which they were originally attributed. A

good example is the relationship between the presence of livestock and brown-headed cowbird (Molothrus ater) brood parasitism.

Gill (1990) defines brood parasites as, ‘‘. . . birds that relinquish care of their

young to foster parents by laying their eggs in the nests of other birds.’’ Obligate

brood parasites are those birds which do not attempt to nest and therefore, rely

completely on other species to raise their young. The brown-headed cowbird is the

only obligate brood parasite in North America (Brittingham and Temple 1983).

Studies have reported the flycatcher being subjected to high rates of brood parasitism from cowbirds (Brown 1988, Harris 1991, Whitfield and Placer 1994). As a

result, cowbird brood parasitism is identified as a threat to the continued existence

of the flycatcher (FWS 1995).

In New Mexico, more than 230 head of livestock were removed from three Bureau

of Reclamation (BOR) grazing allotments. In correspondence to the BOR, the FWS

stated,

‘‘The [Fish and Wildlife] Service believes that continued grazing in the . . . grazing allotments during the flycatcher’s breeding season this year would likely result in ‘take’ of the species in the form of brown-headed cowbird nest parasitism. . . .’’ In other words, the FWS is asserting the presence of brown-headed

cowbirds, and the resultant brood parasitism, is attributable to the presence of

livestock.

The FWS has asserted this relationship exists in other documents as well, including biological opinions issued to the Bureau of Land Management (BLM). For example, in the incidental take statement issued to the BLM’s Mimbres Resource Area

(FWS 1997a), the FWS stated, ‘‘The [Fish and Wildlife] Service believes that current

management as guided by the MRA RMP [Mimbres Resource Area, Resource Management Plan] may result in the incidental take of the annual reproductive effort

of two pair of southwestern willow flycatchers due to cowbird brood parasitism. . . .

The anticipated take of the willow flycatchers is based on the persistence of grazing

in the immediate vicinity and the likelihood of cowbird parasitism. . . .’’1 The biological opinion issued to the Taos Resource Area contains similar language (FWS

1997b). Therefore, if cowbird parasitism occurs, the FWS is assuming livestock grazing on BLM allotments is the facilitator for this activity, and if cowbird parasitism

is occurring, the removal or reduction of livestock will result in an appreciable reduction in the brood parasitism rate.

This alleged relationship between the presence of livestock and brood parasitism

rates has also been incorporated into litigation. For example, the Forest Guardians,
58

2Forest Guardians. 1997. Notice of Intent to Sue (Sec. 11, Endangered Species Act), Issued

to the Southwestern Region of the U.S. Forest Service, Region 3, (4/25/97).

a Santa Fe based special interest group, has asserted in a Notice of Intent to Sue

the Forest Service ‘‘. . . concentrations of livestock on the national forests of the

Southwestern Region have led to increased numbers of cowbirds, resulting in cowbird parasitism’’2 Thus, it appears Federal agencies and special interest groups have

accepted that the presence of livestock will indirectly impact flycatcher populations,

without qualification, by increasing cowbird brood parasitism rates. However, the

question should be asked, ‘‘what exactly does the scientific literature report?’’

In the final rule listing the flycatcher as endangered, the FWS (1995) states, ‘‘The

association of cowbirds with domestic livestock is detailed in the sources cited in

this final rule.’’ Therefore, in addition to other sources, I conducted a very focused

review of the literature cited in the final rule (FWS 1995). In that review I found

literature cited inappropriately in the final rule (FWS 1995). In addition, I believe

much stronger conclusions were made than can be supported by the scientific literature. This has led to some questionable management recommendations and decisions. Following is a brief assessment of my findings on the relationship between

livestock presence and flycatcher viability.

In the final rule (FWS 1995), the FWS outlined the relationship between livestock

presence and cowbird brood parasitism on flycatchers as follows.

The increase in cowbirds in the Southwest and parasitism of E. t. extimus and

other birds are generally attributed to the following scenario: The introduction

of modern human settlements, livestock grazing, and other agricultural developments resulted in habitat fragmentation. Simultaneously, livestock grazing and

other agriculturad developments served as vectors for cowbirds by providing

feeding areas near host species, nesting habitats (Henna 1928, Gaines 1974,

Mayfield 1977).

Brown-headed cowbirds were at one time ‘‘. . . limited to open grasslands of central

North America.’’ (Lowther 1993). Some authors have conjectured the cowbirds followed the great herds of bison (Bison bison), and fed on the insects stirred up by

these herds (Skutch 1996, Lowther 1993, Robinson et al. 1992). The FWS (1995) has

concluded domestic livestock are a surrogate for the historic herds of bison. In the

final rule (FWS 1995), the FWS states, ‘‘Where high parasitism rates are found in

E. t. extimus nesting locations in areas with no livestock grazing at the nest site,

there have been livestock nearby that provide feeding sites in close enough proximity to facilitate cowbird parasitism. In support of this statement, the FWS notes

grazing does not occur in the Grand Canyon National Park, but ‘‘. . . open range

grazing and an introduced bison herd occur on adjacent lands.’’ (FWS 1995). The

FWS (1995) also notes cowbirds concentrate at pack animal corrals within the park.

Such reasoning inappropriately assumes what may be a simple correlation (livestock and cowbirds are present) is a cause and effect relationship (cowbirds are

present because livestock are present). This is a fatal flaw in scientific research,

which leads to unsupported and sometimes grossly erroneous conclusions. For example, one could likely find a statistically significant relationship between increased

ice cream sales and increased crime rates. However, I do not think anyone looking

at the issue objectively would automatically conclude increased ice cream sales resulted in an increase in crime rates.

It should also be pointed out rangeland livestock grazing (as is being evaluated

in New Mexico) is much different from pack stations. This distinction is not made

in the final rule (FWS 1995) or other Federal documents. In addition, modern livestock management practices result in much different ‘‘grazing patterns’’ than those

exhibited by historic bison herds.

In the Sierra-Nevada, Rothstein et al. (1980), ‘‘. . . found midday feeding aggregations most often around horse corrals at mountain pack stations. Cowbirds foraged

on the ground and seemed to obtain much of their food by probing through and

pecking into horse manure.’’ There are factors that invalidate direct application of

these findings to rangeland livestock grazing. These factors include: (l) Beyond the

obvious fact these are different species, cattle are ruminants, while horses possess

a simple monogastric digestive system. This means cattle are much more efficient

at digesting and breaking down plant material. Thus, quantities of seeds and other

plant material found in horse manure would not be available in cattle feces. (2) Several horses concentrated in a corral are not comparable to stocking rates established

on public lands in New Mexico. For example, six or more horses confined in a corral

of a few hundred feet are not applicable to a stocking rate of the same number of

cattle scattered over a square mile. (3) Horse corrals have a great deal of people

and other human activity, which may be contributing to their attractiveness to
59

brown-headed cowbirds. For example, animals are being fed at these pack stations.

Perhaps this feed is an attraction to cowbirds. Bent (1965) quotes Coues (1874) as

stating, ‘‘. . . every camp and stock-corral, permanent or temporary, is besieged by

the busy birds [cowbirds], eager to glean sustenance from the wasted forage.’’ In

short, I do not question the observations made by Rothstein et al. (1980) that

cowbirds were clumped at pack stations. However, I do question their applicability

to livestock grazing on public lands in New Mexico.

In a second study, Rothstein et al. (1984) found feeding sites most commonly used

by the cowbirds in their study include: a small horse pasture and corral, a large

horse pasture, two separate bird feeders, and a campground. Note two of the three

‘‘types’’ of feeding areas (bird feeders and campgrounds) are not associated with livestock.

If livestock must be present before cowbirds can be present, then on public land

grazing allotments the cowbirds annual arrival would logically coincide with or be

shortly after the arrival of livestock. However, Verner and Ritter (1983) did not find

a significant difference in cowbird counts conducted before and after the arrival of

cattle and horses. Based upon the sighting of a nestling, the authors also concluded

cowbirds began laying eggs as much as a month prior to livestock turn-out (Verner

and Ritter 1983). Egg production requires a great deal of resources (Gill 1990), and

these cowbirds would have very recently migrated. This suggests (in contrast to

what is being asserted) the presence of livestock is not required for a stable cowbird

food source.

This takes me back to the FWS’s statement outlining the asserted relationship between livestock presence and cowbird brood parasitism. As mentioned earlier, in the

final rule (FWS 1995), which is the document that justified and provided Federal

protection for the flycatcher, the FWS stated:

The increase in cowbirds in the Southwest and parasitism of E. t. extimus and

other birds are generally attributed to the following scenario: The introduction

of modern human settlements, livestock grazing, and other agricultural developments resulted in habitat fragmentation. Simultaneously, livestock grazing and

other agricultural developments served as vectors for cowbirds by providing

feeding areas near host species’ nesting habitats (Havana 1928, Gaines 1974,

Mayfield 1977).

Webster’s dictionary defines vectors as ‘‘an organism that transmits a pathogen.’’

This is a strong indictment against livestock grazing (and other agricultural developments). Therefore, the cited literature should be studies confirming this relationship. However, Hanna (1928) is a 1928 update on the different bird species

parasitized by the dwarf cowbird in the San Bernardino Valley. The article does not

mention livestock grazing (or other agricultural developments), nor is there any

mention of feeding areas utilized by cowbirds. The stated purpose of Gaines (1974)

is to compare current breeding bird status within the Sacramento Valley to earlier

records. It provides no data to support the FWS’s statement. Mayfield (1977) is a

summary of the author’s work on Kirtland’s warblers (Dendroica kirtlandii), with

emphasis on brown-headed cowbird brood parasitism, but it also fails to provide any

data to support the above indictments against livestock grazing. Thus, one must

question whether the removal of livestock from BOR grazing allotments at Elephant

Butte Reservoir resulted in any appreciable improvement in that flycatcher population. Based upon my review, it does not appear this decision was based on a thorough and objective review of the best scientific information.

Another recent management decision of concern involves the Southwest Region of

the U.S. Forest Service. In April of this year the Forest Service committed to removing livestock from over 200 miles of streams under its management authority. This

massive decision was not made based on recently collected field data indicating degraded stream conditions. Rather, this commitment was made as part of an out of

court settlement agreement with two special interest groups.

The Forest Service, by its own admission, was out of compliance with the procedural requirements of the ESA. Therefore, it made this commitment in order to

avoid the possibility of a court injunction. What made this decision even more troubling is the Forest Service and these special interest groups intentionally excluded

the affected livestock permitters from these negotiations.

The Forest Service is also taking other steps to prohibit livestock use in potential

or occupied flycatcher habitat (63 FR 29692-29695). This is despite data collected

by Forest Service biologists which is contrary to the current prevailing assumption

that livestock grazing and flycatchers are incompatible.

As was mentioned earlier, biologists familiar with the status of the flycatcher estimate its population at between 300 and 500 breeding pairs (Sogge et al. 1997). Depending upon which end ofthe range you choose (300 or 500) the U-Bar Ranch in

the Cliff-Gila Valley of New Mexico supports approximately one-third to one-half of
60

3 Endangered and Threatened Wildlife and Plants: Notice of Interagency Cooperative Policy

on Recovery Plan Participation and Implementation Under the Endangered Species Act, 59 FR

34272-34273, (7/1/97).

the known flycatcher population in the United States. 1997 field season estimates

range from 150 (Stoleson and Finch 1998) to 174 (Parker and Hull 1997) nesting

pairs. The next largest population of flycatchers contains only 38 pairs (Stoleson and

Finch 1998). Yet, the U-Bar Ranch has been involved in livestock production for

some time and currently supports 400 head of livestock, which are present throughout the flycatcher’s breeding season. (Parker and Hull 1994, Hull and Parker 1995,

1996). Stoleson and Finch (1998) summarized this paradox as follows:

Paradoxically, the Cliff-Gila population occurs on a working cattle ranch that

includes water diversion for irrigation, leveed river banks for flood control, and

floodplain agriculture—all activities identified as potential threats to the existence of the flycatcher by the U.S. Fish and Wildlife Service (U.S. Fish and Wildlife Service 1995).

Stoleson and Finch (1998) found some interesting results in their first year of

data collection. For example, nesting success in riparian patches open to livestock

grazing (13/21=61 percent) did not differ significantly from patches were livestock

were excluded (24/47=51 percent). Overall nesting success was found to be 55.2 percent (n=68). The only other site were nesting success has been found to be greater

was in San Luis Rey, California, where intensive cowbird control efforts have been

instituted for several years. More significantly, ‘‘The density of breeding birds calculated for the site (773 to 1114 pairs per 40 ha) is the highest density ever recorded

for non-colonial birds in North America.’’

Bury and Corn (1995) warn the scientific community against accepting hypotheses

which have not been critically reviewed. In my assessment this is at least part of

the problem with the current controversy surrounding flycatcher management in

New Mexico. There seems to be a consensus in Federal agency documents and decisions, without qualifiers, that livestock grazing will negatively impact flycatcher

populations and/or habitat. Yet, as has been pointed out in this testimony, such a

blanket approach to management (i.e. total livestock removal) is unwarranted. Livestock and flycatchers can coexist and flourish. If this can occur on private land, as

is the case in the U-Bar Ranch example, why cannot it happen on public land? It

appears science (sound natural resource principles and practices) is not driving the

ESA, as is mandated in the law.

Because Federal agencies have not been able to meet their statutory responsibilities, they are no longer in control of the situation. Instead, special interest groups,

through litigation, based upon procedural ‘‘technicalities,’’ are dictating management

of our Federal lands. This begs the question, why are our Federal agencies seemingly unable to comply with the ESA? I believe there are several factors which need

to be addressed.

There needs to be more accountability within and/or by Federal agencies.

The final rule (1995) to list the flycatcher was published in February 1995. The

Forest Service had nearly three years to complete its consultation responsibilities.

Yet, this task was not accomplished. The FWS has also filed to meet its obligations

in a timely manner. The FWS has a policy that clearly states, ‘‘the Service will

. . . develop recovery plans within two and a half years after final listing.3 [emphasis

original]. However, it has been over three and a half years since the flycatcher was

listed and any hopes for a recovery plan are at least another year away.

In private conversations with Federal land management personnel (i.e., BLM and

Forest Service), they complain about the amount of time it takes for the FWS to

complete a consultation (sometimes years). There are also complaints the FWS is

evaluating programs and dictating management without possessing any technical

knowledge or experience. For example, the FWS is mandated to evaluate the impacts of livestock grazing. Yet, they have no experience or training in designing or

implementing grazing strategies. On the reverse, the FWS complains Federal land

management agencies do not have data to verify to its satisfaction that a particular

grazing strategy will not impact a species. Therefore, they must err on the side of

caution in these recommendations. This lack of trust and efficiency becomes compounded when threats of litigation are allowed to dictate the situation.

•Litigation has to be removed as the central, driving force behind ESA implementation.

Every Federal agency decision made in regards to the flycatcher, beginning with

the original petition to list, has come about as a result of a lawsuit or threat of a

lawsuit. As a result of being produced in such a crisis mode, the biological integrity

of decisions suffer. I believe this is part of the problem with the FWS’s interpreta-
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tion and land management agencies’ implementation of the ‘‘best available scientific

and commercial data.’’

Litigation is not only resulting in less than thorough decisions, but it is also resulting in a waste of time and financial resources. An example of this is the critical

habitat designation for the flycatcher. In that designation (62 FR 39129-39147) the

FWS noted the designation meets ‘‘the technical requirements of the [Endangered

Species] Act . . .’’ However, it also stated, ‘‘. . . [the] designation provides little or no

conservation benefit despite the great cost to put it in place.’’(62 FR 39130).

Special interest groups are utilizing the ESA to create what has been described

as a ‘‘legal train wreck.’’ These groups have been very explicit in stating their objective is to ‘‘rid our public lands of all cattle grazing.’’ The present ESA, and all of

its procedural requirements, has and will continue to be a very effective tool in

achieving these group’s political (not biological) agenda. These groups have stated

they are planning to continue to sue the FWS to list more species. Therefore, there

is no foreseeable end to this train wreck unless the ESA is provided some substantive changes. These changes need to focus on a very fundamental change in the

philosophy of how the ESA is implemented. •The ESA’s current punitive, command and control approach to species recovery

should be replaced with incentives for species recovery.

Under the current ESA system there are no positive outcomes for farmers and

ranchers who discover an endangered species on their property. The U-Bar Ranch

provides an excellent opportunity to observe (and learn) how an endangered species

can coexist and prosper with diverse land uses. It should be rewarded for its openness and efforts. Instead, at least one special interest group has tried to encourage

the FWS to restrict the U-Bar’s activities.

Maybe not to the same degree or involving the same species, but I believe there

are more U-Bar examples. However, under the current system, it is in the landowner’s interest to keep the discovery of an endangered species secret. Under the

current system, the best such an individual can hope for is to be left alone. Therefore, why report it in the first place?

New Mexico is considered a public lands state. However, more than 40 percent

of it is still in private ownership. In most cases these private lands were selected

because they were considered to be the most productive lands for a family to survive

upon. As such, these private lands also have some of the best wildlife habitat in

the state.

Like any group of people, there are some better than others. However, based upon

personal experience, I can honestly say farmers and ranchers care about taking care

of the land and the wildlife it supports. The Federal agencies need somehow to foster this view. This means turning endangered species into an asset instead of a liability. Everyone, except those organizations striving for divisiveness, would benefit

from such an approach.

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